A Foreign Office official cleared of leaking confidential documents is taking his old bosses to an employment tribunal.

Derek Pasquill has accused the Foreign & Commonwealth Office (FCO) of unfair dismissal and victimisation.

The 49-year-old career diplomat, of West London, was suspended for 23 months from the FCO after passing documents to the Observer and New Statesman relating to Government policy in the wake of the 2005 London bombings.

The papers were said to refer to secret CIA flights and the UK’s contact with Muslim groups.

Mr Pasquill, who worked for the FCO for 24 years, was acquitted in January of six charges of making disclosures damaging to international relations under Section 3 of the Official Secrets Act 1989.

At the time, Mr Pasquill said his acquittal vindicated his actions ‘exposing dangerous government policy and its changing priorities’.

He was dismissed for gross misconduct on August 21 this year.

Mr Pasquill’s solicitor, Shah Qureshi, said: “Derek Pasquill feels that he has been backed into a corner by the FCO’s belligerent stance. He made his disclosures in good faith with no benefit to himself.

“As a result, he has been subjected to criminal prosecution, stigmatisation and the loss of his livelihood for doing what he thought was ‘the right thing’.”

A spokesman for the FCO said it would not comment on any legal action. It has 21 days to respond to Mr Pasquill’s claims.

Daily Mail, 19th November, 2008

Construction companies were warned by the Health and Safety Executive (HSE) to keep health and safety under constant review throughout the life of a project.

The warning comes on the day when Sellafield Ltd and P C Richardson & Co. (Middlesbrough) Ltd (demolition contractors) were fined after pleading guilty at Carlisle Crown Court to charges brought by HSE following the death of 36 year old Richardson employee Neil Cannon on 9 January, 2003.

The incident happened whilst work was taking place to decommission one of the pile chimneys on the Sellafield site in Cumbria. Mr Cannon was removing steelwork inside the chimney when he fell approximately 95 metres and suffered fatal injuries.

Sellafield Ltd (then operating under the name of British Nuclear Fuels Ltd), of 1100 Daresbury Park, Daresbury, Warrington was fined £150,000 for a breach of Section 3(1) of the Health and Safety at Work (HSW) etc, Act 1974 in that it failed to conduct its undertaking in such a way as to ensure that persons not in its employment, but who were affected by it, were not exposed to risks to their safety. They were also ordered to pay £50,500 in costs.

PC Richardson & Co (Middlesbrough) Ltd of Courville House, 34 Ellerbeck Court, Stokesley Business Park, Stokesley near Middlesbrough was fined £100,000 for a breach of Section 2(1) of the HSW Act in that it failed to conduct its undertaking in such a way as to ensure that its employees were not exposed to risks to their safety. They were also ordered to pay £25,000 in costs.

HSE Principal Inspector Mark Cottriall says: “This tragic accident need never have happened. A safe working method had been prepared for removing the steelwork in the chimney. If this had been followed, Mr Cannon would not have had to leave the safety of the working platform that had been built inside the chimney. As often happens on construction projects, however, the proposed method was changed as the work progressed. These changes took place over a period of time and resulted in workers, including Mr Cannon, having to work on an unprotected ledge inside the chimney approximately 95 metres above ground level. At the time of the accident, Mr Cannon was trying to remove a girder from the ledge. The girder tipped upwards, sliced through Mr Cannon’s safety lanyard, and caused him to fall through the gap between the ledge and the working platform. Ongoing monitoring of the work in progress should have identified the changes and the increased risk. If this had been done it is almost certain that a way could have been found to do the work without leaving the safety of the platform.

“As this case sadly illustrates, any changes to planned work methods must be identified and properly assessed to ensure that they are safe.”

Sellafield Ltd was the client and principal contractor while P C Richardson & Co. was the decommissioning and demolition sub-contractor.

Thursday, 20 November, 2008, Health and Safety Executive (North West)

Nadia Eweida, who in January 2008 lost her employment tribunal claim for religious discrimination against British Airways in relation to her right to wear a Christian cross whilst at work, has now lost her appeal to the Employment Appeal Tribunal.

Miss Eweida, who is a Pentecostal Christian, currently works in customer services at Terminal 5 in Heathrow Airport. She has said she lost around £3,500 in wages during the three months she was off work. British Airways has now changed its uniform policy to allow all religious symbols, including crosses, to be worn openly.

The EAT has ruled that British Airways did not act in a way which amounted to indirect discrimination because there was no evidence that a sufficient number of persons other than Ms Eweida shared her strong religious view that she should be allowed visibly to wear the cross. That was the finding of the Employment Tribunal and it was one they were entitled to reach on the evidence. Ms Eweida’s appeal was dismissed.

EAT, 20 November, 2008

There are two new items of interest: Firstly, as from 5th October, 2008 (following the introduction of two sets of new regulations – the Sex Discrimination Act 1975 (Amendment) Regulations 2008 and the Maternity and Parental Leave etc. and the Paternity and Adoption Leave (Amendment) Regulations 2008) almost all differences between ordinary maternity leave (the first 26 weeks of leave) and additional maternity leave (the next 26 weeks) have been removed.

