So, the heatwave might finally be over. Or is it? The weather forecast hasn't exactly been bullet-proof recently. I've walked to work recently sheltering from the rain under an umbrella (despite predicted 34 degree sunshine) and towed an umbrella around during a day so ice cream-meltingly warm that it was worthy of Majorca...

Whichever way, I've received multiple (only partially jokey) messages asking whether it is 'too hot' to work or whether an employer's dress code is 'automatically waived' when it gets 'too hot'.

Unfortunately, from their point of view at least, there is no maximum temperature at which employers have to crack out the ice cream (albeit this isn't the worst thing to consider morale wise!) and/or send employees home. Instead, employers simply have to ensure they comply with their duty to safeguard employee wellbeing under Health and Safety regulations. Some methods of doing this can include ensuring there is adequate drinking water, lengthening rest breaks (or providing additional rest breaks) for employees carrying out physical activities and/or providing fans for employees in hot environments. However, there are no mandatory requirements upon employers to cool things down other than to act to avoid foreseeable health risks to staff.

Overall, however, it would take extraordinary circumstances for a situation to arise in which an employer has to send employees home due to temperature and, in fact, if they did so (no doubt with the employee in agreement), the employee wouldn't necessarily be entitled to pay for the proportion of the day they didn't work!

From an employer side of things, you tend to learn of some rather inventive (read: doubtful) reasons for short-notice 'sickness absence' during warm periods which have included (whilst working for a previous firm):

(a) not being able to get to work due to it being 'dangerously hot' in the car because the air conditioning 'doesn't work effectively';

(b) 'lacking energy' due to sunburn at a barbeque the day before; and

(c) having to stay at home to ensure the pet rabbit 'had enough water to drink in the heat'.

The irony is that only one of the above examples could potentially constitute sickness absence (i.e. absence due to health), as the other two reasons ((a) and (c)) would be more correctly described as short-notice unpaid leave requests.

Naturally, it is a (mainly accurate) stereotype that disingenuous sickness absence increases during warm weather and, obviously, it is understood that planning the barbeque to end all barbeques is tempted in warm weekday weather but employers have little sympathy when an employee is caught out and, of course, it can be fairly obvious when an employee has a habit of taking random 1 day sickness absences during warm days. Beware the Facebook photograph showing you grinning at the camera in a 'hot chef at work' apron next to a barbeque and trying to explain how you felt well enough to hold a barbeque by 6pm that same day!

Overall, then, common sense is required on both sides. Whilst employers understand that requests for annual leave will increase during warm weather, they are highly unlikely to understand disingenuous sickness absence during sunny days and, whilst employers may expect cooler temperatures at work and/or a relaxed dress code, that is dependent on the type of work in question.

As above, however, it may well be that the 'heatwave' is now over and everyone can start grumbling about the cold, cloudy summer days. Workplace ice cream is still very welcome though! Bring me cornetto, bring it to me...

Twitter: @TomJSutherland

Company Twitter: @clbemployment

Linkedin: Tom Sutherland

Company Linkedin: Canter Levin and Berg Solicitors’

Website: http://clbemployment.com/


Thornton Legal is a leading legal recruitment company, recruiting for legal jobs in the North West, Midlands and Yorkshire. We are passionate about providing a professional, innovative and reliable legal recruitment service that is focused on quality and ensures our clients are matched with the strongest legal talent available. Contact one of our legal recruitment consultants today on 0151 307 5757 or This email address is being protected from spambots. You need JavaScript enabled to view it. to see what we can do for your law firm or legal career.

 

I regularly get asked: “how far does employment law go?” It seems an odd question to ask but I understand that most employers simply mean: “can you investigate nearly every type of poor behaviour” to which my answer is normally “yes!”

There has been a widely reported news story this week that largely explains my usual response. Namely, this concerns the story of a van driver who was immediately dismissed for driving through puddles and intentionally soaking pedestrians in Ottawa, Canada.

