An HSBC executive is suing the bank on grounds of sexual orientation discrimination after being dismissed for ‘gross personal misconduct’.

Peter Lewis, who was the global head of equity trading at HSBC, has decided to pursue the case after he was dismissed following serious complaints of sexual harassment made against him by two male colleagues.

An HSBC spokesman said: “Peter Lewis was dismissed for gross personal misconduct after a lengthy disciplinary proceeding. He has now elected to take the case to an employment tribunal. But we are very confident about our case in this matter.” The solicitor acting for Mr Lewis said: “His claim will be vigorously pursued and he is confident of success. There is no question of any allegation of financial impropriety or failure at work.”

Mr Lewis was formerly employed by French rival Societe Generale and had been at HSBC for six months before the allegations were made.

Observer, April 17, 2005 (online edition)

The Employment Tribunals Service has published its annual report for the year to 31 March 2004. The total number of tribunal claims made in the year 2003/4 was 115,042, an increase of 16,425 over the previous year’s total of 98,617. Sex discrimination claims were up dramatically from 8,128 in the previous year to 14,284, but this was apparently due to a large number of dress-code cases.

Claims under the Working Time Directive 93/104/EC (as implemented by the Working Time Regulations 1998 (SI 1998/1833)) were also on the increase – up from 1,403 to 11,218 – but this is said to be attributable to one large multiple case at Watford. Other claims on the rise are unfair dismissals arising out of TUPE transfers (up from 448 to 791) and claims under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) (up from 150 to 439).

Employment tribunals now handle claims arising under 80 separate jurisdictions but the most typical claims still arise out of unfair dismissal, unlawful deductions from wages and breach of contract. The level of compensation awarded in successful unfair dismissal claims in 2003/04 ranged from less than £500 to more than £50,000. The median award was £3,375 and the average award £7,275.

In successful race discrimination claims, the maximum award was £635,150, the median award £8,410 and the average award £26,660. In sex discrimination claims, the figures were £504,433, £5,425 and £12,971. In disability claims, they were £173,129, £5,652 and £16,214. Cost orders were made in only 976 cases – in 332 cases costs were awarded to the applicant, in 644 cases to the respondent. The maximum of £10,000 was awarded in at least one case but the average costs award was £1,859.

In the EAT, of the 443 cases in which there were preliminary hearings, only a half (221) were allowed to proceed to a full hearing. Of those that proceeded to a full hearing, again only half (419) were allowed and/or remitted for a further hearing. 421 appeals were dismissed.

176 million working days were lost through sickness absence from work in 2003, according to a report in the British Medical Journal.

The report revealed that the stress of modern living has, for the first time, overtaken physical ailments as the chief cause of long-term sickness in Britain.

Writing in the British Medical Journal, Max Henderson of the Institute of Psychiatry, said that the most marked change in the past decade has been the switch in emphasis from physical to mental disorders. Absence claims for back pain have fallen by 42 per cent since 1994-95 and surveys over the period have shown a doubling in the numbers of people claiming for stress caused, or made worse by work.

“Mental and behavioural disorders now account for more incapacity benefit claims than musculoskeletal disorders,” the authors of the report said. “Yet research suggests that there has been no increase in mental problems in the population.”

Just one in five of those who claim incapacity benefit for at least six months return to work within five years. The cost to industry is estimated to be £11bn each year.

The Independent, April 8, 2005

Nearly a third of employees believe that their employers would ask them to leave if they became disabled, according to a poll conducted by Mori.

The poll, for the Disability Rights Commission (DRC), revealed that 28 per cent of non-disabled employees felt sure that their employers would not assist them in retaining their employment in the event of an accident that rendered them disabled.

Chairman of the DRC, Bert Massie, said that making adjustments for disabled employees was more logical than dismissing efficient workers. He said: “Smart organisations realise providing support to workers, rather than showing them the door, makes good business sense. It sends a clear message that the company values its staff.”

The widespread use of compulsory early retirement by UK law firms could become unlawful as of October 2006, when new age discrimination regulations come into force.

The regulations will make all compulsory retirement policies that do not comply with the legal standard age of 65 unlawful. The Department of Trade and Industry has indicated that partnerships will not be exempt from the retirement age requirement.

According to Declan O’Dempsey, an employment barrister at Cloister Chambers, law firms will find it difficult to argue that the non-compliant compulsory retirement policies are justifiable: “In the area of law, the role of a partner turns into a much more second-level operation. The things you come to expect of a partner can still be done at that stage of a career.”