The only difference of general practical significance now left is that the right to return after ordinary maternity leave is a right for a mother to return “to the job in which she was employed before her absence” whereas after additional maternity leave it is still a right to return either to that job “or, if it is not reasonably practicable for the employer to permit her to return to that job, to another job which is both suitable for her and appropriate for her to do in the circumstances”. Abolition of even this difference is under consideration – it was on the agenda at the Labour Party National Policy Forum in July 2008.

Secondly, an EC announcement. Mostly this is irrelevant in the UK as women here already have the right to return to the same job or an equivalent one after maternity leave and already have the right to request a flexible work pattern on return to work.  However one proposal does have an effect in the UK. The EC proposes that compulsory maternity leave should be increased to 18 weeks, six of which will have to be after the birth (at present in the UK this is just two weeks). The other 12 weeks will be available either before or after the birth.

There is further information about the proposals in an EC memo issued on 3rd October. The memo includes a table headed “What are the existing periods and conditions of maternity leave in EU countries”. Interestingly this shows, in a column headed “duration”, that UK law provides for longer maternity leave than the law of any other Member State, generally by a substantial amount.

www.emplaw.co.uk, November 2008

Line managers are the main culprits, says the Andrea Adams Trust.

More than 90 per cent of workers surveyed by the Andrea Adams Trust say they are being bullied.

A survey of 10,000 employees by the charity found that 92 per cent felt they were currently being bullied. Almost half (49 per cent) said their immediate manager was the bully.

Lyn Witheridge, founder and chief executive of the Andrea Adams Trust, said: “These reported cold, hard figures have come as a complete shock and are very disturbing.”

More than half (56 per cent) of respondents said workplace bullying was a “serious problem” in their workplace. And 47 per cent said that when they made a formal complaint about bullying procedures were not followed correctly.

“These figures indicate that employees are gaining the courage to speak out against one of the most destructive forces at work today,” Witheridge added.

TUC general secretary Brendan Barber added: “Our own survey shows that concerns about bullying at work have increased by 25 per cent since 2006. And as the economic downturn puts workers under greater strain, there is a danger that bullying could spread even further.

“We urge employers to look at their working culture and policies to ensure that whenever bullying rears its head at work, it is stamped out straight away.”

CIPD, 12 November, 2008

Until quite recently the maximum compensation which an employment tribunal had power to award was very low. It is still restricted in unfair dismissal cases (currently to £63,000). In breach of contract cases the limit is £25,000 and the absolute maximum statutory redundancy payment is currently £9,900. However in discrimination and, as noted above, whistleblowing cases, the sky is the limit – there is no statutory maximum on the amount an employment tribunal can award.

Here are three recent examples:

• £600,000 was recently awarded to a Muslim lawyer employed by the Crown Prosecution Service. In September 2001, shortly after the 9/11 attacks on the World Trade Centre in New York, she was at Bradford Magistrates’ Court. A security guard joked that she was a risk to security and she joked back that she was a friend of Osama Bin Laden and went on, more seriously, to describe her disgust at the 9/11 attacks and to criticise the USA. Her remarks were overheard by some Asians and by some white men who were in court for public order offences. Apparently this incited them to create some form of disturbance. News of this got back to the CPS which clearly overreacted. They suspended her, started disciplinary proceedings and moved her to another office although the ‘evidence’ on which they acted was no more than a hearsay and unparticularised account by unnamed complainants. Although clearly in the wrong, the CPS refused to apologise. If they had done so, the lady concerned says she would have dropped the matter. In the event she took them to an employment tribunal where she won her claim of unlawful racial discrimination. That decision was upheld by the Court of Appeal which sent the case back to a tribunal to assess compensation. The lady concerned has now been awarded £600,000 (Aziz v. Crown Prosecution Service [2007] ICR 153).
• £4.3m claimed and £2.7m awarded. A chartered accountant of Indian origin joined Abbey National in 2001 as a risk analyst.  He was dismissed by reason of redundancy in 2006. He took Abbey National to an employment tribunal and won claims of race discrimination, unfair dismissal and breach of contract (the last being in relation to non-payment of a bonus). At the subsequent remedies hearing he asked for compensation of no less than £4.3m, largely on the basis that he would never get such a well paid job again and would suffer 75% loss of earnings until he reached age 65 in 20 or so years time. The tribunal cut that claim down – to £2.8m. Not surprisingly Abbey appealed. It lost on the issue of liability but has won on the issue of remedy. The EAT ruled that the original tribunal had applied the wrong principles in assessing compensation and has remitted assessment of compensation back for reconsideration in the light of its guidance (Chagger v Abbey National PLC & Hopkins EAT, October 2008).
• Multi-million-pound compensation claimed. Two French Muslim sisters, twins in their early thirties, are reported to have made more than 200 separate allegations of discrimination against their ex-employer, the French Broker Tradition Securities and Futures. The ladies, Samira and Hanan Fariad, had worked for two years in the firm’s City of London office but resigned at the end of 2006 in protest after, they allege, Jewish clients were transferred from them to non-Muslim colleagues. The case opened at Central London Employment Tribunal at the end of October and is scheduled to go on for 55 days. A restricted reporting order, which is being contested by the Press, means that at present only few details are available.

