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HR News Round-up 

February 2016 
 
2016 has gotten off to a fairly slow start in terms of employment news, so a little later than expected, please find below our first round-up of what's going on in the world of HR... 
 
Cases of Interest: 
'Drunken Employees' 
 
The issue of drunkenness at work has been prevalent in the news since the turn of the New Year; from the very serious case of a school bus driver who was caught driving whilst over the drink-drive limit, to perhaps the more ridiculous, with a story concerning TVs This Morning’s presenters… 
 
In the first case, Jeffrey Owen from Wales was stopped after he was spotted by a member of the public with a can of Strongbow cider in his hand before going into a shop to buy more alcohol and then returning to his bus, where he was driving a group of sixth-form students between schools for lessons. When Mr Owen was stopped, the Police Officer, having smelt alcohol on his breath, attempted to take a breathalyser test which was refused by Mr Owen who swore at the Officer as he refused to comply. He was later found to have 118mgs of alcohol per 100ml in his urine sample; the legal limit being 107 mgs of alcohol per 100ml. 
 
The mitigation presented by Mr Owen’s defence team was that he had been under considerable stress having experienced a number of bereavements amongst his family members and friends. As a consequence, he escaped a custodial sentence and was given an 8-week suspended prison sentence, 16-month ban from driving and ordered to undertake an alcohol rehabilitation course. 
 
The media has only reported on the criminal aspects of the case, so it is not known what the impact of this has been on his employment; but it would seem inevitable that his employers would have considerable grounds to dismiss him for gross misconduct… 
 
At the other end of the spectrum; trending on social media has been the story of Philip Schofield and Holly Willoughby who turned up on the set of This Morning on the day following the National Television awards, clearly still drunk and wearing their clothes from the night before… 
 
There are considerable differences between the two incidents and obviously, the presenters’ attendance at work in such a state did not put anyone’s life at risk. However, from the employer’s point of view in this case, there is the issue of reputational damage and viewers complaining about them setting a bad example… 
So far, nothing has been reported about any consequences for them, but in an era when social media is such a powerful force, it is likely that this will follow them around for some time to come and to prove the point, check out the YouTube video… 
 
In an employment context, there is a balance to be struck when it comes to dealing with employees and alcohol; on the one hand there is the scenario where drunkenness at work is a straightforward case of misconduct which has to be handled via the disciplinary procedure.  
Video courtesy of YouTube 
But on the other hand, there are also cases where an employee’s behaviour may mask a deeper issue of well-being, for example where there are signs of alcoholism or cases where employees are using alcohol as a means of ‘escapism’ from stressful situations in their work or personal lives and in these instances, there is a need to be more sensitive in their handling. 
 
What is key though, is that employers have clear policies and guidelines in place to handle the issue of drink and drugs, including legal-highs, in the workplace. 
 
Pay Inequality 
 
Much has been reported about the ‘gender pay gap’ over many, many years in the media and at some point this year, we will see the introduction of mandatory reporting of gender pay gaps for employers with over 250 employees. However, a new survey conducted by the Trades Union Congress (TUC) has found that graduate workers who identify themselves as being from a black and minority ethnic (BAME) group earn an average of 23% less than similarly qualified workers who identify themselves as white. 
 
Gaps also exist at lower educational levels with BAME workers with A-level qualifications earning an average of 14.3% less than their white counterparts and those with GCSE qualifications earn 11.4% less than their white peers. 
 
Alongside these figures, it has also been highlighted that only 4% of Chief Executives working for FTSE 100 companies come from a BAME background and none of the most senior roles within the Armed Forces are held by those from a BAME background. 
Paradoxically, the media reporting these figures has also stated that for workers in jobs paying at or close to the minimum wage, the difference between the pay levels of those from BAME and white backgrounds is virtually non-existent… It takes a while, but you’ll get there in a minute… 
 
With figures like these, it seems highly likely that the attention will soon shift from the gender to the race pay gap and we will continue to monitor this and bring you any further developments as they arise. 
 
