unfair dismissal

LIFE BITE : Pregnancy Discrimination claims settled for 3 NI women

/ Karen / Leave a comment

apple-150579_1280Three women in Northern Ireland have recently received settlements totalling £15,500 after being subjected to pregnancy or maternity discrimination in the workplace.

Sarah Shilliday, Cherie White and Kelly McAtamney accepted financial settlements before their cases reached an Industrial Tribunal.

 

All three women were helped to pursue their separate claims by The Equality Commission for Northern Ireland.

Ms Shilliday said her “childcare responsibilities” were discussed when she was interviewed for a management job with RJN Chemicals.

She later received an email from the firm whereby they commented on her suitability for the role but added: “sadly I’m afraid your personal arrangements with the new baby will make it impossible to carry out this role”.  Ms Shilliday’s case was settled for £3,000.

Kelly McAtamney also brought a case against her employer Medi Cosmetics.

Ms McAtamney, who was pregnant and at risk of miscarriage, alleged that her employer would not adjust her duties to accommodate her doctor’s advice that she needed to “stay off her feet” as much as possible.  As a result, Ms McAtamney felt that she had to resign from her job.  She received a £4,500 settlement with no admission of liability.

Cherie White settled a complaint that she had made to her employer, the Irish Football Association (IFA) for £8,000, though without receiving an admission of liability.  She alleged that a number of temporary positions, including posts which had arisen while she was on maternity leave, had been made permanent.  Ms White contended that, but for her being maternity leave, she would have been in a position to be considered for one of the permanent posts

The Equality Commission have stated that pregnancy discrimination was a “persistent problem” and the most “common cause of complaint on the grounds of gender” that they receive.

Discrimination  happens when an employer treats one employee less favourably than others.  It can happen in many instance other than the ones above – for example, if a female employee is being paid less than a male colleague for doing the same job, if an employer fails to make reasonable adjustments in the workplace due to an employee’s disability or if an employee from an ethnic minority community is refused the training opportunities offered to other colleagues.

There are specific laws against some types of discrimination (called ‘unlawful discrimination’). If your employer treats you less favourably for an unlawful reason, you may be able to take action.

IF YOU REQUIRE LEGAL ADVICE RELATING TO DISABILITY DISCRIMINATION OR IF YOU FEEL YOU HAVE BEEN DISCRIMINATED AGAINST BY YOUR EMPLOYER IN ANY OTHER WAY, PLEASE CONTACT US  MGAVIN@FHANNA.CO.UK OR LEAVE YOUR COMMENTS CONFIDENTIALLY BELOW

LIFE BITE: Thinking of pulling a sickie to enjoy the sunshine? Think again!

/ Karen / Leave a comment

apple-150579_1280For the last few days, Belfast has enjoyed some unexpected sunshine with temperatures rivalling those of European holiday destinations like Spain and Italy.   Summer seems to have arrived … though for how long is anyone’s guess!   

 

The last place many people want to be during the hot weather is in work – most of us would rather be dusting off the BBQs and basking in the sunshine.  However, if you’re considering “pulling a sickie” to avail of what may be the only few days of a Northern Irish summer, think again!

The Employment Appeal Tribunal in England dealt with the case of Metroline West Ltd v Mr Ajaj and has held that ‘pulling a sickie’ is dishonest and a fundamental breach of contract.  Mr Ajaj was a bus driver and although he was injured whilst at work, he falsely claimed to be worse than he was.  He wasn’t off for just one day however he was caught out exaggerating his injury as his employer had him under covert surveillance.

The Tribunal that dealt with the case initially held that the fairness of dismissal should be assessed on ‘capability’ considerations however, the Employment appeal tribunal disagreed.   The Judge dealing with the appeal stated that “an employee (who) “pulls a sickie” is representing that he is unable to attend work by reason of sickness.  If that person is not sick, that seems to me to amount to dishonesty and to a fundamental breach of the trust and confidence that is at the heart of the employer/employee relationship.”

You have been warned!

For any further information on employment law issues, please feel free to contact us here.

The National Living Wage : – Is Your Business Ready?

/ Karen / Leave a comment

money2Most of us, (given the option,) would happily accept an increase in pay for the job we do!  

Well, on 1st April 2016, the new “National Living Wage” came into effect in Northern Ireland, making the dream of a pay increase for some workers a reality.

The implementation of the National Minimum Wage (Amendment) Regulations 2016 means that all workers aged 25 and over are now legally entitled to at least £7.20 per hour pay. 

Whilst this is great news for workers over 25, businesses now need to be prepared for how this change will impact on them. 
Here is some important information for you on the National Living Wage:-

What is the National Living Wage?

The National Living Wage is different to the “Living Wage” which is a voluntary hourly rate set at £8.25 which employers can choose to pay.  It also differs from the “National Minimum Wage” which technically remains in place for workers under 25.  The new “National Living Wage” is essentially a compulsory top-up for workers aged 25 and over.

As things stand, the National Minimum Wage rates are as follows:-

  • £6.70 per hour for those aged 21 and over
  • £5.30 per hour for those aged 18-20
  • £3.87 per hour for under 18’s
  • £3.30 per hour for apprentices.

In effect, it is only those workers in the top band, who are over 25 and currently earn £6.70 per hour who will be affected by this  new regulation.  These workers will now be entitled to the top-up of 50p per hour.

