Russell HR Consulting

Over the last 12 years we have prided ourselves on the results we’ve achieved for our clients.  Our mission is to provide advice and support that helps clients manage effectively but keeps them out of the clutches of the employment tribunal. 

Unfortunately, the risk is always there and we do inherit a fair few situations where tribunal action is already underway.  Fortunately we have some excellent team members who roll up their sleeves and enter the fray. 

That happened towards the end of 2009 when a new client came to us and asked us to defend a claim.  The company in question had signed up with a large HR company, but came to us because of our practical approach.  It had received a claim from an employee who alleged he had been unfairly dismissed when he was made redundant.  There’s been a lot of that over the last year.  Although the employee seemed to accept the reality of the situation at the time, it didn’t stop him putting in an ET1.

By the time the company came to Russell HR it had already submitted the ET3, so our hands were somewhat tied.  But we like a challenge, and agreed to fight the case.  Last week we got a result.  And what a result!  The claimant was asking for over £70k.  We settled it for ……. wait for it, wait for it …..£500!    

There may be trouble ahead …. but with Russell HR you can face the music and dance.

For help with tribunal claims and all sorts of HR and employment law issues:

call 0845 644 8955 or email pm@russellhrconsulting.co.uk

The right to be accompanied came into force in September 2000.  Any employee who’s going through a formal disciplinary or grievance procedure has the right to be accompanied by another person in order to receive advice and support.

For some reason the companion – who it may or may not be – is one of the most contentious points in the whole disciplinary process.  Over the years we have had demands for solicitors, mums, dads, next door neighbours and just about anyone else you can think of.

The law says that the companion may be someone who is a work colleague, a trade union official employed by the union or a lay official reasonably certified in writing by the union as experienced or having received training in acting as a companion in hearings. 

As a general rule, it’s best to stick to the statutory pool, though I would – as a matter of good practice – extend the pool from which the companion may be drawn in certain circumstances, for example, where a minor is involved or someone for whom English is not the first language, or a person who has a disability impacting on his ability to understand or participate in the process. In these instances I would normally offer support, even at a non-formal stage. And where an employee has been absent from work on health grounds for a long time, I would normally ask if he would like to be accompanied by a family member.

The inclusion of legal advisors tends to introduce a somewhat confrontational element, so I prefer to work without them where possible.  There is no right to have a solicitor present as a companion, but a recent case may create the thin end of the wedge with regards to legal eagles. The Court of Appeal has just delivered its decision in the case of G, R (on the application of) v X School & Ors, which considered an employee’s entitlement to legal representation at a disciplinary hearing, as outlined by a recent article on emplaw.co.uk.

It has followed the line taken in Kulkarni v Milton Keynes Hospital NHS Trust [2009], Article 6 of the European Convention on Human Rights (ECHR) requires that a claimant must be given the opportunity to be legally represented at a disciplinary hearing, when that hearing is determinative of his civil right to practice a profession.

In January 2010, the Court of Appeal in G began to adopt the reasoning in the Kulkarni case. G was a teaching assistant at X school. A complaint was raised that he had both kissed and had sexual contact with boy aged 15, M, who, at the time, was completing some work experience at the school. If these allegations were found to be true, they would be deemed an offence under s.16 of the Sexual Offences Act 2003.

The Crown Prosecution Service decided not to prosecute G.  An investigation was carried out by the school, culminating in a disciplinary hearing. G was refused any companion at the hearing unless he was either a colleague, or a trade union representative. He was dismissed for “abuse of trust” and the dismissal reported to the Independent Safeguarding Authority (the ISA) as was required under these circumstances. The ISA had to determine whether or not G was considered unsuitable to work with children.

G made an application to the High Court, successfully arguing that the school’s decision not to allow him any form of legal representation during his disciplinary hearing violated his rights under Article 6.

Upholding the High Court’s decision, the Court of Appeal said that the following questions should be asked:

Were the disciplinary proceedings detrimental to G’s civil rights, namely G’s civil right to practise his profession as a teaching assistant?