www.emplaw.co.uk, November 2008

From 27 November, 2008 employers wishing to bring non-European Economic Area skilled and/or temporary workers to the United Kingdom will need to have what is called a sponsor’s license. Licensed sponsors will be able to issue ‘certificates of sponsorship’ to intending migrants. The migrant concerned can then use the certificate to apply for entry clearance.

This is all part of implementation of the new points based system for assessing the eligibility of non-EEA migrants to work in the UK. The general rule under the system is that non-EEA migrants require a sponsor unless they are applying under the highly skilled tier known as ‘tier 1’. Skilled workers generally come under what is known as ‘tier 2’ and temporary workers come under ‘tier 5’.

Migrants from the EEA are, of course, not affected. They have had freedom of movement within the EEA since 1st January, 1994.

In general the conditions for obtaining a sponsorship licence are that:

• the applicant must be a legitimate organisation working within the law in the United Kingdom;
• there are no reasons to believe that the applicant is a threat to immigration control;

and

• the applicant will meet its continuing sponsorship duties.

The details and the process of applying for and retaining a licence, including inspections and checks by the Home Office, are complicated – much more so than under the previous ‘work permit’ system.  It should be noted that applicants have to pay a fee (between £300 and £1,000) to the government.

www.emplaw.co.uk, November 2008

The much anticipated Employment Act 2008 (the Act) received Royal Assent on the 13 November.

It will repeal the unpopular statutory dispute resolution procedures which have caused so much uncertainty since they were introduced in 2004.

This means:

• A dismissal will no longer be automatically unfair where there is a procedural breach by the employer.
• Employees will no longer be prevented from bringing a claim in the employment tribunal without having first raised a grievance with their employer.
• The related provisions giving tribunals the power to increase or decrease awards by up to 50% and extending time limits for bringing claims in some circumstances will also be swept away.

It is expected that the relevant provisions of the Act implementing the repeal of the statutory procedures will come into force in April 2009.

Other changes introduced by the Act are:

• An employment tribunal will be able to increase or reduce awards by up to 25% (depending on which party is at fault) where it considers there has been an unreasonable failure to follow a relevant Code of Practice. For unfair dismissal claims this will be the ACAS Code of Practice on Disciplinary and Grievance Procedures, which has now been approved and is expected to come into force on 6 April, 2009.
• ACAS has a statutory duty to conciliate between the parties where proceedings have been issued, but currently only until the end of the relevant fixed time period. The Act extends ACAS’s duty to conciliate throughout the proceedings up until a judgement is delivered.
• Section 98A of the Employment Rights Act 1996 will be repealed so that the position on procedural breaches in unfair dismissal cases reverts to what it was before 2004, in line with the House of Lords decision in Polkey v A E Dayton [1988] AC 344. So although a dismissal can be unfair on procedural grounds alone, a tribunal will be able to reduce or eliminate the compensation payable to reflect the likelihood that the dismissal would have gone ahead anyway had a fair procedure been followed.
• Currently all tribunal cases are heard by an employment judge sitting alone or with a full panel. Under the Act, tribunals will be able to determine proceedings without a hearing in cases where all parties consent in writing, or where the respondent has presented no response.
• In unlawful deduction of wages or redundancy payment cases, tribunals’ powers will be extended so that they can award an additional amount to fully compensate the employee for any financial loss they have incurred as a result of not receiving the original payment from their employer. This would cover things such as bank charges or interest. This change will prevent employees from having to bring a separate claim in the County Court for such losses (as is currently the case).
• Changes will be made to the enforcement regime for the National Minimum Wage Act. Enforcement officers will be given new powers to require employers to pay a financial penalty of 50% of their total underpayment of the National Minimum Wage. The minimum penalty is £100 and the maximum £5,000. This penalty will be payable in addition to any arrears of wages that will also have to be paid to the affected workers and is payable to the Secretary of State, not the worker. For employers who comply with the notice within 14 days the penalty will be reduced by 50%.
• There are various amendments to the enforcement regime under the Employment Agencies Act 1973.
• The law in the UK currently prohibits trade unions from expelling one of their members because of membership of a political party. The union ASLEF had a policy of prohibiting members of the British National Party from belonging to its union. A tribunal found this policy to be unlawful. In Aslef v UK, the union complained to the European Court of Human Rights which found that UK law was contrary to the European Convention right of freedom of association. The Act will change the law to reflect this decision so that a union will be able to exclude individuals who belong or have belonged to a political party if membership of that political party is contrary to the rules or objectives of the trade union.

www.emplay.co.uk, 20 November, 2008