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A crescendo to Vento: Increases to employee awards in discrimination cases

 

“Injury to feelings” provides the most substantial part of an award in cases of discrimination, ie when someone is treated unfavourably because they hold one of the 8 protected characteristics (age, disability, sex, gender reassignment, marriage or civil partnership, race, religion or belief and sexual orientation – sorry Gingers, still no protection for you guys!). Employers often forget that they can be liable for acts of discrimination carried out by their employees in the course of their employment. As of 11 September 2017 these awards have recently been increased by the tribunals and employers should take note.

 

If someone is discriminated against, they will be entitled to an award for injury to feelings. How are these awards calculated and how much have they gone up?

 

How is an “Injury to feelings” award calculated?

 

A method for calculating an injury to feelings award was developed in the case of Vento v Chief Constable of Yorkshire Police and is now commonly referred to by lawyers as being the Vento scale. The Vento scale effectively creates 3 different bands of severity of discriminative acts, all of which are assigned their own level of remuneration. These bands were described as follows:

 

  • lower band: suitable for one-off and isolated incidents where the nature of the prohibited conduct is less serious (award currently up to £6,000. After 11 September 2017: £800-£8,400)

 

  • middle band: suitable for serious cases which do not merit an award in the highest band (award currently between £6,000 and £18,000. After 11 September 2017: £8,400-£25,200)

 

  • top band: suitable only in the most serious cases, such as where there has been a lengthy campaign of harassment (award currently between £18,000 and £30,000. After 11 September 2017: £25,200-£42,000)

 

  • it will also be possible for tribunals to award over £42,000 in exceptional cases.

 

These increases will have a direct effect on employers. If an employer cannot show that they have policies in place and have provided their staff with training on discrimination, they will be liable for any acts of discrimination carried out by an employee within the workplace. Employers will want to ensure that any diversity and harassment policies are up to date and that their staff are well trained. If you are unsure about anything then please get in touch with the Employment Team at Blackadders!

Andrew Wallace
Solicitor
@EmpLawyerAndy
http://www.blackadders.co.uk

 

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Has the Stubble Bubble burst? Male grooming and workplace rules.

jack blog pic

Home Office code

The Telegraph published a report this week indicating that the Home Office had banned its immigration officers from rocking an “unshaven or stubble appearance”.  Beards and moustaches however remain fair game.  The dress code guidance, which applies to those in public facing roles, also dictates that those who wish to grow a beard must do so at a time which minimises the period for which they present an unprofessional image.  How does one achieve that?  Fair enough for those who can spring a beard overnight.  However slightly harder for the likes of myself who needs a good month to get a few wisps.

Is the policy enforceable? 

Employers are entitled to give lawful instructions to their staff.  A uniform policy or dress code will often place various appearance based obligations on employees.  Provided that the rules are not discriminatory, the policy is likely to be enforceable.

jacks blog

Indirect discrimination

The most common risk is indirect discrimination – this applies where the employer imposes a provision, criterion or practice (a work rule) on the whole staff and that rule has the effect of placing a particular group of employees at a disadvantage.  If the disadvantage is caused by a protected characteristic (e.g. religious beliefs), that would be indirect discrimination.  A classic example is a requirement for all men to be clean shaven.  This potentially indirectly discriminates against men of a particular faith which requires them to wear a beard.

Justification

Indirect discrimination can be justified if the employer can show that the rule (e.g. the dress code) is a proportionate means of achieving a legitimate aim.  For example, in one case a nurse was ordered not to wear a crucifix outside of her uniform.  She raised a claim for discrimination however the employer’s legitimate health and safety reasons for not permitting jewellery justified their policy.  The employer was able to defend its actions.

If you are an employer facing difficulties with men refusing to ditch the designer stubble, take advice.

Having a clear written guidance for staff as to the rules concerning appearance is a crucial platform before reaching for the razor of the disciplinary procedure.

Jack Boyle
Associate Solicitor
@EmpLawyerJack
http://www.blackadders.co.uk   

 

Is it a ‘red card’ for Rooney?

 

The former England captain yesterday admitted a charge of drink driving. He got behind the wheel whilst nearly three times the English drink driving limit after partying until the early hours of the morning. Rooney was pulled over whilst driving the car of a female he had met that night, leading some to speculate that the pair intended to have an illicit liaison.

Rooney’s pregnant wife, Coleen, was on holiday with their young three sons at the time. It is not the first time that Wayne has faced allegations of sexual impropriety. The couple have been together since they were in their teens. Wayne was alleged to have been unfaithful to Coleen both prior to and after their marriage in 2008.

