HR News Round-up
HR News Round-up
November 2015
In this Round-up: -
Prosecution for Former Sports Direct Chief Executive
It has recently been reported that the Dave Forsey, former Chief Executive of Sports Direct, is to face criminal charges for mishandling of staff redundancies.
The charges to be brought, are that Mr Forsey acted in contravention of section 194 of the Trade Union and Labour Relations (Consolidation) Act 1992, and relate to the manner in which he handled the closure of the wholly-owned fashion chain ‘West Coast Capital’ (USC) in January this year. 200 workers at the site were literally given 15-minutes notice by the appointed Administrators that they would be losing their jobs before the Company was shut down; as opposed to being given the required minimum of 30-days consultation.
If convicted, it is believed that Mr Forsey will become the first FTSE 100 Chief Executive to be charged under this Act and he could be fined up to £5000 and banned from holding a company directorship for up to 15-years.
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Misery for Morrison's
The issue of data protection is prevalent in the media at the moment; the big news story has obviously been the recent hacking of Talk Talk’s customer database by a school child. However, supermarket chain Morrison’s have been making headlines of their own. It has emerged that 2,000 of their employees are suing the supermarket for failing to prevent a data leak, which exposed its employees to the risk of identity theft and potential financial losses.
The background to this case is that a disgruntled employee, Andrew Skelton, uploaded the personal details of 99,998 colleagues to file-sharing sites in 2013; including their bank, salary and national insurance details. He did this as an act of revenge after he had been disciplined by the Company for misusing the Company’s post room to send personal eBay packages. Mr Skelton has now been convicted and is serving an 8-year jail sentence for his actions.
The action by these employees is believed to be the first ever ‘group-action’ claim relating to a breach of data and the basis for the claim is that Morrison’s are ultimately responsible for breaches of privacy, confidence and data protection law. Morrison’s are disputing the claim and have stated that they will not accept liability for the actions of a rogue employee; it is also their view that they are not aware of any employee suffering any financial loss as a consequence of this breach.
The Case will not be heard for a little while yet; as the High Court have agreed a 4-month extension to allow other employees to potentially come forward and join the claim; which could be more bad news for Morrison’s as it has been estimated that it could potentially cost them £2 million to resolve.
We will keep an eye on this and bring you an update when we can…
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Diversity in the Workplace 1 ~
Gender Pay Gap
Ahead of the implementation of new legislation concerning the gender pay gap; it has been reported that 2,000 employees of Fife Council have won, what is described as a ‘historic equal pay agreement’. To avoid Tribunal, Fife Council have reached a deal with Unison to end discriminatory pay practices, which will see male and female employees being paid equally going forward, as well as giving those affected employees back-pay dating back to 2006. Although the exact amounts have yet to be disclosed, it is believed that the pay-outs could be significant, with employees potentially having a share of millions of pounds in back-pay and bonuses.
This issue first came to light in Scotland in 1999 when the Single Status Agreement was implemented by Local Government, Unions and employers with the intention of assist with the harmonisation of terms and conditions of employment. However, its implementation served to highlight significant disparities between the pay of male and female employees for doing work of equal value and in the last 5-years, it is believed that that Local Authorities have settled around £300 million in out of court settlements.
Whilst this issue has thus far been largely confined to Public Sector employers, the Private Sector will not be able to hide from the issue for much longer. The new legislation will be implemented in spring 2016 and will require all companies with more than 250 employees to collate and publish data on their gender pay gap.
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Diversity in the News 2 ~
'Blind Recruitment'
The issue of ‘unconscious bias’ has hit the headlines in recent weeks; this refers to a bias that we are unaware of and which happens outside of our control. It is a bias that happens automatically and is triggered by our brain making quick judgements and assessments of people and situations, influences by our background, cultural environment and personal experiences (definition by the Equality Challenge Unit).
It is believed to be quite prevalent in recruitment scenarios, where research has shown that candidates with white-sounding names are nearly twice as likely to get call-backs’ for jobs than those with ethnic-sounding names. In response to this, it has been announced by the Prime Minister that a number of Public and Private Sector employers have signed up to recruit on a ‘name-blind’ basis.
