Plan ahead to stay out of court

It’s been a busy few months in the courts both at home and in Europe with judges producing several rulings that could have a huge impact on the way employers run their businesses.

The House of Lords sent shock waves through many firms in a landmark case that means thousands of part-time workers may soon be able to claim the same pension and sick pay rights as their full-time colleagues.

The case was brought on behalf of 16,000 retained firefighters who work part time. Their union argued that they were being subjected to discrimination because they were not allowed to join the pension scheme and enjoyed less favourable sick pay arrangements than full time firefighters.

The argument was rejected by an employment tribunal and so the union took it all the way to the House of Lords. The case hinged on whether the retained firefighters performed tasks that were the same or broadly similar to those who worked full time.

The Lords decided that they did and ruled that the original tribunal was wrong in assessing otherwise. The case was referred back to a tribunal for a rehearing taking into account the comments of the Lords.

If the new tribunal decides in favour of the firefighters there will then be a second hearing to see how their complaints can be remedied. The union has already argued that the retained staff should be allowed to join the pension scheme with full backdating.

The guidance from the House of Lords now gives the go-ahead to part-time workers in other sectors to try to claim the same benefits as full time staff.

Not to be outdone by Britain’s House of Lords, the European Court of Justice produced a ruling that will shake-up the way many firms pay their staff. The court ruled that the system of rolled up holiday pay breached the working time directive.

Under the system, holiday pay is paid as part of an hourly rate rather than for a specific period of leave. It’s administratively convenient for many firms but is often criticised because it encourages people not to take their holiday entitlement. Holiday pay must now relate to a specific time when an employee takes leave.

Some commentators have described it as an administrative nightmare which is perhaps a little alarmist but nevertheless, firms who use the system would be well advised to switch to a method of linking holiday pay to actual periods of leave.

The case of a waitress who won £124,000 compensation after being bullied at work for 15 months by a chef didn’t qualify as a landmark ruling but it was still a warning shot for any firm that doesn’t have anti-bullying strategies in place.

The 26 year old woman was working at a leading London restaurant as a way of supporting herself while she took a university course. She told a tribunal that the chef was extremely frightening and intimidating. He referred to her in sexually crude terms and sometimes walked around the kitchen dressed only in his underpants.

The waitress, who suffered depression and anxiety as a result of his actions, won her claim for sex discrimination and unfair dismissal.
The tribunal chairman described the chef as a bully with a greatly inflated view of his own importance.

That may well be true, but what often happens in these cases is that
an unruly employee causes all the trouble and then it’s the employer who has to pick up the bill for the compensation.

In this sense, the employer can be seen as the bully’s second victim. The answer, or course, is to be pro-active and put anti-bullying policies in place. Not only will they help prevent bullying by nipping it in the bud, it will also help an employer defend a case should it go to a tribunal.

This is particularly important given that a recent survey by the CBI revealed that many firms prefer to settle cases they have a strong chance of winning because they fear that tribunals are skewed against them.

It would be a shame if firms persisted with that approach because sometimes it is actually better and cheaper to stand your ground and fight the case.

But good though it is to win, it’s better not to have fight at all, whether it’s to do with bullying, working conditions, methods of payment or whatever. Prevention is always better than cure and that means getting the right policies and structures firmly woven into the fabric of your business right at the start.

For further information contact Paul Brill, tel 0115 947 0641, e-mail pbrill@andersonssolicitors.co.uk.