Winners!

Apologies for the short hiatus, our blogger has been on a well deserved holiday to  get married and go on honeymoon!

On her return, we were extremely pleased to see that Elissa Thursfield had been shortlisted for the Junior Lawyer of the Year Award at this year's Law Society Awards.

We at Gamlins Law are all very proud to announce that Elissa was awarded the Law Society Junior Lawyer of the year award for 2016.  The ceremony was held in London last Friday and Elissa was awarded the trophy on stage.

The Law Society’s panel found that Elissa’s great legal work and her dedication to the RNLI were decisive factors in awarding her the prize.

Can you sack someone for voting the 'wrong' way?

As shockwave after shockwave hits this morning, Brexit and a resignation by the Prime Minister, tensions are running high on social media. Never in our modern history of the UK has a political decision caused such ripples through our society. Britain truly is cut in half.

 

So if your business was steadfast Remain and you have an employee celebrating this morning, or if you were Exit and someone is sulking around the business, can you dismiss? Are they the people you thought they were? Do you feel that your trust in them has been betrayed?

 

Dismissal on the grounds of a political belief is most likely to be unfair. If you have an employee who has been with you more than 2 years, dismissal for a political reason is likely to result in a tribunal. There have been hard fought extreme cases surrounding BNP supporters being sacked from positions working with minorities which engaged real legal debate about trust and confidence, but the Brexit debate is unlikely to grant such arguments.

 

Is it discrimination? There has been previously a tribunal decision (non-binding) in Scotland which has given pause for thought and in Northern Ireland the situation differs substantially, but at present employees cannot generally rely on the Equality Act for protection from discrimination for their political beliefs.

 

So what are the implications for Employment Law? A million bloggers will tell you they know the answer, the real answer….no one knows.

Flexibility for Football?

"But Sir, it's WALES?"

"Even my kids are watching it at school"

"My wife won't let me watch it home later"

"Sir, I don't feel well, I think I need to go home at lunchtime....."

As the Euros grips England and Wales today for an epic showdown between two historic rivals, thousands of employees arrived at work this morning hoping their boss will let them watch the game. Those that turned up, that is.

ACAS suggested employers might want to take a flexible approach and avoid people 'pulling sickies' or trying to watch the game under the desk which will be inherently more disruptive. Some are taking a very flexible approach, providing televisions and refreshments in return for charitable donations whilst others issue a blanket ban.

Whilst unlikely to be grounds for an instant dismissal, employees either faking illness or covertly watching the game could find themselves in trouble. Employers are reminded to follow procedure and avoid knee jerk reactions.

Is it discriminatory to make an exception for the football? Will you be expected to allow employees to watch Wimbledon, the Grand National and the 6 Nations Final? Be clear (if it is the case), it is a one off, because it is England v Wales. Though perhaps if you are struggling for your charity ideas this year, tying in with a sporting event will not only raise money, but also lift morale!

 

 

Elissa Thursfield, one of our Employment Solicitors was interviewed by BBC Radio Wales on the topic:

You can listen here at time point 0:24:00:

http://www.bbc.co.uk/radio/player/b07f6tnd

Woman wins Sex Discrimination Tribunal: A Cautionary Tale

Woman wins Sex Discrimination Tribunal: A Cautionary Tale

 

I read about Lucy Pagliarone this morning, a woman who worked for a pharmaceutical company for 6 months before leaving and claiming sex discrimination. She won at Tribunal, in that the Judge found in her favour and awarded her £10,500.

 

£10,500 she may never receive due to the financial status of the company and even if she does get the money, she has admitted all of it will be going to pay her legal fees. Living on Guernsey she states solicitors cost £800 an hour.

 

She says she doesn’t care about the money, stating ‘she had to take a stand’. She insists even without her pay out she has no regrets, ‘harbouring feelings of bitterness and anger wasn’t going to get me anywhere’. Suing a company with frozen assets however was never going to get her much further than a hollow victory.

 

To some degree  I see her point, she has been treated dreadfully, however to take her claim all the way to a final hearing and come away with a judgement against a company with frozen assets and a large legal bill to boot, suggests either unmanaged expectations or naivety.

