Premises Supervisor (DPS) in order for a premises to be licensed to sell alcohol. A

Designated Premises Supervisor must hold a valid personal licence. The DPS is responsible

for ensuring that the 4 licensing objectives are upheld at the licensed premises and that any

conditions of the license are adhered to. Those objectives are:

• the prevention of crime and disorder;
• public safety;
• the prevention of public nuisance; and
• the protection of children from harm

The guidance (as amended) issued under the Licensing Act 2003 envisages a partnership

approach between the DPS and the relevant authorities such as police and local authority. In

the event of trouble or complaints about the premises e.g. rowdiness or loud music  it is the

DPS that these and other bodies will contact to identify concerns and hopefully agree a plan

of action at the licensed premises. Consider the following words from paragraph 4.20 of the

amended guidance:

The Government considers it essential that police officers, fire officers or officers of the

licensing authority can identify immediately the designated premises supervisor so that any

problems can be dealt with swiftly. For this reason, the name of the designated premises

supervisor and contact details must be specified on the premises licence and this must

be held at the premises and displayed in summary form.

For the DPS role to work collaboration and effective communication with the relevant

authorities is essential. In a recent case I observed while attending court a licensed premises

was appealing against the revocation of their license. The local authority had revoked their

license following a string of complaints from local residents of youth constantly crowding

outside the licensed premises, drinking and shouting and behaving in an unruly manner. The

licensed premises was a family run business and a relative acted as DPS. Unfortunately the

DPS was as said a family relative whose name had obviously been put forward at the time of

the licensing application. He did not in fact play any active role in the business visiting only

twice a week for about 4 hours in total to look over the books.

It was clear that the licensee was not taking their duties under the Licensing Act 2003

seriously as the ‘DPS’ did not even know he was the named DPS and counsel for the

licensing authority had to show him the licensing application to show he was so named!

Similarly, ample CCTV evidence of people crowding and drinking outside the licensed

premises was relied on as evidence of this premises’ failure to promote the licensing

objectives. Relations with police had also broken down and the DPS put the numerous

resident complaints down to a local press led conspiracy. My point here is that the licensed

premises cannot even hope to fulfil its obligations under the licensing regime if the DPS is

not switched on to his or her role. To do so an active and healthy relationship between the

DPS and relevant authorities such as police and the community at large is vital. Talk to the

police regularly. If they or neighbours raise concerns take them on board and ensure staff

employed within the licensed premises are made aware and trained how to respond.  For

example consider placing signs on the door reminding people how to behave once leaving

your premises out of respect for neighbours such as keeping noise down or not drinking

outside the premises.  Invite residents to feed back to you as DPS any concerns they have.

At least you get first wind of an issue with opportunity to correct it rather than hearing it for

the first time as a complaint to the police or local authority.

An interesting line of argument I have seen in several licensing cases is that the DPS feels

that any problems to do with the licensed premises are a police matter and further that once

people leave the licensed premises then what they do outside is nothing to do with the

licensee. Unfortunately the line of demarcation is not so easily or conveniently drawn. It is

common for a condition to be added to a license that the licensee publish a notice to people

leaving the premises after hours not to make noise out of respect for neighbours. In this way

the licensing regime places some responsibility on licensees for the behaviour of is

patrons once they leave the premises. If residents are disturbed by people arriving or leaving

a licensed premises they may well complain and no distinction is made (by them or the

licensing authority) as to whether they were technically on the premises at the time or

outside of it. The key is whether the licensing of these premises facilitates or undermines the

licensing objectives. As such we advise the DPS to take active concern with the impact that

visitors to their premises has on the surrounding area. Not only should the DPS ensure the

licensing conditions are adhered to they should report to the police any criminal or other

inappropriate behaviour on the premises to the police.

In the case of R (on the application of Khan) v Coventry Magistrates’ Court and another [2011] EWCA Civ 751 the licensee ran a local supermarket in Coventry selling groceries and

various other goods including beers, wines and spirits. The premises license was transferred to him after he took on the business. However, Coventry City Council, as the interested

party, applied to the licensing committee for a review of the premises licence on the ground that the licensee had been selling alcohol to persons under eighteen. Before the magistrates

court there was also evidence that two consignments of spirits had been seized on which duty had not been paid and of a complaint by a local resident that the shop was receiving large

deliveries of alcohol from the back of a van at strange hours several times a week. The Court of Appeal later held that the magistrates were entitled to admit the additional evidence but

the case is also a vivid example of conduct which could justify revocation of a license and is also an example of where the DPS role has clearly failed: the magistrates had  upheld the

decision to revoke the license on the bases:

(i) that the appellant had breached a fundamental section of the Licensing Act;

(ii) that he had a poor understanding of the Act and particularly of the role of the licensee, the designated premises supervisor and the licensing objectives; and

(iii) that the management of the premises was such that there was a real likelihood that crime prevention measures in the vicinity and the aim of protecting young persons from harm

would be undermined by his holding a licence.

Dubious action and inaction by the licensee and its DPS led to the revocation of the license. The reality is that the DPS must assume some form of policing role of the licensed premises

and liaise with the police and licensing authority where necessary. The DPS should make sure he/she is fully aware of the conditions on the license and ensure they are adhered to. If

there is suspect conduct at the premises or conduct which is of nuisance value to residents the DPS should ensure it does not take place at the premises and if necessary report it to the

police. If the DPS turns a blind eye or waits for complaints to be made then the licensed premises are on the back foot in the event of an application to revoke the license. A proactive

and engaged DPS is key to ensuring maintenance of the license and in turn survival of the business.

Brown and Co Solicitors advises and represents licensees on all licensing matters including representation before Licensing Committees and Magistrates Courts. We can also bring judicial review proceedings. For an initial consultation call us on 0203 468 0924 or email at enquiries@brownandcosolicitors.co.uk

What is redundancy?

The law sets out a specific definition of ‘redundancy’ in section 139 Employment Rights Act 1996. Under this section a redundancy situation will arise where:

• the business the worker is employed to do has ceased or is expected to cease. As an example a shoe factory experiences a decline in orders for shoes and so has less work for its workers. This will create a redundancy situation for a shoe worker

• the place the worker was based at is closing. If the shoe factory has several branches but chooses to just close  one of its branches in Clapham then all staff employed at the Clapham branch are potentially redundant

• the employer’s requirements for workers to do work of a ‘particular kind’ have diminished or are expected to cease or diminish. Here the employer requires a different type of worker to do certain jobs. So for example the shoe factory may wish to replace a shoe maker with a secretary.  This will create a redundancy situation for the shoemaker concerned as there is now a reduced need for his/her role.

• The employer’s requirements for workers to do work of a particular king at the place the worker as employed has ceased or diminished or is expected to do so. So for example if only the Clapham branch required less shoe makers then a redundancy situation exists at that branch even if the same is not true in other branches

What does the employer need to do to act fairly?

The Employment Rights Act 1996 recognizes that redundancy is a ‘fair reason’ to dismiss an employee but requires that the employer acts reasonably in dismissing the employee. This means the employer must follow a fair procedure and generally act reasonably in relation to the employee in dismissing for redundancy. Case law has set out various principles as to what treating an employee reasonably in these circumstances means.

In the case of Williams v Compare Maxam [1982] ICR 156 (EAT) the court laid down principles which employers should follow to be held to have acted reasonably in dismissing for redundancy:

• The employers should warn employees of pending redundancies
• The employer should consult with employees and their unions in relation to proposed redundancies
• The employer must adopt  fair selection criteria which must be fairly applied
• The employer should make reasonable efforts to redeploy the employee

Any failure in respect to any of the above criteria is likely to render the dismissal for redundancy as unfair.

What rights does an employee have if dismissed for redundancy?

Unfair dismissal

An employee who has been employed for 12 months or more continuously by their employer can claim unfair dismissal in an employment tribunal on the ground that their dismissal for redundancy was unfair. The employee may argue that the employer breached standards of fairness listed above such as lack of consultation or inadequate efforts were made to redeploy them. The employee can also argue (if they have clear evidence) that there is in fact no genuine redundancy at all but that it is a sham concocted by the employer to justify their dismissal. An employee has to present their claim to a tribunal within 3 months of the end of their employment although there is scope in limited circumstances to apply outside of this time frame.

Redundancy payment

If the employee has worked continuously for 2 years for the employer they are also entitled to statutory redundancy pay. The statutory payment is calculated by reference to a particular formula which has regard to the employee’s age, length of service and gross weekly salary subject to a prescribed limit. In certain public sector bodies the employer must also count service with a previous public sector body in calculating redundancy entitlement. Specific advice should be obtained where applicable.

In many cases the employer provides for a more generous redundancy pay in the contract of employment or relevant policy. Where this applies the employee is entitled to claim this greater amount. He/she cannot claim this in addition to the statutory sum and the employer will have discharged their statutory obligations if the organization’s redundancy policy gives greater pay than available under statute.

Tips for employers managing a redundancy process

• Have careful regard to your own procedures governing redundancy. Usually an employer’s policy will embrace the fairness principles described above but also contain detailed provisions as to the process which must be followed. The employer should ensure it understands and follows it own procedures to act fairly or this may be held against them in unfair dismissal proceedings

• Ensure compliance with the principles of fairness outlined above. With large scale redundancies it may be a good idea to form a team of Human Resource and other professionals to project manage the process so all relevant stages can be planned in advance. A project management approach ensures that all relevant stages are covered and helps avoid drag and delay to what is a stressful process for all involved

• Have and manage a clear communication strategy. The strategy should aim to update employees in general terms on the reasons for the redundancies at appropriate intervals,  the stage in the process the exercise has reached e.g. ring fenced interviews and a contact for employees to raise particular concerns

• Consider voluntary redundancy. A ‘voluntary redundancy’ program has the advantage that it is those who have chosen to leave who are made redundant. This can lessen the trauma associated with redundancy programs. Of course a voluntary redundancy program may not provide all the numbers required but can certainly lessen the work load required. Equally the employer is advised to apply some fair criteria as to which posts it would accept voluntary redundancy applications from since a not infrequent outcome is that the best people choose to go and less desirable ones remain!