Some experts believe that such policies may also disadvantage firms by causing a ‘brain drain’ of experienced practitioners. Of Clifford Chance’s 229 London partners, only 41 are over 50 years of age, while in Linklaters the ratio is 31 over-50 partners to a 193 total. Slaughter and May has a mere 24 over-50 partners worldwide; all work in the London office, which alone has 107 partners in total.

The Lawyer, April 4, 2005

On 3 February 2005, the president of the Employment Appeal Tribunal issued a Practice Statement in strong terms to remind appellants of the terms of para. 2.1 of the Employment Appeal Tribunal Practice Direction issued on 6 December 2004. The Practice Statement (and Direction) are available from the EAT website.

We noted in IRS Employment Review 817 that copies of specific documents must now be filed with the Notice of Appeal. Paragraph 2.1 of the Practice Direction states that copies of the judgment, decision or order appealed against and of the employment tribunal’s written reasons, together with a copy of the Claim (ET1) and Response (ET3) must be attached, or if not, a written explanation must be given. A Notice of Appeal without such documentation will not be validly lodged.

The Practice Statement notes that, between 2 and 26 January 2005, 20 Notices of Appeal received by the EAT were returned as invalid (compared with four during the similar period in 2004) and 13 were only invalid because they were not accompanied by the correct documents. As from 3 February 2005, ignorance or misunderstanding of the requirement as to service of the documents required to make a Notice of Appeal within the 42-day time limit required by the relevant rules will not be accepted as an excuse for non-compliance.

• Where dismissal occurs, employees with one or more years’ continuous service may complain to an employment tribunal if they believe they have been dismissed unfairly. However, for some claims, no period of qualifying service is needed. The right of complaint is available to both full and part-time employees.
• Certain categories of personnel are excluded from eligibility to claim unfair dismissal. Eg. Employees Working Outside the United Kingdom.
• Claims to an employment tribunal for unfair dismissal must normally be received by the tribunal office within three calendar months from the date of the termination of the employee’s contract of employment.
• Appeals from a decision of an employment tribunal lie to the Employment Appeal Tribunal (EAT). Appeals can be made on a point of law only.
• Reinstatement is re-employment in the same job from which the employee was dismissed, under the same contract of employment and hence on the same terms and conditions. The employee will be entitled not only to re-employment, but also to (net) back pay and benefits to cover the period since the dismissal up to the date of re-employment. The objective is to put the employee back in the position he or she would have been in but for the dismissal.
• Re-engagement is re-employment under a new contract of employment which must be on similar, or not substantially less favourable, terms and conditions to the original contract of employment. Back pay and benefits can also be awarded but the tribunal has a discretion not to do so where the employee’s conduct contributed to the dismissal.
• Awards of compensation for unfair dismissal are composed of several different elements, principally a basic award and a compensatory award.
• The basic award is intended to compensate an employee for loss of job security caused by unfair dismissal. The basic award is calculated according to a fixed formula with a current maximum of £8,400.
• The compensatory award, which is paid over and above the basic award, is as much as the tribunal considers just and equitable in all the circumstances, with an overall maximum of £56,800. Its aim is to compensate the employee for actual financial losses caused by the unfair dismissal.
• Deductions may be made from the employee’s basic and compensatory awards in certain circumstances.
• Where it can be shown that the reason for dismissal was related to the individual’s sex, race, disability, sexual orientation, religion/belief or part-time or fixed-term status, the individual may succeed in a claim for discrimination as well as unfair dismissal. For cases of discrimination there is no ceiling on the amount of compensation that can be awarded.
• The Advisory, Conciliation and Arbitration Service (ACAS) operates a scheme for the arbitration of unfair dismissal complaints, which offers the parties to such a claim an alternative means to employment tribunal proceedings for resolving their dispute.
• A compromise agreement is a written document showing that the employee has received advice from a relevant independent advisor, and which, once signed, has the effect of barring the employee from taking his or her case to an employment tribunal.

