Welcome to our second edition of our monthly employment law update from the HR Division of Lander Associates. We hope you found last months update useful. For our new readers Paul Marsh, our Head of HR, will be sharing updates, case studies and more with you each month.

‘Borat’ nickname for Polish employee was race discrimination An employment tribunal has ruled that using the name ‘Borat’ to refer to someone from Eastern Europe amounted to direct race discrimination. Mr Ruda worked for TEi Ltd, an engineering company in Yorkshire. The judgement explained that someone with all the characteristics of Mr Ruda but who was neither from Poland nor perceived to be of Eastern European origin would not have the nickname applied to him. Employees were not entitled to be accompanied at investigation meetings Three employees of London Underground were asked to attend investigation meetings relating to a formal complaint of harassment. The meetings did not go ahead as the employees were refused union representation at the meeting. The tribunal found that as the meetings themselves would not potentially result in the issuing of a formal warning that the men were not entitled to be accompanied.

Employee who attended work drunk was unfairly dismissed Ms Ricketts was dismissed for gross misconduct by Parson Cross Domestic Abuse Project after being drunk at work. It was found that the Project should have enquired into the cause and effect of her attending work drunk. Ms Ricketts’s GP had identified her alcohol difficulties as a medical problem so the Project should have not treated the matter as a single act of gross misconduct. Her compensation was reduced by 10% however to take into account her responsibility to attend work in a fit condition. Employment status: tribunals can set aside express terms that do not reflect the actual legal relationship In Autoclenz Ltd v Belcher and others, the Supreme Court has upheld a Court of Appeal decision that car valeters, whose contracts described them as self-employed and contained a substitution clause, were in reality employees. It confirmed that, when determining an individual's employment status, Employment Tribunals may disregard terms included in a written agreement where they do not reflect the genuine agreement of the parties. The focus of the Tribunal's enquiry should be on the "actual legal obligations of the parties". Relevance of being openly gay to direct discrimination and harassment In Grant v HM Land Registry, Mr Grant worked for HM Land Registry at its Lytham office, where there are over 300 employees. Initially he did not reveal that he was gay. However, he subsequently chose to tell his Lytham colleagues. When Mr Grant was promoted to a post in Coventry, he wished to tell his colleagues that he was gay in his own time. However, his new line manager, Ms Kay, made references to his sexual orientation to his new colleagues. He brought a Tribunal claim for sexual orientation discrimination and harassment.

October 2011

Employment Law Update

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The Court of Appeal held that an employee who had "come out" at work had not been directly discriminated against or harassed on grounds of sexual orientation. The employee had put his sexuality into the public domain and so had risked that information being discussed between colleagues. When his line manager at a new office made reference to his sexuality without any intent to violate his dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him, that disclosure was not an act of discrimination or harassment, despite the employee being upset and feeling uncomfortable as a result. Unlawful deduction of wages and bonus payments In Hellewell v Axa Services Ltd the claimants made allegations regarding an unlawful deduction from their wages in respect of money due under its bonus scheme for the years 2009 and 2010. They had been dismissed for gross misconduct in April 2010. The claimants were not paid their bonus on the basis that they were not entitled to it, according to the provisions set out in the bonus scheme. The rules of the scheme stated that the employer was not obliged to pay a bonus, but only to consider one if certain conditions were met. It also stated that no bonus shall be payable where a staff member leaves as a result of gross misconduct. This case reminds us that there will be no obligation to pay a bonus where the relevant bonus scheme’s conditions are not met. Ensure that there is no ambiguity in your bonus scheme rules! Reminders now the default retirement age has been removed in UK � Remove the expectation that employees will retire at a particular age unless continuing with this (which

will be lawful only in limited circumstances)

� You may want to consider a process by which employees can indicate their intention to retire.

� Your performance management procedures should be consistently applied across the organisation.

� Generally, a pension scheme that ends at 65 years old or state retirement age is not discriminatory.

Question of the month: What obligations are there on the part of an employee who has been arrested and charged for an offence occurring outside the workplace? What should the employer’s process be? The time to consider telling the employer is where there has been a conviction, particularly if the company has not been brought into disrepute. If the conviction does not relate to work, there is no obligation to tell the employer. For the employer, they must consider whether the ‘punishment’ prevents the individual from doing their job and does the crime affect other employees who work with that individual.

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Employment Law update

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