• Consider the use of a compromise agreement. In some cases if employer and employee wish to part company on terms then a compromise agreement is useful to rule out future tribunal claims and confirm the terms of the employee’s departure. Using this route also enables both parties to forgo the usual fair process and move to an agreed exit without further formality. Care needs to be taken in broaching this with the employee and advice should be sought before so doing.

Tips for employees

• Have regard to the employer’s redundancy procedures to ensure you are aware of what procedure should be followed. In any event the whole process should comply with principles of fairness outlined above. If you have doubts about any aspect you can of course ask your employer to clarify any aspect and ideally in writing or seek legal advice

• Make sure you understand why redundancies are actually happening. Do you understand the business case for redundancies? While this is ultimately a decision for the employer you are entitled to be consulted in relation to your selection for redundancy. It may well be that if you understood the employer’s reasoning for redundancy you may be able to suggest a different approach which would have avoided the need for redundancies e.g. part time working as opposed to job losses

• Find out your figures. As said once employed for 2 years or more you are entitled to statutory redundancy pay. It may be that you have a contractual scheme entitling you to a greater amount. Feel free to ask Human Resources or payroll or other responsible section for an indication of what you would get if made redundant. It may be that the sum is such that you prefer to take the money and go without undergoing a redundancy process.

• If you have concerns over any aspect of the process raise it in writing with your employer. If you are being advised by a union or other representative seek their advice and ask them to raise the matter on your behalf. In some situations it may be appropriate to raise a formal grievance. Otherwise any challenge to the redundancy process will lie in an appeal against dismissal for redundancy

• If you feel you have been dismissed unfairly and have more than 12 months employment you can claim unfair dismissal in an employment tribunal which claim must be brought within 3 months of employment ending. It is also advisable to appeal against your dismissal but you should not wait for the outcome of the appeal before submitting a tribunal claim as the 3 months time limit does not wait for your appeal to conclude. You should seek independent legal advice if pursuing a claim in the tribunal.

• If you consider that you are owed redundancy pay this can also be claimed in the tribunal. Note that a 6 months’ time limit applies to claiming statutory redundancy pay from the tribunal.

Winston Brown is a solicitor advising on employment and public law at Brown and Co Solicitors and can be reached on 0203 468 0924 or 07894219314.

Read between the lines

At a recent licensing committee convened to decide on a Temporary Event Notice (which  I only observed) I was struck by how the debate between councillors and the parties centred around public nuisance issues rather than crime per se – which is the sole ground for refusing a Temporary Event Notice under the Licensing Act 2003.

The applicants had sought a Temporary Event Notice in relation to a community based party at which alcohol would be served. However, unbeknown to the applicants a noise abatement notice had been served on the premises by the local authority after a catalogue of complaints concerning noise disturbance to its neighbours. A ‘noise abatement notice’ is issued by the relevant local authority and prohibits further occurrences of the nuisance specified in the order. A breach of the notice is a criminal offence under Environmental Protection Act 1990.

In the context of the case in question the abatement notice became quite significant. A local authority is required to convene a hearing of the Licensing Committee (or relevant subcommittee) to determine whether a temporary event should be licensed whenever the police raise an objection. Now the police can only object to a Temporary Event Notice on the ground that if the event were to proceed the prevention of crime and disorder objective under the Licensing Act 2003 would be undermined. This is the only ground on which a Temporary Event Notice can be opposed and the police alone can make the application. If the Licensing Committee decide that the crime and disorder objective would be undermined it will serve a ‘counter notice’ on the applicant forbidding the event from taking place. In the case in question the ‘crime’ referred to was the possible breach of the noise abatement notice under Environmental Protection Act 1990 which indeed  is an offence. What is interesting is that the entire debate before the Licensing Committee concerned issues around public nuisance namely to what extent the premises owner and event organisers could satisfy the committee that there would be no or little disturbance to neighbours. The applicants were unable to do so and their application was refused. Given the nearness of the event it was meaningless to appeal to a magistrates’ court but usefully the Licensing department have provided a list of alternative venues where there should be no problem.

The ‘read between the lines’ invitation in this article is a call to stand back and understand the real gist of the police objection. The real issue in this case was noise nuisance. One might not immediately think that crime is engaged when noise nuisance is raised as an issue but the fact of the abatement notice meant that a crime could well occur and this was the stated basis of the objection.  The applicants led very little evidence showing what steps they could or would take to avoid disturbance to the neighbours. The police were thus able to successfully argue that if the event proceeded there would probably be a breach of an existing noise abatement notice which forbade such noise nuisances and hence a crime would be committed.  The government has issued guidance under section 182 Licensing Act 2003 (amended in October 2010)  to assist local authorities and other interested parties comply with the licensing regime. It includes some useful tips around addressing nuisance concerns. This part of the guidance is more readily aimed at premises licence applications since the Licensing Committee has no power to modify a Temporary Event Notice. Nevertheless the guidance remains instructive as to the types of consideration which might be relevant whenever issues (such as nuisance) are live. The applicant (unrepresented) may have fared better if they had prepared arguments showing what steps they would take to prevent noise nuisance. The Licensing authority is itself a source of advice and guidance and people seeking to apply for a Temporary Event Notice are well advised to liaise with the Licensing department and even the police as soon as possible for guidance as to what steps they could take to meet any potential or actual objections. The guidance seeks to encourage such dialogue. If the police are persuaded that proper safeguards are in place they can always withdraw their objection and the Temporary Event Notice would be approved allowing the event to go ahead.

Brown and Co Solicitors has a licensing law practice of substantial experience and advises and assists business owners in relation to their licensing obligations under the Licensing Act 2003.

We can be contacted for an initial free consultation on 0203 468 0924 or enquiries@brownandcosolicitors.co.uk

• Direct – treating someone less favourably than you treat or would treat someone of a different race
• Indirect – where the employer places a ‘provision, criterion or practice’ (PCP) on all the workers but it places a particular group of which the claimant is a member at a particular disadvantage compared with others and the employer cannot show the PCP to be a proportionate means of achieving a legitimate aim
• Harassment – unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim
• Victimisation – where the claimant has been treated unfavourably because they have complained or done something in relation to discrimination legislation e.g. raised a grievance complaining of discrimination or given evidence in proceedings

Claim in time

The first thing to remember is that claims must be lodged within 3 months of the act of discrimination being complained of. Tribunals do have discretion to allow a claim out of time (if ‘just and equitable’ to do so) but good reason will need to be shown why the claim was not pursued within 3 months of the act in question

In many discrimination claims it is alleged that various discriminatory acts took place over a period of time.  A claimant may wish to complain of events going back months and even years. For his reason it is not uncommon to see tribunal hearings set for several days ratcheting up considerable legal expense. To be able to complain of past events outside of the immediate 3 months before the claim was submitted then provided the claimant can prove that the apparently distinct acts were actually part of a single continuing regime (or ‘continuing act’) then all the matters complained of can be complained of and time only runs from the last in the series. As an example if a claimant says they have been denied promotion on 10 occasions over the last 5 years culminating in another failed attempt a month ago  they could argue that their non promotion is the result of a racial disposition in the company towards them and that the different instances of non promotion are in fact part of a continuing act of discrimination. Their 3 month time limit for all the different failed promotion attempts would run from the last of the decisions not to promote the claimant (a month ago) and they could complain of all the historic events. (Even if the historic events are not found to be part of a single action they would still be relevant to shed light on the act that is in time). The tribunal will decide whether there is a continuing act or whether only acts within the last 3 months can be considered. If all are out of time the claimant will need to persuade the tribunal to entertain their claim out of time as said.

The challenge in many race claims is proving that there was indeed a continuing act extending over time. It is tantamount to a conspiracy argument – that the employer over time has been subjecting the worker to discriminatory treatment. The difficulty often is that over a period of time different people have taken different decisions and even if all decisions made were adverse to the claimant there is typically little or no evidence that these different actors acted in concert. One must also show that race was the reason behind the treatment which is not easy to prove. The danger of running a case in which matters go back over time is that the claimant can come across as paranoid or just disgruntled with how their career has progressed at the workplace. For this reason great care should be taken in framing a race case. Conspiracy arguments need strong evidence to be accepted.

Focus on evidence that race was the cause of differential treatment

There is a difference between a bad employer and a discriminatory employer. Just because a manager has acted in a particularly bad way towards their workers does not make their conduct discriminatory even if for example it is a white manager mistreating staff who happen to be black. It must be shown that race was the cause of the difference in treatment. Here again focus on the factors which show that race as opposed to some other reason was behind the treatment. In this regard claimants are now assisted by the reverse burden of proof provision in the Equality Act 2010 which provides in essence that once the claimant can show facts from which a tribunal could conclude that discrimination occurred then the burden shifts to the employer to prove that the treatment was not discriminatory. In other words once the claimant can show a possible case of race discrimination the employer must disprove that discrimination was behind the treatment. Let us consider an example:

A black candidate applies for a job and is not appointed. He later finds out that a white person with less experience and qualifications was appointed. This difference in treatment could be because of race discrimination since all things being equal you would expect the black candidate as the more experienced and qualified to have been appointed.  If the black candidate brings a claim the employer will need to prove that the difference in treatment was in no way to do with the race of the candidates. To do this one would expect to see produced the interview scores of the candidates, objective and fair selection criteria, that the interview panel had been on diversity training and the ethnic profile of the company to show that the company appoints on merit and does not have a racial bias in appointing staff. It would be for the tribunal to decide if they accept the employer’s explanation. How the law works however is that  if they do not accept the employer’s explanation they must find in favour of the claimant.

