DIGNITY AT WORK: An Examination of Case Law Joanna Dodd 26 February 2015

DIGNITY AT WORK Avoiding discrimination Supporting Staff Preventing bullying and harassment Creating a culture of mutual respect Having fair employment practices Safeguarding vulnerable staff Promoting the health and well- being of workers

 Examination of recent case law.  Consideration of learning points for inclusion in policies and procedures.  Case study on managing absence.  Advice on safeguarding dignity at work.  Question and answer session. Agenda

Munchkins Restaurant Ltd and another v Karmazyn and others UKEAT/0359/09 If an employee puts up with conduct for years and even initiates ‘banter’ of a sexual nature, is the conduct still ‘unwanted’? Harassment

Told to wear short skirts Regularly asked questions about their sex lives Sometimes asked M similar questions to divert attention No equal opportunities policy No policy banning harassment/ bullying

 Claims succeeded.  R and M jointly and severally liable.  Waitresses were migrant works, no certainty of employment, under financial pressure.  Non-objection could be fearful suffering. Does not mean conduct unwanted. Judgment

Caspersz v Ministry of Defence  Ms Casperz worked for M.  M made sexist comments about Ms C.  Ms C made complaints about M’s general management style but did not mention sexist comments.  16 months later Ms C made a further complaint which did mention sexist comments.  MOD suspended M and investigated. M was then dismissed.  Ms C brought claims of sex discrimination. ‘Reasonably Practical Steps’ Defence

Claims dismissed. MOD had done everything reasonably practicably to prevent harassment.  A Dignity at Work policy.  Investigated as soon as aware.  Witnesses to show how seriously took allegations of breach of policy. Judgment

 Ensure you have a Dignity at Work policy which states harassment will not be tolerated and that employees have a right to complain.  Take action for any breaches of policy.  Investigate complaints immediately. Learning Points

vs  Are comments/tweets public?  Can an employer fairly dismiss for non work-related comments on social media? Social Media

Game Retail Ltd v Laws UKEAT/0188/14 3 Nov 2014  300 stores which each have Twitter feed.  Mr Laws, Risk and Loss Prevention Investigator, responsible for 100 stores.  Personal Twitter account.  Followed 100 stores, 65 followed him back.  Did not mention worked for Game Retail.  28 offensive tweets (expletive and obscene language).  Dismissed for gross misconduct.

Dismissal was fair. Personal Twitter account not private-usage. Do not need to show tweets actually had caused offence – enough that they might have. No requirement for derogatory comment to relate to Game Retail. Judgment

 Specific social media policy  Remind employees to create separate personal and work-related Twitter accounts  Be explicit about expectations  Set out sanctions Learning Points

See separate sheet in packs Managing Sickness Absence

3 Recent Cases 1.HMRC v Whiteley UKEAT/0581/12 - employers do not have to discount all disability-related absence. 2.Doran v DWP UKEAT/0017/14 - duty to make reasonable adjustments not generally triggered when no return date. 3.General Dynamics Information Technology v Carranza UKEAT/0107/14 - disregarding a final written warning is not an adjustment Long-Term Sickness and Reasonable Adjustments

 Be clear about trigger points.  Include flexibility regarding disability- related/pregnancy-related absence.  Ensure contractual obligation to submit to a medical examination Learning Points Sickness Absence Procedure

Burdett v. Aviva Employment Services Ltd UKEAT/0439/13 Mr B suffered from paranoid schizophrenia. Required antidepressant and antipyschotic medication. In 2008 received a police caution for sexual assault. Did not disclose to Aviva. In 2011 stopped taking medication. Sexually assaulted two female colleagues and threatened to assault another. Criminal charges – pleaded guilty. Dismissed for gross misconduct. Misconduct Dismissals

 ET found dismissal unfair. Overturned and remitted.  Aviva did not have reasonable grounds for its belief that Mr B had committed gross misconduct.  Admission of guilt is not admission of gross misconduct.  Latter requires culpability.  Consider mitigating circumstances. Judgment

Ensure you have policies and procedures in place which are relevant to your business. Act quickly on complaints. Train managers. Set up clear communication channels. Safeguarding Dignity at Work

Any Questions?

Contact Details Joanna Dodd Senior Associate Direct Dial: Direct Fax: Mobile: Address: Elizabeth House, Queen Street, Leeds, LS1 2TW Website: If you would like to receive our free monthly Employment Law bulletin, please