Employment eBulletin November 2010

ACAS Code of Practice spans its wings

The ACAS Code of Practice applies to cases which concern potential disciplinary action for reasons of conduct or capability.  However, in the recent case of Cummings v Siemens Communications Ltd, it was decided that the Code also applies to dismissals for ‘some other substantial reason’ (SOSR).  The Tribunal stated that the Code expressly states that it does not apply to redundancy dismissals or to the non-renewal of fixed-term contracts but as it does not expressly exclude dismissals for SOSR, the Code should be interpreted as to apply to such dismissals.  There are likely to be further cases concerning the Code's coverage in SOSR cases but for the time being, employers are advised to follow the Code in any dismissals for SOSR.

Employer vicariously liable for employee's theft

The case of Brink's Global Services Inc and others v Igrox Ltd concerned an employee whose job it was to fumigate goods packed in containers for carriage abroad.  One job the employee had to complete was the fumigation of a crate which contained a number of silver bars.  The employee carried out this task with a colleague but later returned to the crate to steal 15 of the silver bars.  Despite the employer arguing that the employee’s employment had merely presented him with the opportunity to steal the silver bars, the Tribunal found the employee’s employer vicariously liable for the theft.  The employer did appeal but the Court of Appeal upheld the Tribunal’s finding.

Enforcement in the construction employment sector

A recent enforcement operation covering the construction sector carried out by inspectors from BIS’ Employment Agency Standards inspectorate (EAS) identified two construction agencies that had failed to pay nearly £30,000 to a total of 39 workers for the hours they had worked.  EAS went on to successfully secure payment for the workers in full and are currently considering whether legal action should be taken against the agencies involved.

Agencies are reminded that if they break the law, they can face prosecution and could face unlimited fines for the most serious offences.  In certain cases, agencies can also be banned from operating for up to ten years.

"Britain's Got Talent" faces discrimination claim

The recent case of Czikai v Fremantle Media Ltd, concerned a contestant who featured on “Britain’s Got Talent” claiming (a) that the show had failed to make reasonable adjustments for her disability at the audition and (b) that the broadcasting of her performance on ITV and on the internet amounted to harassment under the Disability Discrimination Act 1995.  At a pre-hearing review, the Tribunal stated that the show was for entertainment purposes and that it did not amount to a job interview but instead offered a prize to the winner.  Furthermore, the show did not constitute an “employment services provider" as it did not provide any vocational guidance, training or services to the individual contestants, and neither the audition nor the pre-audition interviews amounted to employment services.

This case does raise interesting questions about similar formatted programmes such as “The Apprentice” and “The X-Factor” which do offer employment to the winner and vocational guidance.