The best race cases tend to be where a claimant is professionally represented by someone who can identify the specific pieces of evidence which suggest a racial motivation to the treatment. Avoid trying to label every misfortune in the past career as racist unless of course there is evidence of same. I have seen good race claims undermined by the addition of unrealistic or spurious allegations which combine to undermine the claimant’s credibility. Of course in some cases race discrimination will be obvious such as in a racial harassment case. In others such as indirect discrimination the issue is a more delicate one in which first disproportionate impact needs to be shown and then arguments had as to whether that is proven ad then whether any discriminatory impact can be justified.

Gather the evidence early on

The claimant should keep a careful note of incidents as they occur. Nowadays with emails etc it is quite easy to have a record of events and actions in office based settings. Such an employee might be advised to print relevant emails early on in case they can no longer access them when pursuing their case e.g. on long term sick leave without remote access to email evidence

Bear in mind also that claimants can ask questions under the Questionnaire procedure under Equality Act 2010. This allows the would be claimant to pose a series of questions to the employer to ascertain if there is evidence of discrimination. So in our unsuccessful candidate scenario above the claimant could use the Questionnaire procedure to ask for the interview scores, selection criteria etc and any evidence which they feel would help them decide whether there is a case to answer or not. The Questionnaire responses are admissible in tribunal. While the employer cannot be forced to answer a Questionnaire a tribunal can draw adverse inferences if the employer fails to answer the questionnaire or provides evasive answers. There are strict time limits involved and the would be claimant is best advised to seek advice early on.

Know how much your case is worth

As in all cases an assessment of what compensation (what lawyers call ‘quantum’) is essential to help you decide whether it is worth pursuing the claim and how much to expect or how much to hold out for in settlement negotiations.  Most cases to tribunal settle so one should not feel reluctant to enter in to settlement discussions but it is of course essential that you know (a) what the merits of your case are and (b) how much you would be likely to get if you won your case. In regard to how much you would get the tribunal must award a sum that is just and equitable in a successful race case. In this regard in discrimination cases compensation is awarded under the following categories:

• Loss of earnings and future loss of earnings where discrimination consisted of dismissal
• Injury to feelings. This is to compensate for the injury to one’s feelings for being discriminated against. Case law has laid down ‘bands’ in which cases can be grouped according to their severity. One should take advice to assess where along the spectrum your case can realistically be placed
• Aggravated damages. If the conduct of the employer has been particularly reprehensible the tribunal can award  a further element for aggravated damages
• Exemplary damages. In some very exceptional cases further ‘exemplary’ damages can be awarded
• Personal Injury. Where the discrimination has occasioned some form of personal injury a tribunal can make an award under that heading also

A tribunal also has power to make a recommendation to the employer in relation to their practices with a view to avoiding discrimination in future.

I would strongly urge any claimant in a discrimination claim to find out as soon as they can what their claim is worth alongside of course an assessment of the strength of their case.

Get statements from your witnesses as soon as you can

In many race cases I have handled colleagues who only months ago asserted they would give evidence to support the claimant’s case change their mind just before the hearing. Often witnesses still working for the employer get ‘cold feet’ and do not wish to get involved. This is not surprising as they do not want to suffer reprisals from the employer. Sometimes of course the employer may pressure them not to get involved although that is not easy to prove. Yet others simply lose interest which is not great for the claimant trying to prove their case.  One idea is to get witnesses early on to produce a signed written statement or other written evidence such as an email. The advantage is that by the time one gets to a hearing the claimant need simply get the witness to confirm they made the statement. Even if the witness has gone AWOL the statement is admissible albeit less weight will be accorded it if the witness who made the statement does not attend the hearing.  It also means that the witness is making their statement or other supporting comments at a time when events are fresh in the mind

Be prepared for the long haul

As said discrimination cases and race ones in particular tend to last over several days placing a strain on witnesses involved. Time out of the office for staff involved and still employed by the employer is inevitable. If the claimant remains employed then an inevitable strain on relations at work will follow. The employer will need to take care they do not treat the claimant adversely at work because they have complained of race discrimination or a fresh claim of victimisation may then follow.

The hearing will involve several days of poring over documents, examining and cross examining witnesses and legal arguments. The claimant will have to relive events which itself may be stressful. In many race cases tribunals also tend to ‘reserve’ their decision meaning they issue it in writing several weeks after the hearing. So the parties need to be prepared to wait for the eventual decision. Once received then of course consideration can be given by a dissatisfied party to appealing to the Employment Appeal Tribunal (EAT). Race discrimination claims are so involved that one cannot emphasise enough the importance of qualified and competent professional advice.

Brown and Co Solicitors acts for employers and employees in discrimination cases as well as other employment matters. If you  would like a free initial consultation please call us on 0203 468 0924.

Who is covered?

The Regulations cover situations where an agency worker is engaged by an agency (Temporary Work Agency or TWA) and is assigned on a temporary basis to work for and under the supervision of another organization called a hirer in the Regulations. Not all agency type arrangements are covered so for example if a person works for the hirer in a business to business relationship and the end user organization is the client of the worker the Regulations will not apply. However the BIS guidance indicates that the reality of the relationship must be looked at so if one just has the façade of self employment but the worker operates as an agency worker in other respects they will be covered. Advice should be taken if in any doubt. The ‘supervision’ requirement would also mean that an agency worker sent by a contractor such as a cleaning or catering company would be covered if the hirer exercised supervision of the worker.

What rights apply and when?

Day 1 rights

From 1^st October 2010 all agency workers are entitled to be informed of any permanent vacancies within the hirer organization. This will typically be achieved through access to an intranet portal or notice board in a staff room. Note the BIS guidance asserts that employers/hirers can still with confidence ring fence jobs to staff directly employed or carry out a restructure focusing on its own staff first. In our view however once the restructure is concluded if any vacancies remain the agency worker should be given opportunity to apply as well as staff directly employed by the hirer.

Agency workers are also entitled to access to ‘collective facilities’ provided by the hirer to its own staff such as staff canteen, workplace crèche or a local transport facility unless the hirer can objectively justify why the facility should not be made available to agency workers. Note that the BIS guidance says cost alone of equal access is unlikely to be a defence (albeit the point remains to be tested in the courts) and it suggests some concession should be made to agency workers even if there is a cost involved. Not all benefits to employees might be included and the BIS guidance does not consider that ‘transport’ means the agency worker should get a company car but limits this to the right to use transport laid on to move staff between sites.

Week 12 rights

The more controversial aspects of the Regulations kick in from the point when an agency worker has worked on an assignment for 12 calendar weeks. Once achieved the agency worker is entitled to the same entitlements that the hirer accords to a comparable member of its own staff. The entitlements in particular are to equality in pay, duration of working time, night work, rest periods, rest breaks and annual leave. In a nutshell whatever the hirer grants to its own staff must be given to an agency worker who is doing a comparable role. Of course agency workers often leave and return to assignments or even work more than one assignment at any given time. There are complex rules under the Regulations when the 12 week ‘clock’ goes back to zero in which case the agency worker must start from the beginning to acquire 12 weeks service. In others the ‘clock’ is only paused – the agency worker’s weeks are counted from when they return to work. In yet others the clock is not paused at all. Provided the agency worker is away from work for a specified reason (such as maternity leave or and sickness) the weeks are still being counted towards the 12 week point. Of course it will be something of a logistical nightmare for an organization using many agency workers to track when each has reached the 12 week point to be entitled to equality and then to extend those rights. Some employers will find it easier to apply equality from day 1 but of course there is no obligation to do so.

The entitlement to the same pay is perhaps the most significant change. To comply the agency must ask the hirer whether it employs anyone directly doing the same or broadly similar role and what that individual is paid. The agency worker must receive no less. Note also the holiday provision: the effect of equality here means that if the hirer pays its own staff an enhanced holiday pay entitlement the agency worker is also so entitled although the hirer can apply any qualification rules to the agency worker in the same way e.g. higher pay for length with the company. Bonuses are also covered so the agency worker must be given the same opportunity to earn any bonus paid to the hirer’s own staff if or to the extent that the bonus relates to the performance of the worker. This means that if for example the bonus is payable for something not directly related to the worker’s performance such as the last quarter profits of the company the agency worker is not entitled to be paid the bonus. If the bonus is a mixture of company (or department) and individual performance the agency worker is only entitled to the element pertaining to their performance.

Not all forms of pay are covered so for example the agency worker is not entitled to pension, redundancy or maternity pay. The Regulations and BIS Guidance should be consulted for the full list of exclusions. There is also an exception from the equality of pay principle where the agency worker is engaged under a contract of employment with the agency and the contract and agency fulfill  certain criteria specified under the Regulations.

Pregnant workers

Agency workers who are pregnant acquire the right to paid time off to attend ante natal classes and the agency and hirer come under a duty to conduct workplace assessments on the pregnant worker to make sure she can continue to carry out her assignment.

Anti Avoidance

For hirers tempted to structure assignments of agency workers to avoid them acquiring rights upon 12 weeks the Regulations will deem the worker as having the necessary 12 weeks where it appears that the reason for the way assignments were structured was to prevent the agency worker acquiring rights under the Regulations. An additional penalty of up to £5,000 also applies where this behavior is found proven by a tribunal.

Information

An agency worker who is concerned as to whether they are being treated lawfully has the right to request in writing an explanation from the agency and failing which from the hirer.

Liability

Under the Regulations a claim can be brought in the tribunal for breach of the Regulations against the hirer and/or the agency with each being liable to the extent the tribunal finds they were responsible for any breach. The agency has a defence if it can show it took reasonable steps to prevent a breach of the Regulations.

Next Steps?

With the Regulations almost upon us we recommend that the following be done by affected parties:

• The hirers and agencies need to clarify in relation to each agency worker engaged whether the hirer employs any of its own staff directly to do the same type of work. If so the agency will need sight of the terms and conditions to ensure that the agency worker receives no less than those employed by the hirer. Of course this may affect how much the agency charges the hirer for the agency worker but this is an inevitable consequence of the Regulations.

