SNOW DAY DILEMMAS To close or not to close…
WHISTLE FOR IT Whistleblowing and dismissal – a tribunal decides if it’s connected
FOUR DOWN, FIFTH TO COME! Our Down Syndrome charity drive hits its fifth year
Your weekly bulletin of wit & wonder in the world of…
Wg Employment Issue 591/March 2018 Last week! What a week. In a matter of days we had ominous warnings of The Beast From The East, then the first exciting flurries, then the full on thick white duvet across the land as The Beast started sparring with Storm Emma. High drama; life and death; heroes rushing to the rescue - then it all ended in slush. Is it just me or does that sound like a new Disney animation? Let it snoooow, let it snooooow… OK. I’ll stop now. But rare as they are, our UK snow days do throw up some interesting dilemmas for employers. Just how bad does it have to get before you tell everyone to stay at home? And if you don’t, are you liable for any little slips and bumps they may get for attempting to reach workplace? youthe liable for any little slips and bumps they may get for attempting to reach the workplace? Broadly, you’re responsible for your employees’ safety at work, not on the way to it, but pressurising staff to come in when the roads are like ice rinks..? It’s conceivable that another form of claim could result if it ends badly. What happens to pay if there’s a snow day? It’s a confused area, where often common sense must be applied. In general terms, if a business takes the decision to shut its premises down, it will still have to pay its employees, although this may depend on whether they are salaried or piecemeal workers. It is commonly thought that if an employee is unable to attend work then they are not entitled to be paid. If they could have reached work safely, for example, but the school or nursery is shut and they are forced to stay at home with the children they will be entitled to time off but that time off is unpaid. There are alternatives to unpaid leave which an employer can consider - allowing staff to make up the hours later or perhaps to work from home seem like obvious answers, but that would very much depend on the kind of work involved. This might be a good time to check your terms and conditions – and if you need some advice, you know where we are. Assuming it’s not snowing… By the way, for those of you who’ve been worrying, it’s OK… my daffodils made it through. They may have been swamped in snow and blown over by high winds, but they’re back this week! Much like good staff…
Give a little whistle And speaking of blowing in the wind brings me to the case of Malik v Cenkos Securities Plc and a spot of whistleblowing. Dr Malik worked for Cenkos Securities Plc as a Securities Analyst. He made several disclosures, some of which were found to be protected by the Employment Tribunal (ET). In September 2015, the Head of Compliance at Cenkos Securities commenced an investigation into Dr Malik regarding conflicts of interests and if he failed to disclose them, Dr Malik was subsequently suspended. A disciplinary procedure took place for Dr Malik having allegedly breached share-dealing rules when he was already on a written warning for that reason. Dr Malik later resigned. There was a dispute as to whether there was a conspiracy to dismiss Dr Malik and whether the Head of Compliance was motivated to dismiss due to the protected disclosures made by Dr Malik. EVENT SEASON 2018 SEXUAL HARASSMENT IN THE WORKPLACE Thursday 7th June
MENTAL HEALTH CHECK Tuesday 10th July
PULLING A SICKIE Wednesday 5th September
PRACTICE MAKES PERFECT Wednesday 17th October
12 DAYS OF CHRISTMAS Thursday 22nd November
To book onto any of our events email Karen Clarkson or Gina Spampinato at [email protected]
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was a conspiracy to dismiss him and whether the Head of Compliance was motivated to dismiss due to the protected disclosures made by Dr Malik.
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Dr Malik brought claims of constructive unfair dismissal, automatic unfair dismissal and detriment on whistleblowing grounds and victimisation. The ET rejected of all Dr Malik’s claims, stating that the decision taken by the Head of Compliance had nothing to do with protected disclosures. Dr Malik appealed on the grounds that a chain of command was involved in the decision process and had been motivated to dismiss him due to his disclosures – therefore the whole chain should have been considered. The Employment Appeal Tribunal dismissed the appeal arguing the chain of command had not influenced the decision made by the Head of Compliance and should not be taken into consideration when assessing the act of the innocent decision-maker.
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This case highlights that in whistleblowing claims a person subjecting the whistleblower to detriment must be personally motivated by the protected disclosure. The knowledge and motivation of another should not be attributed to an innocent decision-maker. This case is important as a claimant will need to plead and show evidence that the author of the alleged detriment had knowledge of, and was motivated by, the protected disclosure.
Getting down with it It’s nearly that time again! For the past four years the advent of the daffodils, Easter Eggs in the shops and noisy birds at dawn means we’re heading once again for our big charity thing – one that is very close to our hearts. We have proudly worked in partnership with Portsmouth Down Syndrome Association since 2014 to raise awareness and vital funds for the charity, and 2018 will be no different. The funds that we’ve raised so far have been invested in the charity’s School Advisory Service for children and schools; a service that helps the 65 schools the charity works with to build an effective educational setting to meet pupils with Down Syndrome’s individual needs.
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Down Syndrome Awareness Week this year runs from Monday 19th March to Sunday 25th March, and Warner Goodman will once again be donating £1 for every new like the Portsmouth Down Syndrome Association Facebook page received during this time*. This year we’re also moving it onto Twitter. To find out more about it go to - http://bit.ly/2t39McA. And do please, be ready to like, retweet and share… *Limited to £2,000
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Contact the team Sarah Whitemore (Partner) – 02380 717462 Howard Robson (Partner) – 02380 717718 Lisa Joyce (Associate) – 02380 717447 Emma Kemp (Associate) – 02380 717486 Natalie Rawson (Solicitor) – 02380 717403 DISCLAIMER While every effort is made to ensure that the contents of these diaries are up -to-date and accurate, no warranty is given to that effect and Warnergoodman does not assume responsibility for their accuracy and correctness. The diaries a re provided free of charge and for information purposes only. Readers are warned that the diaries are no substitute for legal advice given after consideration o f all material facts and circumstances by an experienced employment lawyer. Therefore, reliance should not be placed upon the legal points explained in these diaries or the commentary upon them.
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