Author: Vanessa James

A former NHS manager, Elliot Browne, has been awarded £933,115 in compensation, succeeding in his Tribunal claim against the NHS for unfair dismissal and race discrimination;  one of the highest payments ever awarded for race discrimination.

The Tribunal found that Mr Browne had been subjected to “systematic discrimination” and “an intimidating environment” from 2007 until his dismissal in 2008 – although the losing Respondent did not see it that way and have appealed the decision.

Mr Browne worked for the Central Manchester University NHS Foundation Trust (“the Trust”) for 34 years, and became the first and only black man to hold the position of divisional director for clinical scientific services with the Trust.

Following the Trust’s concerns regarding budget management and leadership in his department, Mr Browne raised what the Tribunal deemed a “well-founded” complaint of discrimination. He claimed that his singling out for criticism was unfair and discriminatory when compared with his employer’s treatment of white colleagues. Following his complaint, the Trust were found by the Tribunal to have “closed ranks” and began disciplinary proceedings to dismiss him.

As a result, Mr Browne was signed off work with stress and claimed his employer’s treatment had left him close to a breakdown. Mr Browne was supported in his claim by Unite who called for the Trust to “tackle its culture of institutionalised racism.” The Tribunal award compensated Mr Browne for aggravated damages, demonstrating its view that the treatment suffered had a severe impact on his health.

This level of award, whilst unusual, demonstrates the Tribunal’s current view towards claims of discrimination. In the last 2-3 years we have noticed a marked shift in the Tribunal’s approach and the line of questioning used in hearings, which focuses on ‘subconscious discrimination’ to determine whether there is an inherent culture of discrimination within a workplace.

What is also important to understand is that while the Tribunal found that the treatment amounted to race discrimination, the Respondent did not appear to believe they discriminated.  We can also speculate about why the Respondent did not settle the matter before trial if it was in any way apparent to the Respondent or their legal team that they would lose to such an extent.  This shows that spotting the risks of such a case occurring in any organisation is not that straight forward.

Vanessa James is a Partner and Head of the Employment Department at SA Law. Vanessa specialises in discrimination claims, shareholder disputes and employee disputes.

To read more Unfair Dismissal related articles, click here.

If you would like more information or advice relating to a specific matter, please do not hesitate to contact Vanessa James on 01727 798089 or by email at vanessa.james@salaw.com or any member of the Employment Team.

© SA LAW 2012
Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them. You are recommended to obtain specific advice in respect of individual case

Author: Vanessa James

Over the past 12 months many employers have had to make redundancies and even though some commentators claim the ‘green shoots’ of recovery are here, businesses are still feeling the effects of the downturn. Businesses could potentially cut back their workforces yet further, but they run the risk of losing valuable talent which could jeopardise the business in the long term. But what are the alternatives? Well, I was recently commissioned to write an article for PAY Magazine entitled ‘Imposing Contractual Changes’, which outlines some of the alternatives such as how to lawfully announce pay freezes or pay cuts and how to negotiate with employees and avoid the risk of claims such as breach of contract.

Author: Vanessa James

As increasing numbers of people become unwell with swine flu it is important that employers are well prepared to deal with the likelihood of their employees being absent from work. Many employees will catch the H1N1 strain of the flu virus or will need to care for dependents who become ill. This may put considerable pressures on employers.

Dealing with absences

Employers should take this opportunity to review their sick leave/pay and dependent leave policies to ensure that they deal with the potential for staff to be absent from work. For example, employers should check whether their sick pay policy offers enhanced sick pay and for how long.

Employers may wish to consider being more generous and lenient with their sick leave and dependent leave policies to try and encourage staff to stay at home rather than forcing themselves in to work and spreading the infection.   Employees who are genuinely sick but do not take time off can also make themselves worse and end up having to take more time off in the long run.  Employers have a duty to protect the health and safety of their employees and should not knowingly allow those infected with swine flu to attend work.

The HSE advises that anyone who has flu symptoms and believes they may have been exposed to the swine flu virus should stay at home until they are fully recovered. Once the symptoms have subsided it is then safe for people to return to work as there is no longer a risk of infection to others.

Staff should have more than just a fear of contracting the virus to justify staying away from work. Nevertheless, employers should bear in mind that those employees who have a genuine fear that attending work is a health hazard may be more willing to run the risk of disciplinary action than of contracting swine flu.

Employers must make it clear to employees that they are expected to attend work unless they develop flu symptoms.

If members of your staff do become unwell with swine flu, you must inform them to stay at home. They will potentially spread the virus for 7 days from when they first develop symptoms. In recent days GP surgeries have become inundated and those with flu like symptoms are being asked to call NHS Direct rather than visit surgeries.  This will make obtaining documentation to verify the illness more difficult.  Employers may want to request that employees who have had the illness obtain a letter from their GP to confirm that they are no longer infectious.

Informing Staff

To prevent the spread of swine flu in the workplace and to protect the health and safety of employees it is important to let staff know if one of their colleagues contracts the virus.

However, employers should not inform staff of the identity of the infected employee, this should be kept confidential.

Preventing the spread of swine flu

As part of an employer’s duty to protect the health and safety of their staff, employers should ensure that staff are aware of the symptoms of swine flu. Employers should encourage good hygiene practices, such as hand washing and using tissues. Employers must make certain that staff are not scared or embarrassed to admit that they have swine flu. By making it clear that there will be no disciplinary repercussions for being absent with swine flu and that information will be treated confidentially will encourage openness and honesty from employees.

Employers should provide a copy of the NHS leaflet on swine flu to all members of staff.

Contingency

Employers should consider how their business will operate in the event that a high proportion of the work force are absent.

Businesses need to plan ahead for the need (and added expense) of bringing in temporary staff. They may also want to think about the possibility of staff (particularly senior employees) working from home. The technology for remote working will need to be in place if this is a viable option for the Employer.

If the situation becomes much worse and the rate of deaths caused by swine flu rises, it might be necessary to look at more drastic measures such as suspension (on full pay) for those employees who are considered ‘high risk’ and have other health problems i.e. pregnant employees.