• Hirers of agency staff must ensure agency workers can access the same facilities as staff directly employed or be clear as to their justification for any differential treatment. We would suggest where differences are being justified that this is reduced to writing and brought to the attention of permanent and agency workers

• Where hirers operate any form of payment scheme based on staff performance then consideration should be given to how agency worker performance will be measured to enable the worker to earn the same bonus

Brown and Co Solicitors has been providing training on the new Regulations and can be contacted for advice and support on the Regulations or on any other employment law matter on 0203 468 0924 or www.brownandcosolicitors.co.uk

MAKING CUTS LAWFULLY IN LOCAL AUTHORITIES

There have been a number of cases recently[1] where decisions by local authorities to cut services have been struck down as unlawful. For those working within local government reading the judgements it can be painful or embarrassing reading as it is clear that what is really being attacked is the quality and rigour of the work of officers and of the material which was put before councillors (the decision makers). Since the work done before the decision was taken and also the underlying report was found deficient the decision of members based thereon is declared unlawful. Needless to say an otherwise glittering career can be derailed by such events. This article captures the areas where local authority decisions have been struck down and discusses how the in house officer – be it a legal or policy officer or any other – can help ensure a robust and safe decision.

Having worked in senior legal roles in local government for several years I am aware of the background to many of these types of cases: it is 4 pm and someone who (we feel) has been sitting on a report for weeks emails a thirty page report across for clearance in lieu of publication by 5 pm! The report in fact recommends a major decision (such as one to cut funding to a local service) and you have about an hour to get your head around the background information in the report and come up with some sensible comments in the ‘legal comments’ section. Sometimes the officer who drafted the report cannot be reached and there may be little time to correct or improve the report. The courts have struck down local authority decisions with the benefit of hindsight into the legal considerations which the authority should have had in mind. When local authorities get the law wrong the blame often rests with the in house legal officer. To seek to redress the balance I set out the more salient legal issues which the in house officer (whether in legal or elsewhere) should have regard to before pressing the ‘publication button’ on a report proposing a cut in services. The hope is that a more robust decision results and that in the event of legal challenge we are at least confident we have done all we should have.

Has proper consultation been carried out?

One should assess whether there has been proper consultation. Several local authority decisions to cut services have been struck down due to lack of consultation. The authority may be required to consult pursuant to a relevant statute or absence statute the common law may require some consultation in circumstances where fairness requires that parties with an interest in the decision must be consulted. It was held in R v North and East Devon HA exp Coughlan [2001] QB 213 that for consultation to be proper:

• a consultation must be undertaken at a time when proposals are still in the formative stages
• the consultation must include sufficient reasons for particular proposals to allow those consulted to give informed consideration and an intelligent response
• Adequate time must be given for consultees to formulate a viewpoint
• The product of the consultation must be conscientiously taken into account when the ultimate decision is taken.

The decision maker is entitled to put before those consulted a narrow range of options or just a preferred option and invite comments on these. So in The Vale of Glamorgan Council v The Lord Chancellor and Secretary of State for Justice [2011] EWHC 1532 (Admin)[2] the government minister did not act unlawfully when he put out to consultation the option of merging two magistrates’ courts as part of a savings programme to save money. The court rejected the argument that the minister ought to have put forward other ideas for consultation such as those suggested by the consultees.  In W, R (on the application of) v Birmingham City Council [2011] EWHC 1147 the court declared as unlawful a decision by Birmingham to restrict adult social services support to ‘critical’ needs only and no longer support those as having only ‘substantial’ or even lesser needs. There was a failure to have due regard to the duty under s. 49 A Disability Discrimination Act 1995 (see below) and a failure to consult. In R (Boyejo and others) v Barnet London Borough Council and R (Smith) v Portsmouth City Council [2009] EWHC 3261 Admin the two councils decided to remove residential wardens or staff from residential homes. The decisions of both councils were struck down on various grounds but among the adverse findings was that Portsmouth’s consultation inadequate: the council had clearly made up its mind already; there had been insufficient notice of relevant meetings (six to eleven days) to enable those affected time to formulate a response and the responses to consultation were inadequate. Take care not to confuse ‘information gathering’ with consultation: in R (on the application of ) Rahman v Birmingham city Council [2011] EWHC 944 (Admin) the council had conducted a survey to identify who used what voluntary services on route to cutting service provision. The court held that this could not be said to be consultation.

The court noted in Birmingham that a consultation process must provide consultees with sufficient reasons in support of particular proposals to allow an intelligent response to be made, and must ensure that the responses are conscientiously taken into account when the ultimate decision is taken. Birmingham’s consultation was inadequate in that the initial documentation led consultees to believe that needs unrelated to “personal care” would not be supported which was not the case. The final report to Birmingham’s Cabinet recommending the decision had also not made clear to members that an alternative to the move to critical only was to find the funds from elsewhere. The result was that members did not have all the options and issues before them. The fact that s. 49A DDA 1995 was not complied with meant similarly that there had been a failure to properly consult. The two in one sense stood and fell together.

What does this mean for the in house officer one hour before publication deadline? If consultation is required review in detail what the report says was done in relation to consultation. Does the report confirm who was consulted and when? Was the method of consultation a sensible one i.e. does it capture all the relevant issues? Does the report make clear the nature of questions and issues put before the consultees and document the outcome of the consultation? Have all the options besides the recommended one been set out with clear reasons for rejecting them? Finally, is the proposed decision consistent with the outcome of the consultation process? For instance if the report recommends closure of a service which the consultees overwhelmingly oppose what reasons appear in the report to justify a recommendation to proceed with closure? In other words ensure that there are grounds for arguing the decision is nevertheless a reasonable one. If there is a statutory consultation obligation then of course ensure the consultation which was done meets the statutory standard and confirm this in the legal comments section. If the reported consultation is inadequate there may be time to invite the reporting officer to correct any deficiencies. In many cases such as one hour to publication there will not be so one’s choice is to either suggest the report be deferred so issues can be ironed out or the report goes ahead with a warning as to risks. Sometimes the report author can attend the meeting and verbally iron out apparent gaps in consultation and satisfy members. Or it may be that upon reading your comments members will themselves decide to defer the report or even that scrutiny members (see below) may be encouraged to ‘call in’ the decision to require defects to be corrected. This will be inconvenient but ultimately save time as it ensures a lawful and robust decision is taken.

Does the report give members sufficient information to discharge the public sector equality duty?

The new duty is contained in section 149 Equality Act 2010 and obliges public bodies such as local authorities to have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act; to advance equality of opportunity between people who share a relevant protected characteristic and those who don’t and to foster good relations between people who share a relevant protected characteristic and those who don’t (which involves tackling prejudice and promoting understanding). It is essential that the impact of the proposed decision on different groups is understood and recorded so the decision makers have full awareness of the issues. Members should also have the specific nature of the duty in their minds so it should be drawn to their attention (as said for example in R (Brown) v Secretary of State for Work & Pensions [2008] EWHC 3158 (Admin)) so a summary of section 149 and its meaning in the legal comments section is probably indispensible where equality issues are engaged. Be careful that the report does not just ‘tick the box’ of an equality impact assessment: the cases continually stress that an EIA is but a possible tool to assist in assessing and paying due regard to the duty. A proper assessment of the equality issues should appear in the report[3]. The Equality and Human Rights Commission and the Cabinet Office have both published useful guidance on the new duty which it would be useful to consult at some point. If you are not convinced that equality issues have been properly considered then it may be worth flagging these up in the legal comments section and inviting the report author and/or equalities officer to attend the meeting to speak to the issues. A minuted discussion at the cabinet or council meeting around the equality issues can (if push comes to shove) be relied on to show that equality was fully considered. The government is also consulting on Equality Act 2010 (Specific Duties) Regulations 2011 which will comprise ‘specific duties’ around publication of equality objectives and of certain pieces of information. It was hoped to bring the Regulations into force in July 2011 but they have not been approved before Parliament’s summer recess. The Lords will debate the Regulations in September 2011. You may also wish to note any relevant comments in relation to the specific duties whenever they come into force. There is no legal obligation to complete an ‘equality impact assessment’ although the Equality and Human Rights Commission still recommends that a similar document be prepared (which they prefer to call an ‘equality analysis’).  Since case law and guidance underlines the importance of documenting the authority’s thinking leading up to a decision it is useful to complete an EIA. Your role is to ensure it makes sense, fully engages with all the issues and any alternatives and mitigation has been properly considered.

Are there any legitimate expectations engaged by the decision?

A ‘legitimate expectation’ arises where there has been an unambiguous promise made by the authority to a specific class of individuals or a person and detrimental reliance on the promise. The authority can only deviate from the expectation on the ground of some public proven interest. R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ. 1363[4] In the limited time for clearing a report you will not necessarily know whether there has been anything said or promised to an affected group or individual which could be said to amount to a ‘legitimate expectation’ but of course it should be considered. If advising early on at the preparatory stages then this is certainly an issue to be covered and you will be asking what has been told or promised to the affected group or individuals concerned, whether any legitimate expectation arises, whether it is an expectation as to process (e.g. to be consulted first) or as to substance (e.g. that funding continue for a specific period) and how to satisfy that expectation. If the authority is minded to act contrary to the expectation one would expect the report to set out compelling public interest grounds justifying this course even if expressed in terms which do not necessarily concede there is any legitimate expectation otherwise. In some cases it will not be clear but only a risk such might be argued. You may then wish to flag up the risk for the decision maker and decide if that should go into the public report.