What impact will this have for businesses?

Concerns were raised that the new Regulations would be detrimental for businesses in Belfast in that it could have an impact on profits, the use of overtime, bonuses, recruitment and potentially consumer prices but only time will tell.

No doubt employees who now benefit from the increase will certainly be pleased with its introduction. Hopefully a positive effect will be increased productivity and job satisfaction in the workplace.

What happens if businesses don’t pay the “National Living Wage”?

An employee could make a number of claims to the Industrial Tribunal for failure of his/her employer to pay the National Living Wage including a claim for unlawful deduction of wages or a detriment.

Not only that, if an employee is dismissed for a reason related to the National Living Wage they will be able to make a claim for unfair dismissal even if they have less than one year’s service.

Finally, if that wasn’t enough to ensure compliance, an employer can face penalties being imposed by HMRC including a requirement to pay any arrears of pay owed to an underpaid employee and a penalty of up to 200% of the arrears owed. Bear in mind there is also the potential for businesses to be named and shamed if held to be in breach of the Regulations.

If you require any further information in relation to the NATIONAL LIVING WAGE or any other EMPLOYMENT RELATED ISSUE please do not hesitate to contact us here at Life Law NI or email mgavin@fhanna.co.uk

LIFE BITE: How Private are your Private Emails in the Workplace?

/ Karen / Leave a comment

apple-150579_1280Have you ever wondered whether your boss is legally permitted to read personal emails that you have sent to friends and family from your work email account?

Well, in light of a recent Court judgment it seems that they are.

In  the judgment of the case of Barbulescu v Romania which was handed down on 12th January 2016 by the The European Court of Human Rights, the Court held that there is no violation of your right to respect for private life and correspondence if your employer monitors personal emails that you send whilst at work .

What is expected of an employee and an employer is usually set out in the contract of employment.  However,  a contract does not have to be in writing and terms can be established in a manner of ways, either expressly, impliedly or through custom and practice.

It should not be that surprising that an implied term of a contract of employment is that when an employee is at work,  they should devote all of their time and attention to their work, not privately messaging friends or loved ones or using the internet for their own personal matters. Many employers have specific email and internet policies in place to counter such misuse.

In this particular case,  Mr Barbulescu was an engineer who used a Yahoo Messenger account, specifically set up for business purposes, to send and receive personal messages with his fiancée and his brother.  His employer, discovering this accidentally, dismissed him considering it to be in breach of his employment contract. 

Mr Barbulescu argued that the Romanian courts should have excluded all evidence of his personal correspondence on the grounds it infringed his Article 8 right that is the right to respect for private life and correspondence.   Mr Carbulescu’s employer’s internal regulations strictly prohibited employees from using the company’s computers and resources for personal purposes however, it was disputed whether the Mr Barbulescu had been given prior notice that his communications could have been monitored and their content accessed and eventually disclosed.

The issue before the ECJ was whether the right to respect for private life and correspondence is breached if employers monitor employees’ personal communications at work? The answer was a resounding no, subject to reasonableness/proportionality.

The ECJ held that although Article 8 was engaged,  the Romanian courts were entitled to look at that evidence in deciding whether Mr Barbulescu’s dismissal was fair.  The European Court was persuaded by the fact that the Romanian court judgement did not reveal the precise content of the personal messages, but only that they were personal messages.   Also, only the Yahoo Messenger account, which the parties agreed was set up for business purposes was accessed by his employer – not other documents and data stored on Mr Barbulescu’s computer.

The Court therefore found “that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.”

MGavinThis Life Bite was provided by Mary Gavin, Associate Solicitor in the Employment Law Department  of Francis Hanna & Co Solicitors.  If you would like further informaiotn on this area of law, please contact Mary Gavin on mgavin@fhanna.co.uk or contact us at Life Law NI here.

LIFE BITE: Slagging off your Boss on Social Media?? Think Twice!!

/ Karen / Leave a comment

apple-150579_1280Okay,  so you don’t particularly like your job – the hours suck, your boss is a bit of a pain and you’d generally much rather be somewhere else.

But be very careful before taking to Facebook to vent your frustrations!

In the case of British Waterways Board v Smith, it was held that it was fair to dismiss an employee for making derogatory comments about his work managers and work in general on Facebook, even despite the employee’s claim that the comments made were untrue.

Mr Smith had basically taken to social media to vent his annoyance and frustrations with his work and managers.    He used what can only be described as offensive language when referring to managers and had claimed that two years earlier, he had been drinking whilst on standby duty (vodka and apple juice to be precise) which he referred to as “not to shabby” (sic).

Whilst Mr Smith denied that he had been drinking and claimed that the comments were ‘banter’, he was dismissed from work on the ground of gross misconduct as his comments had undermined the confidence his employer or the public could have in him.

It was initially found by the Employment Tribunal that Mr Smith’s employer should have considered that his comments were exaggerated or not true however, the Employment Appeal Tribunal overturned that decision and held that the dismissal was fair.

Employees should be careful about what they post on social media as although comments regarding work may be meant as a joke or used as an avenue to express frustration, they can have drastic results!

MGavinTHIs ‘Life Bite’ was provided BY MARY GAVIN who is aN EMPLOYMENT LAW Solicitor at Francis Hanna & Co.    If you require Employment Law advice please contact Mary Gavin on 028 90243901 or email at mgavin@fhanna.co.uk