Employment Law Snapshot – Issue 9
Welcome to Issue 9 of my Employment Law Snapshot.
Firstly, here’s a shameless plug for our inaugural FREE Employment Law Breakfast Briefing. It’s taking place on Wednesday 8th June at the Ageas Bowl in Southampton with registration starting at 8am.
We’ll be looking at the law and practice relating to ‘Big Brother in the Workplace’ and covering topics such as monitoring employees’ emails and internet use, CCTV and covert filming of employees, recording employees’ telephone calls, using private investigators to watch employees, drug and alcohol testing and much more.
We’ll also take a look at some of the potential legal consequences for employment law should the referendum on 23rd June vote in favour of Brexit and a very important case which considered the level of influence permitted by HR advisers in disciplinary hearings.
The Breakfast Briefing will last for an hour and you’ll be away by about 9.30am. So, if you want to come along for some practical employment law guidance (with a healthy level of humour thrown in for free), a chance to do a bit of networking and a bacon sandwich, you’re more than welcome. Click HERE to reserve your place. Places are limited, so book early to avoid disappointment!
We look forward to seeing you there.
On with the law.
The Legal Stuff
This week’s case is called Dove v Brown & Newirth Limited.
Mr Dove was a long-serving salesperson and started working for the jewellery manufacturer in 1990. In 2011, the company appointed Mr Thomas as a sales person and he was eventually promoted to Head of Sales. He was in his early 30’s. At that point, only Mr Dove on the sales side of the business was over the age of 50.
At some point, Mr Thomas started to use the nickname “Gramps” when referring to Mr Dove. He used it in emails and verbally when others were present. This went on for several years.
It was alleged that between 2011 and 2012 a number of customers raised complaints about Mr Dove, although he wasn’t told about them until late 2013. Apparently, the customers had described Mr Dove as “old fashioned” and “too long in the tooth”. In 2015 the decision was taken by the company to transfer 5 of Mr Dove’s customer accounts to Mr Thomas.
Following a number of meetings about Mr Dove’s performance and customer complaints, Mr Dove was dismissed. Following an unsuccessful appeal against his dismissal, Mr Dove (aged 60) brought claims in the Employment Tribunal that he was unfairly dismissed, that he suffered direct age discrimination in relation to his dismissal and a further age discrimination claim in relation to being called “gramps”.
Mr Dove won.
The Employment Tribunal concluded that Mr Dove’s customer accounts had been transferred to a much younger colleague which meant that Mr Dove’s ability to generate income was reduced, which ultimately resulted in his dismissal.
The Employment Tribunal also decided that the company had acted on the age related comments made by its customers without questioning them when deciding to dismiss him. It was also held that the company failed to address the alleged concerns or even make Mr Dove aware of them. Also, by the time the issue was raised with Mr Dove, the decision to remove the customers from Mr Dove had already been taken. The Tribunal said that the company’s actions were ”very far from pulling out all the stops” in order to change the minds of the customers. As such, Mr Dove’s age discrimination claim in relation to his dismissal and his unfair dismissal claim were upheld.
In relation to the “gramps” comments, the Employment Tribunal accepted that it was not meant to be offensive, but that did not mean that it was not discriminatory. Mr Dove found it disrespectful and hurtful. The nickname amounted to less favourable treatment as it would not have been used in relation to a younger employee. Consequently, the Employment Tribunal upheld his age discrimination claim.
Mr Dove was awarded over £63,000 in compensation for his loss of earnings and injury to feelings in light of the discrimination.
There are a number of important points which can be taken from this case. Firstly, nicknames which could be seen as discriminatory always carry a risk for employers and the ‘it was only banter’ defence will often get short shrift in an Employment Tribunal. Secondly, employers should always be careful in adopting stereotypical views of employees based on a protected characteristic (such as age, sex, disability etc.) when making decisions to dismiss.
In my search for bizarre employment related stories, I came across a story in The Telegraph a couple of weeks ago which fitted the brief perfectly.
According to the article, an American by the name of Chris O’Neill travelled to Japan to participate in a novel and arduous recruitment process. Mr O’Neill’s interview must have gone well, because he has been hired as Japan’s first salaried foreign ninja!
That’s right… Mr O’Neill’s acrobatic skills and abilities with a shuriken (that’s a star shaped throwing weapon to you and me) earned him the £1,000 a month job with a regional tourism office. To be honest, as the UK’s only qualified Ginger Ninja, I was devastated to have missed the job advert, particularly with my black belt in origami….
Until next time.