Month: October 2018

Senior Banker whose job was marginalised whilst on Maternity leave wins tribunal.

A senior banker at Commerzbank’s London markets has won a case that claimed sex discrimination, maternity discrimination and harassment at London Central Employment Tribunal.

The employee, Jagruti Rajput, who had joined Commerzbank’s compliance team in November 2012 has sued her employer for discrimination on a number of counts having been passed over for promotion and having her job marginalised whilst on maternity leave.

Ms Rajput had joined the compliance team at the German bank’s London office as senior compliance advisor in November 2012. In December 2013, a documented appraisal showed a largely positive report on her performance. She was promoted to deputy to the head of market compliance in May 2014. 

Seven months into the role, at her 2014 annual appraisal, a talent rating was completed, identifying the banker as a potential successor to her line manager, head of market compliance, within two years. Her development point was within exposure to project management only.

In June the following year, the role of head of market compliance was advertised. Ms. Rajput was interviewed along with a number of external candidates. It was decided by the interviewing panel that an external candidate may be a better fit for the role as the team in which Ms. Rajput worked had, by that time, become what was reported as ‘toxic.’ Despite concerns over team dynamics, Ms. Rajput was taken to second interview stage in October 2015, shortly before she announced her pregnancy in November 2015. One month later, the external candidate was offered the position of head of market compliance.

In preparation for maternity leave, a deployment plan was created with a member of the team due to cover Ms. Rajput’s duties. Ms. Rajput gave birth in March 2016. Whilst on maternity leave, the duties of the deputy to the head of market compliance role were not covered by the person expected to do so in the planning documents, but by a direct report of Ms. Rajput.

In May 2016, Ms Rajput contacted her employer to arrange attendance at a quarterly meeting. She was ‘strongly discouraged’ from attending the meeting. In June 2016 she began to discuss her return to work with a date planned for August 2016. When Ms. Rajput expected to receive a formal handover in August 2016, none took place and her direct report continued to work within the role she had been covering with the direct report no longer seeming to be as such in the organisational structure.

In September 2016, a talent rating was repeated, with the same result that Ms. Rajput would be a potential successor to the head of market compliance. However, the time frame had moved to two-three years, despite her return from maternity just a month before and the assessment of being ready in two years, two years prior to the latest talent rating. Ms. Rajput brought forward to her line manager a feeling of her position having been ‘eroded’ in November 2016 and in February 2017 she raised a feeling of being ‘marginalised’ to the head of market compliance.

The tribunal judged that much of Ms. Rajput’s role was covered by her direct report team member whilst she was on maternity leave and that the German bank had ‘no real intention’ of the direct report giving duties back to Ms. Rajput upon her return to work post maternity leave. The tribunal deemed that Ms. Rajput had not been fairly considered for promotion in 2015, deeming her and another female employee’s attitudes as ‘divisive’ although if the situation had involved two male employees, the same assessment of their attitudes would not have been given.

Regarding the discouragement from attending a meeting as a keeping in touch day, the tribunal found the actions of the bank to be maternity discrimination based upon the assumptions of a male employee as to what a woman should and should not be doing whilst on maternity leave.

A Commerzbank spokesman stated that they would seek to appeal the court hearing.

How can Lawson West Solicitors help?

Lawson West are able to advise both employers and employees on points regarding gender related assumptions, including those around appraisal, promotion and recruitment. It is vital in all situations regarding the management of people to evidence non-discriminatory decisions and the criteria upon which these decisions are made. Written records of decisions, criteria, assessment and review processes must be held as written documentation- even where a decision is an internal one. For advice and support, or for further information for managers or employees, please contact Vaishalli Thakerar, Head of Employment law on 0116 212 1059 or email vthackerar@lawson-west.co.uk for a no-obligation consultation.

We should all be aware what a letter of resignation is but are you aware of whether it is required or not? A letter of resignation is when an employee decides to terminate their contract of employment with their employer. There are no legal requirements setting out what a letter of resignation must or must not include, or if one is required to end employment but it is strongly advised that it is clear and unambiguous.

Recent Employment Appeal Tribunal regarding a misinterpreted Notice of Resignation

A recent case brought to the Employment Appeal Tribunal is an important reminder to employers and employees alike about the need for clarity and unambiguity in a notice of resignation.

