John McCormack sued SPL side Hamilton Academical for £93,334 in damages after being dismissed for alleged gross misconduct in August 2008.

At the Court of Session in Edinburgh, judge Lord Woolman ruled that his conduct did not justify dismissal.

Further proceedings will be held to establish how much he is to receive.

The court heard how Mr McCormack, known as “Cowboy”, was appointed as assistant manager to Billy Reid at the newly promoted New Douglas Park side in June 2008.

The former assistant manager, who lives in the Mount Vernon area of Glasgow, claimed he was appointed for a two-year term at £40,000 a year.

However, Lord Woolman said he preferred the evidence of club chairman Ronnie Macdonald that he had agreed a one-year contract.

Mr McCormack also denied making a comment to players in the presence of female physiotherapist, Jillian Galloway, about letting her see who had “the biggest tadger”.

The football coach also rejected an allegation of intimidating and bullying young players at a pre-season tournament in Oban.

Reaching his judgement, Lord Woolman said he found Miss Galloway to be “a transparently honest and reliable witness”.

He also rejected Mr McCormack’s suggestion that she fabricated her account of him changing in front of her in the dressing room.

Commenting on claims of Mr McCormack’s alleged “boorishly aggressive, foul-mouthed, ill-mannered” behaviour during a pre-season friendly in Oban, Lord Woolman said: “I have no hesitation in accepting that the coaching style of Mr McCormack did involve a great deal of aggressive shouting and swearing.”

But he added it was the first time he was charge of a Hamilton side and was “simply a clash of styles”.

Lawyers acting for Mr McCormack claimed there were no grounds for his summary dismissal and that he apologised for insensitive remarks made in front of Miss Galloway and there was no repeat of the behaviour.

The club maintained that he was lawfully dismissed for gross misconduct following a course of conduct.

‘Curious feature’

Lord Woolman said Mr McCormack had been “candid about a number of matters about which he might have been expected to be reticent” but added that where there was conflict in the evidence he unhesitatingly preferred the evidence of the other witnesses to his testimony.

The judge said “a curious feature” of the case was the lack of documentation in the period leading up to dismissal, including no written warning, no report of any internal inquiry or minute of a board meeting deciding he should be dismissed.

Lord Woolman said the obligation of confidence and trust was a mutual one.

He added: “In my view, Hamilton itself was under a duty to keep the employee fully informed of any perceived deficiencies in his or her conduct during the course of a contract of employment. That did not occur here.”

1 September 2010
BBC News Online
http://www.bbc.co.uk/news/uk-scotland-glasgow-west-11153995

The Government published the Equality Act 2010 (Disability) Regulations 2010 on 31 August, which include provisions that support the definition of disability in the Equality Act 2010.

Under the Equality Act 2010, which replaces all existing discrimination laws including the Disability Discrimination Act 1995, employers and service providers are not allowed to discriminate on the grounds of individuals’ physical or mental disabilities.

However, there are certain conditions that have been specifically excluded from constituting a disability, such as: addictions to alcohol, nicotine, or any other substance; some mental health conditions such as a compulsion towards exhibitionism or voyeurism; and hay fever, unless it aggravates the effect of another condition.

Addictions that were originally the result of the administration of medically prescribed drugs or other medical treatment are included under the act. More detail is provided here.

Those that have been certified blind, sight-impaired or partially sighted by a consultant ophthalmologist will be deemed to have a disability under the regulations.

Stephen Simpson, senior employment law editor at XpertHR, says the new legislation carried across some uncontroversial exclusions to the new Equality Act.

“What’s more interesting is what has been left out of the Regulations,” he told Personnel Today. “An individual no longer has to show that, where an impairment adversely affects his or her ability to carry out a normal day-to-day activity, that activity involves one of a specified list of capacities, such as mobility, speech, or the ability to understand.

“It will be left to tribunals to make a common-sense decision as to whether or not a particular impairment has a substantial effect on day-to-day activities. This should make it easier for individuals to show that they are disabled under the Equality Act 2010.”

Daniel Barnett, employment law barrister at Temple Garden Chambers, said: “This law makes it clear that employers are not required to make special adjustments to welcome voyeurs or exhibitionists into the workplace. Nor are employers required to make allowances for any mental disability if an employers wants to dismiss someone who turns out to be a voyeur or flasher.”

In addition, the Government is planning to replace the guidance on matters to be taken into account in determining whether or not an employee is disabled under the DDA with updated guidance to take account of the Equality Act 2010. It is consulting on draft guidance until 31 October 2010.

The Equality Act 2010 (Sex Equality Rule) (Exceptions) Regulations 2010 and Equality Act (Age Exceptions for Pension Schemes) Order 2010, which come into force on 1 October 2010, have also been published. These regulations set out exceptions to the rules on non-discrimination in relation to sex and age for occupational health schemes.

