Employment Bulletin - June 2006

This month with the World Cup upon us we consider the potential problems an employer may face and give some practical guidance on dealing with ardent and fair weather fans looking for an excuse for time off.

We also take a look at the Court of Appeal’s decision in the case of Serco Ltd v Redfearn which involved the dismissal of an employee owing to him being a member of the BNP.

WE ARE THE CHAMPIONS…POSSIBLY

Yes, the blind optimism of the World Cup is here at last as fans prepare for weeks of jubilation, or, more probably, tears. It doesn’t seem four years since the inconsiderate (although admittedly unavoidable) timing of the early morning and lunchtime matches in Japan and Korea. This year, the timing of the matches in Germany is likely to be less of a problem for the majority of employees (and employers) but some issues may still arise.

The usual concerns centre around:

• behaviour in the workplace, such as office banter, requests for time off and absenteeism, and
• behaviour outside the workplace, such as violence and fighting, particularly well publicised bad behaviour.

Practical Guidance – Time Off:

• Be prepared for a higher than usual number of requests for time off – individual days and half days to watch matches and plan ahead. Consider how many employees can be off at the same time to ensure that you have at least a skeleton staff.
• Ensure that you and your employees follow company procedure in respect of requests for time off to watch football matches. Ensure that all managers dealing with requests follow the same procedure, and remember that not only men like the footie. Treat requests from both sexes for time off the same and don’t prioritise one over the other.
• If there are likely to be difficulties in accommodating requests, have a system in place to determine who is and is not granted holiday. For instance, a first come, first served system would ensure fairness. This should be applied across the company.
• Make sure any system is communicated to all employees and that the system and holiday procedure is followed consistently.
• To boost morale amongst staff turned down, an option, followed by many employers last time, would be to screen the match in the workplace. However, be clear that time taken off to watch the match needs to be made up. If it doesn’t this is likely to cause non-football fans to be extremely disgruntled unless they are also given the equivalent time off.

Practical Guidance – Office Banter/Atmosphere:

•  We live in a multi-cultural society and workplaces reflect this. Remind employees of the equal opportunity/harassment policies in place and what is and is not acceptable behaviour. Bear in mind that not everyone will want to watch or support England.
• Ensure all managers are aware of the policies and, if necessary, provide managers with refresher training on harassment issues.
• Ensure that disciplinary action is taken against those employees who overstep the mark and that the employees are made aware of this in advance.
• If enforcing a dress code to prevent football shirts etc from being worn, treat all employees the same.
• Again, act consistently and fairly.

Practical Guidance – Behaviour Outside the Workplace

•  Publicised bad behaviour of individuals at football matches or in town centres following the game can lead to pressure on employers to take disciplinary action. However, this could result in successful unfair dismissal claims.
• Before taking disciplinary action, ensure that you have investigated and got your facts straight. Consider whether the behaviour is such to breach trust and confidence in the employee or whether it has had (or will have) a detrimental impact on your business. If not, has it impacted on the employee’s ability or suitability to carry out his or her role. Unless one of these factors is present, it is likely to be unfair to dismiss.

DISMISSAL OF BNP MEMBER NOT RACE DISCRIMINATION

Last year there was a degree of surprise when the Employment Appeal Tribunal held that a member of the BNP dismissed due to health and safety concerns caused by his membership of the BNP, had been discriminated against on the grounds of race. This followed a line of authorities which enabled employees to bring claims for discrimination based on another’s race – for instance, being dismissed for refusing to carry out an order not to serve black people.

Commentators were outraged that legislation introduced to protect employees, especially ethnic minorities, from unlawful behaviour, was being used to protect individuals who may be seen to act on racial prejudices.

However, the Court of Appeal has restored sanity to this area of law (subject to any appeal). The Court of Appeal held that simply because considerations of race were taken into account, did not mean that the employee had been dismissed on “racial grounds” and clarified that the “racially discriminatory employer is liable on ‘racial grounds’ for the less favourable treatment of those who refuse to implement his policy or are affected by his policy”.

Guidance:

•  This decision is welcome and would prevent an employee dismissed for racial harassment from claiming protection under the Race Relations Act 1976.
• However, it is worth bearing in mind that the employee in this case did not have a year’s service and could not, therefore, bring a claim for unfair dismissal. Had he been able to, then other considerations would have had to be taken into account. For instance, was the reason for dismissal substantial and had the employer acted reasonably in making the decision to dismiss.
• A mere dislike of the policies of the BNP, without there being some adverse impact on the business (either in respect of other staff or customers) is unlikely to be a fair reason for dismissal. If there is likely to be an adverse impact or unfavourable reaction from customers, then it is likely a tribunal would expect a reasonable employer to consider alternatives to dismissal, for instance a move to a role not involving customer contact.

In future editions we will continue to provide details of, and commentary upon, these Regulations as their impact cannot be overstated.

If you would like further information on our Employment Unit or to discuss topics covered in this newsletter, please do not hesitate to contact Kevin McKernan, Head of our Employment Unit, or any other member of the team on 0191 233 9700.

The Employment Training Unit provides bespoke training on all employment issues in a practical and comprehensive format. Again, please contact a member of the unit for further details.

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