Monthly Archives: January 2013

Is it Good to Pick and Choose Elements of Diversity?

The Church of England has now agreed that gay clergy in can become bishops so long as they are celibate even if they are in civil partnerships.

This closely follows the recent announcement by the Church of England preventing women from becoming bishops with many years to pass before the issue can be raised formally again.

These actions by the Church of England demonstrate their ability to choose those elements of diversity that suit them supported by the lack of government interference whereas all other organisations in the UK have to abide by diversity laws.  But at what cost?
 
But what is diversity and what does it mean?  In days gone by there was only the concept of equal opportunities which had a focused approach to discrimination forcing the inclusion of in particularl women, the disabled and ethnic minorities.  It relied on positive actions whereas diversity  embraces wider concepts.
 
Diversity ensures that everyone reaches their maximum potential regardless of who they are.  It should be a priority of all employees in all organisations.  It does not rely on positive or affirmative actions.
 
In a diverse culture and teams everyone is valued as an individual.
 
There is a strong business case for diversity that brings with it an ability to promote being an “employer of choice” where individuals clamour to work for that organisation due to the attractive image it portrays.  Having the best individuals working for that organisation regardless of their gender, disability, sexual orientation, age, etc. increases productivity with the knock on effect of increased profits therefore affecting the bottom line.  Morale is also high because people feel valued. 
 
There is also the legal case for having a diverse culture because organisations can face costly legal implications in terms of employment law along with damaged reputations through poor employment practices.


The Church of England can not be protected from the long term damage to its image from a failure to embrace diversity in its entirety.

The Church of England is already becoming bitterly divided and although it is a not for profit
making organisation its apparent failure to be in sync with the modern age may have huge implications for its credibility, reputation and future in the modern world.  

Employment Status – How to Distinguish Between Employed and Self Employed

The recent case of Stringfellow Restaurants Ltd v Quashie has highlighted the importance of distinguishing between employed and self employed workers.

Quashie worked as a lap dancer for Stringfellows and took them to an employment tribunal claiming unfair dismissal.  She alleged that she had the right to do so because she was an employee.  Although the tribunal found in her favour the case was overturned by the EAT who found that because she took the risk in terms of receiving payment from Stringfellows she did not have a contract of service.
When employing staff it is important to provide the right contractual paperwork which is reflected in how workers are used and given work.
With a contract of service the employer has a great deal of influence  over the worker in terms of the hours they work, where they work and how they do it.  The employer provides the equipment they use.  The worker has to do the work themselves for which they are provided with a salary as detailed in a wage slip.  In return the worker receives employment rights that they may challenge in an employment tribunal if unfairly treated depending on the situation and their length of service. 
A self employed worker is usually provided with a contract for service.  With this there is no obligation for the company to use their services.  The self employed worker should have the choice of where to work, which may be at their own premises or those of the company and should use their own equipment.  In no way should they be integrated into the company.  With the agreement of the company they should have the ability to choose the hours/days they work and may provide a substitute.  To receive payment they should invoice the company and manage their own tax and national insurance contributions liaising with HMRC.  They take the risk of whether they get paid or not,  chasing non-payment through the small claims court.  Furthermore they should obtain appropriate insurance such as professional liability and/or public liability.  They should be able to work for a number of companies without restriction. 

 

How to Defend a Case of Vicarious Liability

Employers should not turn a blind eye to allegations of harassment.  They should be investigated fully as quickly as possible and dealt with appropriately and fairly.    In cases of sexual or racial harassment that are taken to an employment tribunal an employer may have to defend an allegation of vicarious liability.  Vicarious liability refers to a situation where an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment or work related duties.  

Employers can be liable for a range of actions committed by their employees in the course of their employment – these can include bullying and harassment, violent or discriminatory acts or even libel and breach of copyright. It’s also possible to take action against an employer for the behaviour of third parties, such as clients and customers, provided these parties are deemed to be under the control of the employer.
The key question of any case of vicarious liability is whether the employee was acting in a personal capacity what has been termed “a frolic of their own”, or in the course of their employment. This can often be difficult to determine. Furthermore, an employer’s liability does not end once the employee leaves the organisation – as the law stands, action can still be taken against an employer even though the person in question no longer works for them.
In determining vicarious liability previous case law has considered the test to be applied to determine if employers were at fault.
In Lister v Helsey Hall Limited (2001) concerned the sexual abuse by a warden of a school boarding house on a pupil. The question and the test applied in this case was where the warden’s  action in abusing the pupil was so closely connected with employment would it be fair and just to hold his employers liable. 

