Technical update


August 2017

No burden to shift

Issue

When the Equality Act came into force in 2010 it replaced the various statutes and regulations that had previously provided employees protection from workplace discrimination. The single Act provided uniformity in respect of all types of discrimination. However the way in which discrimination claims were approached by the Tribunal did not change as the claimant still had to show facts that could amount to discrimination before the ‘burden’ shifted to the employer. Surprisingly several years on and the case of Efobi v Royal Mail Group Ltd has questioned whether that was appropriate.

Facts

Mr Efobi had made over 30 applications for IT jobs with his employer but had been rejected each time. He claimed that this was on the grounds of his race and brought claims of discrimination. The employer defended the claims on the basis that his CV simply did not set out the required skills for the various jobs. The Tribunal agreed with the employer and dismissed the proceedings. It held that Mr Efobi had failed to prove facts from which it could conclude that there was discrimination so that the burden of proof did not even shift to the employer. Mr Efobi appealed.

Decision

The EAT held that the Tribunal had made the mistake of approaching the case on the basis that Mr Efobi had the initial burden of proving facts which could amount to discrimination. It had assumed that the burden was on him to show the difference in treatment and the race and national origins of the successful candidates. It should have taken into account that the employer had failed to provide information as to their race and national origins. All the evidence should have been considered by the Tribunal and a decision reached at the end as to whether discrimination had taken place.

Action

The key part of the judgment was the conclusion that there was no burden of proof on the claimant. The practice of referring to the shift in the burden once the claimant had established certain facts was a throwback to the wording in the old legislation. The Equality Act provisions did not require the claimant to establish facts to establish the claim as a starting point. The burden of proof was neutral. In practice this is unlikely to make a significant difference but it does clarify that an employee has no greater burden than the employer to produce evidence at a discrimination hearing.

 


 

Holiday overtime

Issue

Case law has established that when calculating holiday pay regular non-guaranteed overtime should be included at least for the first four weeks of holiday entitlement. The term ‘non-guaranteed’ overtime has been used to describe work that the employee is obliged to do if required, but the employer is not obliged to provide. However until the recent decision in the case of Dudley Metropolitan Borough Council v Willetts and others there has been uncertainty regarding whether that calculation needs to also include voluntary overtime which there is no obligation on the employee to do.

Facts

A group of 56 Council employees claimed that they had not received the correct rate of holiday pay. They each had set contractual hours representing their normal working hours but in addition they would put their names forward for rotas that would give them the opportunity to do on call work and extra hours. They brought claims that four week of their holiday pay should be calculated to reflect the voluntary overtime and out-of-hours standby payments.

Decision

The Employment Appeal Tribunal rejected the argument that only work which could be required under the contract of employment should be taken into account. The principle to be applied was that overtime “normally” undertaken even if voluntary could not be excluded from the calculation of holiday pay for the four week holiday period. The overarching principle was that holiday pay should correspond to “normal remuneration” so as not to discourage workers from taking leave.

Action

This is the first appellate decision to make clear that voluntary overtime should be treated the same way as non-guaranteed overtime. However there is still the question of how regular the overtime has to be before it becomes ‘normal’. In this case it was sufficiently regular to be “normal” even if it was only paid one week per month or one week in five. However if the evidence was that overtime was ‘very rare’ then it would not need be taken into account. Assessments of how regular workers carry out voluntary overtime should be conducted when assessing holiday pay calculations going forward.

 


 

Individuals liable for dismissal

Issue

A worker has the right not to be subjected to any detriment on the ground that they have made a protected disclosure or ‘blown the whistle’. Where such a claim is made it is not just the employer that is at risk, as individual employees who carry out the acts may also be held jointly liable. The case of International Petroleum Ltd and others v Osipov and others considered whether the subsequent dismissal of the claimant could limit the compensation due from the individuals.

Facts

Mr Osipov had made disclosures in relation to the oil and gas exploration activities being carried out by the employer. He considered that the company’s actions were in breach of Nigerien law. As a result of this complaint two directors Mr Timis and Mr Sage instructed Mr Osipov not to visit Niger to oversee the project and later dismissed him. Mr Osipov claimed that he had been subjected to detriments by the directors and unfairly dismissed by the company for having made protected disclosures.

Decision

The directors argued that they should not be held personally liable as non-executive directors for Mr Osipov’s post-dismissal losses as those were due to the dismissal which could only be the responsibility of the employer.  It was accepted individuals could only be liable under the detriment provisions and not the dismissal provisions. However it held there was nothing to prevent the individuals from being liable as the dismissal was also an act of detriment. The company and the individual directors were held jointly and severally liable for the £1,745,000 compensation awarded.