 

Look at it this way, Eva Carnerio has agreed to be effectively gagged for a rumoured £2-4million. That settlement is definitely as good as the gold plated paper it is written on, coming from a solvent and high value company. Her legal fees no doubt will be enormous but the settlement will be more than commercial enough for her not to have to think about working again for a considerable time.

 

Pagliarone did not want to be gagged, she wanted to tell the world how dreadfully she has been treated, her Daily Mail story today will be tomorrow’s fish and chip wrapper and I would be surprised if anyone remembers the name of the man involved or the company (I read the article 10 minutes ago and can’t recall it!).

 

Whilst Carnerio’s rumoured settlement amount is astounding, the principles around resolving matters before a final hearing and before fees mount remains consistent. The true value of getting your judgement and potentially your face in the paper is a poor return. Pagliarone has labelled herself as, now publically, ‘litigious’, something which scares employers to death. She has now retrained as a holistic therapist after being out of work for months.

 

 

When the wheel comes off a free-style holiday

When the wheel comes off a free-style holiday 

 

When the sun shines at home, our thoughts often turn to holidays abroad. 

And when it’s so easy to book online, the attraction is to create a trip that’s unique. 

Certainly, the choice is huge, with Airbnb alone reporting over 2m listings on their peer-to-peer accommodation sharing network, in 34,000 cities across 191 countries, including no less than 1400 castles. 

And there’s the chance to check out reviews from those who have been before, whether through hotel and restaurants reviews on TripAdvisor, or through postings on social media and the venue’s own website. 

But if something goes wrong, whether it’s an outbreak of food poisoning, or the hotel is a health and safety disaster area, what happens next is likely to be a much tougher course to navigate for self-booked travellers. 

As well as having less clout to win a swift result to a complaint directed to a service provider, the DIY travel planner will not have a simple route to compensation, unlike a package holiday, where travellers use a company operating under the Package Travel Regulations.  

Package tour operators have an obligation to make sure that the hotels they use match up to international standards on food safety and facilities.  If someone on a package trip is unhappy, they can complain to the company representative, and if they become ill or have an accident through the negligence of the hotel or any other service provider in the package, they may be entitled to make a claim on the tour operator. 

One recent claim against tour operator First Choice was by a British holidaymaker who travelled to the all-inclusive Dreams Resort & Spa in the Dominican Republic.  He successfully received a five-figure payout, after spending two days in hospital on the island and suffering long term health issues due to food poisoning contracted at the hotel. 

In another case in the Dominican Republic, some £5.5m was secured in compensation for almost 1000 travellers who contracted serious illnesses when they stayed at the Bahia Principe Hotel with tour operators that included First Choice, Thomas Cook, My Travel and Thomson.  The guests described seeing animals and vermin in the dining area and cockroaches in their bedrooms, with sewage and sanitation problems around the hotel complex.

 “A huge amount of compensation was paid out to this group of travellers,” said Elissa Thursfield of Gamlins Law, “but the amount will depend upon the severity of the illness or accident and what lasting effects remain.

“The Package Travel, Package Holidays and Package Tours Regulations 1992 apply when the whole trip has been booked through a company based in England and Wales and regulated by ABTA and ATOL.  If you make the bookings directly yourself, you won’t be covered by these.  You may still be able to claim compensation, but the route to making the claim is likely to be harder and the starting point will be the booking documentation, to see what you’ve signed up to.

“Any travel services in the UK will be covered by UK consumer rights.  If it’s in the EU, then European-wide rules will apply.  Any claims issued after 10th January 2015 come under what’s known as ‘Brussels I’ which simplifies the law for EU residents bringing injury claims where the incident occurs outside their country of residence, but within the EU.” 

She added: “If an incident takes place outside the EU, then the local legislation is likely to apply, which may mean a long-winded process that could put off anyone except those suffering very serious consequences. 

