Legal Ease

DIRECT RACE DISCRIMINATION

An Employment Tribunal has recently ruled that using the name "Borat" to refer to a worker from Eastern Europe amounts to direct Race Discrimination.

The Tribunal held that a Polish worker had been harassed on the grounds of race by a colleague calling him "Borat" and that the use of the nickname created a degrading and humiliating working environment for him. The nickname constituted direct race discrimination. The judgement explained that someone who had all the characteristics of the Polish Worker but was neither from Poland, nor perceived to be of Eastern European origin, would not have had the nickname applied to him.

Other similar examples that have been found by the Tribunals to be discrimination include calling an Irishman 'thick Paddy' and references to Hitler and the making of Nazi salutes to a German worker.


PAY IN LIEU OF NOTICE

An employee was dismissed by their employer as redundant with only four days' notice. Her contractual entitlement required three months' notice of dismissal. The employee was paid statutory redundancy pay, holiday pay and a payment the employer termed an "ex gratia payment" equivalent to three months' salary. The employee claimed damages for dismissal without notice, but the employer argued the employee had already received damages for the notice period by way of the ex gratia payment. This argument was rejected by the Tribunal. The employer's letter did not state that the ex gratia payment was a payment which the employee was contractually entitled to (i.e. notice pay) – in fact it stated the opposite. Therefore the employee was entitled to seek damages for the unpaid notice pay.

If you allow an employee to leave before their contractual notice period has ended, the employer must make a payment to the employee in lieu of the notice period (PILON) and this will normally be subject to tax because it relates to the employee’s earnings. This payment should be detailed in the employee’s dimissmal letter.


ALCOHOL AT WORK

The Employment Appeal Tribunal decided that an employee who drank an alcoholic drink during the working day had been unfairly dismissed. The employee had been seen drinking in a pub during his lunch break. The Employer’s policies included statements that being under the influence of alcohol during working hours was a gross misconduct offence and that consumption of alcohol while performing company business or in the workplace was prohibited. So, when the employee wasn’t able to give a satisfactory explanation he was invited to a disciplinary hearing and ultimately dismissed.

The Tribunal found that the employee was not aware of the alcohol policy and decided that dismissal was not within the range of reasonable responses. The Tribunal also noted that the policy seemed to confuse “consumption of alcohol” and “being under the influence of alcohol”. Although the company appealed, the EAT agreed that the wording of the policy was not tight enough to permit dismissal for drinking a single alcoholic beverage outside the workplace even if it was during working time.

The case highlights the importance of ensuring that policies are clear and precise and that they are communicated to each employee effectively.

We would advise that employers always ask their employees to sign and date important documents. This may seem onerous, but it offers you protection when you need to apply the policy, especially in a gross misconduct situation.



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Labels: Alcohol at work, Direct Race Discrimination, Pay in Lieu of Notice