If so did Article 6 require that G be allowed the choice of requesting legal representation in the disciplinary proceedings?

It is clear that the decisions made by school governors can have great influence any ISA decision. The presence of some form of legal representation could have considerably affected the outcome. 

Although Kulkarni and G don’t change the basic law, public sector employers will need to carefully consider whether the refusal of legal representation would be detrimental to an employee’s rights and whether Article 6 will be invoked when offering the right to a companion in disciplinary proceedings.

If you would like to find out more about your right to be accompanied or any other aspects of disciplinary procedures, Russell HR Consulting provides expert knowledge in the practical application of employment law, from discrimination and equality to discipline and dismissal. For more information, contact us on 0845 644 8955 or e-mail pm@russellhrconsulting.co.uk.

Almost every Monday morning I cast my eyes back over what the great and good (I use these words extremely loosely!) have been doing in Parliament the week before and I am almost always impelled to rant furiously.  As a business owner, it would be nice to have some space left to make my own decisions and run my business, rather than have to introduce yet more measures introduced by a group of people, who if they ran their own business would be bankrupt in a week.

The latest thing to spur me to fury is the reduction in an employer’s ability to check out the suitability of prospective employees before making a job offer.  It’s the reduction in an ability to identify and address short term sickness absence with no underlying medical cause that concerns me.  This type of absence has been a serious problem in the UK for many years.  Leopards don’t change their spot, so if an employee had chronic Monday-itis in one workplace, he will go on having the same sort of poor attendance in the next.  Why should we put up with it?  The employment contract is simple enough – the employer has a duty to provide work and pay for it; the employee has a duty to turn up a reasonable number of times and do that work.  The average hard working responsible employee will take about five days off a year.

Proper adjustments must be considered for those with genuine health problems. But those with chronic Monday-itis cost employers millions of pounds annually, creating extra work and worry for their colleagues, who have to carry them.  Employees with chronic Monday-itis are selfish, disruptive and a pain.

It has long been our advice at Russell HR Consulting that employers should not recruit a problem and we have always encouraged, among other things, the use of pre-employment questionnaires to help identify this type of absence.  We hasten to add, that we always make reasonable adjustments for those who but for an illness could do the job.

However, following the introduction last week of a clause which would ban pre-employment health questionnaires, employers may face an increased risk of tribunal claims if they are unable or unwilling to make reasonable adjustments for candidates with health issues and are forced to withdraw the job offer.

Campaigners have argued that employers discriminate against people with medical conditions, making it more difficult for them to get a job.  The new clause, introduced by the House of Lords will, if passed, mean those with mental-health issues, a medical condition or a disability cannot be required to disclose medical conditions before an offer of employment is made, unless it impacts on their ability to do the job.

While I have no problem with this as it impacts upon those with genuine conditions, it is all too likely that those with no underlying health issue may be able to hide behind it.  

Of course, organizations would still be entitled to screen people about health after the job offer, which would result in either making reasonable adjustments or presenting a justifiable business case as to why they could no longer employ the individual. This sounds simple (and is really) but it takes time, money and will create an increased tribunal risk. The tribunal system, as well as protecting those with genuine complaints, is also a haven for the feckless, greedy and just plain stupid.  Even when an employer has done no wrong, it costs thousands.

So what will it mean for employers?

Employers who ask candidates about their health before making a job offer will be required to prove at tribunal that they did not discriminate against the individual if they did not get the job.

Organizations found guilty of discrimination will be required to draw up an action plan, overseen by the Equalities and Human Rights Commission.  Failure to comply could result in a £5,000 fine.

Employers who ask candidates about their health after making a job offer, and who then discover they are not fit for the role, can make reasonable adjustments or justify the need to withdraw the job offer.