Helen Gilbert, 01 September 2010
www.personneltoday.com

Battlefields and combat zones are, by their very definition, dangerous places. Those working in them inevitably operate at a high risk of personal injury, or worse, as we have seen too tragically in Afghanistan and Iraq. As such, and despite a tradition of working alongside the military, it has long been recognised that there will be times when occupational health in the armed forces has little option but to take a back-seat to operational priorities, even if only temporarily.

Impact on OH of arduous environment
That’s not to say occupational health and occupational medicine do not matter in today’s forces, far from it. Occupational medicine has long been an important speciality in all the armed services. In a physically and psychologically arduous environment, maintaining the health and fighting ability of personnel on the ground is vital. Equally, occupational health (OH) has an important role to play, both in terms of managing or overseeing the day-to-day health of personnel on base or in the training environment, but also in the input it can offer supporting injured troops back to physical or mental fitness and in helping to rehabilitate them back into military or civilian life.

The role and extent of OH’s involvement in the armed services arena was highlighted in June in a ruling by the UK Supreme Court, which overturned controversial High Court and Court of Appeal judgments that soldiers on the battlefield should be protected by the Human Rights Act (HRA).

Relevant case law
The ruling focused on whether a British soldier on military service in Iraq is subject to UK jurisdiction and covered by human rights laws, not only when on a UK military base or hospital. It was prompted by the death of Private Jason Smith in August 2003 in Iraq while serving with the Territorial Army.
Smith died of heatstroke after repeatedly telling medical staff he was feeling unwell. He reported sick on 9 August and four days later was found lying face down and short of breath; within an hour he suffered a cardiac arrest. The case, brought by his mother Catherine, argued the inquest into her son’s death should have investigated the circumstances in which he died and why he died, not just how.

An earlier High Court ruling into the case had, as well as making a judgment on the inquest issue, concluded that the Human Rights Act applied to all armed forces personnel serving outside the UK, regardless of whether the death took place on an army base. The Ministry of Defence (MoD) challenged this decision at the Court of Appeal, which upheld the High Court’s ruling and led to a further appeal by the MoD to the Supreme Court. This ruling, in June, confirmed the MoD still needed to hold a proper inquest into the case, but back-tracked on the issue of the Human Rights Act.

This, the Equality and Human Rights Commission (EHRC) has argued, means that "while the MoD has a legal obligation to ensure the lives of troops are properly safeguarded when they are on a British base, that obligation does not apply when they step off the base, for example when they are in transit".

Although this is not the end of the matter legally, for the European Court of Human Rights is due to have the final word, EHRC group legal director John Wadham argues: "Extending human rights protection is not about individual decisions in the heat of battle but ensuring that when we send soldiers to war, they are properly prepared, kitted out correctly and with equipment fit for combat."

Recruitment screening
So, where does this leave OH? If you were to compare the responsibilities of OH practitioners towards servicemen to other sectors you might reasonably ask to what extent is it realistic to screen out recruits for their susceptibility to conditions such as heat exhaustion at the recruitment stage?

Once in service, is it possible to differentiate between occupational health and safety risks and the risks of combat? In a restaurant kitchen, for example, an employer should be on notice if an employee repeatedly complains of feeling unwell because of the heat, but can the same rule be applied to a military context where troops are facing a range of other extreme hazards?

If the Supreme Court ruling were to be overturned, would it lead to a huge number of complaints from servicemen and women relating to conditions such as post-traumatic stress disorder?

Psychological contract with the employer
According to Occupational Health columnist and consultant occupational physician Dr Richard Preece, the ruling potentially raises a range of questions that the profession might be wise to consider. There could be more debate about how (or indeed if) the health needs of people in an armed conflict situation can be supported.

"Then there is also what you might term the psychological contract issue. Anyone on combat operations knows they have to be prepared to put their life on the line. But the question a case like this raises is ‘are they prepared to look after me?’," Preece suggests.

"Occupational health ought to have a view on these health issues, if nothing else," he adds.

Nevertheless, according to Greta Thornbory, Occupational Health’s continuing professional development editor and a former major in the Territorial Army, it has to be recognised the army has, over the years, done a lot to improve the health and safety of soldiers. "A huge amount of training goes on. But once you get into a war zone, how can employers be responsible for someone, assuming they have been adequately trained?" she asks.

"It is arguably not so much about good OH as about good line management skills. If you are in a situation where people are being fired on and someone has heat exhaustion, there is not much you can do about it. These are split-second and difficult decisions. You can only train people to do the best they can in the situation.

