Motor Industry Employment Law

Back in the day, when Benny Hill and The Sweeney graced our TVs, before HR departments and the smoking ban, the motor trade employment philosophy was founded on ‘FIFO’- “Fit in or F- off” and the manager’s office was adorned with topless calendars.

However, believe it or not, times have changed and adopting an outdated approach to employment law will land you serious hot water and none more so than in the ever-evolving areas of grievance and disciplinary procedures.

At its centre is the all too common perception of the primacy of “disciplinary” over “grievances;” where alleged transgressions by an employee against the company are handled with greater efficiency and effectiveness, if not taken more seriously, than the reverse situation relating to the company against the employee.

Grievance

In the recent decision in Southern v Britannia Hotels Ltd, the respondent hotel demonstrated an “abundance of policies” which were intended to prevent harassment and/or discrimination in the workplace, including signs in the staff room and other staff areas.

Nevertheless, the claimant, who worked on a “zero-hours contract”, was subjected to discrimination by a hotel manager, resulting in a grievance being raised. The resultant investigation was criticised by the Tribunal as “simply going through the motions, without the slightest interest in actually trying to get to grips with what may or may not have happened.”

Close to a year later, the so-called investigations were still ongoing, as was the discrimination and the claimant’s resultant absences due to stress and anxiety, eventually costing the Hotel £19,500 in compensation.

One Man’s Banter is Another Man’s Bullying

This is seemingly contrasted in Bickerstaff v Butcher, where Mr Bickerstaff was subjected to name-calling, bad language and so-called “banter” by Butcher and others, resulting in a grievance being raised.

The ensuing grievance process was upheld and the investigation found against Mr Butcher and he was dismissed.

However, while Mr Bickerstaff settled his claim with his employer, he also succeeded in tribunal against Mr Butcher for harassment relating to his disability, thereby affirming a previous decision that obesity can be classified as a disability.

Consequently, employees in similar circumstances are likely to be protected by the law against direct and indirect discrimination and harassment; meaning employers who tolerate such “banter” in the workplace may find themselves vicariously liable if they have not taken reasonable steps to prevent it.

Get Out of Jail Free Card?

Employers in the FIFO culture will no doubt scoff at “political correctness gone mad” labelling anyone with a grievance as “playing the discrimination card” or the “harassment card,” as if somehow intended to undermine their authority or as an excuse for underperformance or absences.

This is an attitude which in itself can lead to unconscious bias in decision making and the reasonableness of disciplinary and grievance investigations, where employers canvass opinion from other staff members as to the veracity of claims made.

On the other hand, and for the avoidance of doubt, a Tribunal won’t be hoodwinked into interpreting “an overreaction to trivial and fleeting comments” as a campaign of harassment. (Henderson v GMB, EAT).

Attitude

While there’s little doubt that employment law is complex and ever-evolving, the philosophy is simple, at least in principle – it must ensure that employees are treated equally and not disadvantaged or discriminated against by employers stuck in the 1970s.

In that respect it’s an exercise in “compare and contrast” between processes, wages and treatment, if they’re not equal, they’re probably not right.

If that were not enough, it’s always worth remembering that tribunals are almost universally “public,” if they weren’t we couldn’t write about them, so if in doubt, ask yourself if you’d be happy with your actions, behaviour and reputation being scrutinised by your customers, staff and competitors.

First published in the July 2015 IMI Magazine

About the author: Philip Harmer is a partner at Stormcatcher Motor Industry Lawyers with 20 years of automotive experience. He is a lawyer, author and speaker on all aspects of employment law, consumer law and policy, and motor industry law.