EMPLOYMENT LAW JANUARY 2020
Employment law SOS
This month, our legal expert looks at the disruption caused
by adverse weather conditions, making adaptations for a
disabled worker and pub-based favouritism
BY CATHERINE WILSON, PARTNER, KEEBLES LLP www.keebles.com
A group of my colleagues,
including the ops director,
visit the pub on a Friday
afternoon. As a tee-totaller,
I’ve never felt too left out,
until now. One of the ‘pub
club’ has been promoted to
a role I had also applied for,
despite having less experience
than me. I can’t help but think
that the pub trips have helped
grease the wheels. Is the fact
that someone spends more
time with the powers-thatbe
in a social environment a
legal reason for promotion,
especially when it overlooks
someone more qualifi ed but
less sociable?
Workplace discrimination of any
kind is unacceptable and what
you describe here is especially
damaging because it aff ects your
career prospects, your income
and your reputation.
It is illegal for an employer
to promote employees by
selecting or disqualifying anyone
based on any of the protected
characteristics. However, the
fact that one employee is teetotal
and the other socialises
with senior staff does not fall
directly within the scope of a
protected characteristic.
You do not state your gender
or ethnic group. Clearly certain
religions view abstinence from
alcohol as a key tenet of their
belief. Also, the inability, for
example, of working mothers
to participate in after-work
social occasions may give rise to
another protected characteristic
such as gender or associative
discrimination.
Even if you do not have one
of these protected beliefs, then
denying an eligible employee
a promotion on the somewhat
spurious ground that they do not
socialise with their colleagues
could potentially still be illegal.
The implied duty of mutual
trust and confi dence obliges
employers to treat employees
‘even-handedly’. This doesn’t
always mean treating each
employee identically, but if one
employee is treated diff erently to
the rest, the reason for this must
not be arbitrary. You could argue
that your employer has breached
this duty as you haven’t been
treated even-handedly due to
you being less sociable.
Proving this is not easy. Your
starting point would be to raise a
grievance under your employer’s
grievance procedure. You would
need a signifi cant amount of
members of staff were not so
lucky. Suspicions are growing,
however, that a few of the
people who said they were
aff ected, were in fact not, and
have eff ectively been bunking
off . If we can prove that this
was the case, what does the
law say we can do?
Many employers will have in
place a written adverse weather
conditions policy which sets
out expectations, reporting
and payment provisions. Even
in the absence of this type of
policy, the starting point is that
an employee who cannot get to
work because of bad weather or
travel disruption must inform
their employer as soon as
possible. The question arises,
however, when an employee
does just this, and it then
becomes evident that they could
have got to work after all. This
would then be classed as an
unauthorised absence.
Aside from questions of
payment, if you believe an
employee is being dishonest
about being unable to come to
work and you have evidence
to support this then you
should deal with this matter
in accordance with your
disciplinary policy.
There is an implied obligation
on both employer and employee
not to act in any way that is
calculated to, or likely to, breach
trust and confi dence. Dishonesty
is one of the main reasons for
such a breach and if an employee
is found to have lied to their
employer about being unable
to attend work then this could
give rise to an allegation of gross
misconduct and, ultimately,
summary dismissal.
The diffi culty in this
particular situation is being
evidence to prove that the
reason you were not promoted
was because you are less sociable
outside of working hours than
the employee who was given the
promotion. If your grievance
was rejected, then one option
would be to resign and claim
constructive unfair dismissal.
To pursue this claim you would
require two years’ continuity of
service and be willing to risk a
period of unemployment.
We are based in the
Derbyshire Dales,
which was recently aff ected
by fl ooding. While the factory
itself escaped the worst of
the weather, many of our
12 www.manufacturingmanagement.co.uk
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