However,
it is often overlooked that managing talent also
presents a variety of both legal and practical
challenges for the employer. How do you attract
the right employee on terms acceptable to both
parties? Can you target your employee benefits to
improve retention? What do you do if the high
performer once considered integral to your
organisation suddenly becomes a potential threat
to your business? If it becomes unavoidable, what
steps can you take to manage their exit?
Our
workshop will guide you through all the key issues
arising from talent management in the workplace,
helping you to identify both potential problems
and solutions and providing practical advice.
Click here to
reserve your place.
Intimidation by respondent
- the car park...
Striking
out a respondent's response to a claim is
proportionate and appropriate where the
respondent's witness has intimidated the
claimant.
In
Force One Utilities v Hatfield, after a
case had been adjourned at the Tribunal, the
claimant alleged that when he left the Tribunal
building and was in the car park, the respondent's
witness, who had played a key role in handling the
case for the respondent, made a serious threat of
physical harm to him, including a threat that the
claimant should be careful "how he slept at
night". The witness also swore at the
claimant.
The
Tribunal subsequently examined whether, under the
Employment Tribunals (Constitution and Rules of
Procedure) Regulations 2004, the respondent's
response should be struck out in its entirety on
the grounds that the manner in which the
proceedings had been conducted had been
scandalous, unreasonable or vexatious. The
Tribunal concluded that striking out the response
was a proportionate response to the
intimidation.
On
appeal, the Employment Appeal Tribunal (EAT)
agreed with the Tribunal. It held that the
Tribunal was best placed to appreciate the impact
which the intimidatory conduct had had on the
claimant and once intimidation of this kind is
found to have occurred, it will be a very
exceptional case indeed where it can be said that
a finding that no fair trial is possible is
perverse. It accepted that there may be cases
where intimidation occurs at such a late point in
the trial that a fair trial is still possible.
However, the fact that some evidence had already
been given was at most a factor for the Tribunal
to consider and had no more significance than
that.
Intimidation by respondent
- the corridor...
Continuing
with the theme of intimidation and moving from the
car park to the corridor of the Tribunal, another
recent case has considered the threatening
behaviour of a respondent.
In
Nicholls v Corin Tech Ltd and others, the
claimant alleged that, after the conclusion of a
hearing, he was subjected to threats and abuse by
a director of one of the respondents. The claimant
said that the director strongly abused and
threatened him and also swore at him. The claimant
believed that after being treated in this way, if
he made any more allegations against the
respondent or took his outstanding grievances
further, he would suffer a serious injury caused
by violence to his person. The claimant sought to
raise a fresh complaint concerning this
behaviour, on the grounds that it was
discrimination by way of victimisation.
The
Tribunal rejected the claim on the basis that the
matter attracted the immunity which attaches to
things said or done in the course of judicial
proceedings. The EAT, however, concluded that, if
the conduct were proved, it would arise out of and
be closely connected to the relevant relationship
for the purposes of discrimination legislation. In
addition, the incident in the corridor did not
form part of any judicial process and therefore
did not attract any immunity.
Court of Appeal overturns
decision that workers were employed by
agency
The
Court of Appeal has overturned an EAT finding that
a contract of employment existed between workers
and an employment agency.
In
Consistent Group Ltd v Kalwak and others and
Welsh Country Foods Ltd, the EAT approved the
Tribunal's finding that workers were employed by
an agency (click here to read our
report of the EAT case).
The
Court of Appeal, however, overturned the EAT's
decision, based on the employment judge's original
reasoning. The judgment was deemed to be
manifestly unsatisfactory and material errors had
been made. The employment judge had failed
to provide reasons for his decision to satisfy the
parties that he had arrived at a cogent answer.
His reasoning was deficient, the contract which
was at the heart of the case was misinterpreted
and there was a finding that the true nature of
the contract was one of service with no
explanation as to how that finding was arrived at.
Further, whilst the employment judge had referred
to the evidence of the claimant's main witness, he
had failed to refer to the witnesses called by the
agency or their evidence.
The
Court of Appeal has set aside both the order of
the EAT and the employment judge's judgment and
remitted the case to a differently constituted
Tribunal for a re-hearing. It remains to be seen,
therefore, to what extent the Tribunal will
provide further guidance on the issue of agency
worker status.
Illegality and employment
status
The
Court of Appeal has confirmed that two employees
who had been treated as self-employed were not
employed on illegal contracts and could claim
unfair dismissal.
In
Enfield Technical Services Ltd v Payne;
BP Components Ltd v Grace, Mr Payne worked on
a self-employed basis, on a sub-contractor's
contract. HM Revenue and Customs (HMRC) made
enquiries as to his status and, while the matter
was not clear cut, it was prepared to accept Mr
Payne was self-employed.
Mr
Grace also started working on a self-employed
basis. Ten weeks after starting work, he was asked
to become an employee but refused the offer. The
following year, the company told him that he was,
for all intents and purposes, an employee and
he later accepted a new contract of
employment.
Both
Mr Payne and Mr Grace subsequently claimed they
were in fact employees and brought claims of
unfair dismissal. Their employers argued that
their contracts were illegal as they had
represented to HMRC that they were self-employed
and they were therefore not entitled to claim
unfair dismissal.
The
Court of Appeal, however, has confirmed that an
error of characterisation of the relationship does
not necessarily prevent individuals from
subsequently claiming the advantages of being, or
having been, an employee. A genuine claim to
self-employment unaccompanied by false
representations as to the work being done or the
basis of payment is not enough to make the
contract illegal. There must also be a
misrepresentation, express or implied, as to the
facts if the contract is to be tainted by
illegality of performance (i.e. an attempt to
conceal the true facts of the relationship).
UK workplaces blighted by
presenteeism
40%
of UK employees frequently stay in the office
longer than necessary, according to research by
the employee wellbeing specialist Right Corecare,
with over 20% of employees stating that everyone
in their office is expected to work extra hours.
However,
whilst employees may be staying in the office
longer, 24% admit to checking Facebook or surfing
the net on company time and 12% get into work
early or leave late even when they have little
work to do. 16% also admit they work late in order
to be perceived as hard working.
Presenteeism
does not necessarily have the impact that
employees believe it will. According to the
research, whilst 15% of employees think staying in
the office longer will help their career
progression, only half this figure actually
receives a promotion or pay rise as a result.
Keeping your distance - by
email and text
Many
people in the UK rely on text messages and email
to get themselves out of awkward situations,
according to research by the Post
Office. 73% admitted to delegating difficult tasks
at work by email and text and one in four 18-34
year olds thought it was appropriate to call into
work sick via email or text message, with one in
seven admitting to having done so in the last 12
months.
The
report, called 'Etiquette in the Digital Age',
indicated that many people are using modern
technology to keep a 'digital distance' and avoid
face-to-face or verbal confrontation.
In
the workplace, people admit to relying on email
and texting for a variety of awkward tasks,
including: