Wow! – The private investigators provided me with a load of good video footage of a little worker, called Elfis, messing around on work time. I had been tipped off that he was up to no good and I think I will be fine to use some of the footage as part of my investigation. The footage taken whilst Elfis was at the North Pole leisure centre playing squash against a polar bear during work time is great but I best resist the temptation to include the footage taken whilst he was at home drinking eggnog…explosive stuff but the tribunal will not thank me for such distasteful material and I best respect his human rights (assuming of course they extend to elvenfolk). (City and County of Swansea v Gayles (2013) EAT/Vaughn v London Borough of Lewisham and Others (2013) EAT).
Note to elf: covert surveillance whilst at work = yes, whilst on private property = no
Phew! – It turns out Rudolph was not guilty of that hay theft at his criminal trial but the tribunal still thought our earlier decision to dismiss him was fair; it was considered reasonable based on our reasonable investigations. (Stuart v LCA (2013) CA)
Note to elf: who will guide that sleigh tonight?
We were not so lucky with his accomplice, Noel Tinsel, although he eventually got what he deserved – which was not much. The tribunal told us that Noel had been unfairly dismissed (something about not following the ACAS code of practice in a ‘some other substantial fair reason’ case). However, the tribunal accepted that Noel’s unrelated criminal activity was relevant when considering his compensatory award. It can’t be good for your job prospects as an accountant when you are found guilty of ‘creative accounting’. Just as well we let him have legal representation at the disciplinary hearings…he may never work again as an accountant but at least he has his Noddy Holder impressions to fall back on following his success on Elf Idol. (Lund v St Edmund’s School (2013) EAT, Cumbria CC v Bates (2013) EAT, Ministry of Justice v Parry (2012) EAT)
Mind you, a colleague told me that he had a case the other day where the company lawyer had suggested he thinks carefully about going straight to dismissal despite a little worker’s gross misconduct. My colleague said it all related to the band of reasonable responses and grounds for mitigation. It seems like the band could be quite elastic! (Better save that for one of the cracker jokes for the HR team party!). (Brito-Babapulle v Ealing Hospital NHS Trust (2013) EAT)
Note to elf: check what is considered reasonable
Help! – I did not see that one coming. I knew there was a squeeze on but I did not think we would need to collectively consult with all the little helpers at risk of redundancy at our different manufacturing sites. Due to mechanising some of our lines there were only a few helpers at risk at each site but still, collective consultation obligations were triggered. I will be more careful in the future but perhaps the appeal going through the courts may change things back to how they use to be…arhh, the good old days! (USDAW v WWRealisation and Others (2013) EAT)
Looks like I will also need to be careful when arranging who to consult with. My boss (Mr C) has warned me that the staff council may not be appropriate for certain redundancy consultations, nor TERU (The Elf Representation Union), the trade union we get on with well (but not so well that we recognise them). (Kelly and another v Helsey Group (2013) EAT)
Note to elf: be careful around redundancies and follow the correct process
Relief! – Just discovered Christmas Eve does not fall on a Sunday this year. This means I don’t need to worry about whether requiring the little helpers to work on Sunday is discriminatory. I can think of one little helper in the workforce who will not want to work on Sundays but what about the rest of the group who may share the same faith? I think the issue is whether the group as a whole is discriminated against (rather than one individual). I will keep this in mind for next year.
Note to elf: remember to read the EHRC Guidance on Religion and Belief
In the meantime, I will be slow to challenge a little helper about certain Elfbook comments posted by them – the comments were posted outside of work time and had no connection to his work itself. (Mba v Mayor and Burgesses of the London Borough of Merton (2012) EAT, Smith v Trafford Housing Trust (2012) EWHC (Ch))
Note to elf: Keep our Social Media Policy up to date.
Hoorah! – I feel emboldened today. I learnt I can have sensible conversations with the older little helpers about when they might retire. I may not be risking discrimination claims by having such chats but I will not be too ‘gung ho’. I must make sure the conversations are reasonable and I have things like succession planning in mind. (Quick v Cornwall CC and another (2013) ET)
I also need to review whether we can still rely on a retirement age of 125 (65 in human years). Our contracts have not been updated since the abolition of a mandatory retirement age and I am not so sure a tribunal would agree that we have a legitimate aim in suggesting little helpers should retire then. (Seldon v Clarkson Wright and Jakes (2013) ET)
Note to elf: The big guy isn’t getting any younger. What will happen when…?!
Eek! – I feel way out of my depth but just as well our Occupational Health doctor (Dr Slade) can help me assess what is a reasonable level of absence for one of our disabled little helpers. This will be helpful when I work out if the absence procedures need to be triggered for the little helper. But I am pleased I got the call right about not exempting another little helper from the absence procedures. On this occasion it did not feel right to me that this was a reasonable adjustment I had to make. (HMRC Commissioners v Whitely (2013) EAT, Jennings v Barts and The London NHS Trust (2013) EAT)
Note to elf: Keep on top of long term sickness absences
This year was busy but by the looks of things I’ll have a to do list as long as Mr C’s next year….
- Update family friendly policies (particularly parental leave)
- Introduce the whistleblowing policy which takes into account the changes introduced in the summer
- Modify the settlement agreement template (note to elf: stop calling it a compromise agreement!)
- Refresh my mind as to without prejudice rules and look into the scope of the new protected discussions in case I need to have any tricky conversations…
- Brief my colleagues about pre-claim conciliation before April
- Make sure we stay on track in tribunal claims to avoid any financial penalties made against us…although it’s difficult to say whether we’ll get many claims now that the fees have been introduced…time will tell I suppose.
- Proposed TUPE changes. Must make time in January to get my head around those – I don’t want to be caught short if Claus & Co have to consider outsourcing plans.
- Review our staging date for pensions auto-enrolment. Even elves have to plan for their retirement particularly with the heating bills up here!
All good fun…and that’s just the job. No need to mention the end of year bash which I am off to now (safe in the knowledge that third party harassment claims are a lot less likely this year). Think I’ll avoid the temptation to Tweet (#northpolenightout) by leaving my phone at home and I’ll keep out of any photos in case they appear on Elfbook…
If, like Claus and Co’s HR Officer, you need help to resolve issues like these then please contact Tim Davies on 0191 211 7927 or any of our Employment Team.