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Disciplinary investigations: Common sense and even-handedness should prevail

In the recent Employment Tribunal (ET) case of Ball v. First Essex Bus Limited, the claimant, a 60-year-old bus driver who suffers from diabetes, has been successful in his unfair dismissal claim. He persuaded an ET that his dismissal for being under the influence of cocaine whilst on duty was both substantively and procedurally unfair. The claimant had failed a random drug test.

This case shouldn’t instil fear in employers who require to carry out random or “with cause” drug testing despite the attention-grabbing headlines that have been published in response to the ET decision. It should, however, serve as a useful reminder to employers to follow their own policies and procedures (which should be regularly updated) as well as the ACAS Code of Practice on Discipline and Grievance even in the face of (or perhaps particularly in the face of) very serious, career-ending, allegations. In this case the employer failed to follow its own drug and alcohol policy and contractual disciplinary policy. Importantly the drug and alcohol policy expressly allowed an employee to challenge the results of a positive test but the respondent did not bring this to the employee’s attention. The policy also required that an independent laboratory identified by the employee carry out a second test. This didn’t happen either. In addition the disciplinary policy provided that both investigating officer and disciplinary manager must carefully consider any verbal or written evidence submitted by the employee or their representatives. This was roundly ignored.

The judgment sets out a very good summary of what the ACAS Code requires an employer to do when operating any disciplinary procedure or process and in particular that an employer should keep an open mind and look for evidence that supports the employee’s case as well as evidence against it. In this case it appeared to the judge that “the respondent would pursue any avenue that would shore up the case against the claimant yet ignore any factor that might support the claimant’s position”. The judge also commented that “any disciplinary process requires a degree of common sense”.

The claimant’s position on cross-contamination (by handling cash and his fingers coming into contact with his mouth) was all but ignored despite being “open to the issue” as far as the judge was concerned. The employee had long service and an unblemished record. The fact that all four senior managers involved in the disciplinary process (investigation, disciplinary, first appeal and second appeal) found it odd that a 60-year-old man who suffered from diabetes, had no history of drug taking whatsoever, had an unblemished record, was of good character and whose managers were surprised that he had allegedly taken cocaine meant that any reasonable employer would have made further enquiries.

Disciplinary investigations: Common sense and even-handedness should prevail

New legislation seeks to ensure restaurant owners give their employees all tips from customers

New legislation is expected to be implemented to ban restaurants from keeping tips from their employees. The intention is restaurant owners will not be able to make deductions from tips which are paid by card in order to fund administration costs.

It is reported that High Street chains regularly take up to 10% of tips paid by credit or debit cards from employees. The issue was initially addressed two years ago in an official review led by the then business secretary, Sajid Javid, although nothing concrete had materialised.

The government is now re-addressing the issue, announcing that UK legislation will not only ensure workers get the tips they deserve, but will also give customers reassurance that the tips they leave are for the service they receive.

The announcement of new legislation is a timely reminder to employers of the protections that employees are entitled to during the course of their employment. Employers should adopt a proactive approach and re-evaluate their tipping procedure in order to avoid non-compliance and reputational risks.

 

 

 

New legislation seeks to ensure restaurant owners give their employees all tips from customers

Is the Apprenticeship Levy failing?

The Apprenticeship Levy, which came into force in April 2017, requires employers with pay bills over £3 million to pay 0.5% of their total gross pay bill to the government (through PAYE) which is then used to fund approved apprenticeship programmes. Each employer has an annual Apprenticeship Levy allowance of £15,000 to offset against their levy liability.
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Is the Apprenticeship Levy failing?

Eid al-Adha: dealing with religious festivals in the workplace

Eid al-Adha (known as the festival of sacrifice), the Islamic holiday marking the end of the Hajj pilgrimage, is due to begin this coming Tuesday (21 August). The festival is celebrated with prayer and feast, typically on a large scale with Muslims in their respective communities coming together to partake in the festivities. Many Muslims may request time off work to celebrate Eid al-Adha, so here are a few considerations for employers to bear in mind as the holiday approaches.
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Eid al-Adha: dealing with religious festivals in the workplace

Testing the limits of religious and philosophical belief discrimination

The Equality Act 2010 (the 2010 Act) prohibits direct discrimination, indirect discrimination and harassment in the workplace in respect of religion, religious belief and philosophical belief.
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Testing the limits of religious and philosophical belief discrimination

Acas Annual Report

Acas has issued its first annual report since the July 2017 Supreme Court judgment declaring employment tribunal fees unlawful (a previous blog post on the possible effects of that decision can be found here).
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Acas Annual Report

Government proposes major overhaul of Gender Recognition Act

The Government Equality Office (GEO) is proposing reform of the Gender Recognition Act 2004. This Act enables transgender people to obtain legal recognition of their acquired gender by the issuing of a Gender Recognition Certificate and changing the sex on their birth certificate.
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Government proposes major overhaul of Gender Recognition Act

Can the menopause constitute a disability?

A recent Employment Tribunal's ruling suggests that the physical and psychological effects of the menopause could constitute a disability for the purposes of the Equality Act 2010 (the 2010 Act) Ms Davies, a court officer for the Scottish Courts and Tribunal Service, had experienced the onset of the menopause resulting in her becoming severely anaemic, stressed and anxious, and experiencing memory loss.
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Can the menopause constitute a disability?

The equality of parenting

In the week after Father's Day in the UK, insurance provider Aviva commissioned a report into Shared Parental Leave (SPL) polling 1,000 fathers and 1,000 mothers with children aged 16 and under nationwide. Despite the legislation on SPL being in force since 2015 and the recent government campaign "Share the Joy", intended to raise awareness (which we talked about here), half of working fathers haven't heard of SPL. This is particularly disappointing as nine out of 10 parents are reported as believing mums and dads should be given equal parental leave.
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The equality of parenting

Employment tribunal fees – what does the future hold for employment tribunals?

When the Supreme Court reached its landmark decision on the legality of employment tribunal (ET) fees last summer (we previously blogged about this here) the court reviewed the evidence regarding the effect of fees on ET claims and noted there had been "a dramatic and persistent fall in the number of claims" since fees were controversially introduced in 2013.
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Employment tribunal fees – what does the future hold for employment tribunals?