The case in point is that of East Kent Hospitals University NHS Foundation Trust v Levy. Ms Levy was working in the medical records department of the hospital when she received a conditional offer to move internally to the employer’s radiology department. She wrote to her manager of the medical records department stating ‘one month’s notice’ and her manager responded by accepting what he called her ‘notice of resignation’.

Unfortunately for Ms Levy her conditional offer to move to the radiology department was withdrawn so she tried to retract her ‘notice of resignation’ to remain in her role within the medical records department. Her manager refused, and at that point proceeded to complete the employer’s termination paperwork and as a result Ms Levy’s employment came to an end.

In response to this Ms levy brought a claim for unfair dismissal on the basis that her notice was not to terminate her employment with the employer, but rather to provide notice of an internal transfer.

Resignation communications can be notoriously difficult to know what to say or from an employer’s perspective, what it is that they should contain. This type of case makes it ever more prevalent to both employers and employees that there are learnings to be taken from within this case, mainly;

• In terms of the employee, Ms Levy’s letter giving notice was ambiguous – it could have referred to her intention to move to the radiology department, or it could have referred to an intention to terminate her employment.

 

• And the employer; the manager had not taken any steps upon receiving Ms Levy’s notice to complete the termination paperwork or calculate her accrued annual leave – that only happened once the offer of a role in the radiology department had been withdrawn.

Key considerations for the recipient of a Notice of Resignation

From an employer’s perspective, if an ambiguous notice of resignation is received, it is key to consider the circumstances in which it was received. Could the words used be interpreted in a different way? If there is any doubt it is wise to ask the individual to clarify their intentions. Of course, the ideal situation would be to receive a clear written indication that leaves the recipient in no doubt about the employee’s intention to leave.

This leads to the question as to whether or not resignations have to be written or oral.  It is possible that resignations can be given orally however, based upon the case above, if this had of been the case it would have been very hard to have determined the true intentions leaving a great deal of the circumstances open to interpretation which can be tremendously difficult if litigation is required for both. 

Heat of the moment resignations are something that each the employee and employer should be cautious of.  Quite often a person will demonstrate their frustration at a particular situation at that moment, which is not in fact reflective of their true intentions, merely a protest march on what they are feeling at the specific time.  This can mean that shortly thereafter, the employee can ‘change’ their mind.  In the absence of any written resignation where the true intentions are then difficult to ascertain, this can lead to a fractious situation with neither party really able to know what to do next. 

Our Carrie-Ann Randall states “Terminating contracts can be a cause of much contention.  It is essential that an employer errs on the side of caution to remain lawful.  Thereafter, it is advisable that employers engage with the employee to make certain of their intentions.   Employees looking to resign should provide clear instructions as to the actual reason for the resignation.  In circumstances where the employee is terminating their employment as they feel they have no alternative to do so. It is advantageous that the full details as to why is contained within their resignation.  It is advisable to seek legal advice if you have any concerns relating to an employee’s resignation to avoid falling foul of such situation”

How can Lawson West Solicitors help?

Lawson West Solicitors have a very experienced Employment department and issues relating to resignations and termination of contracts are all too familiar.

With offices in Leicester, Wigston and Market Harborough our employment solicitors and lawyers can discuss your employment claim at location that suits you. We are a national provider of expert employment law advice and welcome a free discussion with you regarding your circumstances and potential claim.

If you believe you have a situation where you require free legal advice, please contact us on telephone 0116 212 1000 or 01858 445 480, alternatively fill in our Contact Us form and we will get in touch as soon as possible.

 

The loss of a child is one of the remaining taboos between friends, family and certainly in the workplace. Early miscarriage often passes completely unbeknown to all but the closest of friends. Later miscarriage, although physically noticeable, will go unspoken. However, the pain that the parents suffer during this time is rarely acknowledged by those around them. In major part, this is because we simply don’t know what to say, and with so many situations like this, we chose to say nothing as opposed to speaking openly about the hurt. The workplace usually takes a silent vow to pretend they didn’t know rather than engage in verbal support- after all, is it our place to comment?