"It all hangs on the training servicemen and women get before they go into combat. So it may be that OH needs to be looking more at its training role and needs to be taking more of an active role in that. You cannot legislate for everything, nor can you stop everything happening," she adds.

Similarly, Robert Dunn, a TA officer for 25 years and senior OH adviser at the University of Oxford, argues that legislation, such as the HRA, has questionable value for the armed services. "If troops are having to be looking over their shoulders after everything in case it is critical later in a civilian court of law, overseen by people who will have little or no understanding of what is expected of troops in these situations and how decisions have to be made, then they are not going to be effective," he says.

OH should ensure a proactive approach
"OH can have an input into military life and a lot of work has been done regarding creating a tri-service medical service. There is always a role for OH in trying to ensure a proactive approach is taken and making sure troops are not doing something that is going to affect their health.

"There is a role for OH, but it is going to be limited and dictated by the operational perspective. It may be things such as ensuring vaccinations are up-to-date before soldiers go to war, for example.

"A lot of progress has been made over the past few decades and, when it comes to occupational health, there is a lot practitioners can do to ensure soldiers are in the best possible shape," he adds.

Nic Paton, 24 August 2010
www.personneltoday.com

A Britain’s Got Talent hopeful who claimed she was discriminated against at her audition, has failed to get her case taken to an employment tribunal.

Emma Amelia Pearl Czikai, who suffers from cervical spine neuritis, wanted to sue Simon Cowell and his hit show.

The 54-year-old argued that producers knew about her condition and made a "fool" out of her on TV.
The decision not to pursue a tribunal was made at a pre-hearing review. Mr Cowell was unable to comment.

‘Unfair conditions’
Ms Czikai first appeared on the show in May 2009, and was seen singing You Raise Me Up in front of the three judges.

After her audition, Cowell told her "it is a beautiful song - when you’re not singing it".

Ms Czikai blamed her poor performance on being made to stand outside in the cold weather as she waited for her turn on stage.

"That traps the nerves, so immediately that aggravates the condition," she told the BBC earlier this year.

Ms Czikai, from Sutton Coldfield, insisted the conditions "were unfair" and asked producers not to show the footage, which they did not agree to.

Instead, they invited her to appear on the ITV2 spin-off show Britain’s Got More Talent.

The amateur singer said producers had agreed to make an explicit link between that performance and her original audition on the show’s website, but failed to do so.

She said that allowing repeated viewings, without a link to an improved performance, "was an act of harassment perpetrated in the full knowledge of the fact I was being degraded and humiliated because of illnesses".

The subsequent attempt to take the case to an employment tribunal was dismissed because of the amount of time that had lapsed since the incident and the fact that Cowell was not her employer, she said.

However, Ms Czikai said she was not disappointed with the decision.

"My life has changed so markedly, now all I want to do is just forget about everything. I would rather walk away from it," she said.

"I think it [reality TV] is a dangerously out-of-control industry and if it can’t be regulated by tribunals it’s an open field day."

"I’ve done as much as I can to bring it to the public’s attention."

She had reportedly been suing Cowell and his production company Syco and Fremantle Media £2.5 million, but Ms Czikai insisted she did not care about the money.

"I think I’ve made the public aware of how awful these programmes are. I think I’m just going to leave it now."

2 September 2010
BBC News online

Pc Mark Jones, 43, is one of six police officers going to an employment tribunal over an incident in June 2007.

The officers claim they faced racial discrimination after stopping and questioning two 16-year-old boys on suspicion of robbery in west London.

The Territorial Support Group officers launched the proceedings in mid-July.

Pc Jones and three officers who are not involved in the discrimination claims are accused of assault causing actual bodily harm on Mr Ahmad, 36, during his arrest in Tooting, south London, in 2003.
A Metropolitan Police spokeswoman said: "I can confirm that Pc Mark Jones and others have submitted an employment tribunal claim citing racial discrimination."

A Tribunals Service spokesman said a date had yet to be fixed for the hearing.

The five other officers suing the Met are Sgt William Wilson, Pc Steven White, Pc Giles Kitchener, Pc Simon Prout and Pc Neil Brown.

All six officers allege they were the victims of racial discrimination in the aftermath of an incident in which the two teenagers were stopped and questioned on Edgware Road.

24 August 2010
BBC News online

Peter Watson – Senior Partner

The scheme, part of a wider pensions’ reform in the UK, is meant for low to moderate income earners that the existing market does not serve.

The Commission found the measure to be compatible with EU State aid rules, because the National Employment Savings Trust (NEST) carries out a service of general economic interest (SGEI) and receives no over-compensation for doing so.

