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Dorchester Hotel has ‘grooming list’ for female staff

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The Dorchester Hotel gives its female staff a ‘grooming list’ to ensure that they meet certain standards of appearance whilst at work.

According to the list, female staff cannot come to work with oily skin, bitten nails, bad breath or body odour. It requires women to shave their legs, even if wearing tights, and recommends regular manicures and a full face of makeup.

Sam Smethers, CEO of the Fawcett Society, called the policy ‘unacceptable’, stating that: “Employers should concentrate on what enables people to do a good job and what drives productivity. This is 2016, not 1970; we need to see an end to this kind of objectification of women”.

Besides this, there are arguments that any such policy may be discriminatory. If a grooming policy is applied only to women (which the Dorchester denies), it could arguably be directly discriminatory on grounds of sex. Even if a policy is applied across the board, it could be indirectly discriminatory if it puts women at a particular disadvantage. One imagines that any such policy would theoretically seek to enforce different but similarly stringent levels of conformity, but that in practice this would mean that requirements to shave legs, wear makeup and get manicures will only apply to women and the equivalent rules for men are likely to be less intrusive.

In addition, some medical conditions can have physical effects such as excess hair growth, body odour or oily skin. If such a condition amounts to a disability, the Dorchester could be discriminating against an employee on those grounds if it punishes them for violation of the grooming policy.

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Employee shareholder status comes to an end

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The Government has abolished the tax benefits associated with employee shareholder status.

The regime was introduced in 2012 as another category of employment status designed to give employees a stake in the business they work for. It allowed employees to forfeit some of their employment rights (such as the right to a redundancy payment and to claim unfair dismissal) in exchange for a minimum of £2,000 of shares in the employer. The shares received relief from income and capital gains taxes, so the regime became used for tax planning purposes more than anything else.

Any employee shareholder schemes entered into prior to 1 December 2016 will still experience the same level of tax benefits as before.

Furthermore, the Government revealed its intention to close employee shareholder status to any new applicants altogether as soon as it is able to do so. Even if this were not the case, the lack of any tax relief for new applicants would make it an unattractive option considering the degree of rights an employee would have to forfeit, particularly as there would be an upfront tax charge on the granting of shares.

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Important changes to Tier 2 immigration rules

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A number of important changes to Tier 2 immigration rules are now in force.

Firstly, the minimum salary threshold for experienced workers under the Tier 2 (General) category has increased to £25,000 from £20,800. It is anticipated that it will increase further to £30,000 in 2017.

Secondly, the minimum salary for the Tier 2 (Intra Company Transfer – short term staff) category has increased to £30,000. The Tier 2 (Intra Company Transfer) skills category (where there is a training or information transfer need) has now closed to new applicants.

Thirdly, the minimum salary threshold for Tier 2 (Intra Company Transfer – graduates) has reduced to £23,000 and sponsors can now use 20 such places a year, which is a significant increase from the former annual limit of 5 places.

Significantly, the 28-day grace period for submitting an in-country visa extension application has been abolished. Instead, the Government has implemented a policy whereby the Home Office will accept an application for extension submitted within 14 days of a visa expiring if there is good reason and the delay was outside of the applicant’s control.

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How to investigate serious allegations of misconduct

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Where the allegations of an employee’s misconduct are particularly serious (especially if they are career-ending), a higher standard of disciplinary investigation is necessary to ensure a fair dismissal.

Ms Tykocki had been employed as a Healthcare Assistant for 14 years at an NHS Trust. A patient made a serious complaint about two “nurses”, one of whom was identified as Ms Tykocki. The patient said that she had not been given morphine and was left in serious pain. After begging for morphine for around an hour, the patient said that Ms Tykocki came around the curtains on her bed, put her hand over her mouth and told her to ‘shut up’. The patient then said Ms Tykocki leant in close to her face and invited her to report her.

Ms Tykocki denied all allegations and was suspended whilst the Trust investigated. It interviewed the patient, Ms Tykocki and the other staff on duty, but did not give notes of those interviews to Ms Tykocki.

Disciplinary proceedings were commenced, following which Ms Tykocki was dismissed for gross misconduct. She appealed the decision. A further meeting was held with the patient and Ms Tykocki’s union representative was permitted to attend on her behalf. At this meeting, the patient raised a number of new allegations surrounding that incident. The appeal was dismissed and Ms Tykocki brought an unfair dismissal claim.

