Author: Keely Rushmore

Dr Eva Michalak has won £4.5 million in compensation after her bosses mounted a campaign against her when she fell pregnant.

An Employment Tribunal recently awarded the staggering sum of £4.5 million by way of compensation for unlawful sex and race discrimination (a figure which the tabloids have pointed out would be enough to pay 210 nurses for a year). This is thought to be the highest ever discrimination award made in the UK.

Polish born Dr Eva Michalak was employed by the Mid Yorkshire NHS Trust as a consultant.  She claimed that she took maternity leave and on her return raised concerns about payments made to colleagues in her absence (but not to her) which lead to a concerted campaign by the Trust (referred to in the proceedings as the “Get Eva” campaign) to end her employment.  As part of this campaign she claimed that she was subjected to a bogus disciplinary procedure and an unjustified and lengthy period of suspension from 2006 which culminated in her dismissal in 2008.  She said that her dismissal was the conclusion of an extensive process of sex and race discrimination related to the fact that she’d made a protected disclosure and amounted to disability discrimination. The Tribunal accepted her arguments and went so far as it say it was ‘positively outraged’ by her treatment by the Trust and senior employees within it.

It would be fair to say that the case is exceptional. As a result of her treatment by the Trust she developed a chronic and disabling post-traumatic stress disorder, together with depression and anxiety. The Tribunal were told how she was left unable to accomplish the simplest of tasks without oversight and supervision, leading to her husband having to give up work to care for her.  The Tribunal concluded that she would never work again.

Dr Michalak earned just short of £90,000 in her post.  The £4.5 million figure was based on numerous heads of loss, including £30,000 for injury to feelings, £50,000 for psychiatric injury, £170,000 for lost earnings to date, £941,000 for future loss of salary (taking her to retirement age), £666,000 for pension losses, £50,000 for medical treatment, £43,000 for past care and £31,000 for future care. The dismissal had taken place when the statutory grievance and dismissal procedures were in place and therefore the Tribunal had discretion to award a 50% uplift in respect of Trust’s failure to follow the statutory grievance procedure.  The Tribunal said that it would have had ‘no hesitation’ in ordering the full 50% uplift were it not for the amount this would translate to in monetary terms, and instead elected to apply a more modest 15% figure.  A significant portion of the £4.5 million (almost £2 million) was an uplift to take into account the fact that the compensation would for the most part be taxable.  The Tribunal concluded that the Trust and some named respondents were jointly and severally liable to pay the award.

This was certainly an exceptional case but serves as a reminder of the huge potential liabilities that can arise in discrimination cases and the need to ensure that staff receive and understand equal opportunities training.

For more information about Equal Opportunities training, click here.
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 Keely Rushmore on 01727 798017 or by email at keely.rushmore@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: Alexis Asher

The Agency Workers Regulations 2010 (AWR) are due to come into force on 1 October 2011. Employers need to be aware of the changes these Regulations bring, if running an employment agency or using agency workers as a hirer. Below we look at the main impact of the Regulations in some more detail.

Equal treatment
The main aim of the Regulations is to create equality between agency workers and directly employed employees.
The Regulations provide agency workers with the right to be told of any relevant vacancies at the user’s company during the assignment and the right to be treated no less favourably than a comparable worker in relation to collective facilities and amenities. These rights will be available to agency workers from day one of an assignment (“day-one rights”).
If the agency worker has worked for the same hirer in the same role for 12 weeks, he/she will be entitled equal treatment to that of a comparable employee in relation to rights such as holiday, rest breaks and pay etc as well as access to job vacancies within the hirer’s business.

Your obligation as an agency
If you run an employment agency it is your obligation to ensure that the agency worker is receiving equal treatment by enquiring about the relevant information from the hirer.

Your obligation as a hirer
As a hirer, you must ensure that you comply with the Regulations and that you provide the relevant information to the employment business upon request.

You are prohibited from structuring your business in a way which is intentionally aimed at avoiding the provisions of the new regulations, e.g. you must not move the agency workers round within the business so that they do not fulfil the 12 week qualifying period.

The regulations come into force in October so you must ensure that you and your business are prepared to deal with the changes. You should start by answering the following questions:

1.Do you tend to use agency workers for 12 weeks or more?
2.Do you know who the comparators would be in relation to each agency worker?
3.Do you know which information the employment agency is entitled to request from you?
4.Do you know the impact of the new regulations to your business including costs?
You must ensure that you fully understand the changes and your obligations. There are many factors to take into account and precisely what you need to know will depend on the nature and structure of your business.