Arguably, yes. Rare acknowledgement let alone open communication continues to place the loss of a pregnancy or the still birth of a child in the conversations we as humans consciously decide not to have. Pregnancy and Infant Loss Awareness month and the charities that support sufferers implore us to open discourse and to support discussion around the pain so many have suffered as opposed to keeping the loss a complete secret. This month, many people have posted on their social media platforms poignant statements about infant loss. To many acquaintances, it is unknown if these statements are reflecting immediate personal loss or are in support of removing the taboo. But do we ask? Perhaps we click the ‘love’ or ‘sad’ emoji as our comment, but still, so many prefer not to ask the question, a reflection of our cultural background.

The impact of the tragic loss of a baby is significant- on both parents and not just the mother. The magnitude of the emotions associated with this most desperate situation is incomprehensible and although often silenced, the support offered by an employer during this time will be crucial to the physical and mental healing as well as the financial situation of the parents. Employee rights are bottom of the list of concerns for the individual but need to be red-flagged for the employer who can engage the practical measures, offer sensitivity and ensure their obligations are met- and surpassed where possible.

What is the law?

If a baby is born and survives only for an instant, whatever the length of the pregnancy, the birth is treated, in law, as a live birth and the relevant maternity rules will apply in relation to pay and leave.

Stillbirth

A baby lost after 24 weeks of pregnancy is termed ‘stillbirth.’ The certificate of stillbirth being issued triggers the parents’ entitlement to statutory maternity pay or maternity allowance- as long as the legal qualifying criteria are met. These criteria include: a minimum earning limit and the length of continuous employment prior to the qualifying week. These criteria apply to all pregnancies.

If statutory maternity leave has not yet begun when the baby is stillborn, or is born alive and dies, at any point after the 24^th week of pregnancy, all rights are triggered, and maternity leave commences the day after the birth or loss.

The Father

Despite the loss of the baby, paternity leave- or the right to paternity leave is triggered, as long as the qualifying criteria have been achieved. Support during this sensitive time may also be offered in terms of exercising the employees right to time off to care for a dependant to provide additional time for healing and for the father to support the mother.

Miscarriage

A baby lost before 24 weeks of pregnancy is termed a miscarriage and does not trigger any entitlement to statutory maternity, paternity or shared parental leave. Therefore, technically, the employee is due back at work with immediate effect.

It would be expected, however, that the employee would be signed off work sick for a period of time to physically heal. Employers must apply normal sickness absence procedures during this time. In addition, the employer may consider allowing compassionate or unpaid leave and it is crucial that thought, empathy and understanding is provided as a given in consideration of the emotional and mental wellbeing of the employees during this time and when returning to work. Reasonable adjustments to facilitate their return should also be engaged.

The Father

Fathers are often forgotten in the situation of a miscarriage. Although paternity rights are lost in the case of a miscarriage, employers are urged to consider the emotional impact on the father. Firstly, in terms of the loss of his unborn child and also of the additional support that the father will be expected and will be wanting to provide to the mother. An employer must ensure that the father is supported as far as possible and maximise the period of absence from work. Fathers may well be entitled to statutory right to time off for a dependant- in this case the mother or other children.

Shared Parental Leave

In the sad situation of a baby being born and then dying, if shared parental leave had already been agreed following the employees giving notice that they wished to share the leave, the planned leave is still entitled. The employees are also allowed to cancel this planned leave. Legally, 8 weeks’ notice should be given, although it is expected that leniency is exercised in this situation.

If the intention was to share the leave, but this had not been given as notice before the baby dies, the right is lost.

In the situation of a stillbirth- where the baby is born dead after 24 weeks of pregnancy, regulations are unclear, but it is unlikely that shared parental leave can be taken. Instead, statutory rights to maternity and paternity leave are exercised.

What remains vital in all situations of infant loss, is that employers handle the situation sensitively and provide whatever support they are able to give. This can include offering as much financial support and time away from the business as the employee needs and the business is able to offer. Causing the employee no further stress must be at the forefront of all decisions made around this sad time.

As an employer or an employee facing this situation, for support and guidance, please contact us by telephone on 0116 212 1000, alternatively fill in our online Contact Us form and we will get in touch with you as soon as possible.