As with many situations involving professional drivers, the misconduct was caught via the dashcam of another vehicle. In this case, the vehicle in front had a ‘bootcam’ recording events behind the vehicle which recorded a 40 second clip of the van driver in question intentionally swerving into large puddles (which he could have easily and safely avoided) in order to soak three pedestrians in a row. As evidence goes, there is practically no other reasonable interpretation for the video (which remains available online). Naturally, the video was quickly viewed by nearly 1 million people and the matter was also referred to the Canadian Police. The employer concerned quickly announced that the individual had been dismissed and, in turn, the Police praised the employer for acting decisively and announced that they wouldn’t take any further action further to the loss of employment.

Now, obviously, the above-mentioned events occurred in Canada, so the real question is whether the same thing would happen over here, particularly given that employment law rights are viewed as being more favourable to employees on this side of the pond.

Well, the perhaps surprising answer is that, yes, in the majority of situations, the van driver would be likely to lose his job. This would be due to the bad faith shown by the driver in terms of: firstly, driving the vehicle in an unsafe/unprofessional manner; secondly, technically committing a minor form of ‘assault’ on the individuals concerned; thirdly, the fact that he performed his actions in a van that expressly identified the company he worked for (i.e. foreseeably damaging the company’s reputation) and, finally, the consequent harm to the company’s reputation by way of his actions being uploaded online. As a whole, it is likely that the majority of van drivers, even those with clean records within lengthy periods of employment, would face potential dismissal.

However, as is always the case with employment law, things can quickly change depending on the presence of any mitigating circumstances. Let’s explore two examples:

EXAMPLE ONE – The puddles covered the entire lane and were unavoidable due to traffic in the opposite lane.

In the clip, there was no traffic in the opposite lane and, in any event, the puddles were only near the pavement.  However, if the van driver literally couldn’t safely avoid the puddles without risking an accident (i.e. because there was traffic in the opposite lane and the puddles covered his lane), he would have a clear defence because he could argue that he simply couldn’t avoid the puddle barring a dangerous emergency stop or veering towards oncoming traffic. Naturally, he would be expected to brake to minimise the splash but, overall, the employer should account for the fact that he would, in this scenario, have no real choice but to drive through the puddle.

EXAMPLE TWO – It was done with the van driver’s own car out of hours.

Let’s say that the van driver had finished his shift (or had a day off) and performed the same acts in his own car. Naturally, his own car would be very unlikely to have any company markings on it and, rather, let’s say that his employer only became aware of the incident on Youtube because he was identifiable as the driver through the video.

This would be a less serious offence because there would be less negative impact on the company from a public relations perspective. Yes, it may still damage the brand if his identity as a van driver for the employer became known online (as is getting increasingly common these days) but the incident will have happened outside working hours and it would not be largely foreseeable that his conduct during his own time would negatively affect the company.

On this side of the pond, it would be unlikely that an employer could safely dismiss a long-serving van driver with a clean record in the above two examples given the mitigating circumstances at play. Naturally, everything depends on the exact circumstances, but speaking hypothetically it is doubtful that it would be reasonable for an employer to treat the two examples above as gross misconduct dismissal situations.  This is unlike the actual, real-life scenario, where an employer could dismiss on grounds of gross misconduct quite safely.

So, there we go, whilst some people aim to make a splash whilst performing their jobs, it should definitely be avoided whilst driving company vehicles!


Thank you to Tom Sutherland of Canter Levin & Berg Solicitors, Liverpool for providing this weeks blog. Tom is well known for his unique, quirky Employment Law-focused blogs and articles and, in his role as Employment Law Solicitor, provides day-to-day legal advice (which includes fixed-fee work) to employees and employers alongside acting for employees and employers in Employment Tribunal actions.  Tom is part of an experienced, approachable Employment and Commercial Law team at Canter Levin & Berg Solicitors in Dale Street, Liverpool.