If passed we will all have to accept the provision, roll up our sleeves and get on with it. If you need a helping hand, take a look at our new retained HR service, the HR Hotline – unlimited practical advice for a fixed fee.  Call us on    0845 644 8955  0845 644 8955 or email pm@russellhrconsulting.co.uk

Pregnant women and women who have recently given birth are probably the most powerfully protected employees in the UK; and rightly so. It is still shockingly common for women to be dismissed simply because they’re pregnant, even though it has been illegal for 30 years. The issue of IVF is a developing field of case law and the Employment Appeal Tribunal (EAT) recently considered a new claim.

Parminder Sahota worked as an immigration officer for The Home Office. She had a three-year posting to Paris at the Eurostar terminal in the Gare du Nord. In November 2007, she started IVF treatment in France and was open about the fact that she was undergoing the treatment. Her employer’s staff handbook stated that absence due to infertility treatment should be recorded in the normal way, but reasonable absence should not trigger formal disciplinary action.

Mrs Sahota’s posting ended at the end of November 2007 and she transferred to the Folkestone office in January 2008. Her new manager was Mr Pipkin. He was made aware of Mrs Sahota’s sickness absence record, which included absences for reasons other than the IVF treatment.

At a meeting with her in January, Mr Pipkin commented that becoming pregnant was probably the most important thing in Mrs Sahota’s life. He raised the issue of her absences and pointed out that she had reached a trigger point for sickness absence. In February, Mr Pipkin asked Mrs Sahota whether she had considered taking annual leave or a career break. She was later invited to a meeting on 7 March 2008 to discuss her attendance. She was told that if she did not attend, then the meeting would go ahead in her absence.

Mrs Sahota had been implanted with fertilised eggs in November 2007, but the treatment was unsuccessful. She underwent treatment again in February 2008, using fertilised eggs from the previous course of treatment and confirmed that she would be absent from work until 6 March. She told her manager that she would not be able to attend the meeting on 7 March as she had been advised by her doctor not to travel long distances. The meeting went ahead in her absence. As a result of the meeting, a warning for poor attendance was issued on the basis of absences which, as far as he was aware, were unrelated to IVF treatment.

Mrs Sahota appealed against the warning. At the same time, Mr Pipkin queried some of the dates of her sickness absence, and discovered that on the days that she was confirmed to be absent due to sickness, she had also claimed a premium payment for working an early shift. He started disciplinary proceedings and Mrs Sahota was suspended, pending investigation. The investigation revealed that around 20 other immigration officers had made claims in similar circumstances. It concluded that there had been a lack of proper controls and that a stricter management of the process was needed in future. No disciplinary action was taken against the officers, including Mrs Sahota.

On 17 March, Mrs Sahota learnt that her second IVF treatment had failed. She was signed off sick with stress and depression, and did not return to work.

Mrs Sahota’s appeal against the warning was heard on 2 June 2008, by which time she had submitted additional evidence that showed some of her sickness absences were related to her IVF treatment. Although the original decision by Mr Pipkin was upheld, as it was correct on the evidence available at the time, the warning was rescinded.

Mrs Sahota complained to the employment tribunal, stating that she had been discriminated against because of her sex. She claimed sex discrimination in relation to various events, including remarks made by Mr Pipkin, the threat of disciplinary action regarding her IVF absences, the issue of a formal warning and the investigation into her premium payment claims.

The employment tribunal found that the allegations made against the company did not amount to detriment or harassment.  On appeal, the EAT stated that if an employee’s absence is as a result of a gender-specific illness, which includes an illness attributable to pregnancy, then less favourable treatment by the employer does not constitute sex discrimination if a male employee would have been treated likewise.

The EAT also questioned whether or not the protection given to pregnant employees should include those receiving IVF treatment who have not actually become pregnant at the time. They ruled that those employees receiving IVF who are not confirmed as being pregnant should not be given the same rights as an expectant mother. An employee may only claim sex discrimination if she is treated less favourably during the advanced stages of her IVF treatment.