 
'Winter of Discontent' 
 
There are probably two words that strike fear into the heart of anyone having to commute or travel into London for work and they are ‘tube strike’! The latest strikes to wreak havoc on the Capital arose as a result of proposals to introduce a ‘night tube’ service on five lines operating on the network; Jubilee, Central, Victoria, Northern and Piccadilly. The dispute was initially concerned with the pay on offer to those working extended hours to cover this new service, but latterly it has been suggested that the Unions were unhappy with London Underground recruiting additional staff to cover the service – even though this was happening in response to concerns raised by Unions of staffing shortages for the extended service… 
 
However the end may be nigh on this dispute… A revised pay deal involving a 2% increase in year one; the greater of RPI inflation or 1% in years two and three and the greater of RPI inflation plus 0.25% or 1% in year four plus a £500 bonus for those working on the affected lines, is on the table and it looks like the RMT, the largest of the Unions covering London Underground will be encouraging members to accept this offer. Two of the remaining Unions, ASLEF and TSSA are still undecided, but it’s looking like ASLEF will move to accept and the final Union, Unite who represent engineering staff, have rejected the offer and are looking for further talks with management… 
 
It would be nice to think that this may be the end of the strike on the Tube for a while, but history suggests that this will be a pipe dream… 
 
On a national scale though; it looks like the second planned strike by Junior Doctors will go ahead on 10th February, as talks with the Government appear to have broken down. This dispute, which probably attracts more sympathetic understanding than the aforementioned, is in response to proposals from the Government to introduce a new Contract for Junior Doctors, which it suggests is needed to support a move towards the provision of 7-day health services. Whilst the proposals offer a considerable increase in basic levels of pay, the bone of contention amongst Junior Doctors is the proposal to increase the period defined as normal working hours and to reduce those classified as ‘unsocial hours’; reducing the amount of unsocial allowance payments and thereby adversely impacting on their overall remuneration package. 
 
It had been intended that the strike next week would remove all cover, including emergency care and that it would run between 8 00 am and 5 00 pm; however, it has been decided that the scope of the strike should be scaled back to allow Junior Doctors to cover emergency care and instead, the strike will run for 24-hours. 
 
Talks are continuing at ACAS and there may yet been an 11th hour deal to avert further strike action… 
 
Tribunal Awards 
 
Employers who fail to pay employment tribunal awards or amounts owing to employees through COT3 settlement agreements, will be issued with a warning notice with effect from 1st April 2016. Within this warning, they will be given a specific date by which any outstanding monies have to be paid and if they do not make the payment by this date, then they will be issued with a penalty notice amounting to 50% of the outstanding payment. 
 
The minimum penalty will be £100 and the maximum will be £5,000 and this money will be payable to the Government, not the individual i.e. this is an additional payment that has to be met by the employer. If they make the payment to the individual in full, within 14-days of being issued with the penalty, then it will be halved. 
 
The intention behind this is to seek redress for the successful claimants in tribunal cases who do not receive the award that is owed to them; estimated to be around 50% of the total number of cases won by the claimant. 
 
Cases of Interest 
 
A few cases of interest to report this month… 
 
In the first, Ghartey v. Royal Museums Greenwich, Mr Ghartey was employed as a Visitor Assistant and had been with the Museum for a considerable period of time, during which he was persistently late for work. He was made aware that his timekeeping would be monitored and having failed to make any improvement and in February 2013, he was issued with a written warning for unauthorised absence. A further final written warning followed in February 2014. The Museum then took the decision that it needed to take tighter control over timekeeping and attendance more generally and in line with this, it determined that all employees with ten or more timekeeping offences in the previous year would be issued with a disciplinary warning and as Mr Ghartey already had a live final written warning on his record, he was dismissed. 
 
The basis of his tribunal claim were that his journey to work on public transport was extremely difficult; his two previous warnings had been unfair; the final warning did not say that further ‘misconduct could result in dismissal and that the timing of the review was ‘dubious’. 
It was acknowledged by the Tribunal that his journey into work was difficult, but ultimately they found that he was aware of the need to report to work on time and that over the course of his employment, he had been persistently late for work. His claim that the previous warnings were unfair was also dismissed as he had been represented by his Union on both occasions and had not appealed against either decision and consequently, the Museum had followed a fair procedure and his dismissal was therefore fair. 
 