 

Divorce?

There has been much speculation in the press about whether the couple will, or should, divorce in light of this latest scandal with much attention being focused on how much of Wayne’s estimated £70million fortune Coleen will walk away with. In Scotland, the starting point is that the net matrimonial assets should divided equally unless there are special circumstances which would justify a departure from equal sharing.

Can a spouse’s bad behaviour affect a financial settlement on divorce?

The law does provide a mechanism for bad behaviour to be taken into account. Allegations of infidelity alone are unlikely to affect a financial settlement. The law does not seek to punish personal misconduct. If however such bad behaviour is coupled with conduct which directly and adversely affects the couple’s finances, then there is scope for it to be taken into account. Financially reckless or wasteful conduct such gambling is an obvious example.

What now?

Although Coleen is said to be furious with Wayne after this latest humiliation, reports suggest that divorce is not on the cards. Coleen is said to value their family unit too much to split and has a desire to uphold her catholic beliefs. Marriage counselling or family mediation at this stage could help them work through their issues in a responsible and respectful way.

Joanne Murray
Associate Solicitor
@FamilyLawJoanne
http://www.blackadders.co.uk

 

Clearing the Air on Smoking Policies

Since 2006, there has been legislation in Scotland which has prohibited smoking in public places.  This encompasses a wide variety of premises from bars and restaurants to public transportation vehicles.  The legislation also includes offices, factories and any non-domestic premises in which one or more people work.  Many employers will also have a separate no-smoking policy in place and it is recommended best practice to get employees to sign a copy of it.  This will ensure that, in the event of any breach of the policy, the employer can evidence that the employee has been issued with the policy, and they are aware of its content.

What about e-cigarettes?

The increased use of e-cigarettes in recent years has clouded the understanding of the law in this area.  As it stands, the current no-smoking legislation does not include e-cigarettes.  What is more of a hazy issue is whether a work place’s no smoking policy will also apply to e-cigarettes.  In the case of Insley v Accent Catering, the employment tribunal addressed the issue of the use of e-cigarettes, which has hopefully cleared the air a little in this area.  An employee was seen smoking an e-cigarette on work premises, which the employer considered to be in breach of their smoking policy, and a gross misconduct offence.  Incidentally, the employee resigned before the disciplinary hearing and subsequently claimed constructive dismissal, which was dismissed by the tribunal.  The important point in this case was the tribunal’s acknowledgement that the use of e-cigarettes was a point of concern.  The employer did have a no-smoking policy in place, which it considered to also apply to e-cigarettes.  However, the tribunal said the conventional no-smoking policy did not include e-cigarettes and the employee had not actually breached any rule by smoking one.

What does this mean for employers?

This means that employers will not be able to rely on the current legislation to prevent the use of e-cigarettes in the workplace.  The case above also suggests that they may not be able to fall back on any conventional no-smoking policy that may be in place.  If employers do wish to ban the use of e-cigarettes, any no-smoking policy should make specific reference to e-cigarettes.  Dismissal is far more likely to be fair when an employer can point to a breach of a specific rule.  Each case will turn on its own facts and merits but having a clear policy in place will certainly strengthen an employers’ position when dismissal is being considered.

 

Richard Wilson
Trainee Solicitor
@EmpLawyerRich
http://www.blackadders.co.uk

TANKED – when neighbours fall out!

 

In today’s densely populated world, neighbour’s interests often collide, and nothing causes more annoyance than when the neighbours spoil your quiet enjoyment of your property.  This can happen in many ways, the most common irritants being the noisy neighbour, the smelly neighbour, and the polluting neighbour.  Often these cases are usually about an escape of water, but in the recent case of McKenna v O’Hare it was something much worse – oil.

 

In the summer of 2006 Mr and Mrs McKenna began to notice a smell of oil in their property.  It transpired that this was due to a spillage of oil from a tank on the neighbouring property of Mr and Mrs O’Hare, and accordingly they sued the O’Hares for compensation.  The difficulty for them was that, in law, it is not enough simply to prove that the oil had come from the O’Hares’ property, and nothing more.  They also had to prove that the O’Hares were somehow at fault in allowing it to happen.  Unsurprisingly, they had no idea how the oil had come to leak from the tank, which appeared to be in good condition and free from leaks.  All they could say was that the O’Hares had been doing some building works in their garden near the tank at about the time that the spillage occurred, and the tank’s position had changed.  The O’Hares said that this did not prove fault.  Many explanations were possible for the leak, some of which would indicate that it was their fault, and some of which would indicate that it was not.  The McKennas had not explained how the oil came to leak, and therefore the court could not know whether the O’Hares were at fault or not.  On that basis the O’Hares hoped to win.