To help prevent discrimination in your workplace or for advice on how to deal with a discrimination claim, contact a member of our team on 0845 644 8955 or you can send us an e-mail at pm@russellhrconsulting.co.uk

By Darry Khajehpour and The HR Headmistress

We do hear a lot about human rights these days.

Mr Khan is a Muslim.  He brought equal pay and unfair dismissal claims. The tribunal refused a request he had made on the third day of the hearing to adjourn to allow him to observe Ramadan.  His claims were dismissed in his absence.  

Mr Khan appealed on the basis that he had not had a fair trial.  He contended that the tribunal had deprived him of the right to a fair trial contrary to article 6 of the European Convention on Human Rights.   

Dismissing his appeal, the EAT considered the factual background.  This included the fact that the employer discovered that Mr Khan had been accessing pornographic and other inappropriate internet sites during working hours. 

Mr Khan’s claims of discrimination, made on grounds of age and religion, had been struck out because of his failure to provide information required by the tribunal.  Hearings had been postponed on medical grounds although here was no diagnosis of any medical treatment.  The tribunal had already agreed Mr Khan’s request for specific break times each day for the purposes of prayer during Ramadan.  The hearing date had been fixed on 29th May, meaning that he had adequate time to identify an overlap with Ramadan well before the hearing started in September.

Mr Khan’s appeal was unsuccessful.  The EAT found that a tribunal’s decision not to grant an adjournment midway through a hearing to accommodate a Muslim claimant’s desire for ‘a period of mental and spiritual purity’ during Ramadan was neither perverse nor a breach of the right to a fair trial established by Article 6 of the European Convention on Human Rights. The tribunal’s decision was carefully balanced and considered all relevant factors.

Khan v Vignette Europe Ltd

If you’d like help with any equal pay and unfair dismissal claims, please drop us an email at: pm@russellhrconsulting.co.uk

Now that the thaw seems to be under way, the sandbags are being dusted down – just in case - as the inevitable flood warnings are given.

This blog has nothing to do with Russell HR Consulting’s bread and butter activities, employment law training and HR support, but it is the tale of an almost-flood and it might be a useful precautionary tip for you if you have a condensing boiler lurking somewhere in your home.

Very early one morning last weekend I woke up and couldn’t get back to sleep.  A cup of tea was indicated, so I trundled off in pursuit.  Standing blearily by the kettle, I became aware of a slow “drip …… drip …… drip”.  The tap wasn’t dripping in the sink and in my contact lens-less state, it took me a few moments to locate the source.  A drip was coming from a tiny hole in the kitchen ceiling.  This was not what interior designers called a planned water feature, so there was a pause of about 30 seconds while I was paralysed by pure blind panic.  Then I tried to think of the right thing to do.  Not easy; I am good at things like employment law training, but not even my best friends could call me good at house-things.  Nobody in their right mind would let me loose with a paint brush, for example.  Laurence Llewellyn Bowen I am not  ….. The water had to be coming from the airing cupboard where both hot water tank and boiler were located.  After shoving a plastic bowl under the drip, I sprinted upstairs and peered inside the airing cupboard.  I couldn’t see anything obvious so decided to turn everything off and see what happened.  20 minutes later the drip slowed and stopped which was fortunate or the water might have brought the kitchen ceiling down and got into the lights (and have you seen the price of electricians recently?! – See our blog entry for 13^th January).  I did have to resign myself to the fact that most plumbers, however charming by day, would not appreciate a distraught call at 5am. 

You can imagine that it took a while to get anyone reasonable out (and especially at the weekend) but eventually Brian* the plumber arrived and said that the condensing boiler (fairly new, environmentally approved of etc) is designed to withstand temperatures down to about -1 degrees.  Local temperatures have been down to minus five or six fairly regularly recently and the system just couldn’t cope.  The condensation couldn’t run away from the boiler because the outside pipe had frozen, so it was coming back the other way.  We were able to temporarily manage the problem by wrapping a towel round the pipes and catching drips in a jug underneath (and more importantly were able to turn the heating on again!).