Action

The claimant in a claim of unfair dismissal has to be able to establish that the sole or principal reason for dismissal was the protected disclosure. In contrast, as against another worker in a claim for detriment the claimant would only have to establish that the protected disclosure materially influenced the act i.e. was more than a trivial influence. This technical difference in the test for liability will need to be taken into account as it may encourage more claims being directed against individuals if it is easier to establish the claim.

 


 

Higher Tribunal awards

Issue

When calculating the compensatory part of an unfair dismissal award and in relation to certain other awards, the Employment Tribunal will need to calculate what constitutes a ‘week’s pay’. Traditionally,  it has been regarded as the basic pay that is due to the employee under the contract of employment. However in University of Sunderland v Drossou this established view has surprisingly been cast aside.

Facts

Ms Drossou had been dismissed following a breakdown in the relationship with her line manager.  Her unfair dismissal claim was successful as there had been a number of procedural failings and it had been outside the band of reasonable responses to dismiss rather than redeploy her. The compensation was calculated to take into account the cap on the compensatory award of 52 week’s pay. However the week’s pay was held to also include the pension contributions that the employer made. The employer appealed the inclusion of pension contributions in the week’s pay.

Decision

The Employment Appeal Tribunal held that the Tribunal had been entitled to find that the week’s pay cap could include pension contributions that were due from the employer. It agreed with the observations of the Employment Judge that the relevant statutory provisions in the Employment Rights Act 1996 referred to the amount payable by the employer under the contract of employment and not to the amount payable to the employee.

Action

This case appears to change established practice and effectively increase the amount that can be awarded in an unfair dismissal case. The impact on the calculation of a week’s pay will be of significance for other remedies too, particularly where the value of a week’s pay is not capped. These include not only the cap on the unfair dismissal compensatory award but also compensation awarded for a failure to carry out collective consultation under TUPE, or where making 20 or more employees redundant. The change in approach will need to be taken into account for budgeting purposes.

 


 

No automatic suspension

Issue

An employee may be suspended during a disciplinary investigation. However that should not be a knee jerk reaction to the fact that allegations of misconduct have been made against the employee. The recent case of Agoreyo v London Borough of Lambeth highlights the risks of legal action that the employer may face even if the employee has little service.

Facts

Within weeks of starting a new post teaching young children Ms Agoreyo encountered difficulties with two children who exhibited extremely challenging behaviour. Allegations were made against her that she had been guilty of using unreasonable force when she had been seen dragging or carrying the children from the classroom. Ms Agoreyo was immediately suspended and resigned in response. She subsequently brought a claim for breach of contract.

Decision

The High Court considered there was no evidence of alternatives to suspension being considered. There had been no attempt to ascertain Ms Agoreyo’s version of events prior to the suspension decision and no explanation had been given as to why an investigation could not be conducted fairly without her suspension. It was held that suspension in these circumstances was sufficient to breach the implied term of trust and confidence.

Action

It might be tempting to think that in circumstances like these, the employer was bound to suspend the employee given the nature of the allegations. However the decision warns against applying any such rule in a disciplinary process. It is a useful reminder that regardless of how serious the disciplinary allegations, suspension should never be regarded as the “default position”. Only after proper consideration has been given to any alternatives will the decision to suspend be appropriate.

 


 

July 2017

The Rule of Law

Issue

Did the introduction of Employment Tribunal fees unduly restrict access to justice? Did the fee system indirectly discriminate against those claimants who had protected characteristics and who wished to pursue discrimination claims? These were two key issues that the Supreme Court had to decide on in the case of R (on the application of UNISON) v Lord Chancellor.  

Facts

In July 2013 the Government introduced Employment Tribunal fees for the first time. The fees were set at two levels. The most straightforward of claims would require payment of an issue fee of £160 and a hearing fee of £230. Unfair dismissal, discrimination and more complex claims required higher fees of £250 to issue and £950 for the hearing. The number of claims plummeted by as much as 70 per cent and Unison challenged the lawfulness of the Fees Order by way of Judicial Review.

Decision

The Supreme Court declared the Fees Order was unlawful and that it must be quashed. Whilst it was accepted that the Government had legitimate aims when introducing the fees it had not shown that they were proportionate given the ‘dramatic and persistent fall’ in the number of claims. The court also found that the Fees Order was indirectly discriminatory in that the higher fees placed those workers who were more likely to bring a claim of discrimination at a disadvantage.