Twitter: @TomJSutherland

Company Twitter: @clbemployment

Linkedin: Tom Sutherland

Company Linkedin: Canter Levin and Berg Solicitors’

Website: http://clbemployment.com/


Thornton Legal is a leading legal recruitment company, recruiting for legal jobs in the North West, Midlands and Yorkshire. We are passionate about providing a professional, innovative and reliable legal recruitment service that is focused on quality and ensures our clients are matched with the strongest legal talent available. Contact one of our legal recruitment consultants today on 0151 307 5757 or This email address is being protected from spambots. You need JavaScript enabled to view it. to see what we can do for your law firm or legal career.

I write further to the deadline for Gender Pay Gap Reporting expiring last week.  Much has been made in the media of that deadline being the day by which qualifying employers (i.e. those with 250 or more employees) have to submit the percentage difference in pay between their male and female staff.

The initial results?  Nearly 80% of those employers who have responded (some haven’t) have reported higher pay levels to men than women.

So, that means that those employers are discriminating against women, right?  Well, not necessarily.  But the figures are there in black and white – surely, every employer with a higher pay towards males is inherently sexist?  Not really. 

The reality is that the figures are suggestive only and there are many legitimate reasons why pay may be skewed either way, whether towards males or females.  Let’s take a look and bust some myths about the Gender Pay Gap Reporting.

The first rule of Gender Pay Gap Reporting is to automatically distrust any company that claims to have a 50% - 50% split of male and female pay.  Frankly, the odds of that being the case are extremely slim.  Why?  Because men and women alike negotiate their pay and it would be extremely unorthodox for every person at every different job level to work exactly the same hours and receive exactly the same level of pay.

In reality, the Gender Pay Gap Reporting rules aren’t here to usher in every employer reaching 50% - 50%.  It is here to get employers to close the gap as far as they are able to do.  So, for example, let’s say Scooby Snacks Limited employs 300 staff of which 150 are men and 150 are women.  Let’s also say that this year there has been an influx of births amongst the male workforce and that 25 male employees have had successful Flexible Working Requests to halve their working hours to spend time with their newborn children.  Well, that would potentially skew the figures towards having ‘higher pay’ to women because, on average, they would work longer hours than men.

Now, obviously, that is a rather daft example as it only shows one variable – reducing hours due to childcare.  In reality, employers face many other variables, such as promotions, increasing wages to keep key employees, certain positions being made redundant, roles needing increased hours and/or overtime due to increased demand, shared parental leave levels, positions being vacant due to dismissal, resignation or recruitment, the list could go on.  But every one of these different factors will impact on the Gender Pay Reporting figure.

So, by now, you’re probably thinking ‘well, what’s the point of Gender Pay Gap Reporting?  Surely, the figures will never be ‘correct’?’  Well, the figures are useful in pushing employers to “close the gap”.  So, as above, the reporting procedure aims to get employers to do everything within their power to equalise pay across genders.  Whilst an employer can’t predict the factors listed above, it can try to equalise the effects of those factors and ensure it isn’t directly or indirectly adding to the gender pay gap (whether skewed towards male or female).

And yes, that’s right.  The Gender Pay Gap Reporting process aims to equalise pay between genders, not just ensure that women are paid the same.  An employer with a genuine 70% - 30% pay gap skewed towards women is potentially equally as culpable to Equal Pay claims as an employer with the same pay gap skewed towards men!

So, let’s attack the third myth.  Whilst most people acknowledge that employers won’t display 50% - 50% figures, it isn’t true that employers are powerless to prevent a large gender pay gap.  There is no one answer to this, but some methods have been put forward for employers to consider.  These include not asking job candidates for their current wage but rather than having a set ‘standard’ level for each job role or specifically mentioning that job roles will consider flexible working arrangements in job adverts.

Ironically, I’ve seen a few suggestions to ‘close the gap’ which I feel are, in themselves, potentially discriminatory.  The first is to aim to pay women more than men which, obviously, is discrimination against men on grounds of gender and contrary to Equal Pay Regulations (just the other way round gender-wise).  The second is to set firm targets for gender for certain job roles (i.e. 50% - 50%): however, for certain positions (i.e. airline pilots), there simply isn’t the recruitment pool available to do this and, in addition, any recruitment decision mainly based on a candidate’s gender gives the other candidate (of different gender) a decent discrimination claim against that employer.