The Employment Appeal Tribunal found that there were serious defects in the Trust’s investigation and disciplinary process. The extent of the investigation needed to be appropriate to the seriousness of the allegations (which essentially amounted to assault and would be career-ending). The Trust had failed to give to Ms Tykocki the transcripts of the interviews with the other nurses on duty, which could have been exculpatory given that none of them had seen anything. Also, the Trust failed to investigate the further allegations raised by the patient at the appeal stage.

The EAT emphasised that it is the overall fairness of the procedure from start to finish which is relevant. This means that employers should conduct the entire process to a high standard and collect all relevant information, as opposed to relying on an appeal to remedy any earlier defects.

Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust UKEAT/0081/16

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Getting your business off to the right start

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Starting up a new enterprise can be a daunting task. Most entrepreneurs’ energies will be devoted to perfecting their product or service and generating demand.  Protecting the business itself can seem less important; however, at this early stage businesses are both more exposed to risk and best placed to prevent it.

These are our top three employment law tips for new businesses:

1. Protecting confidential information – If a business has no contractual arrangements to protect confidential information when a member of staff leaves, they will have very little legal protection. Without a contract, the law will protect only the most key trade secrets (like the secret recipe for Coca Cola). That may help a start up which has developed cutting edge technology, but the reality is that many very successful start ups do not rely on trade secrets: they have a good product or service that they deliver well. Without contractual protection, this can leave them very exposed to a sharp elbowed or disgruntled former member of staff.

A well drafted contract employment contract will change that and can protect confidential information that does not form part of an employee’s skills and general knowledge.

2. Protecting your clients – Even though clients and staff are the most valuable asset of many businesses, there is no base layer of protection to stop ordinary employees from leaving and using their contacts to help them set up in competition (although that can sometimes be different with very senior employees).

Most small business owners know this and think that they have appropriate provisions in their employment contracts to prevent former employees from taking clients and sometimes even from competing full stop.

A little bit of knowledge can be a dangerous thing and that is certainly true with post-termination restrictions. Courts in the UK take a very restrictive attitude to post-termination restrictions in employment contracts and will only enforce those that they consider protect the legitimate interests of the business. If a covenant goes further than that, unless it can delete the offending section, a Court will not enforce it. Drafting enforceable covenants is a bespoke exercise: what a business’ legitimate interests are will depend on the sector, business and the employee’s role in question. So while many businesses think that they are covered by a standard agreement that they downloaded from the internet, often those agreements are not worth the paper that they are written on. It is only after an employee has left and breached them that a restriction will be tested. If they don’t work, by then it will be too late to protect the business.

If an employee has access to valuable information or clients, it is worth making sure the business is protected with bespoke, enforceable post-termination restrictions. Another approach that smaller businesses could explore is whether to offer their staff a small equity stake in their business. Courts can be more generous in their approach to post-termination restrictions contained in shareholders agreements, for example.

3. Interns – Many new businesses will rely on the input and assistance of unpaid interns. The concept of an intern is relatively new to UK law. As a result, it fits in quite badly with what is already a messy area of law. There are three categories of staff:

1. employees, who benefit from all employment law protections, including the right after two years’ service, not to be unfairly dismissed;
2. workers, who benefit from the right not to be discriminated against, holiday pay and the national minimum wage; and
3. everyone else, who do not have much in the way of employment law protections as they are traditionally viewed as being in business on their own account.

It is not always easy, even for employment lawyers, to determine where staff fall between these categories.  Interns are no exception.  If interns fall into this latter category, they will not qualify for the national minimum wage.  However, the legal ambiguity means that it is open to interns to argue that they are in fact workers, or even employees, which could leave the business exposed to a claim for unpaid wages or holiday pay.

To be a worker, an intern must work under a contract to provide services. This means that there needs to be a legal agreement in place (which can be written or oral) and that the intern must receive ‘consideration’ for their work.  Interns’ working arrangements are more likely to fall into the latter category if employers do the following:

• Softening the language – Softening the wording of an internship arrangement can be helpful to suggest that there is no contract in place.  For example, ‘we would be grateful if you could start around 9 am’ or ‘if you do not want to carry on with this internship, try and let us know a week or two in advance’.
• Being careful about payments/benefits offered – ‘consideration’ can be any form of payment or benefit in kind for work.  Refunding genuinely incurred expenses should fall outside of this but offering interns flat expense fees or the opportunity of a job at the end of an internship could qualify as consideration and mean that they qualify as workers.

