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Although April 29th has been set aside as a public holiday to celebrate the wedding of Prince William and Kate Middleton, your employees’ legal entitlement to a day’s leave depends upon the wording of your contracts of employment.

If you contracts allows for, say, “20 days annual leave plus 8 days bank holiday”, then your staff are fully entitled to their day off.  If your contracts, on the other hand, stipulate “28 days annual leave to include bank holidays” then the extra day’s leave will be entirely at your discretion.

A recent constructive dismissal case – Lisboa v Realpubs Ltd – picks up the precedent set in a 1999 ruling – Wethersfield v Sargent – where an employee who is instructed to carry out a discriminatory trading practice may claim to have personally suffered because of the discrimination in question.

In the Wethersfield case the claimant, who had worked in a car hire company, had been instructed to tell any ‘coloured’ or Asian customers that cars were not available.  She resigned and succeeded in her claim which was based the unlawfulness of her employers to instruct her to act in contravention the Race Relations Act 1976.

In the Lisboa case the claimant was an openly gay employee whose employers intended to transform the pub in which he worked from a ‘gay pub’ into a ‘gastro pub’.  The employers instructed Lisboa to ensure that any ‘gay-looking’ customers were not placed in a prominent part of the pub and that only ’straight looking’ customers should be located in areas of high visibility.

Lisboa took personal affront at this, and other apparently homophobic policies, and resigned.  He claimed constructive dismissal on the grounds of sexual orientation, and won his case at the EAT.  He based his claim on the new provision of the Equality Act whereby his ‘perception’ of sexual discrimination (towards the customers, as opposed to towards himself) was sufficient to uphold his claim.

The difference between the two cases is that in the Lisboa case the claim was not based on an unlawful instruction but, rather, on a ‘perception’ he held with regards to discrimination.  (NB: in ‘perception’ based cases the claimant need not possess any ‘protected’ characteristic – a non-gay employee might have brought Lisboa’s case to court with equal success.)

Ref: Wethersfield v Sargent (1999 IRLR 94 CA)
Lisboa v Realpubs Lts (UKEAT/0224/10)

We’re fascinated by employers who spy on their employees’ Facebook pages and then complain about broken trust when they read something unflattering about the company!  Truth is, if you’ve got a disgruntled employee you should probably know about it before their grievance finds its way to cyberspace.  If you have a culture of open and constructive feedback within your business and if your management practices are clear and effective then there’s no reason for you to be in the dark and even less reason for your employees to be unhappy.

Beware of monitoring policies that you believe give you the right to invade your employees’ personal space. They probably don’t, and it’s a no-win all round if you rely on covert surveillance for the gathering of management information.  Article 8 of the Human Rights Act gives all individuals the right to a private home and family life and ‘correspondence’.  We think it’s only a question of time before a snooping employer finds itself on the wrong side of this legislation …

Whilst every employer understands the importance of Health & Safety legislation, many small office-based businesses find themselves burdened by H&S bureaucracy that has little or no effect upon risk reduction.  Ironically, one of the greatest risks such a business carries is not that injury or work-related ill-health will occur but that an opportunistic claim, fuelled by excitable personal injury lawyers, will be fought outside the courtroom and therefore never put to the true test of law.

Lord Young, who has been tasked by the Government to review the UK’s H&S laws, has condemned specialist legal firms that incite employees (and visitors) to bring claims that would never stack up in court but that are settled out of court – for the sake of expedience – by frustrated employers.  These same employers (in non-hazardous environments) are spending, on average, 1 day each month on unnecessary H&S paperwork.  Paperwork – whilst having, of course, a role to play in H&S management – is not the great risk panacea that employers imagine, and the more that is distributed, the less employees will engage with Health & Safety.

Lord Young proposes a shake-up of H&S legislation that will enable businesses to get back to work and not be bogged down by unhelpful bureaucracy.  In the meantime, we recommend you stand up to threatening letters from ambulance chasers.  If your policies are clear, your practices consistent and reasonable, and if you have followed fundamental H&S precautions, your litigant and their lawyer won’t want to face you in court.

The Equality Act 2010 excludes certain ‘grey area’ conditions from protection under discrimination law.  For example, smokers, drug addicts and alcoholics can no longer attribute their condition to disability (unless it has a proven causal link to a medical intervention) and voyeurs, sex abusers and flashers cannot expect employers to tolerate their behaviour on the basis that it constitutes a mental disability.

All this is great news for employers who can run their businesses without being derailed by repeated absences, conflicts and other distractions that impact operational effectiveness.