“The best advice, whatever the destination, is to check what your travel insurance covers before you take it out and to pay for flights and hotels by using a credit card, as that gives valuable legal protection if the company you’re buying from goes bust or doesn’t deliver what has been promised.  And if the worst happens, document everything at the time and get some advice when you’re safely home.”  

The Foreign & Commonwealth Office provide advice for holidaymakers covering common holiday problems that’s available for download, called Know Before You Go.

 

 

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.  

High heel-gate

11 May 2016 shall be forever known in the Employment world as High Heel-Gate.

An employment agency seemingly clinging to old fashioned smartness stereotypes, sent home a receptionist for refusing to wear high heels. She promptly started a petition which by today has reached some 60,000 signatures.

Storm in a teacup?

I'm one of those infuriating women who will see spending a month's wages on one pair of shoes as money well spent. I love beautiful shoes and am proud of my healthy collection. My ever smart mother on the other hand thinks I am a lunatic.

You would never catch my mother and her generation of workmates at work without being pristinely turned out, this includes high heels. To her it has nothing to do with sexism, or a male's perception of what a woman looks like in heels. Heels (of the appropriate height) are smart.

I however, whilst forever looking for my next pair of beautifully crafted shoes, also have a very abundant collection of practical, comfortable flat shoes, which are regularly worn to the office.

Having discussed this round the water-cooler my colleagues have pointed out the following to me:

1. I always wear heels to Court
2. When I was scheduled for filming for a documentary at work, I wore heels
3. When taken out for a meal at an expensive restaurant, I wouldn't dream of wearing flats

Heels are clearly reserved for when I want to look smart. So, if work has a 'smart' dress code, surely this would translate to me wearing high heels? If this is the case, really what's the problem?

The grumblings in high heel-gate are more subtle. Women don't mind wearing high heels when it is their choice. When they are told they have to, to meet someone else's subjective view there is potentially an issue.

Telling a woman she must wear high heels could potentially be sex discrimination. It is an order given only to women and potentially because of the health implications of the shoes there is a detriment. Telling a man he must wear a tie isn't quite the same thing. Whilst both a man and a woman may be sent home without pay for failing to comply with their respective rules would be fine, there remains the issue of the effect that heels have on health and posture, not to mention bruised and bleeding toes for someone who must spend all day on their feet.

The policy has been swiftly withdrawn, no doubt due to the high profile PWC connection where the heel-gate woman was placed.

So what am I wearing today? High heels, by choice and because they match my outfit.

Facebook evidence for disciplinary

Can Evidence on Facebook be used in a Disciplinary?

The short answer is it depends. You will need to ensure that your business has an up to date Social Media Policy which prohibits employees from making derogatory or offensive comments about the business, its employees, clients etc... The policy will also need to make it clear that any sort of inappropriate behaviour in this context applies outside of work.

Even if the business is not explicitly named in any posts, if the company is clearly identifiable you can still take action. You would need to gather evidence, this may need screen shots from Facebook, or if you cant get access and the conduct has been reported by someone else, asking them to screen shot it and provide you with the evidence.


It is advisable to gather the evidence before calling the employee to an investigatory meeting as they are likely to delete any evidence on their page if they are tipped off. At the investigatory meeting they should be informed why you wish to speak to them and asked to show you their Facebook page. They do not have to comply, but if they refuse this could be taken into consideration regarding their level of co-operation.

Anyone who has been named in any posts should not be involved in the investigation to avoid allegations of bias. After the investigation if the post remains online you should inform the employee is to be removed (ensure you retain the hardcopy evidence).

Depending on what the post said and the language used a decision will need to be made regarding the level misconduct. You can also consider whether they have any previous warnings or whether they have engaged in similar conduct before.

Any arguments regarding privacy can be explained, regardless of privacy settings, Facebook is a public platform and the information can be used.

What if you do not have a social media policy? Depending on the comments made, you may arguably be able to discipline an employee in respect of breach of trust and confidence, or bullying. However the waters are muddied slightly and an employee may have arguments that they were not aware of social media rules which could make the sanction more difficult to apply.

(Blogs on this website do not constitute legal advice and you should seek the advice of one of our specialists if you require employment assistance.)