The risk in non-compliance has not yet been determined fully, and this is an area that will evolve through case-law. However, failing to understand and implement the required measures could have costly consequences both financially, and for the reputation of your company.

Further Information
If you are interested in learning more about the AWR changes or how it affects your business, come along to one of our free ‘Temporary (Agency) Workers -Equal Treatment’ Seminars. To find out more or to book your place, click here.

Contact Us
For further information or to discuss a particular matter or situation in more detail, contact Alexis Asher at our St Albans office by email at alexis.asher@salaw.com or on 01727 798023.

Author: Alexis Asher

The 10th March marked the first in a series of free ‘Employment Law Update 2011′ workshops held by SA Law’s Employment department. The workshop was held at The Law Society in London to a raptured audience of HR professionals and Line Managers.

The seminar provided an update on recent and upcoming changes to Employment law and practice, and highlighted issues that employers need to be aware of. The less formal, interactive style workshop allowed the speakers Chris Cook and Alexis Asher to really engage with the audience and focus on their needs as an employer in handling employment issues and procedures.

The topics covered included the Equality Act 2010, The Agency Regulations, Retirement, Paternity, Holidays and Unexpected absence from the workplace.

The seminar offered a clear explanation of developments in the law, and practical tips on how employers can deal with the changes to minimise the risk of problems arising amongst the workforce.

To watch YouTube videos of the workshop, please click here.

These free Employment Law Update seminars will be running throughout March. There are a few places available for 29th March. Further details and bookings can be made by clicking here.

Alternatively, should you require any further information regarding this seminar and future events, please contact Victoria Thomson on 01727 798 076.


Author: Alexis Asher

The Government has announced proposals to reform the Employment Tribunal system. The aim of the changes is to ease the strain on small and growing businesses, to avoid them facing costly, and sometimes vexatious claims being brought to the Tribunal. Business Secretary, Vince Cable, also believes the reforms will reduce the financial burden on the Employment Tribunal itself.

The main proposal is to increase the qualifying period of service which an employee must attain to be eligible to bring a claim of unfair dismissal before a Tribunal. Currently, an employee must have at least one year’s continuous employment to be eligible (subject to certain exceptions). The Government propose extending this to two years.

Other plans under consideration include:-
1.    the introduction of a fee for bringing a claim in the Tribunal where currently there is no charge;
2.    proposals for unfair dismissal cases to be heard by a single Employment Judge, rather than the current three-person panel system and;
3.    the referral of all unfair dismissal cases to ACAS (the conciliation service) for compulsory settlement negotiations prior to the matter being referred to the Tribunal.

The proposals have proved controversial resulting in a range of business and trade union organisations voicing their views on the reforms.

The implications of reducing protection for employees by way of eligibility to claim could result in a reduction of Tribunal claims being brought. However, it may simply produce a short-term cut, where claims are in reality postponed for a further year and therefore give a misleading view of Tribunal activity.

Whilst the reforms aim to encourage small businesses to recruit more easily without fear of vexatious claims being made, the proposals could in fact lead to employees bringing ill-conceived claims for discrimination or whistle-blowing (which require no period of qualifying service) and pose potentially greater challenges to employers.

Critics of the proposals see the reforms as an erosion of employees’ rights, giving employers the ability to recruit and dismiss with greater freedom and without fear of claims.

It remains to be seen how the reforms will ultimately be introduced. In the meantime, the Government need to give careful consideration to whether enactment of the changes will actually have the desired effect upon the UK economy and workforce.

Author: Alexis Asher

Government plans to abolish the default retirement age (DRA) in October 2011 have sparked controversy amongst UK business organisations.

The Confederation of British Industry (CBI) has called for the Government to delay its plans to abolish the DRA. The CBI believe that there is not enough legislation in place for employers to understand how to carry out retirement fairly once the changes come into force.

The CBI have commented on the contradiction posed by the plans to abolish the DRA. On the one hand, employers understand that employees want to work for longer periods of time to cover shortfalls in their pension. They also appreciate that older workers bring experience and loyalty that may not be so apparent in younger workers. However, in reality working beyond the age of 65 is not always going to be possible, particularly in jobs involving physical demands not suitable for older workers.