Employment law should not be the focus of start ups but it can be an expensive and unnecessary distraction at a time when a business can least afford it. The right employment law protections from the start will help insure against future disputes with current and former staff.

BDBF is a leading employment law firm based at Bank in the City of London. If you would like to discuss any issues relating to the content of this article, please contact info@bdbf.co.uk, or your usual BDBF contact.

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How to dismiss an employee who has a prior written warning

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An employer should be wary of relying upon previous unfair disciplinary sanctions to justify a subsequent dismissal.

Mr Bandara worked for the BBC for 18 years, most recently for the Sinhala Service as a Senior Producer. He had an unblemished disciplinary record. In March 2013, he shouted at a colleague, and in July 2013, he defied his manager’s request to prioritise a news story about Prince George’s birth over a story about Black July (a time of remembrance in Sri Lanka for victims of anti-Tamil violence). A disciplinary procedure was commenced in relation to both incidents and, as a result, Mr Bandara was handed a final written warning in November 2013 to remain on file for 12 months.

A little later, a further investigation was carried out into allegations that Mr Bandara had bullied and intimidated his colleagues, created a ‘culture of fear’ in the office and disobeyed instructions. Following a disciplinary hearing, and taking into account the previous final written warning, Mr Bandala was dismissed in August 2014 on the grounds of gross misconduct. Mr Bandala claimed that the dismissal was unfair.

The Employment Appeal Tribunal upheld a decision that the prior final written warning was manifestly inappropriate in the circumstances. The decision as to whether Mr Bandara’s dismissal was fair overall must be considered in the light of that. If the prior written warning was solely background, and the later conduct was enough by itself to justify dismissal, the dismissal could be fair. However, if the unfair warning was relied upon, the EAT remarked that it would be hard to see how the dismissal decision could be reasonable.

In the light of this case, employers seeking to rely on a prior disciplinary sanction to support a dismissal decision should think critically about how the dismissal decision is worded; where there are multiple factors influencing the decision (such as a prior warning) the best approach is to try to cover both bases. One could say that whilst it is believed that the final act of misconduct was of itself gross misconduct and justified immediate dismissal, even if that were not the case, the combination of that act in the light of previous warnings was also sufficient to justify summary dismissal.

Bandara v British Broadcasting Corporation UKEAT/0335/15

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Workers can claim for not getting rest breaks they did not ask for

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A worker need not have expressly asked for a minimum rest break (twenty minutes every six hours) and been denied it to bring a claim under the Working Time legislation.

Mr Grange worked for Abellio London Limited from 2009; his job involved monitoring and regulating the company’s bus services. His working day was eight and a half hours, the half hour being an unpaid rest break. As of 2012, Abellio changed its schedule and the working day was reduced to 8 hours. The expectation was that staff would work through the shift without a break and leave earlier.

Mr Grange submitted a grievance in July 2014 stating that since the hours were changed in 2012, he had routinely worked without a meal break, which was affecting his health. He brought a claim in the Employment Tribunal claiming that Abellio had refused his right to rest breaks under the Working Time legislation.

Abellio’s argument was that as Mr Grange had never explicitly asked to take a break in the period he complained of, Abellio could not be seen as refusing his rights in that regard.

The Employment Appeal Tribunal agreed with Mr Grange. It held that, in order to bring a claim such as that brought by Mr Grange, a worker does not need to have explicitly asked to take a break and been refused. Instead, employers need to be proactive and ensure that their working arrangements allow for their staff to take breaks. If the working day is arranged such that a worker cannot take a break, their rights to do so have been refused.

In the light of this decision, it is wise for employers in high-pressured industries to check their working arrangements. If staff are routinely too busy to take breaks, an employer may be in violation of Working Time legislation even if nobody has complained at the time.

Grange v Abellio London Ltd [2016] UKEAT 0130/16/1611

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Bad publicity guaranteed: Employment Tribunal judgments will be available online

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HM Courts and Tribunals Service has confirmed that there will be an online database of Employment Tribunal judgments by the end of 2016 or the beginning of 2017.

HMCTS has stated that the database will enable people to access Employment Tribunal judgments which have been handed down since the database has been introduced.

Judgments handed down before the database has come into being will still have to be accessed in the traditional way; namely, writing to the Bury St Edmunds tribunal office and requesting a copy by post.  This method meant in practice that unless the press happened to be in attendance at a hearing (which was quite rare), it was very likely that a case could go to the tribunal and no-one would find out about it.

The new database means that any employers expecting a judgment in the New Year may find that the outcome of their case is far more public than it once would have been.