The towel wrapping process became known as changing the baby’s nappy and did the job effectively.  Both mother and baby are doing well and the heating engineer is on his way to sort out the wider problem. 

Russell HR Consulting definitely don’t do any plumbing, but if you have any employment law or HR queries, we’re your men (and women).  Call us on 0845 644 8955 or email pm@russellhrconsulting.co.uk

*Brian McQuillen is based in Milton Keynes and runs Acclaimed Plumbing.  His phone number is 01908 315423.  He is not a heating engineer but comes highly recommended for all other plumbing things.

In an extraordinary revelation recently, it seems that an electrician employed by Birmingham City Council claimed more than £90,000 in overtime, backdated pay and standby allowances in 2006-07.  He wasn’t alone.  58 other workers were paid bonuses in excess of £20,000 each.

According to the Sunday Times (10^th January) female council employees (cleaners, care workers and lollipop ladies) have said they were paid less than male counterparts on the same job grades.  They have lodged an equal pay claim saying they should have been included in the council’s bonus scheme and are now seeking up to £100,000 each in compensation.

Documents presented to the employment tribunal showed that in 2006-07 a dustcart driver was paid £50,917, including £24,000 in bonuses and performance-related pay, binmen were paid up to £46,000, a traffic light repairman was also paid £81,940 and a road painter received £57,591.

The documents disclosed how council workers were able to quadruple their pay with unpublicised bonuses, attendance allowances and overtime payments.  Workers could also claim a special bonus to boost their pay when they were away on holiday or claim “dirt money” for undertaking undesirable work.

A female grade two manual worker earned approximately £11,700 a year as a kitchen assistant or lollipop lady, while a binman on the same grade had a similar basic salary but received more than £30,000 in additional payments.

Birmingham City Council said the bonus schemes were phased out last year.

Prevent sparks flying!  If you need some help sorting out salary and bonus schemes give us a call on 0845 644 8955 or email pm@russellhrconsulting.co.uk

Most employers try their utmost to ensure that their staff are happy, comfortable and, perhaps most importantly, safe. It is a remarkably difficult job to ensure that a business runs smoothly and profitably, whilst considering and incorporating all the aspects of employment law in the day-to-day running of a business such as: contracts of employment; managing absence; discipline and grievance; health and safety; employment rights etc. etc. The list at times seems never-ending!

Sometimes an employer can make decisions motivated by all the right reasons and still find themselves in trouble. Take the fairly recent case of Amnesty International v Ahmed, which came before the Employment Appeal Tribunal (EAT) in August 2009. Miss Bashair Ahmed was employed by Amnesty International as a campaigner and, in 2007, was considered for promotion to the position of researcher for Sudan. She was rejected as the company had concerns that, being of Sudanese decent, she would encounter problems or be in danger in undertaking work related to (or within) her country.

Miss Ahmed later resigned and took Amnesty International to tribunal, claiming constructive dismissal and both direct and indirect racial discrimination. Amnesty International denied these claims stating that, had they appointed Miss Ahmed into the post, risks to her personal safety would have meant a breach of the company’s duty under the Health and Safety at Work Act 1974.

The EAT – in agreement with the original tribunal’s decision – found that Amnesty International had gone against the Race Relations Act 1976 in its decision not to appoint Miss Ahmed to the Sudanese role. The EAT was not concerned with any motive or concerns of Amnesty International, simply whether their decision not to appoint Miss Ahmed was on the grounds of her ethnic origin.

As an employer, it seems as though you’re damned if you do and you’re damned if you don’t! Amnesty International v Ahmed highlights the fact that discriminating against an employee (or potential employee) on the grounds of gender, gender reassignment,  marriage or civil partnership, pregnancy and maternity leave, sexual orientation, disability, race, colour, ethnic background, nationality, religious belief, or age, is unlawful, whether an employer’s intentions are good or not.