Long term solution- better risk management

The reality is that one hour before publication deadline affords insufficient time to turn a report heading for a bad decision into a good one. To avoid getting into this situation in the first place it is suggested that the authority takes a project and risk based approach to pending decisions. I would suggest an ongoing forum of key officers and legal advisors reviewing forthcoming decisions to ensure the necessary work is being done well in advance of the final decision and to a high standard. All decisions on the council’s forward plan[5] would be on the agenda as well as other council decisions which have been rated as ‘risky’ which is code word for controversial and likely to be challenged. As work is being done for example carrying out initial consultations officers can stand back and ask themselves if sound and robust processes are being followed and we are doing everything necessary to ensure the final recommendation to members has been properly consulted upon and all relevant considerations will be before the relevant decision makers.

Make better use of scrutiny[6]. In many authorities scrutiny is seen as a ‘thorn in the flesh’ especially to the executive (or cabinet) since they exist to hold the executive to account and where necessary require through call in for a decision to be reconsidered or gaps filled in. This is how it should be. However, scrutiny members are also meant to be the eyes and ears of the community. Scrutiny members as councillors will be in touch with local issues and able to feed those views in through policy recommendations, the scrutiny work program and via call in. In the Birmingham case the controversial decision to restrict adult funding to critical needs only was not called in. One wonders whether any of Birmingham’s scrutiny members would have come up with the criticisms the court later levelled. Perhaps not but by engaging with local disgruntled groups through dialogue should help identify their concerns and enable officers to see if they can be met or mitigated. If this fails at least the authority is forewarned (and forearmed) of the arguments against its decision it will face in a judicial review challenge.

If scrutiny call in a decision it is an opportunity to correct any defects e.g. if lack of consultation scrutiny members could require more consultation. Of course to use scrutiny in this ‘due diligence way’ will require mutual agreement between the executive and scrutiny. A different legal advisor to scrutiny from the one who cleared the cabinet/executive report should help in this independent mindedness of the role. We like to think we get it right at the cabinet/executive stage. I argue in this regard that call in properly managed can be the authority’s final safeguard. Remember also that scrutiny may co opt any person onto its committee or sub committee and a representative of an affected group could be appointed under this power. This could be a route adopted if members wanted an ‘expert’ or ‘inside’ view from someone working in the affected sector. Such a person would not have voting rights but at least scrutiny members would have a more informed view from the grass roots[7].

To move to this level of rigour poses internal problems as members and senior officers (including chief executives) will want a decision taken on the night and not delayed for ‘legal niceties’. But if the decision is struck down in judicial review delay will be the least of your problems. In some cases you have to put your foot down and insist the report be deferred to a later meeting to allow deficiencies to be corrected. Of course in some authorities this is not seen as a smart career move but deficiencies may be such that you have no choice. At the very least I would suggest you put on record your concerns so if it all hits the fan you have an audit trail when the inevitable recriminations begin post the embarrassing judicial review decision against the authority. An alternative is to simply run the risk i.e. pass the report and allow a potentially flawed decision to be made in the hope no one will challenge it. From a risk management point of view this should not be the approach if the decision is controversial (such as cutting support to vulnerable adults as per Birmingham) since you should assume a challenge may well be made. The longer term solution is to have a project management approach to clearing reports allowing time for legal issues to be considered and addressed to lead to an all round robust and safe decision.

Winston Brown is a solicitor with Brown and Co Solicitors specialising in public law and employment issues. He was formerly Legal Partner and Deputy Monitoring Officer at London Borough of Barking and Dagenham.

ACAS recently published a research paper ‘Workplaces and Social Networking – The Implications for Employment Relations’ (see http://www.acas.org.uk) exploring the implications of the use social networking sites such as facebook, twitter, myspace etc in and out of the workplace. The publication of the paper highlights a growing issue in the workplace today namely how to regulate the use of social media as it impacts on the employment relationship.

The ACAS report highlights the now widespread use of social networking in the UK population at large and among the UK workforce. The report refers to  2009 a face-to-face survey of 2013 individuals randomly selected from UK households which found that 70 per cent of the population were using the internet, an increase  from 59 per cent in 2003, based on a response rate of 62 per cent. They also cite research that some 61 per cent of employed workers made some use of the internet at work, spending on average seven hours a week online at work and around 91 per cent of businesses with ten or more employees have internet access (ONS 2010). The report also underlines the growth in the use of interactive technology such as blogs and social networking sites such as Twitter and Facebook. The research indicates that 49% of internet users use some form of social networking.

The challenge for employers is regulating employees’ use of the internet. In recent cases employers have sought to discipline employees for mis use of the internet during work time or because they mentioned work matters or the organization more generally.

In Preece v JD Wetherspoons plc ET/2104806/10 a pub manager was verbally abused by certain customers. The manager posted comments about the incidents on her facebook account criticizing the customers. A relative of the customers complained and the manager was dismissed for gross misconduct. The company had a dedicated helpline for staff to call when stressed and an internet use policy stated that employees should not write or contribute to a blog, including facebook, where the content lowers the reputation of the company or its customers, and the company reserved the right to take disciplinary action where this occurred. The tribunal held the dismissal to be fair. The fact that the manager’s privacy settings on her facebook account restricted her content to a limited group did not alter the facts. Once on facebook it was in effect in the public domain.

But in Stephens v Halfords plc ET/1700796/10 dismissal for a facebook posting was found to be unfair. The employee was on sick leave during which changes to work rotas were being negotiated. A restricted online consultation site was set up by the employer but the employee did not think it allowed sufficient debate. At a time he mistakenly believed consultation was now open he set up his own page on facebook entitled “Halfords workers against working 3 out of 4 weekends”. The employee later saw the company’s internet policy which forbade such usages and removed the site. The company however had seen his postings and commenced disciplinary action culminating in his dismissal. The employee argued that his sickness may have clouded his judgment and his apology for his actions made no difference to the outcome in the employer’s view. The tribunal found that summary dismissal was not within the band of reasonable responses as no other reasonable employer would have chosen to dismiss in such circumstances.  The employee had a clean disciplinary record, he had apologized for his actions and removed the web page as soon as he realized it was a ground for disciplinary action. The unfair dismissal claim was therefore upheld and he was awarded £11,350 in compensation.

The lessons from the ACAS report and emerging case law can be summarized as follows:

Have an IT policy

Employers should ensure they have an up to date internet use policy which also addresses the use of social networking sites. Once the employer has made clear what is acceptable or not in the use of the internet including social networking sites the employer can justify taking disciplinary action against employees posting unacceptable comments on social networking sites

Consult on and communicate the policy!

ACAS in their published report underline the importance of consulting on any internet policy to ensure staff buy in. The policy should then be clearly communicated to employees. Their research found surprisingly few employees were aware their employer even had a policy. A common device is a message which pops up when the employee logs on reminding them of the IT policy. This goes some way to acting as a practical reminder but it is advised that specific steps be taken such as through induction training or events conducted by HR or IT department to raise the profile of the issue.

Make clear what conduct is prohibited and why

Given the nature of social networking consideration needs to be given to making it clear that the policy can be breached whether postings are made during or outside of working time and even if the employees’ privacy settings are designed to restrict access. (The reality being of course that once something is published on line the creator loses control of its content and it can be forwarded or end up anywhere in the world)

Beware of pitfalls

Social networking is a fast developing area and some employers are exploring ways to use it as part of their business. The report notes that some employers may scan someone’s facebook profile to assist them in recruitment or work related decisions. The danger here of course is that given the personal information including gender, ethnicity and religion which are often indicated or apparent on such profiles the employer may open themselves up to various claims including discrimination from disgruntled unsuccessful candidate or employees. It is advisable to conduct a risk assessment and take legal advice in relation to any proposed use of the internet generally and social networking in particular.

In the event of breach – follow normal principles of fairness

In legal terms the employer must have a ‘fair reason’ for dismissal as set out in Employment Rights Act 1996.  Typical grounds for dismissing for comments posted on social networking sites will be misconduct or some other substantial reason. But a fair reason is not enough. The employer must also demonstrate that it acted fairly in dismissing for the reason in question. This includes holding a fair investigation and dismissal must itself be within the band of reasonable responses open to the employer. In plain English this means that once any reasonable employer could have dismissed in the circumstances the dismissal will be fair. The Halfords case was an unfair dismissal because the tribunal found that the employer did not have proper regard to mitigating factors. The lesson is that if disciplinary action is to be taken then all circumstances need to be taken into account in the same way as one would in any other form of misconduct. Any defects can of course sometimes be corrected on appeal.

Don’t throw the baby out with the bathwater!

Employers should consider what benefits they can glean from social networking. The ACAS report notes that many organizations now use social networking as a means of interfacing with clients. Employers could for example consider online forums on dedicated computers for staff to vent their feelings or make suggestions for service improvement for example. Where these have been created it is noted that more employees are willing to blog for their company. The message is that social networking is here to stay so employers should explore the best way to gain business advantage while properly regulating its use by employees.

Winston Brown is an employment expert with Brown and Co Solicitors advising both employers and employees. He can be reached on 020 3468 0924 or by email at winston.brown@brownandcosolicitors.co.uk.

In SG (by his litigation friend) v The Head Teacher and Governors of St Gregory’s Catholic Science College 2011] EWHC 1452 (Admin) the High Court ruled that the school’s ban on an 11 year old boy wearing cornrows was racially discriminatory. They boy in question (11 at the time and now supported by his mother) challenged the decision as racially discriminatory.

St Gregory’s school, located in the London borough of Brent, has an extensive uniform policy. In relation to hair style it prohibits various forms of hair cuts particularly for boys. So boys are not allowed to wear hair below the collar, no ‘skin head’ cuts or razor marks and ‘nothing outlandish’. The cornrow is not expressly banned in the policy but the school confirmed in a reception meeting for new starters that cornrows were banned. Girls are allowed to wear cornrows and the school recognised that African and Afro Caribbean girls found it difficult to tie back long hair so braids were preferable. The court was asked to rule on the present lawfulness of the policy and did so under current law namely Equality Act 2010. (The boy claimant is now at another school and does not wish to attend St. Gregory’s so the decision was pursued as an academic one seeking in the public interest to get clarity as to the legality of the school’s ban).  Section 19 Equality Act 2010 defines indirect discrimination as occurring when a provision, criterion or practice places someone at a particular disadvantage in relation to a ‘protected characteristic’ such as their race or religion as compared to those not sharing the characteristic. If such discrimination is shown the respondent can avoid liability if it can show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim (in other words there is a legitimate reason for the policy and it is proportionate when considering its discriminatory impact).

Was the ban discriminatory?

To show ‘indirect’ race discrimination the claimant first had to show that he was a member of a group which would be disadvantaged by a ban on cornrows. The claimant relied on notable evidence (accepted by the court) from an educational psychologist and an educational expert to the effect that braiding of hair and cornrow was part of the historical culture of African, African-Caribbean and African American culture and remained so today. Insightfully one of the experts referred back to the African slave trade era and reported that cornrows, braids and plaits were also worn for appearance and grooming purposes by slaves and when a slave was freed he or she would often wear their hair in cornrows or braids as an act of defiance to the former slave master. So the ‘cornrow’ was an attribute of African and Afro Caribbean culture. Now not all members of the Afro Caribbean community wear cornrows of course and it was argued that we can ignore cultural aspects which the claimant has chosen to embrace rather than those intrinsic to his/her group or belief system. In rejecting this argument the court referred to the very expansive definition of an ‘ethnic group’ in Race Relations Act 1976 laid down by the then House of Lords in Mandla v Dowell Lee (1983) 2 A.C. 548 that an ethnic group could be recognised as one having (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the meaning of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. Relevant characteristics include a common geographical origin and being a minority group within a larger community. Thus family and social customs can be a part of ‘ethnicity’ within the meaning of the Act. On this test it does not matter that the disadvantage is in relation to an attribute (such as cornrows) which the claimant has chosen to abide by although others in the same group have not. Since cornrows were an attribute of Afro Caribbean culture of which the claimant was a member the policy was prima facie discriminatory.

Justification? – the gang culture argument

The head master of St. Gregory’s was not it must be said suggesting that cornrows were synonymous with gang culture. (This is perhaps the impression formed from the media coverage). Rather, he was making a more sophisticated argument that if the school made an exception in the claimant’s case it would lead to a host of requests from parents and pupils that more exceptions be made to the school’s uniform policy which would be undermining of the school philosophy and culture. In this regard St. Gregory’s is a high performing school commended by Ofsted. The school attributes its success in part to its strict approach on the uniform issue which assists it keep out ‘gang and pop culture’. But the court rejected the justification arguments. The school could have maintained their overall policy but allowing exceptions where someone could show a family tradition of having cornrows for example. There were also inconsistencies undermining of the school’s case: for example the school accepted that if someone wished to wear cornrows on religious grounds that would be permissible but it was not suggested the uniform policy was thereby undermined. Similarly the policy did not apply to sixth formers. In their case the school relied successfully on dissuasion rather than an outright ban. The court also rejected an argument that the ban could be seen as  proportionate since no one beside the claimant had complained about the ban. The court pointed out that some pupils may have simply gone to another school or conformed suffering the disadvantage so they could attend St. Gregory’s – a high performing school. The policy ban was therefore was unjustified and unlawful.

A lesson here is to test your justification argument: does it make sense? Are you acting consistently with it? Is it supported by evidence such as statistics or the results of consultation? Do you allow for sensible exceptions to the rule? Ultimately if there are sensible exceptions within the policy then the policy is likely to be lawful.

Can the lawful elements of the policy excuse the unlawful elements?

The court rejected an argument that provided the policy overall is lawful then individual rules (such as a cornrow ban) are lawful. If any aspect of the policy is unlawful the entire policy is tainted with unlawfulness. The court noted that previous cases have shown how an otherwise good policy can be rendered unlawful by a discriminatory element see for example R (Watkins-Singh) v Aberdare High School [2008] EWHC 1865 (Admin) (refusal to permit the wearing by a Sikh girl of the Kara) and Eweida v BA [2009] 1 ICR 303 (uniform policy prohibiting wearing of a cross over clothing). The lesson then is to test every aspect of the policy as each rule must stand on its own feet as it were.

No sex discrimination

Interestingly the court ruled there was no sex discrimination. The policy banned boys from wearing cornrows but not girls. So African and Afro Caribbean girls could wear their hair in cornrow as said. The court followed Smith v Safeway Plc [1996] ICR 868 which concerned a rule that male employees of Safeways could not have hair which was below their collar length whilst women could and the refusal to permit the appellant to wear his hair in a pony tail. The Court of Appeal held there was no sex discrimination. The Court of Appeal in Safeways said it is not sex discrimination to require male employees to adhere to conventional standards of dress for men. Provided the employer similarly applies whatever the conventional standards are for women to that group also there will be no sex discrimination even though the treatment of both male and female groups will of course be different. As such in the SG case allowing girls but banning boys from wearing cornrows was not sex discrimination but the application of a requirement to adhere to conventional standards for both sexes. This is welcome relief to organisations such as schools which can continue to hold individuals to different codes of dress consistent with conventional standards for their gender even if they are by definition different ones. So long hair for girls (albeit tidy) but short hair for boys remains lawful (and some say desirable!) although exceptions may be necessary on race or religious grounds as we have seen.

Way forward

As with all dress codes consult with those to whom it applies before roll out and periodically to test its impact. Note that the absence of complaints does not mean broad acceptance. It may be that those disadvantaged by the policy are remaining silent or have simply moved on. Make clear in the policy who people should raise their concerns with if they have difficulties with the policy. Keep a record of all feedback on the policy. It is better to have first chance to either make an exception or correct the policy itself rather than having to (expensively) justify it in court. There is similarly no reason why the external expert data which the claimant relied on to prove discrimination was not studied by the school itself. A bit of homework on the backgrounds of those affected by a proposed policy and in turn how the policy would impact them will lead to a better policy and hopefully avoid court action.

Winston Brown is former Deputy Monitoring Officer at London Borough of Barking and Dagenham and now advises public and private sector organisations on public law and employment law issues. Winston can be reached at Brown and Co Solicitors on 0203 468 0924 or 07894219314.

Introduction

The recent decision of the Court of Appeal that Haringey’s dismissal of Sharon Shoesmith was unlawful carries far reaching implications for all those holding statutory positions within the public sector such as local authorities and for those advising them.

The sad facts of the Baby P case are well known and are not repeated here. However, of significance is that immediately after the trial of those responsible for Baby P’s death the then Secretary of State Ed Balls MP ordered OFSTED to conduct a speedy Joint Area Review (or ‘JAR’) to review the role of agencies including Haringey Council and make findings and recommendations. OFSTED reported on 30 November 2008. Among other things OFSTED’s report criticised a lack of managerial oversight and control by officers and councillors within Haringey. OFSTED met with Ed Balls on the morning of 1^st December 2008 to discuss their report. Mr. Balls MP held a press conference that afternoon stating that the OFSTED report was damning of management in Haringey. He confirmed that he had issued a direction replacing Ms. Shoesmith as the statutory Director of Children Services for Haringey and he added that while Haringey would alone address the employment relationship he hoped Ms. Shoesmith would not get a ‘pay off’.

Events at Haringey then precipitated. Haringey immediately suspended Ms Shoesmith. She was summarily dismissed after a disciplinary hearing on 8 December 2008 without payment in lieu of notice nor any compensation. Ms. Shoesmith’s appeal against dismissal was rejected on 12 January 2009. Haringey’s case was that the direction from the Secretary of State rendered Ms. Shoesmith’s position untenable and they had no choice but to dismiss her for ‘some other substantial reason’ (one of the potentially fair reasons for dismissal under Employment Rights Act 1996). Haringey also argued that the OFSTED report led them to find Ms. Shoesmith in breach of her duty of trust and confidence towards them as her employer.

Of interest to employment lawyers is that Ms. Shoesmith challenged her dismissal by way of judicial review of the OFSTED report, the direction of Ed Balls MP and of Haringey’s dismissal of her. She did of course lodge the usual proceedings in the employment tribunal but they are stayed pending the outcome of judicial review proceedings. The Court of Appeal has held that her dismissal was unlawful on public law grounds. This decision inevitably colours how the employment tribunal case would be decided but merits close consideration for employment and constitutional lawyers since the Court of Appeal applied public law issues to determine the lawfulness of an employment process. Let us consider the issues in turn.

Why judicial review?

Judicial review of course is a process in which the courts review decisions taken by public bodies and can strike them down if they breach well established principles of public law. For judicial review one must have sufficient standing, there must be some public element in the decision under consideration and the court must be persuaded that no adequate alternative remedy exists. The public law principles are well known to those advising on constitutional law issues and include that the public body must act reasonably (i.e. take account of relevant considerations and ignore irrelevant ones) and legality (the public body must act in accordance with any rules governing the decision in question).

On the public law element the Court of appeal followed a line of reasoning in earlier cases (particularly Ridge v Baldwin [1964] AC 40 and Reg v East Berkshire Health Authority, ex parte Walsh [1985] QB 152) that where an office holder’s post is created by a statute decisions pertaining to the post are sufficiently ‘public’ to be reviewable by the courts. In Ms. Shoesmith’s case the Director of Children Services post exists by virtue of section 18 Children Act 2004 which obliges local authorities to appoint such a role. The Court said the statutory underpinning was the critical element. Merely working for a public body – even in a senior role – did not of itself import the necessary public law element. Of course one could argue that all posts in a local authority derive from statute since local authorities appoint staff pursuant to section 112 Local Government Act 1972 which allows them to appoint such officers as they think necessary for the discharge of their functions. However, a specific statute creating the post is it appears needed.

What of the employment tribunal remedy?