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What employers should know about the new General Data Protection Regulation

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The Government has confirmed that the UK will implement the General Data Protection Regulation in May 2018. Though amendments may be made once the UK leaves the EU, employers should start making preparations now.

Whilst the UK voted to leave Europe in the 2016 referendum, on the Government’s timetable the UK will still be in the EU when the GDPR comes into force on 25 May 2018. The penalties for non-compliance can be very serious; data controllers could be fined up to €20 million or 4% of annual worldwide turnover. Therefore, there is good reason for employers to plan ahead.

Giving notice

As the Information Commissioner recognised, the GDPR gives “people greater control of their data”.

Specifically, employers need to be more transparent about how they use personal data and give employees more information about their processes. Included within that is a requirement that employers must give fuller ‘fair processing notices’.

The notices need to say in clear and concise language: (i) who the data controller and Data Protection Officer are and how to contact them; (ii) why personal data is being processed; (iii) what legitimate interest there is in processing personal data; (iv) who will receive the personal data; and (v) if the data will be transferred outside of the EEA (and if so, where).

Employers have an obligation to ensure that their employees are aware of these details, so the best approach would be to have a separate document (i.e. not a section squirreled away in a handbook) which you ask the employee or candidate to read.

Getting consent

Having an employee or applicant’s consent is one way to process their data lawfully. However, consent under the GDPR needs to be “freely given, specific, informed and unambiguous”. That means that pre-ticked tick boxes or opt outs will not suffice.

Rather than including a term in employment contracts, employers should provide all the relevant information about data processing in a separate consent form for employees to sign up to. This places less pressure on new and existing employees and lends itself to the argument that consent was freely given.

However, there are murmurs in the EU as to whether consent can ever be freely given in an employment relationship given that employees have less bargaining power than their employers. That being so, it is worth ensuring that one of the other reasons for processing data is present. They are where processing is necessary for:

• performance of a contract;
• compliance with legal obligations;
• protection of the data subject’s interests;
• tasks in the public interest; or
• the data controller’s legitimate interests.

In addition to writing to the employee with information about data processing, employers should have a clear policy on data protection. Employers also need to ensure that it is accessible to all staff and that they are aware of it.

Data systems

Data subjects will have the right to ask employers to delete or modify personal data held about them. Therefore, it is important that employers’ IT systems are capable of managing data easily and efficiently. It should be possible to delete data from them permanently and to place restrictions on who can access it.

Employers will also need to know how long data is stored under their system before it is automatically deleted (assuming that it is).

Data security breaches will be treated severely, so employers should ensure that data held is encrypted and kept securely. There should also be a mechanism for employers to be alerted when a breach has taken place, as there is a 72-hour deadline in which to notify the Information Commissioner.

Most employers will be familiar with the rules on data subject access requests as they stand, but the GDPR will bring changes. The deadline for response to a DSAR will be cut down to one month rather than the previous 40-day timeframe (though it can be extended to two months when necessary, employers should always aim for the shorter deadline to be on the safe side). The requirement for a fee to be paid will also be removed.

In order to ensure compliance, employers should check that their systems will permit them to complete a search within the month’s deadline; in larger companies, it may speed the process along to appoint someone specific to deal with DSARs as and when they come in.

Fundamentally, May 2018 is not as far away as it seems, particularly where changes to IT systems or HR procedures are required.

Employers should therefore start to review their systems and schedule any changes which may be necessary.

Even if Brexit happens, Parliament is unlikely to make meaningful changes to data protection laws. To do so would impede trade by conflicting with the EU’s strict rules about transferring data to countries without adequate protection.

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Data subject access requests and third party information

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Documents containing the personal information of more than one person should not automatically be disclosed on submission of a subject access request. A balancing exercise must be done to determine whether disclosure is appropriate in the circumstances.

P was diagnosed with bladder cancer in 2013 and alleged to the General Medical Council that the incompetence of his general practitioner, DB, delayed the diagnosis by a year. The GMC obtained an expert report into DB’s work as part of the investigation into P’s complaint. The GMC sent a one-page summary of the report to P, after which P put in a data subject access request for the full version. DB refused to consent to disclosure of the full report, though the GMC was minded to disclose it to P in keeping with the transparency of the investigation process. DB brought proceedings against the GMC to prevent that from happening.