The CBI believe that the Government should halt the current plans, until such time as clearer legislation is put in place.

The Director General of Saga, Ros Altmann has responded to the comments made by the CBI to say that Saga believe the DRA should be abolished “without delay.” She believes that if the Government’s proposals are not carried out as planned it will have a negative impact on the economy as a whole since older individuals will continue to be served with notice of retirement at the age of 65, and have significantly less money as a result.

The debate will no doubt continue, until such time as the transitional arrangements come into play in April 2011.

Related retirement blog entries: New Government: New plans for Retirement

Should you seek advice on retirement, please do not hesitate to contact the Employment Team at SA Law on  01727 798000

I recently reported on the case of Emma Amelia Pearl Czikai, a contestant on Britain’s Got Talent who issued a claim of disability discrimination against Simon Cowell, his production company and Freemantle Media at Central London Employment Tribunal.

Emma’s case drew interest from employment lawyers because contestants of a reality TV show are technically not considered employees. Emma claimed she was entitled to bring her claim and Britain’s Got Talent could be classed as her employer, because the auditions were a recruitment process in which candidates competed for short-term employment contracts for a road show.

Luckily for the show’s producers and Simon Cowell, the London Central employment tribunal have dismissed her claims. The grounds for dismissal appear to be because she had issued her claim out of time and most importantly they determined that the production companies and Simon Cowell could not be her employer.

This may draw a line under this case however this is unlikely to be the end of these type of claims. A second contestant of Britain’s Got Talent, Phillip Grimmer, has already issued claims of discrimination on the grounds of sex, age, disability and sexual orientation after he was voted off the audition stages. Whilst the French Supreme court determined in June 2009 that three contestants of a French version of the reality television show “Temptation Island” were employees.

If we apply the test to determine employment status to the reality television show scenario;

• Does the show have control over the contestant i.e. working hours, place of work, supervision and provision of equipment ?
• Is the contestant’s and show’s intention to create an employment relationship?
No doubt contestants are required to sign a contract with producers setting out what is expected of them, their hours, place of work, conduct and the show’s right to terminate the agreement if there is a breach.
• Is the show obliged to provide work and the contestant obliged to accept the work?
Often winning contestants will expect a prize consisting of a performing contract.
• Is the contestant required to provide the work personally or would the show accept a substitute?
Mostly contestants work for the show in their personal capacity rather than as a business.
• Does the contestant receive any remuneration for the work?
A number of reality shows compensate contestants with a minimum amount to cover their outgoings and expenses.

It may be soon that UK shows have to make the decision to class their contestants as employees or workers or risk a Tribunal making the decision for them.

You may recall SA Law’s blog on 25 September 2009, in which we confirmed that the High Court had ruled it was legal for employers to force workers to retire at the age of 65. The government has now made a dramatic u-turn and proposed that the current default retirement age of 65 is scrapped in the UK from October 2011.

The implications are that employers would no longer be able to dismiss staff because they had reached the age of 65.

The current position is that an employer can meet with an employee 6 to 12 months before their 65th birthday and notify them of their intention to retire them at that date. An employee is entitled to put forward their case not to be retired but the only obligation on an employer is to consider this. It is the employer’s discretion as to whether or not to terminate employment.

Groups that have long campaigned for the default retirement age to be scrapped have welcomed the decision. Marion Birch, Chief Executive of Age UK Hertfordshire has told SA Law, “Older people are one group of society that are not protected from discrimination by legislation so we are delighted that people over the age of 65 will have full employment rights for the first time. Age UK Hertfordshire is pleased that the Government is finally sweeping away this discrimination against older people and will be allowing individuals the dignity of choosing when to retire.  Enabling people to work and contribute their skills for longer not only keeps them active, it also makes economic sense as our population ages.”

Given the length of notice required to notify an employee of their intended retirement, it is likely that these measures will come into force from 6 April 2011.
The main concern appears to be the length of time in which employers will need to come up to speed with the new law. Really they have only just got to grips with the retirement process and employers will need to deal with their new workforce at that time in particular;

•    reviewing policies and practices such as benefits to ensure these are not discriminatory to employees over the age of 65 years;
•    consider alternatives to forcing retirement such as adjustments to role, variation of terms or flexible working.

If you have any questions about the new retirement plans, do not hesitate to call Nikki Petken on 01727 798023