 

Yet the court found in favour of the McKennas.  Their reasoning was simple: the oil had come from the tank.  The tank was in good condition, so it could not have leaked by itself.  Therefore, someone must have interfered with it in some way so that the oil escaped.  That “someone” was probably the O’Hares, since the tank was under their control and they had been carrying out some works in the vicinity.  They had a duty to manage the tank in such a way that the oil would not escape.  They must have interfered with the tank and allowed the escape, and therefore, on balance, they were at fault.

 

At first glance, this looks like a tough result for the O’Hares, and something of a “damned if you do, damned if you don’t” situation.  If they had failed to look after the tank so that it became leaky, they would no doubt have been found to be at fault, and liable to pay compensation.  But they had looked after the tank, so they were found to be at fault because well-maintained tanks do not leak and they must have done some other careless thing.  However, this would not be a fair assessment of the case.  It was the fact that work had been carried out near the tank, and that it had been moved, which raised the inference that something careless must have been done.  In effect, this evidence threw the ball back into the O’Hares court, and it was for them to show some other explanation of how the leak had occurred.  This they failed to do.

 

What sort of alternative explanations could they have put forward for the leak, if the evidence had existed?  One might have been a natural disaster, such as a lightning strike or hurricane.  Less dramatic would have been evidence of a third party vandal damaging the tank, or some prankster deliberately opening the tap.  If any of those had been proved, the O’Hares would not have been at fault.

 

Cases like this have always been difficult precisely because claimants very often do not know, and have no way of knowing, what their neighbours may have done in the privacy of their own property.  This case is therefore interesting, since it shows the circumstances where the court will be willing to surmise what must have happened – sometimes to devastating effect.

Richard Godden
Partner
@The_PIMan
http://www.blackadders.co.uk

Advice for Legal Trainees in Waiting

As I come to the halfway point of my training contract, this feels like a good time to reflect on the past year. To those applying for training contracts, or waiting for their first day of their traineeship to arrive, here are some things I wish I knew before I started my traineeship:

Advice for Trainees in Waiting – by Chloe Chan, Blackadders

As I come to the halfway point of my training contract, this feels like a good time to reflect on the past year. To those applying for training contracts, or waiting for their first day of their traineeship to arrive, here are some things I wish I knew before I started my traineeship:

trainee

 

  1. It takes a certain caliber and type of person to put themselves through legal education and the tough application process for training contracts. Apply that drive and commitment to your traineeship. The traineeship offers the luxury of ‘working on training wheels’, where you will always have the support of your supervisors and teams on-hand to assist. The exams and graded assignments we become so accustomed to at school are replaced with a daily test of your legal knowledge, skill and EQ to service the firm’s clients and your partners.

 

Remember….

  • The firm you are entering will most likely have seen many trainee solicitors come and go. Don’t be afraid to ask lots of questions – however, do know who and when to ask them. Concentration is a scarce commodity in practice, and repeated or obvious questions will be noted. I was impressed by how efficiently and effectively the teams worked together and collaboratively across the firm. I found that even as a new employee, I had access to the partners and senior members of staff.asking-questions
  1. Being a trainee is more than knowing about substantive law in the beginning as you learn to adapt to your firm’s processes. The first few weeks of starting the traineeship is a huge learning curve in itself, by learning how to navigate the file management systems, time recording (when does having to account for every 6 minutes of your working day become any easier?), finance processes and drafting simple documents.

Remember ….

  • Whatever you have been asked to draft as a trainee has probably been drafted before! Thankfully, our firm has a comprehensive and up to date Styles bank, which allows the sharing of complex or more specific templates across all areas of the law we practice in. If you are asked to do something that is completely foreign, it is worth searching the Styles bank as often you may find something similar what you need – and then adapt accordingly to suit what you require.head3
  1. Say yes – so many opportunities are offered to trainees, including some that may be outside your comfort zone. It is worth trying everything at least once, and offering to be of assistance wherever possible. Adopting this approach will get your name known by your colleagues across the different offices. Bringing enthusiasm, energy and an open attitude will open doors not only for career progression but also in a social context. Having participated as a guest, and offering to volunteer at firm events, I have increasingly understood the importance of business development and how to grow your firm’s reputation in an industry saturated with legal service providers.

Remember….