The High Court held that the report should not be disclosed to P. Since the report contained personal data of both P and DB, they had competing privacy rights. As DB had withheld his consent to disclosure, the starting position ought to have been that the report would not be shared with P. DB’s right to privacy also included protection of his professional reputation and he was entitled to expect the GMC to uphold it.

Another key factor in the High Court’s determination was that the purpose of P’s request was the intended clinical negligence litigation against DB. This was at odds with the aim of the data protection regime, which is to check the accuracy of data held about the person making the request.

As with most cases involving data protection, this case stresses the need for companies to weigh up parties’ competing interests. Companies should be aware that, though data subjects have the right to request disclosure of their personal information, it does not automatically warrant disclosure of all materials. As the GMC did in this case, it is best to ask for the data subject’s permission before disclosing information. On the other hand, this case tells us to take the withholding of that consent seriously, which the GMC failed to do.

Dr DB v General Medical Council [2016] EWHC 2331

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Discrimination and sickness absence policies

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In order to defend the use of a sickness absence policy in a claim for discrimination arising from disability, the employer must be go beyond justifying having a policy and its terms in a generic sense and be able to justify the specific application of the policy in a particular case.

Mr Buchanan was a police officer suffering with post-traumatic stress disorder, which constituted a disability. The police force managed his long-term sickness absence under the statutory ‘Unsatisfactory Performance Procedure’. The policy had a three-stage procedure for managing absence and included the issuing of ‘improvement notices’. As Mr Buchanan’s PTSD was ongoing, he was unable to meet the return-to-work dates set in the improvement notices given to him. He complained that the way in which the policy was being applied amounted to discrimination arising from disability.

The Employment Appeal Tribunal held that the police force had to justify not simply the existence of the policy itself, but also the way in which it applied the policy to Mr Buchanan. Were it that only the policy itself needed to be justified, discrimination arising from disability claims relating to sickness absence would be much harder to win; employers generally have legitimate interests in implementing absence management policies. Rather, there were several points in which Mr Buchanan’s superiors had to make decisions as to how the policy would apply to him. It was those decisions which required scrutiny.

This decision is a helpful reminder for employers facing problems with sickness absence. One cannot simply rely on the existence of an attendance management policy and apply it in a mechanical fashion to justify actions taken against someone on sick leave. Instead, an employer should, at each stage, be thinking about whether particular decisions taken can be objectively justified. Whether this is the case will depend on several factors, such as whether the standard timeline set by the policy can be fairly adhered to in the light of the employee’s disability.

Buchanan v The Commissioner of Police of the Metropolis UKEAT/0112/16/RN

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EasyJet roster was discriminatory towards breastfeeding mothers

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EasyJet’s roster system, which could require cabin crew to work shifts of over 8 hours, was indirectly discriminatory on grounds of sex. This was because it put breastfeeding women at a particular disadvantage without justification.

The two claimants were crew members for easyJet and were breastfeeding after returning from maternity leave. EasyJet’s roster system contained a provision whereby staff could be asked to work for longer than 8 hours continuously. The claimants made flexible working requests; they asked not to work shifts of longer than 8 hours in order to manage the time between opportunities to express milk.

EasyJet refused the requests, pointing to the need for it to manage its flying schedule and avoid flight delays. In response, the claimants went to their GPs and were given fitness to work certificates confirming an increased risk of mastitis if they could not express milk. The certificates recommended that the claimants should not work shifts of over 8 hours.

The claimants seemingly took periods of sickness absence and unpaid leave before they were moved to temporary ground duties. They brought claims of indirect sex discrimination against the airline.

The Employment Tribunal held that the claimants had been indirectly discriminated against on grounds of their sex. The provision whereby crew members could be required to work shifts of longer than 8 hours put women at a particular disadvantage, such that the claimants would either have to work the roster and be unable to express milk or lose out financially by missing shifts.

The tribunal noted that easyJet could not point to any examples where the airline had suffered difficulties from giving a crew member a bespoke roster. Additionally, the claimants did have medical evidence supporting the risks to their health posed by the longer shifts.

As a result, it ordered that the claimants be compensated for their lost wages and given £8,750 and £12,500 respectively for injury to feelings. The tribunal recommended that EasyJet write off any periods of absence and credit back any annual leave the claimants took in that period.

This is a reminder to employers that their obligations to employees who are mothers do not end when they return from maternity leave. More generally, it reinforces that employers arguing that a disadvantageous measure is justified will need to have some degree of evidence to support their positions.

McFarlane and another v EasyJet Airline Company Ltd ET/1401496/15 & ET/3401933/15

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