Amongst those who have signed up are; the Civil Service, KPMG, HSBC, Deloitte, Virgin Money, BBC, NHS, learndirect and Local Government. Whilst the commitment has been made in connection with Graduate Recruitment and Apprentices in the first instance, it is anticipated that employers will be encouraged to roll this out across all recruitment in the future.
Diversity in the News 3 ~
Disability Discrimination
It has been reported that an NHS employee has been awarded £115,000 by an Employment Tribunal after successfully suing his employer for disability discrimination. Mr Waddingham was made redundant following a redeployment exercise; which involved matching staff to new roles and interviewing them to assess their suitability for the role, which is generally standard practice in a redundancy exercise to minimise or reduce the need to make redundancies.
However, in this instance, Mr Waddingham applied for a vacant position shortly after he had commenced treatment for cancer. The NHS Trust was flexible with the date and time of the interview and gave Mr Waddingham the opportunity to take breaks when he needed, as well as giving him the option to stop the interview at any time. Ultimately though, he did not perform well in the interview and was not offered the job. He later successfully applied for another NHS job and then brought his claim for Disability Discrimination.
The Tribunal upheld his claim, accepting that his performance in the interview would have been affected by his treatment at that time. It was held that the ‘reasonable adjustment’ in this case, would have been to assess him for the role without putting him through a competitive process and using other methods such as previous appraisals as a means to assess his suitability for the role.
The £115,000 awarded to him includes an amount for; loss of earnings, pension loss, injury to feelings and interest.
Cases of Interest ~ Pension Funds
It is not often pensions are defined as being ‘interesting’, other than for those who are close to being in receipt of them or those working within the industry. However, a recent case concerning pension rights in same-sex relationships could prove to be a landmark case. In Walker v. Innospec, the claimant had argued that had he been married to a female, she would be entitled to around £41,000 per year in the event of his death, but that his husband would only receive around 1% of that amount. However, the Court of Appeal has ruled against his husband being awarded the same pension rights. The ruling specifically refers to benefits accrued for service prior to 5th December 2005, when the Civil Partnership Act first came into force and reinforces that equal rights cannot be applied retrospectively in this and other cases.
It has been estimated that, had the Court ruled in favour of Walker, there would have been far-reaching implications, with employers facing having to pay out £3.3 billion in pension fund costs. It should be noted though that the majority of pension schemes treat same-sex partners the same as widows; it is only approximately one in four that do not.
The case may not yet be concluded as there is a possibility that a further appeal to the Supreme Court may be made and we will report back further if that happens.
And Finally...
At this time, the majority of people within the UK take time to remember those who have served their Country in the World Wars and subsequent conflicts. Whilst a seemingly innocuous item, the ‘poppy’ can become a source of contention as well as a source of urban myth, particularly in an employment context and so, we will try and give a reasoned overview of the wearing of poppies and other items of remembrance.
It has been reported that employees have been prevented from wearing a poppy for reasons of ‘Health and Safety’; particularly within the hospitality sector. Whilst it is fair to apply this reasoning to employees working within a food preparation/serving role, where an unsecured poppy may contaminate people’s food; it is not an acceptable practice to apply a ‘blanket ban’ for all staff on this basis. The generic citation of health and safety to impose ridiculous rules on employees is a continued source of frustration for those working within the Health & Safety field, including the Chair of the Health & Safety Executive.
It has been suggested that stopping employees from wearing poppies infringes their rights under the Equality Act 2010. However, in Lisk v. Shield Guardian Co Ltd; the Tribunal Judge ruled that whilst a person can have a ‘passionate belief’ in their ‘obligation to show respect for the sacrifices of others’ by wearing a poppy, the belief is too narrow to be characterised as a ‘philosophical belief’ and therefore falls outside of the protections offered by the Equality Act.
However, where an employer requires all of its employees to display a poppy whilst working in public, this could fall foul of the Equality Act. This is because an individual’s own personal beliefs, may be compromised by being required to wear a poppy at work.
The upshot being, that above all; unless there are sensible reasons for barring the wearing of poppies in the workplace, the decision of whether to wear one or not, should be a down to the individual to make in accord with their own beliefs.