The Court of Appeal was persuaded that the employment tribunal was an insufficient alternative remedy since a finding in Ms. Shoesmith’s favour in the employment tribunal could not give her what a finding of unfairness in the High Court could do. The High Court could (and did) declare her dismissal void. An employment tribunal cannot do so even if it finds the dismissal unfair. A ‘void’ finding means in legal terms that the dismissal did not actually take place. Haringey would have to qualify any statement of the dismissal with a comment that a court later found it void and unlawful. Also, damages in the employment tribunal are capped but such caps do not apply to awards in the High Court. As such the employment tribunal was not an adequate alternative and Ms. Shoesmith could claim judicial review.

So where was the ‘unfairness’?

Ed Balls MP’s direction was declared unlawful and void as he had based it on a negative assessment of Ms. Shoesmith not only from the OFSTED report but on critical comments from Haringey officers who had met with him separately. Ms. Shoesmith had not been present not given opportunity to respond to those criticisms before the direction. This failure was a breach of natural justice and accordingly unlawful.

With the door to judicial review open on the employment processes of Haringey the Court had no hesitation finding it unlawful against public law principles. There was evidence of a predetermined outcome in favour of dismissal at both disciplinary and appeal hearing stages. Predetermination will undermine a public body’s decision. It did so here. Interestingly Ms. Shoesmith had also challenged the lawfulness of Ed Balls’ direction during her internal appeal. The internal appeal panel declined to rule on that feeling it was for a court of law only. They later made clear that they accepted Mr. Balls’ direction as lawful in dismissing Ms. Shoesmith’s appeal.

All their Lordships found Haringey’s internal process unfair and thus the dismissal was struck down as void. Their Lordships reasoning should be of concern for in house lawyers advising in similar cases: two of their Lordship held that Haringey’s decision to dismiss was null and void also because the direction of the Secretary of State was now held to be unlawful. Haringey could not rely on an act later held to be unlawful. Lord Justice Burnton said Haringey’s appeal panel knew that Ms. Shoesmith was challenging the lawfulness of the Secretary of State’s direction and should therefore have given her the choice to either commence judicial review proceedings to test the point or to proceed with her internal appeal on the accepted basis that the direction was lawful. In deciding to press ahead in reliance on the Ed Balls direction the council took the risk that the decision they were relying on might later be held to be unlawful. The Master of the Rolls, Lord Neuberger also held that Haringey could not rely on the earlier direction for a number of reasons: reliance on a public act later declared invalid should more easily be done by an individual than a public body. The assumption is that the public body is expected to take steps to ensure that the act it is relying on is itself valid. Further, Haringey were on express notice that Ms. Shoesmith was challenging the lawfulness of the Secretary of State’s direction and could not later hide behind it when it was declared unlawful. There was no need for Haringey to proceed with the haste it did. Ms. Shoesmith was already suspended with a replacement in post. The Master of the Rolls agreed with Lord Justice Mackay that Haringey should have invited Ms. Shoesmith to either bring judicial review proceedings or accept the direction as lawful. There was also no prejudice to Haringey from holding the direction to be invalid. The Master of the Rolls said Haringey could have given notice under the contract of employment while reserving to itself the argument that dismissal had already been effected by the Secretary of State’s direction. (I would add here that even if Haringey had done so it would not prevent Ms. Shoesmith arguing that the dismissal was still unfair in the employment tribunal).

The Court also found that Haringey’s breach of trust and confidence ground was misplaced since trust and confidence is aimed at cases where the employer or employee has made clear an intention to no longer be bound by the terms of the contract. This was not the case here. Haringey’s concern was over Ms. Shoesmith’s performance.

What now?

In judicial review proceedings the court has a discretion whether and what remedy to grant. The court said compensation for loss of office was appropriate and has remitted the case to a lower administrative court to assess it but has stayed proceedings to allow parties to settle if possible. We know Haringey and the Secretary of State are appealing but as things stand today Ms. Shoesmith’s dismissal is null and void. She remains an employee of Haringey. Intriguingly it would appear that as the court held that the direction of the Secretary of State in 2008 was itself unlawful Ms. Shoesmith remains the statutory Director of Children Services for Haringey although neither party is likely to press the somewhat technical point of course.

Lessons for statutory officers and advisors

Local authorities are required to appoint a certain number of statutory officers namely Head of Paid Service (section 4 Local Government and Housing Act 1989), an officer in charge of its financial affairs (section 151 Local Government Act 1972), Monitoring Officer (section 4 Local Government and Housing Act 1989), Director of Adult Social Services (section 6 Local Authority Social Services Act 1970) and an officer responsible for scrutiny functions (section 31 Local Democracy, Economic Development and Construction Act 2009 adding a new section 21 ZA Local Government Act 2000). Following the Shoesmith case employment decisions pertaining to these office holders are also public law decisions reviewable by the courts. The local authority would need to ensure it is adhering to principles of public law as well as the terms of the employment contract and its HR procedures if for example it sought to remove or dismiss a statutory officer. As an example a failure to follow the internal disciplinary procedures and the constitutional provisions governing the dismissal of any statutory officer may not only breach the ACAS Code of Practice but could also be held to be a ground of procedural impropriety rendering dismissal unfair in public law terms. For the in house employment lawyer the caution is not to just focus on the usual employment law considerations but to have regard to the wider public law criteria such as natural justice or Wednesbury unreasonableness. It would be negligent to not so advise. Corporate law expertise is likely to be called upon in such cases.

Also, if the public body receives a ‘direction’ or other external pressure to remove a statutory officer the body should consider if the direction is itself lawful. It might wish to give the officer an opportunity to challenge the lawfulness of the direction or for the  officer to accept it as validly made.

What of the employment proceedings?

One would normally think it is now unlikely that the parties would return to the employment tribunal to air the unfair dismissal. For one thing adverse publicity would be again revived in the media. Further, both courts which presided on Ms. Shoesmith’s judicial review were very critical of Haringey’s internal processes leading to her dismissal. While both courts were at pains to say their comments should not be read as a comment on the unfair dismissal claim under Employment Rights Act 1996 in the employment tribunal there is no doubt that such high level judicial opprobrium make a finding of unfair dismissal most likely. Even if Haringey win their judicial review appeal to the Supreme Court the criticisms remain on record and would be ammunition against them in the employment tribunal forum.

Further, the Court of Appeal found that the ‘trust and confidence’ ground was misplaced and since two of their Lordships found that Haringey cannot rely on Ed Balls’ direction to justify dismissal (for some other substantial reason) then this ground is probably undermined before the tribunal. Haringey can argue that the Court of Appeal hearing a judicial review appeal is not the expert forum for employment law issues but the judicial criticisms still carry weight with the tribunal. The best course for Haringey if the Court of Appeal decision is upheld will be to settle. That will not be a small sum. It is reported that Ms. Shoesmith was dismissed from a £133,000 a year job in 2008. So to date she has 3 years lost salary. By the time of any Supreme Court decision those losses would have grown. If she then revives the tribunal proceedings more compensation awards may follow. But this is Haringey and arguably the public remains sensitive and outraged at the thought that Haringey would (willingly) pay Ms. Shoesmith anything following Baby P’s death. As such I would not be surprised if Haringey and the Secretary of State prefer to fight even the tribunal case to the end and be ordered rather than volunteer to pay any compensation.

Compromise?

Employment lawyers are used to advising employers to settle disputes perhaps under a compromise agreement to avoid undue expense and time. There would have been a public outcry if Haringey was seen to have willingly paid anything out. It was thus inevitable perhaps that dismissal without notice and the subsequent legal history would follow. Nevertheless, in cases where things go ‘pear shaped’ with a sitting statutory officer a compromise and a dignified exit remains the best and cheapest solution. One can only hope that there is not such a media frenzy as to inhibit sensible decision making.

Winston Brown was formerly Deputy Monitoring Officer and Legal Partner for Barking and Dagenham Council. He is now a solicitor advising public and private sector bodies at Brown and Co Solicitors and can be reached on 0203 4680924, 07894219314 or Winston.brown@brownansdcosoliciors.co.uk.

The Andrea Adams Trust reported some alarming statistics on bullying and harassment in the workplace[1]:

• More than two million people at work consider themselves asbeing bullied
• 18.9 million working days are lost each year as a direct resultof workplace bullying
• 43.5% of employers do not have a policy to deal with workplacebullying
• 93.1% of all Personnel practitioners say that bullying isoccurring in their own organisations
• 82.2% say that weakness in management is the prime reason forbullying

For the organisation harassment damages staff morale, reduces performance and represents a threat to reputation as well as potential costs in defending claims. For the employee being harassed they can be living through hell and feeling helpless how to deal with their situation. Long term sick leave, withdrawal, grievances and tribunal cases are some of the symptoms in employees being harassed.

What protection does the law give to those being harassed?

Harassment is now prohibited under equality legislation. In particular the Equality Act 2010 makes it unlawful to subject someone to harassment if a person subjects another to unwanted conduct which has the purpose or effect of violating that other person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the other provided the behaviour is related to one of the victim’s ‘protected characteristics’. The law deems as protected for harassment purposes the following: race, gender, gender reassignment, disability, age, sexual orientation, religion or belief (including lack of belief). In other words provided the harassment is related to any of these attributes of the victim they can take action. The Equality Act 2010 is therefore concerned with discriminatory harassment.

Is it harassment?

Careful regard needs to be had to the legal definition.

Unwanted

It must be ‘unwanted’. So if harassment arises in a context where this is not clear the claim may fail. In some cases the harassment is so overt that it is obvious it is unwanted. At another extreme if the harasser is merely treating the victim in the way they have hitherto been happy to be treated there will be no harassment. One of the first things someone experiencing harassment should do is to make it clear to the perpetrators that they object to the behaviour. In ‘office banter’ scenarios an employee might not wish to speak out and find themselves isolated. They should ideally then raise it with management who should take action.