So, what’s the answer?  Well, if we knew that, there would be no need for the Gender Pay Gap Reporting process!  Alongside most Employment Lawyers, I feel that the Gender Pay Gap Reporting process is inherently flawed and fails to adequately differentiate ‘innocent’ employers from those employers who actually are knowingly discriminating against female progression in the workplace.  However, the media attention around the Reporting procedure is likely to push some employers into closing the ‘pay gap’ for PR purposes and that, at the very least, is a good starting point.


Thank you to Tom Sutherland of Canter Levin & Berg Solicitors, Liverpool for providing this weeks blog. Tom is well known for his unique, quirky Employment Law-focused blogs and articles and, in his role as Employment Law Solicitor, provides day-to-day legal advice (which includes fixed-fee work) to employees and employers alongside acting for employees and employers in Employment Tribunal actions.  Tom is part of an experienced, approachable Employment and Commercial Law team at Canter Levin & Berg Solicitors in Dale Street, Liverpool.

Twitter: @TomJSutherland

Company Twitter: @clbemployment

Linkedin: Tom Sutherland

Company Linkedin: Canter Levin and Berg Solicitors’

Website: http://clbemployment.com/


Thornton Legal is a leading legal recruitment company, recruiting for legal jobs in the North West, Midlands and Yorkshire. We are passionate about providing a professional, innovative and reliable legal recruitment service that is focused on quality and ensures our clients are matched with the strongest legal talent available. Contact one of our legal recruitment consultants today on 0151 307 5757 or This email address is being protected from spambots. You need JavaScript enabled to view it. to see what we can do for your law firm or legal career.

The Equalities & Human Rights Commission (“EHRC”) is a fantastic organisation that seeks to protect employees and workers from discrimination at work.  I regularly read their published Reports and publications because they interest me and keep me informed of potential future developments, which is handy given my sizable discrimination-related workload for employees and employers alike.

The EHRC have recently published their most recent Report: “Turning the tables: Ending sexual harassment at work”.  The Report raises well-known concerns about the lack of support provided to, and the pressure and detriment placed upon, individuals who identify sexual harassment issues in the workplace. 

As usual, the Report ends with some law reform-based recommendations for the Government to consider to improve matters.  And, rather unusually with an EHRC Report, whilst I completely agree with the motive behind the recommendations, I can’t much see how the majority of the recommendations themselves will make much positive difference.  For me, it appears to be a case of ‘good intent, bad execution’.

But, rather than simply take my word for it, let’s explore some of the recommendations and have a proper look.

(1) ‘Safeguards to restrict confidentiality clause usage which seeks to prevent disclosure of past acts of harassment’

The majority of discrimination claims I’ve brought on behalf of employees have ended in settlement before final Tribunal hearing.  But, contrary to popular belief, in the vast majority of occasions, the employee concerned looks at that as a moral victory in terms of the employer effectively (albeit not legally) admitting that they allowed harassment and/or sexual discrimination to take place.

I say ‘contrary to popular belief’ because there seems to be a misconception that employers ‘get away with it’ (i.e. will continue to commit acts of sexual harassment and/or sexual discrimination) because they can ‘sweep it under the rug’ and avoid it becoming public in an Employment Tribunal.  However, in practice, the employer usually has to pay a sizable chunk from their own pocket (and, in reality, there is no better way of punishing an employer than by reducing their bank balance) and the accused, going forward, is forced to weigh up the potential future cost of committing similar acts once again.

So, what is the issue here?  Well, preventing enforceability of confidentiality clauses in respect of harassment allegations and/or Tribunal claims effectively removes one of the largest bargaining chips between employee and employer.  So, if this change came into effect, far more claims would end up at Tribunal because there would be no guaranteed way in which to offer a settlement amount in a way that avoids the matter being published online and/or in the media afterwards.  Ironically enough, this change would effectively deny likely compensation to many victims of sexual discrimination and/or harassment.

