Category Archives: Insight Article

Whilst it would be hoped that most employees return to work following a Christmas break with nothing more remarkable than the post-Christmas blues, on occasion, employers can be dealing with the fallout from an office party disaster.

Employers can be held vicariously liable for discriminatory acts of employees – even if the event is held off-site and out of normal working hours.

The same can be said for liability for injury to a member of staff inflicted by another. Recently, in the case of Bellman v Northampton Recruitment Limited, the Court of Appeal ruled that a company was vicariously liable for the conduct of its Managing Director at a Christmas party following a physical attack on one of the employees by the MD, leaving the employee severely disabled.

In 2015, in an equally strange set of facts, a claimant brought an unfair dismissal claim in Westlake v ZSL London Zoo. At London Zoo’s Christmas party, zookeeper Ms Westlake got into a fight with a colleague over a love triangle involving another zookeeper. The exact details of the incident were disputed, but one of the individuals was hit in the face with a glass that Ms Westlake was holding. London Zoo decided to dismiss Westlake for fighting with a colleague, with the other member of staff involved given a final written warning. The tribunal stated that since the employer was unable to determine who started the fight, it was legitimate to dismiss both individuals or give both final written warnings – it was unfair to treat them differently. The unfair dismissal claim was upheld, but the tribunal decided to reduce the award to zero because of the conduct of the claimant.

A further example of the perils of the Christmas party is Bhara v Ikea Limited, in which, what is described as a tussle took place between two colleagues. Mr Bhara was dismissed, and it was found that the dismissal was within the range of reasonable responses and was, therefore, fair, even when the employees involved in the incident did not feel it was particularly serious.

These cases are ample demonstration of the perils of the office Christmas party and the potential risks it can pose for employers. If misconduct occurs at the Christmas party, employers should ensure that they conduct a reasonably thorough investigation before any disciplinary action. Furthermore, in advance of the Christmas party, at risk of being accused of being the “Fun Police”, employers should have a clear policy on what standard of behaviour is acceptable and ideally issue a statement to employees in advance of the party to remind all staff.

For further advice and information, contact Karen Cole today.

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

The term caste denotes a hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity.

For those unaware of the workings of the caste system, the terms can be baffling, with different names used to identify the lowest castes and different groups having different statuses depending on the caste system to which they belong.

In July 2018, the government published the outcome of a consultation on whether legislation was needed to protect against caste discrimination. The government decided that it would not legislate in this area but would rely on emerging case law. This means an arguably more laissez-faire approach of allowing case law to develop, in which it is argued that caste is covered by the current definitions of race or religious belief.

There is clearly an overlap between religious belief and race discrimination with caste discrimination, but the larger question will be whether some forms of caste discrimination will fall outside of the scope of either of these two forms of discrimination. Some castes are based on occupation or profession; therefore, individuals suffering the effects of this type of discrimination may not be protected.

The Equality and Human Rights Commission’s response to the government’s decision was:

“The government has missed a crucial opportunity to improve legal clarity and has taken a step back by looking to repeal the duty to include caste as an aspect of race in the Equality Act 2010. This is inconsistent with the UK’s international obligations to provide for separate and distinct protection for caste in our legislation.”

As things stand, those who claim to be victims of caste discrimination are now reliant on ‘caste discrimination’ being captured under race and/or ethnic origins within section 9 of the Equality Act 2010.

Where a claimant has been treated less favourably because they are believed to be a member of, or descended from, a separate race or ethnic group, the existing provisions of section 9 should come into play. However, whether this is an improvement on a statutory definition is questionable.

Call employment solicitor Karen Cole today if you have been affected by any of the issues raised in this article.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

The taboo of talking about mental health has started to shift following several high-profile campaigns. Still, many employers are keeping quiet and avoiding conversations with staff, even though they have legal responsibilities, and it’s been shown to improve the bottom line.

According to the Health & Safety Executive, over 11 million working days are lost each year because of stress in the workplace. Research among workers by MIND, the mental health charity, found that a continuing culture of fear and silence around the topic was adding up to a big cost to employers, with over 20% reporting they had called in sick to avoid workplace stress, and 30% saying they did not feel they would be able to speak openly with their line manager about the issue.

Such figures highlight the need for companies to have strategies focused on mental health as part of employee wellbeing, tackle stress-related absences, and avoid potential complaints or even litigation from staff.

Employers have a legal duty to protect employees from stress at work by undertaking a risk assessment and acting on it. Where an employee suffers from a mental health condition that has a long-term effect on day-to-day activity, this may be classed as a disability, requiring the employer to take positive action under the Equality Act 2010. The Equality Act makes it unlawful for an employer to treat a disabled person less favourably because of their disability without a justifiable reason.

Employment lawyer Karen Cole:

“Best practice is for employers to have clearly stated policies that are reflected in the company’s culture, so that a manager who notices a change in personality, evidence of low mood or periods of increased absence, will feel equipped to enquire if any workplace support is needed. It needs to happen in a supportive environment where the employee feels comfortable in opening up and asking for help, if needed.

It’s important to avoid an atmosphere where an employee feels that raising the issue of mental health may affect their future prospects, or that they will feel stigmatised by asking for help. Unwillingness to talk can make for a difficult position for employers.”

Such difficulties have been highlighted in disability discrimination claims which have reached the Court of Appeal. One case involved a former employee of Newport City Council, who had been off work on three separate occasions for stress-related illness and depression. Finally, the Council asked an occupational health advisor for an opinion on whether the employee was fit for work. The opinion given was that he was not a candidate for ill-health retirement and that he was not disabled for discrimination purposes. When he was subsequently dismissed following allegations of bullying, he brought a claim of disability discrimination. The Council said that it relied upon the opinion of an occupational health expert. Still, the Court of Appeal said that an employer must make a factual judgement and cannot “simply rubber stamp the adviser’s opinion”.

This need to look more carefully was reflected in another case involving an employee who had been resistant to discussing her health issues and would not allow contact with her GP. Here the Court of Appeal found in favour of her employer, Liberata UK Ltd, because the company did all it could “reasonably be expected to have done” – it did not rely solely upon occupational health advice but reviewed it in the light of its own experience and impressions of the employee and undertook its own further investigations.

Karen added:

“In creating and maintaining a culture of wellbeing, an employer should start from a perspective of how best to provide everyone with responsible support and protection from unfair or discriminatory treatment and should reflect that in processes and practice. If anyone has issues that impact on how they may perform a particular function – whether related to physical or mental health – then it’s important to look at how to introduce reasonable adjustments to enable them to fulfil the role.”

If you have any queries regarding mental health in the workplace, call Karen Cole today!

Note: This article is not legal advice; it provides information of general interest about current legal issues.