  • Whenever I have been reluctant to try something, I have come out of that experience with a different and more positive outlook. Throughout the past year, I have learnt to approach things with an open mind and learn how to be flexible in unknown situations. If you are invited to attend an event after work, or asked to get involved with your firm’s marketing social media campaigns, say yes!shutterstock_145006489-e1445438716372
  1. Many of the things I have learnt in the last year haven’t been taught in a tutorial or learnt from a book. For example, I have been fortunate to sit in many client meetings with my supervisors. Observing the way they communicate with the client has taught me how to develop my own professional tone and mannerisms. Emulating the aspects I admire from others in my own work has been something I hugely value from my traineeship and will be something that I will carry throughout my entire career.

Remember…

  • Every task, even the ones that seem mundane and routine, presents an opportunity to learn and add value for the firm. The more you do it, the easier and quicker it becomes. If you are allowed to dictate then learn how to do the actual task manually before delegating.bigstock-Journal-Writing-Planning-Workp-143053163-350x187
  1. ‘No problems, only solutions’ is a saying something my supervising partner has drilled into me since day one. A day hasn’t gone by in my traineeship where I am faced with something new and unknown. The traineeship is a steep learning curve, one where you learn very quickly, and it is easy to find yourself in a panic when you are faced with the unknown. Stepping back from the seemingly big problem is important, and then identifying the first course of action. Keeping a note or diary of the answers and useful contacts, websites, articles etc. will prove useful in the event that the issue arises a second time. It is also useful approaching colleagues or trainees who may have completed the seat you are in to ask if they have ever come across the problem at hand.

While I was at university I was advised to ‘take ownership’. By bringing your ideas and productivity to the table, it demonstrates that you can be trusted to get on with your assigned tasks and be accountable as a team member. Your traineeship is what you make of it, don’t forget to enjoy the ride!butterfly

Bruce Wayne: 7 Superhero tips to being a Superhero Director

My colleague, Alastair Johnston, previously published an article where he discussed  Bruce Wayne’s abilities as a company director.

His capabilities as a director certainly do not match his crime fighting skills. He spent recklessly on items that wouldn’t benefit the organisation and failed to inform other shareholders of his actions. So what are the duties that Bruce must adhere to, in his capacity as a director of Wayne Enterprises??

1  Act within powers – We know that Bruce has extraordinary powers as his alter ego Batman, but this does not mean he can do as he pleases as a director of Wayne Enterprises. He must only act in accordance with the company’s constitution and only exercise powers for the purposes for which they are conferred.

2  Promote the success of the company – Too much time spent battling his adversaries could see Bruce failing in this duty. Saving Gotham from evil villains may benefit the whole world, but Bruce must act in a way which would be most likely to promote the success of the company for the benefit of its members as a whole.

3  Exercise independent judgment – Directors are required to act independently of control by any other person. For Bruce, this means making sure that Robin or Alfred the butler do not start muscling in on the decision making of Wayne Enterprises.

4  Exercise reasonable care, skill and diligence – The caped crusader may carry out his crime fighting duties with a seeming disregard for the safety of himself and others. Bruce Wayne, on the other hand, must carry out his duties as a director with (i) the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by a director and (ii) the general knowledge, skill and experience that the director has. This test combines an objective and subjective element which means the practical duties of directors may vary between companies, or even between directors within one company. This is a fairly technical area of law and if you think a director has failed in this duty, or if you are a director concerned about your own duties, then you should seek legal advice .

5  Avoid conflicts of interest – A director must avoid any situations where their personal interests may conflict with the interests of the company. It is broader than simply a duty to refrain from benefiting from a conflict of interest, and the duty will be breached by failing to avoid a situation where there may be a conflict. For someone who is essentially 2 different people, Bruce could find avoiding conflicts of interests doubly difficult!

6  Not to accept benefits from third parties – While it may be tempting for Bruce to accept a few back handers due to his high profile position within Wayne Enterprises, this is a big no no. A director should not accept a benefit from a third party, which is given to him by reason of his being a director, or, his doing (or not doing) anything as director. A director should also consider possible offences that could be committed under the Bribery Act 2010.

7  Declare interest in proposed transaction or arrangement – If a director is in any way, directly or indirectly, interested in a proposed transaction or arrangement with the company, he must declare the nature and extent of that interest to the other directors. If Wayne Enterprises announced they were to start selling replica Batmobiles, with Batman promoting this venture, Bruce would need to declare this – which could make for a very interesting directors’ meeting!

As you can see, being a company director can be a fairly onerous task, even for part time super heroes!

If you require any assistance or further information on roles and responsibilities of being a director in business please get in touch with the Blackadders Corporate & Commercial team.

Richard Wilson
Trainee Solicitor – Corporate & Commercial
http://www.blackaddders.co.uk