(2) ‘extending the limitation period within which to bring a claim to six months from the final act, not the current 3 months’

This is likely to lead to confusion amongst employees as to which potential claims they have to bring within 3 months and which they have to bring within 6 months.  On top of this, most employees (or former employees) who bring a sexual harassment and/or sexual discrimination claim also bring additional claims (which would still have a 3 month limitation period).  Therefore, most employees, if they wish to bring all of their claims in one (which, let’s be honest, will keep things nice and simple), will still have to bring them within 3 months.  Otherwise, the alternative is bringing some claims within 3 months and then, within a further 3 months, bringing an additional Tribunal claim with a different Case Number (leading to additional legal costs or, at very least, additional time and effort).

Put simply, different limitation periods for different claims simply increases the likelihood of claims being brought out of time due to lack of clarity.

(3) ‘a shift of burden to the employer to show why time should not be extended for any out of time claim where the claimant establishes the reason for delay’

There is a fairly simple premise to the current rules.  That premise is that, if the claim is brought out-of-time, the ‘fault’ is solely down to the Claimant (i.e. employee).  Due to this, it is seen as fair that it is the Claimant who should argue as to why the time limit should be extended.  After all, no employer can defend a claim before it is brought and it is very rare that an employer can act in a way to prevent an employee from bringing a claim. 

To change this would be to effectively place the implied blame for the late claim on the one party out of the two who was not responsible for bringing that claim.  To use a daft metaphor, that would be akin to placing a sole Easter egg between two children and then shifting the presumption of guilt onto the child who didn’t have the chance to eat the egg simply because the other child gave a ‘reason’ for having eaten the egg.

(4) ‘Reintroduction of the statutory questionnaire’

Where to start with this one…  Employment Law used to embrace statutory questionnaires.  Then everyone realised that employer didn’t fill out statutory questionnaires; the employer’s Solicitor did.  The inevitable outcome?  The questionnaires contained vague, defensive comments which, in the end, didn’t actually add anything to the process.

What happened next?  In England and Wales, they were scrapped.  Have they been missed in the cases where I have represented employees?  Not even slightly…

So there we go. As above, I have great admiration for EHRC and, as usual, they are doing great work in recognising an ongoing, important issue and stating that reform is needed.  And, as usual, I couldn’t agree more, that more needs to be done to combat sexual harassment and/or sexual discrimination in the workplace.  However, I don’t think the majority of recommendations are fit for purpose and that alternative recommendations, such as making an online ‘black list’ on the gov.uk website of employers and/or individuals who have an Employment Tribunal judgement of sexual harassment against them, would have much greater effect. 

Regardless, I can’t see the Government acting upon any of the EHRC recommendations and, if anything, the current feeling is that a Conservative Government is more likely to strip away employee rights rather than add to them.


The above blog is provided by Tom Sutherland of Canter Levin & Berg Solicitors, Liverpool. Tom is well known for his unique, quirky Employment Law-focused blogs and articles and, in his role as Employment Law Solicitor, provides day-to-day legal advice (which includes fixed-fee work) to employees and employers alongside acting for employees and employers in Employment Tribunal actions.  Tom is part of an experienced, approachable Employment and Commercial Law team at Canter Levin & Berg Solicitors in Dale Street, Liverpool.

Twitter: @TomJSutherland

Company Twitter: @clbemployment

Linkedin: Tom Sutherland

Company Linkedin: Canter Levin and Berg Solicitors’

Website: http://clbemployment.com/


Thornton Legal is a leading legal recruitment company, recruiting for legal jobs in the North West, Midlands and Yorkshire. We are passionate about providing a professional, innovative and reliable legal recruitment service that is focused on quality and ensures our clients are matched with the strongest legal talent available. Contact one of our legal recruitment consultants today on 0151 307 5757 or This email address is being protected from spambots. You need JavaScript enabled to view it. to see what we can do for your law firm or legal career.