The court found that the company which owned and ran the school was responsible for the wardens conduct as the wardens responsibilities included the welfare and safety of his charged. It was considered that vicarious liability would not have attached to other employees for example the gardener whose job would have no connection with the welfare of the pupils. 
In the application of this close connection test, Mattis v Pollock (trading as Flamingos Nightclubs) 2003provides additional guidance as to how this would be applied. Mattis was a doorman who returned in his working hours to stab a victim as an act of revenge.  The court had to determine whether the action of the employee was so closely connected with what was authorised or expected of the employee whether it would be fair and just to hold the employer to be vicariously liable.  It determined that the employer was vicariously liable as it expected the doorman to burly and act aggressively in his role.  

The test to be applied when looking at the actions of employees who have committed negligent acts at work is whether the tort was so closely connected with what was authorised or expected of the employee that it would be fair and just to hold the employer liable.  
The case of JGE v English Province of Our Lady of Charity and Trustees of the Portsmouth Roman Catholic Diocesan Trust (2011)  provides yet further questions that the court should take into account:
— the nature and purpose of the relationship;

— whether tools, equipment, uniform or premises were provided to assist the performance of the role;

— the extent  to which one party had been authorised or empowered to act  on behalf of the other;

— the extent to which the employee may reasonably be perceived as acting on behalf of the employer;

To defend an allegation of vicarious liability an employer needs to show that they have taken all reasonable steps to ensure the prevention of such acts or omissions therefore providing a statutory defence.

Employers may do so by having in place an up to date equal opportunities policy, a code of conduct, a bullying and harassment policy, written guidance for managers on harassment and discrimination and to have implemented training on the subjects.  Policies should be clearly communicated and fairly and consistently operated.
New starters should be made firmly aware of the company policies and should undergo equal opportunities and anti discrimination/harassment training as part of induction. Existing employees should occasionally go on refresher training.  Written records of these actions should be retained on file eg training records and new starters sign a form to show they have read the employee handbook.
This will demonstrate an active commitment on the part of the employer and would reduce the likelihood of an employer being held vicariously liable for any discriminatory acts committed by its employees.


 

New Year’s Resolutions – How to Set Your Personal Goals

So another year has passed and once again we are looking forward to another year.  Traditionally most of us set New Year’s resolutions, which is all about setting personal goals.
 
This is not a new phenomeon.  The ancient Babylonians made promises to their gods at the start of a new year.  The Romans made promises to their god, Janus, after whom the month of January is named.   In the Medieval era the knights took the “peacock vow” at the end of the Christmas season to reaffirm their commitment to chivalry. 
However, in the modern age we set lots of different personal goals with the aim of becoming a better person – to get along better with people, to quit smoking, stop biting nails, to lose weight, take more exercise, eat better, drink less alcohol, improve our career, get another job, manage our time better, be less stressed, etc.
Whatever personal goals we set ourselves, ideally, they should be SMART which stands for specific, measureable, achievable, realistic and timed.   They can be related to your work or your personal life or both. 
It is important to be specific about a personal goal because then you understand exactly what you need to do.  Ask yourself question such as who, what, when, where, how and why  The goal should be measureable so that ultimately you can see whether you have achieved what you set out to do eg if you lose a few pounds after setting a goal to lose weight you know you will have achieved what you set out to do. 
A personal goal should be achievable.  There’s no point setting a goal about taking a trip to the moon when you know you are never ever going to achieve that so it needs to something that you can accomplish, however, don’t make it too easy.  There is pride in achieving something that has been a challenge to you.    
Likewise a realistic goal needs to be one that you are willing to work towards, which means commitment. 
Finally a goal needs to be time bound so you set parameters in terms of a timescale by which you wish to achieve your goal.  By setting a deadline hopefully it will give you something to work towards rather than put it off.
Having set your personal objectives you need to write them down.  Research has shown that if goals are written down they are more likely to be achieved.  Write a to do list, put a note in your diary or put up a post it note on the wall.   Conjure up a powerful image of you actually achieving your goal – you are more likely to achieve it. 
Monitor and review your progress, it may help to rejuvenate your enthusiasm which might wane as the days, weeks and months go by.  Create a routine and stick to it. 
Research has shown that 88% of those people who set New Year’s resolutions fail.  However, men were more likely to achieve their goal by taking small steps to achieve that goal, whereas women are best harnessing public support from their friends. 
If you share your goals with others who are looking to achieve the same thing or gaining peer support it can make a huge difference to the success rate.