• In certain circumstances, employees are entitled to statutory time off for personal reasons. Some periods of time absent from work are paid.
• Employees who are aged 16 or 17, who are not receiving full time education and have not attained a standard or achievement as prescribed by the Right to Time Off for Study or Training Regulations 2001 (S.I. 2001, No. 2801), are entitled to paid time off during normal working hours to pursue approved qualifications.
• Apart from time off for 16 and 17 year olds and low skilled employees, employers are not obliged to give any other employee time off for training or study, even if they are following a professional or vocational qualification which will be of benefit to them in their work.
• Employees have the right to take unpaid time off to undertake specific public duties. The amount of time is not laid down in law, but there are some ground rules for employers and employees in assessing whether the requested time off is reasonable.
• Employees are not strictly speaking entitled to statutory time off for jury service, to appear as a witness or to report for military service if they serve in the reservists, but the employer has little choice but to release the employee for these activities.
• Employers do not have to pay reservists. Reservists are paid by the MoD and may be entitled to a 20% supplement to bring their pay up to their civilian equivalent (unless the employer agrees to make it up). The position about other terms and conditions of service, e.g. cars, is less clear, as is the status of the contract during the period of military service.
• If an employee who has at least two years’ service after the age of 18 is made redundant, they are entitled to paid time off from work during the period of notice to look for work or make arrangements for training.
• A worker is entitled to paid time off during working hours to accompany a fellow worker to a disciplinary or grievance hearing.
• Employees have a right to unpaid time off to deal with incidents involving a dependant. The right is intended for short-term emergencies only.
• Longer periods of time off for compassionate reasons, such as arranging a funeral or dealing with a major domestic crisis, is at the discretion of the employer.
• Under the Working Time Regulations 1998 (S.I. 1998, No. 1833), workers are entitled to four weeks’ paid annual leave, including public and bank holidays.
• Bank holidays are days in the whole or part of the UK on which banks are closed for business. Although in many parts of England, Wales and Scotland, bank holidays are widely observed, there is no automatic right for workers to take bank or public holidays off, either with or without pay.
• As well as statutory rights, employers can decide to grant employees time off for other reasons, such as time off for sabbaticals and career breaks.
• The employer should set out the terms and conditions for time off for personal reasons in a policy.

• In certain circumstances, employees are entitled to statutory time off for personal reasons. Some periods of time absent from work are paid.
• Employees who are aged 16 or 17, who are not receiving full time education and have not attained a standard or achievement as prescribed by the Right to Time Off for Study or Training Regulations 2001 (S.I. 2001, No. 2801), are entitled to paid time off during normal working hours to pursue approved qualifications.
• Apart from time off for 16 and 17 year olds and low skilled employees, employers are not obliged to give any other employee time off for training or study, even if they are following a professional or vocational qualification which will be of benefit to them in their work.
• Employees have the right to take unpaid time off to undertake specific public duties. The amount of time is not laid down in law, but there are some ground rules for employers and employees in assessing whether the requested time off is reasonable.
• Employees are not strictly speaking entitled to statutory time off for jury service, to appear as a witness or to report for military service if they serve in the reservists, but the employer has little choice but to release the employee for these activities.
• Employers do not have to pay reservists. Reservists are paid by the MoD and may be entitled to a 20% supplement to bring their pay up to their civilian equivalent (unless the employer agrees to make it up). The position about other terms and conditions of service, e.g. cars, is less clear, as is the status of the contract during the period of military service.
• If an employee who has at least two years’ service after the age of 18 is made redundant, they are entitled to paid time off from work during the period of notice to look for work or make arrangements for training.
• A worker is entitled to paid time off during working hours to accompany a fellow worker to a disciplinary or grievance hearing.
• Employees have a right to unpaid time off to deal with incidents involving a dependant. The right is intended for short-term emergencies only.
• Longer periods of time off for compassionate reasons, such as arranging a funeral or dealing with a major domestic crisis, is at the discretion of the employer.
• Under the Working Time Regulations 1998 (S.I. 1998, No. 1833), workers are entitled to four weeks’ paid annual leave, including public and bank holidays.
• Bank holidays are days in the whole or part of the UK on which banks are closed for business. Although in many parts of England, Wales and Scotland, bank holidays are widely observed, there is no automatic right for workers to take bank or public holidays off, either with or without pay.
• As well as statutory rights, employers can decide to grant employees time off for other reasons, such as time off for sabbaticals and career breaks.
• The employer should set out the terms and conditions for time off for personal reasons in a policy.

A survey of English councils has revealed that 20,000 social services employees were off sick for two months or more in 2004.

The figure, which accounts for nine per cent of the 213,300 UK social services employees, is the result of large workloads and high stress levels, according to public-sector union Unison. Results from an annual Confederation of British Industry (CBI) survey showed an increase in the employee absence average from 6.8 days per employee in 2002 to 7.2 days in 2003. Government statistics show that the costs arising from sick leave in the civil service sector are around double those in the private sector.

Richard Dodd, a spokesman for the CBI, believes that local authorities suffer the highest absence levels because of their large size. He further stated that the main factor in reducing employee absence was ‘having senior management involvement in managing absence’.

‘This is better in a small organisation,’ Mr Dodd concluded.

Guardian, April 15, 2005 (online edition)