A Very Funny Case at the EAT Highlights a Serious Problem

On the Rollonfriday website they have a story about a non-practising Barrister who made a claim of race discrimination. The claims that the Claimant made were quite ridiculous and the Judge at the EAT gave them fairly short shrift. It is well worth reading the judgment just for it's comedy value!

Employment lawyers often have to deal with frivolous claims such as this one and while they do provide us with some light relief and fee income, employers do suffer in terms of having to pay for legal representation and the loss of management time in having to prepare for and appear at hearing.

There has been talk of how to prevent frivolous and vexatious claims being made and one suggestion from the Department of Business Innovation and Skills is that Claimants should have to pay a fee to the Employment Tribunal when they lodge a claim. It is thought that this would act as a deterrent to vexatious litigants. I am not convinced by this argument and believe that it is more likely to deter genuine claimants of limited means who have a genuine claim. The very nature of vexatious claimants means that they don't care about the cost of lodging a claim, they are just determined to make life as difficult as possible for their former employer.

My suggestion to minimise costs is to give Employment Tribunal Judges more discretion to kick out frivolous and vexatious claims at an early stage. Too often I have been to Pre-Hearing Reviews where the Employment Judge has been reluctant to move towards dismissing a claim on the grounds that a Claimant has no prospects of success as case law has made it difficult for claims to be struck out in these circumstances. I believe that this imbalance should be addressed and if Tribunal Judges are given more discretion to strike out a claim at an early stage then fewer ridiculous claims of the type reported above will proceed to a full hearing. 

My Article In Employers Law Magazine

I have been published! This is an article that I wrote about the effect that the Olympic Games may have on employers that can be found in this month's issue of Employers Law magazine:-

Preparing a Game Plan: A Tactical Approach

Olympic fever will soon be spreading with people suddenly becoming interested in sports as diverse as cycling and greco-roman wrestling.

There is a risk that during the games employers will experience problems such as higher absenteeism and lower productivity. Like the athletes, employers have to prepare for the games. Policies and procedures need to be up to date especially those relating to absence, holiday, and IT. It is also the case that employers have to consider what practical steps should be taken if there are multiple requests for leave by employees while the games are on and how the working day should be structured.

Annual Leave

There is no statutory obligation for an employer to allow their employees time off to watch the games. This includes any employees who may have been selected to work as volunteers at the games. Employers can refuse requests for time off as long as the employee in question receives the leave that they are entitled to under the Working Time Regulations.

Employers may also face the problem of too many people wanting to take time off at the same time leading to low staffing levels and need to consider how they would deal with multiple requests for leave. The “first come, first served” principle may be considered discriminatory; for example, where a part-time employee is not able to submit their request before a full time colleague because they only work certain days of the week. As an alternative, employers could consider holding a ballot to decide who can have time off during that period. Whatever the employee decides, they should deal with the issue of leave earlier rather than later so they can plan how their business will operate during the games.

Unauthorised Absences

What do you do about the employee who is refused time off by their employer to watch the 100 metres final but does not come in to work that day claiming that they have been stuck down by an illness?

Employees are allowed to be ill and while the circumstances may be suspicious the employer cannot take disciplinary action on the basis of purely circumstantial evidence. A proper investigation needs be carried out before the employer can conclude whether the employee had been watching Usain Bolt or tucked up in bed for 24 hours.

Social networking sites such as Twitter and Facebook have arguably made it easier to establish what an employee has been up to while off work. It is arguable that checking an employees Facebook page or Twitter feed is a breach of their right to privacy; however, if an employee has made it possible for anyone access their Facebook page or Twitter feed then it is difficult for them to argue that their privacy has been invaded.

Could an employer also check the employee’s work email to see if there is any evidence of them taking an unauthorised absence? Employers have to be very careful about doing this as emails can be considered sensitive personal data and the employer could find themselves in breach of the Data Protection Act. As a basic pre-condition to doing this the employer should have already informed employees that their emails may be monitored. Checking an employee’s emails is a drastic step and it is advisable for an employer to seek legal advice if they feel the need to do this.

Punctuality    

Punctuality may not be a problem for most employers. There will be no time difference and for broadcasting reasons most of the big events will take place in the evening. It may still be the case that you have employees who come in late from a lunchtime watching the rowing, or sneaking off early to watch the volleyball.

Practical solutions include allowing employees to work flexibly; for example, being allowed to come in early and leave early or taking lunch breaks at a different time. This would of course depend on the needs of the business.

Employers who are based near Olympic venues may find that their employees have difficulties getting into work as a result of the extra numbers of people who have come to watch the games. In these circumstances, employers may wish to consider temporarily changing their working hours or adjusting shift patterns to make it easier for employees to come into work during the games.

IT Systems

Events will be taking place all day, every day and broadcasters such as the BBC will be providing updates on the internet with live streaming and highlights. Company computer systems may be slowed down as a result of employees watching the games via the internet.

Employers should ensure that their IT policy is up to date and clear as to the limits of personal use of the internet and that breaching the policy may lead to disciplinary action being taken. It would also be wise for employers to remind their employees of the policy just prior to the start of the games.

A further step that the employer may consider taking is putting a television in a room for employees to watch (on condition that it does not impact on their work) or have an “Olympic Workstation” for employees to access Olympic related websites.

Conclusion

Employers should ensure that their policies relating to absence, holidays and IT are up to date and that employees are aware of these. They should also consider any practical steps that can be taken while the games are on.

On a positive note, the Olympics will bring many benefits to business, they have already provided a much needed boost to the construction sector, the tourist industry will thrive and there will also be short-term employment opportunities during the games. The greatest sporting event in the world is coming to this country next year - once your internal policies are up to date, try and enjoy it!