This week, our blog content is provided by Tom Sutherland of Canter Levin & Berg Solicitors, Liverpool.  Tom is well known for his unique, quirky Employment Law-focused blogs and articles and, in his role as Employment Law Solicitor, provides day-to-day legal advice (which includes fixed-fee work) to employees and employers alongside acting for employees and employers in Employment Tribunal actions.  Tom is part of an experienced, approachable Employment and Commercial Law team at Canter Levin & Berg Solicitors in Dale Street, Liverpool.

Coming back for seconds: Waiter appeals dismissal for ‘rude, aggressive’ behaviour due to ‘being French’

As an Employment Solicitor, I deal with multiple discrimination claims.  Personally, I find the majority of discrimination claims fascinating.  Why?  Because they are so varied and can be brought due to behaviour linked (in almost any way) to an individual’s gender, age, belief or religion, race, sexual orientation, disability, marriage or civil partnership, pregnancy or nationality.

As you’ll have no doubt spotted from the unusual title, it’s that last one, nationality, which I want to explore today.

Before we get into the legal angle, let’s quickly look at the facts.  A waiter is reported to have taken action against a restaurant in Vancouver for his dismissal last year. His former employer stated that his dismissal was due to his “aggressive tone and nature” with colleagues further to previous verbal warnings as to his “combative and aggressive” behaviour towards fellow staff.

The waiter, Mr Guillaume Rey, has argued that his dismissal (and the reasoning behind it) is discriminatory because French culture “tends to be more direct and expressive”. Yes, that’s right, his core argument is that his confrontational behaviour should have been overlooked and/or condoned simply because he was French.

Now, in the Canadian courts, Mr Rey is bringing this in conjunction with human rights arguments.  However, for the purposes of this blog, let’s explore whether Mr Rey would have an argument in an Employment Tribunal.

As above, you can bring a discrimination claim against an employer for discrimination linked to your nationality and this includes discrimination inherent within a dismissal. However, our discrimination laws mainly look to ensure equal treatment of all nationalities.

This is an issue with Mr Rey because he is effectively arguing that French waiters should be able to act in a more confrontational manner than other nationalities. This is contrary to the purpose of our discrimination laws which, in effect, state that all individuals should be treated equally in relation to alleged poor behaviour or misconduct regardless of nationality. Mr Rey, therefore, is unlikely to have much of a case. 

Obviously, this is a brief, simple analysis but let’s look at the alternative. Let’s say that Mr Rey was dismissed by a restaurant in Liverpool (rather than Vancouver) and brought his claim to an Employment Tribunal and was successful in proving discrimination. The outcome would be that employers would have to directly consider the effects and culture inherent within that person’s nationality on the alleged poor performance or misconduct before taking action. In doing so, the employer is likely to have to resort to stereotyping as to which countries are more likely to produce individuals who are “more direct and expressive” in nature and, by acting in this way, they would effectively breach the main purpose of our discrimination laws which is to treat a person equally by taking nationality (and other protected characteristics) out of the equation when making decisions!

So, regardless of what happens in the Canadian courts, I wouldn’t expect to see any successful claims over here by waiters who claim that their nationality excludes them from rude or aggressive behaviour.  Pas terrible!

 

Twitter: @TomJSutherland

Company Twitter: @clbemployment

Linkedin: Tom Sutherland

Company Linkedin: Canter Levin and Berg Solicitors’

Website: http://clbemployment.com/


Thornton Legal is a leading legal recruitment company, recruiting for legal jobs in the North West, Midlands and Yorkshire. We are passionate about providing a professional, innovative and reliable legal recruitment service that is focused on quality and ensures our clients are matched with the strongest legal talent available. Contact one of our legal recruitment consultants today on 0151 307 5757 or This email address is being protected from spambots. You need JavaScript enabled to view it. to see what we can do for your law firm or legal career.