Competition Commissioner Joaquín Almunia said: “The new occupational pension scheme will enhance the UK pension system, thereby making sure people, and their employers, provide adequately for old age, without unduly distorting competition in the marketplace.”

Under UK pension reforms, from 2012, employers will be under a duty to automatically enroll all eligible workers into a qualifying pension vehicle and pay a minimum employer contribution of 3%.

The scheme was notified to the Commission because of a loan granted by the Government to fill the funding gap faced during the early years of the operations of NEST.

Croner News, 08 July 2010

The number of claims was 236,100 in 2009–10, with the increase being seen partly as a result of the changing economic climate but largely put down to the rise in multiple claims. These increased by nearly 90% in 2008–09.

Multiple cases are where two or more people bring cases, usually against a single employer but not necessarily so, for instance in TUPE cases, and always arising out of the same or very similar circumstances.

For example, 95,200 claims related to the Working Time Directive but this number is largely accounted for by the 10,600 airline cases that are resubmitted every three months.

There was also an increase of 14% in single claims over the year and overall accepted claims are now at their highest levels.

There were 126,300 claims associated with unfair dismissal, breach of contract and redundancy, which is 17% higher than for 2008–09 and likely, the Service said, to be a result of the economic recession.

Time being taken to deal with claims is also increasing, as the Service has failed to meet a number of it’s targets in this regard.

Croner News, 08 July 2010

Christopher Bennett, who has arthritis, was sacked for gross misconduct for sending an email to colleagues asking whether the chairs caused back pain.

The tribunal found his right to freedom of expression under the Human Rights Act had been breached.

The fire service said it was “disappointed” by the ruling.

Mr Bennett, who was sacked in 2008 after 25 years of service, was among a number of firefighters who found the new £400 chairs uncomfortable, the tribunal heard.

“This by it’s very nature is robbing us of our professional pride, not to mention human dignity”

In 2007 three firefighters were disciplined after they refused to sleep on the reclining chairs.

Three hundred of the £400 chairs were brought in to replace beds in Greater Manchester’s 41 fire stations in 2006.

The firefighter said the new reclining chairs were causing him severe back pain and asked if he could instead use a bed or his own mattress to sleep on overnight.

However, the tribunal heard his request was denied with Chris Mycock, the station manager at Stockport fire station, telling him that the chairs had been “ergonomically” designed to suit the firefighters’ needs and that they should not “sleep” on their night shifts but should only “rest”.

He was then told if he was not happy with the chairs he could use the “upholstered bench-type chairs” in the snooker room with blankets and pillows.

In the end, Mr Bennett resorted to sending an email to watch managers across the county asking if they or their colleagues were suffering with the chairs.

He stated in the email: “From day one we have moaned and complained but silently… The majority of firefighters have asked in private to not use the… chairs.

“We are instead forced to rest on the concrete floor or outbuildings or blow up mats. This by it’s very nature is robbing us of our professional pride, not to mention human dignity.”

The fire service found this to be a case of gross misconduct.

However, the tribunal ruled that Mr Bennett’s email was of political and public interest in that firefighters should be alert and fit to fight fires and rescue people.

If said Mr Bennett was seeking in his own way to protect public safety.

A spokesperson for Greater Manchester Fire and Rescue Service said: “We demand the highest standards of behaviour from our entire staff.

“Mr Bennett’s actions fell far below those standards when he ignored the email policy and advice from both his line manager and his union representative.

“We also believe that by soliciting support against the service Mr Bennett irreparably broke an employer’s trust, hence our decision not to reinstate him.”

BBC News, 20 July 2010

http://www.bbc.co.uk/news/uk-england-manchester-10701633

Catherine Gilbert was diagnosed with spasmodic dysphonia, which makes it difficult for the sufferer to speak.

The 36-year-old, from Sittingbourne, tried to sue Kent Police, claiming they failed to make reasonable adjustments to accommodate her condition.

But a tribunal panel at Ashford unanimously dismissed her claims.

In a reserved judgment, the panel ruled that Ms Gilbert was “not disabled for the purposes of the Disability Discrimination Act“.

Ms Gilbert said she began having problems with the way she was treated in April 2008 when she was working for the Medway division.

She told the tribunal she felt “resented” by her colleagues as she was the only woman in her team and was given no training in the role.

Ms Gilbert, whose condition makes her voice shake and she sometimes stutters over words, said she applied to train to become a dog handler, but claimed she was “bullied out”.

Kent Police Assistant Chief Constable Allyn Thomas said he was sorry Ms Gilbert was unable to pursue her career.

He added: “It is important that officers who are selected for a role are able to meet the necessary standards.”

Ms Gilbert was unavailable for comment.

BBC News, 20 July 2010

http://www.bbc.co.uk/news/uk-england-kent-10701239