On reading this summary and it is a brief summary; the issuing of retrospective disciplinary sanctions following the decision taken by the Museum to tighten up on timekeeping could be perceived as going against the laws of natural justice. However, in light of the Tribunals findings, who would have been party to the full bundle of documents concerning the review and Mr Ghartey’s record, it would seem that this was an unlikely scenario. This is a simple case, but demonstrates that it is possible for employers to take action, up to and including dismissal, against employees who are persistently late for work ~ providing they follow a fair procedure when arriving at that decision. 
 
Our second case is an even briefer summary, but which covers the issue of ‘bribery’; something that does not appear to crop up too often… The case is Blake v. The Home Office
 
Ms Blake was an Immigration Officer working for the Home Office and when offered a bribe from an immigration offender of around £200, she accepted it. However, she later thought better of her actions, voluntarily reporting herself to her employer and returning the money. The Home Office have clear rules prohibiting staff from accepting bribes and despite her attempts to rectify the situation, she was dismissed on grounds of gross misconduct as she had failed to report the bribe at the time it was offered, which was in breach of the anti-corruption policy. 
 
Her claim at Tribunal was not successful; it was held that although she had a previously good employment record, her actions in initially accepting the bribe and failing to comply with clearly stated rules, was of sufficient severity to warrant her dismissal on the ground of gross misconduct. 
 
Finally, there is the case of Pnaiser v. NHS England and Coventry City Council. In this case, the claimant brought proceedings against her former employer, as the ‘referee’ and her prospective employer. When Dr Pnaiser left her previous employment, it was under a settlement agreement, which included the provision of an agreed reference. The agreed reference was provided to the prospective employer and this was followed by a telephone conversation in which her former Line Manager, Ms Tennant had confirmed that Dr Pnaiser had had several periods of absence, resulting in significant time off work. When asked about her suitability for the new role, which was graded at a higher level and involved line management responsibilities, Ms Tennant had responded that she was unable to judger Dr Pnaiser’s suitability as the responsibilities of the new role differed significantly to those which she had undertaken in her previous role. She also added, that she was unable to judge Dr Pnaiser’s potential to undertake the role, because of the problems experienced by Dr Pnaiser in managing her symptoms. 
 
As a consequence of this conversation, the offer of employment was withdrawn and Dr Pnaiser made a claim of disability discrimination. At Tribunal, the argument presented by Ms Tennant; that whilst she accepted that she had mentioned the sickness absence in the conversation, the oral reference given was not overly negative and that her assessment of Dr Pnaiser’s suitability for the new role had not necessarily been linked to her history of sickness absence and it was found by the Tribunal that there was no evidence of a discriminatory motive. However, Dr Pnaiser was given leave to appeal and the Employment Appeal Tribunal found in favour of Dr Pnaiser; ruling that it could be inferred that the comments made by Ms Tennant were at least in part as a result of the sickness absence and neither Ms Tennant nor the prospective employer could show that the disability-related absences were not connected with the assessment of her suitability for the role or for the decision to withdraw the offer of employment. 
 
The issue of giving and receiving references is always a tricky one to manage, particularly when there are other factors in play. This case usefully reminds employers to be cautious about what they say when giving references whether verbally or in writing and also to be equally cautious about how they are interpreted and used once received. The other dimension to this case is the use of agreed references and the importance of not deviating at any stage from what has been agreed… 
 
And Finally… 
 
In the days between ‘Big Brother’ just being a fictional ideology and it becoming a reality with the advent of technology; it would seem that Bill Gates, one of the pioneers of that technology, used his own version of ‘Big Brother’ to monitor the comings and goings of employees. In an interview for Desert Island Discs, Gates has revealed that he used to memorise the number [licence] plates of his employees back in the days when he was still ‘fanatical’ about work, so that he knew what time they arrived at and left work… 
 
Somehow, I’m guessing that with an estimated 99,000 employees working for Microsoft world-wide now, this is one ‘parlour trick’ that even Bill Gates would not be able to manage these days… 
 
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