If you are concerned about discrimination and equality in your workplace, Russell HR Consulting provides expert knowledge in the practical application of employment law, from discrimination and equality to discipline and dismissal. For more information, contact us on 0845 644 8955 or e-mail pm@russellhrconsulting.co.uk.

By Darry Khajehpour

The only mouse you might expect to find on your desk would be the electronic sort, attached to your computer.  But according to internal police reports, a whole family of mus musculus (that’s house mice to you and me) nested in one police worker’s desk, burying themselves in his paperwork.  Given that mice are incontinent and chew everything in sight, the place must have been a heckofa mess………what would the dream cleaning team Aggie and Kim (How Clean Is Your House?) have said? 

Action was taken to remove the mice from the premises and there have not been any sightings of mice since.

A spokeswoman for the Met has volunteered the remarkable statement that the ‘paperwork home’ set up on one desk by mice consisted of ‘paperwork that did not relate to operational police matters’.  Well, isn’t it good to know that mice can differentiate between operational and non-operational paperwork!☺

Many companies have a clean desk policy.  The main reasons are to:

• Produce a positive image when customers visit the organization.
• Reduce the threat of a security incident as confidential information will be locked away when unattended.
• Keep sensitive documents confidential.

If you’d like a sample clean desk policy, drop us an email on pm@russellhrconsulting.co.uk

Employers and employees are required to take such steps as they reasonably can to ensure the safety of employees.  Vermin spread disease and their bites can be dangerous.  You could get a cat, but we suggest a better way to reduce the risk of attracting rodents or other pests are as follows:

• Don’t keep food in or on your desk.
• Remove food packaging or cartons immediately after use.
• Empty rubbish bins daily.
• Clean the surface of your desk and equipment (keyboard, mouse - the other sort - and phone) every week with an antiseptic cloth.

Russell HR Consulting mouse

The BBC Weather website released a UK weather warning on Tuesday for “exceptionally heavy snowfall” expecting to cause “widespread disruption”, and didn’t it just! Scenes of people shovelling snow from in front of immovable vehicles and using various garden tools to launch drifts of snow off car windscreens were the norm across England.

What has been described by The Financial Times as “the worst spell of weather in 28 years…” has presented severe problems for many transport systems and, with a large number of workers not being able to get to their workplace, has meant that many businesses have been forced to close. And what does that ultimately mean for business owners?? A potentially enormous financial loss! The bout of Arctic weather, which hit the UK in February of 2009 prevented an estimated 20% (or 6.4million) of the working population from getting to work and cost the British economy over £1.2 billion (according to FSB figures).

Whether the weather is cold, or whether one of your employees repeatedly suffers from them, it is imperative that any form of absence be dealt with! Having fixed absence management procedures will ensure that both you and your employees know what to expect before, during and after a period of absence. It will also help to keep overheads down, reduce disruption to workflow and help rein-in the amount of unnecessary (and often unauthorised) leave.

‘But where do I start!??’, you may be asking yourself… well never fear, the HR Headmistress is here with her dynamic and hugely successful approach in her most recent publication Off the Sick List! Designed for managers, the book contains hundreds of helpful tips on areas such as methods of measuring absence and keeping records, holding high impact return-to-work meetings and honing your ‘headmistress technique’ in dealing with an employee who has chronic ‘Mondayitis’.

This morning the HR Headmistress was invited to talk about employers’ duties on the BBC’s Beds, Herts and Bucks Jonathan Vernon Smith programme.  Unless the employment contract stipulates otherwise there’s no requirement for employers to pay employees who can’t attend for work because of bad weather.  It may be that the employee can work from home, but if he can’t it may be possible to agree to pay him and arrange that the employee should make up the hours at a later date.  Alternatively, employees may wish to take the time as holiday.

To find out more about our publications or for any other information regarding Employment Law, please contact us on 0845 644 8955 or e-mail pm@russellhrconsulting.co.uk

By Darry Khajehpour