Purpose OR effect

It will be harassment if the objectionable behaviour was carried out with the purpose of creating the offensive etc environment or (even if not intended) that was the effect. So pinning up a pornographic picture becomes actionable even if the perpetrator did not intend to offend. The humiliating effect is enough.

Hyper sensitivity?

Of course what one person finds to be harassment another may think is innocent jesting for example. The Equality Act 2010 seeks to introduce a balance to this issue by providing that the perception of the victim is relevant but it will only be harassment if it is reasonable for the victim to feel harassed. So the victim’s perception is a factor but to guard against over sensitive employees it is only behaviour objectively viewed as harassment that will suffice. Note also that it can still be harassment under Equality Act 2010 if the harasser is from the same background as the victim e.g. a member of an ethnic minority still acts unlawfully if he racially abuses another member of the same ethnic group if it is unwanted etc by the victim Association and perception

The current discrimination law also catches harassment directed at the victim because of the protected characteristic of another as well as the employee. So for example if a colleague harasses a male colleague because they discover they are married to a Muslim woman and the harassment is because of the Muslim connection that is unlawful harassment. The employee/victim can make a claim against employer and harassing colleague. Similarly, the victim does not have to show that the perception of them was accurate. If someone is harassed based on how others perceive them to be that will be unlawful harassment even if their perception is mistaken. In one case[2] employees taunted a heterosexual male colleague using homophobic banter because he had been to boarding school and lived in Brighton. It was accepted that he was not in fact gay at all. This was still held to be unlawful discrimination on the ground of sexual orientation.

Sexual Harassment

It is also specifically stated to be unlawful sexual harassment if someone is subjected to unwanted conduct of a sexual nature which similarly has a humiliating, offensive etc purpose or effect and it is also harassment to treat someone less favourably because they previously refused or because they previously submitted to sexual  harassment. This of course catches the archetypal scenario among others where someone is harassed because they refused the boss’ sexual advances.

Third party harassment

Under Equality Act 2010 the employer is also specifically liable for any harassment suffered by its employee at the hands of a third party where harassment occurs on at least two occasions and the employer has not taken reasonably practicable steps to prevent it. A typical situation would be a woman employee subjected to harassment by building contractors engaged by the employer to do works on site. Once harassment occurs at least twice theemployer becomes liable if it fails to act.

Employer’s defence

Even if harassment occurs the employer can avoid liability if they can show they took reasonable steps to prevent the harassment from taking place. This is known as the reasonable steps defence. One is here looking for action against the perpetrator as well as training and awareness issues in the organisation to stamp out discrimination. (This defence does not apply to a claim brought under Protection from Harassment Act 1997 discussed below).

What if it is not discriminatory harassment?

Even if harassment is not targeted at one of the protected characteristics such as someone’s race or gender there may be other claims involved. For one the Protection from Harassment Act 1997 makes it a criminal offence to subject someone to harassment on at least two occasions. Similarly the victim can sue the perpetrator in the civil court for damages.

It has been held that where harassment occurs in the employment context that the employer can be held liable for the acts of its employees in the course of their employment. In addition, for employees who have worked continuously for the employer for 12 months or more they could resign to claim constructive unfair dismissal.

Constructive dismissal requires the employee to show there has been a breach of a fundamental term of the employment contract in response to which they resign. The law implies into all contracts of employment a term that both employer and employee will maintain trust and confidence between them. This is a fundamental term. If the employer allows harassment to go unchecked this would on the face of it constitute a breach of this implied term and justify a constructive dismissal claim.

Making a claim

If all else fails you may then wish to sue your employers and the individual harasser. An employee can bring an harassment claim under Equality Act 2010 in the employment tribunal. There are strict deadlines to be aware of: a claim must be lodged within 3 months of the incident of harassment. If there have been several incidents the 3 months runs from the last act. The employee would need to show that historic acts form part of a pattern or regime of discrimination so all could be considered. There are mandatory forms and care needs to be taken in drafting or responding to any claim so I would here stress the importance of getting good legal advice. A constructive dismissal claim must similarly be made in the employment tribunal (within 3 months from the end of employment) but a claim under the Protection from Harassment Act 1997 should be brought in the civil courts (within 6 years from the harassment). Compensation can be awarded for injury to feelings, aggravated damages in extreme cases and lost earnings where the employee was also dismissed. One should seek legal advice to get an accurate estimate of likely compensation payable.

Examples of harassment

The following are examples of where the courts have found harassment proven:

• in Reed v Stedman (1999) IRLR 299, EAT a woman resigned following a series of sexual remarks, actions and innuendos. She won her claim for sexual harassment even though each incident on its own was not enough to amount to harassment. When viewed together the course of conduct was harassment
• in Moonsar v Fiveways Express Transport Ltd (2005) IRLR 9, EAT it was harassment when a female worker’s male colleagues downloaded pornography. The men viewed the images in her presence in a room where she worked and she was aware it was happening
• in Insitu Cleaning v Heads (1995) IRLR 4, EAT a male manager hailed a female subordinate with the words ‘Hiya, big tits’. This was harassment. The tribunal found that not only were the words offensive but noted that the male manager was half the age of the claimant and he was in a position of responsibility so the comments were even more hurtful
• in English v Thomas Sanderson Blinds (2008) EWCA Civ1421 it was harassment on the ground of sexual orientation when male colleagues subjected the claimant to homophobic banter because he had been to boarding school and lived in Cambridge. It was irrelevant that he was in fact heterosexual.
• in Elahi v Lanz 22014241/10 it was religious harassment when a manager asked a Muslim employee ‘why don’t you try some of that?’ referring to pork which he knew the employee did not eat because of his faith. The manager also made derogatory comments about Muslim women saying that their hijab made them look like ninjas. The manager also circulated an offensive email
• in Sheffield City Council v Norouzi UKEAT/0497/10/RN a residential social worker employed by the council was subjected to racial comments by a child in his care. The child mocked his accent and told him to ‘go home’. The social worker raised the matter with his employers who failed to take any appropriate action. The council was held liable for racial harassment
• in Saini v All Saints Haque Centre (2009] IRLR 74 a member of an organisation was held to have been discriminated against on the ground of religion in  circumstances where it was apparent that he was being pressured to give evidence against another member of the organisation on the ground of that member’s religion
• in Queenscourt Ltd v Nyateka [2006] EAT 0182/06 white manager was held to have discriminated on racial grounds against a black female employee when she refused to attend a meeting saying “maybe it’s because I’m being racist to a black woman”. EAT rejected the argument that no harassment arose as racial banter was common in the office noting that real offence has been caused to the complainant
• in Richmond Pharmacology v Dhaliwal UKEAT/458/08 comments by the company’s medical doctor to a female employee of Asian origin that “We will probably bump into each other in future unless you are married off in India.”
  

What should the employee being harassed do?

In the light of the legal definition and decided case law the following are useful tips if you are being harassed:

• make a note of each incident as they occur. If you later take your employer to court or tribunal you will want to be able to evidence your claims with specifics
• make it clear to the harasser and the employer what you findobjectionable. Ideally put this in writing also for later proof
• consider raising an internal grievance. Tribunals often expect an employee genuinely suffering harassment to lodge a grievance. The new ACAS Code of Practice on Disciplinary and Grievance Matters advises employees to first raise the matter as a grievance. A tribunal can penalise either employer or employee for failing to  follow the ACAS Code unless there is a good reason why it was not followed. Of course in many scenarios employees just want an easy life and do not wish to draw attention to themselves by raising a grievance. Nevertheless, raising a grievance shows that it was serious enough for you to have pursued a formal process and addsweight to your case as well as avoiding a possible penalty under the ACAS Code. Since the grievance will be an important document in any subsequent proceedings it is advisable to get advice on its wording before submitting it
• consider making a tribunal claim. If all else fails and you wishto take action then a claim in the employment tribunal is your next step. You may or may not also at the same time wish to resign to claim constructive dismissal assuming you qualify. Of course you will ordinarily wish to seek legal advice before submitting a claim

What should employers do in relation to harassment in the workplace?

For reasons already given employers cannot afford to let harassment go unchecked in the work place. Here are some practical steps employers can take to prevent harassment or deal with it when it occurs:

• Ensure harassment and similar conduct is expressly prohibited inyour disciplinary procedures
• provide training to relevant staff on equality anddiversity
• take firm action against proven cases of harassment bearing inmind of course that the alleged harasser will also have a right to fair treatment under your procedures
• where concerns are raised by an employee that they are sufferingharassment treat the matter seriously. What this means will differ in each case and employers will often not wish to make matters worse by ‘over reacting’. Nevertheless there should be an audit trail that shows the concerns were documented and appropriate steps taken. That will often mean speaking with the alleged harasser, any witnesses and conducting an investigation. (I am often asked what the employer should do if a complaint is made in confidence and the employee does not want it raised with the harasser. My view is that if it is serious enough you should seek to investigate. It would be a good idea to make that possible outcome clear in your grievance procedures so everyone knows this could happen)
• review the contractual terms of any agreements with thirdparties you engage in your business. Ensure they are obliged to adhere to quality issues and consider some form of indemnity if you are sued because of mistreatment of your staff by one of their employees. If in fact you receive a complaint about the third party’s staff behaviour you should insist that the third party take appropriate action to avoid repetition and in some cases reasonableness may require you to consider whether you can continue to do business at all with the third party organisation
• record patterns of harassment complaints and their outcomes.Make sure you are learning from the lessons from reported harassment cases. Is it a particular manager who always gets the complaints? Is there a form of behaviour the organisation needs to address e.g. internet use in pornography cases? Or it is a hyper sensitive employee constantly complaining? What organisational learning emerges from the complaints made so far? Given the costs involved you want to identify and address the underlying issues as soon as you can

Winston Brown is an employment law specialist at Brown and Co Solicitors and can be reached for advice or an initial consultation on 0203 4680924 or 07894219314 or winston.brown@brownandcosolicitors.co.uk.