Action

The effect of this decision is huge. All fees paid since 29 July 2013 are to be reimbursed by the Government, and fees are no longer payable for future claims. Given the likely increase in claims it will obviously be important that employers take steps to ensure that policies and procedures are being followed in order to minimise the risk of claims. On a more positive note, whilst details of how fees will be repaid have yet to be published, it is possible that employers who have already reimbursed a claimant may have a right to recover the monies.

 


 

Unfavourable treatment

Issue

In the case of Williams v The Trustees of Swansea University Pension & Assurance Scheme and Swansea University, Mr Williams had brought a claim alleging unfavourable treatment because of something arising in consequence of his disability. The issue for the Court of Appeal was whether he could establish unfavourable treatment in relation to a benefit that the employer provided if he showed the benefit could have been more favourable.

Facts

Due to on-going health problems, Mr Williams had to make a request to reduce his hours. The employer agreed and he worked only half his original hours over the next two years. At that point Mr Williams applied for ill-health retirement even though he was still aged only 38. His application was accepted and he received an enhanced pension which was calculated as if he had worked until his normal retirement age. However he complained as it had been calculated on his reduced hours.

Decision

It was held that there was no unfavourable treatment. Only disabled employees retiring early through ill-health could receive an immediate enhanced pension. This was favourable, not unfavourable, treatment of disabled people. The fact that other, differently disabled people might be more favourably treated still – by having a pension calculated on full-time salary if they had stopped work after a sudden illness or accident – was not sufficient to show the treatment was unfavourable.

Action

Employers can take some reassurance from this decision, which adopts a common-sense approach to the meaning of the word ‘unfavourable’. It is particularly helpful because a reduction in working hours, with a consequent reduction in salary, is a common reasonable adjustment. If the claim had succeeded, it may have led to practical difficulties for an employer that wished to comply with its duty to make reasonable adjustments but did not wish to continue to pay a full-time salary where the hours had so drastically reduced.

 


 

Higher discrimination awards

Issue

The level of injury to feelings compensation in a discrimination claim is subject to case law guidance, rather than statute. The ‘Vento’ bands suggested that there should be three levels of compensation, which have increased with inflation overtime. However, the issue in the recent case of Pereira de Souza v Vinci Construction UK Ltd was whether the Tribunal should also apply a further 10 per cent uplift in the same way that civil courts had been instructed to do, following changes in cost provisions.

Facts

In 2013, the Court of Appeal had directed that the level of general damages should be increased by 10% in the civil courts, to reflect the fact that claimants could no longer recover success fees and after the event insurance premiums. Ms De Souza won her disability discrimination claim but argued that both the £9,000 awarded for injury to feelings and the £3,000 for psychiatric injury arising out of the discrimination should be increased in line with this principle.

Decision

It was held that the levels of injury to feelings compensation should be increased by 10%. The Equality Act 2010 provided that the amount of compensation which the Tribunal could award in respect of discrimination “corresponds to the amount which could be awarded by a county court“. This meant that the claimant in the Tribunal should receive the same as a claimant in the civil courts. The fact that the costs provisions that had triggered these changes did not apply in the Employment Tribunal was not sufficient reason to construe the statutory provision any differently.

Action

This decision highlights the increasing levels of compensation that may be awarded in a discrimination claim. Following the judgment the President of the Employment Tribunal has begun consultation on formally updating guidance on the levels of injury to feelings compensation. The proposed new bands range from £1,000 at the bottom of the lowest band to £42,000 at the top of the highest band. It is also proposed that in future the new bands will be updated every year in line with inflation.

 


 

Reasonable belief of public interest

Issue

The Public Interest Disclosure Act 1998 provides special protection for workers who report malpractices by their employer. However, since 25 June 2013, a disclosure will only qualify for this protection if the worker reasonably believes that it is “in the public interest”. In the case of Chesterton Global Ltd (2) Verman v Nurmohamed the issue was whether the public interest test meant that the issue had to impact others outside of the workplace, or whether it was sufficient that someone else other than just the individual was affected.

Facts

Mr Nurmohamed had on several occasions made complaints that the company’s accounts were being misrepresented in order to limit the amount of profit-based commission payments that were due to him and around 100 other senior managers. When Mr Nurmohamed was subsequently dismissed, he claimed that it was because he had made a public interest disclosure. The employer disputed that this was the reason but in any event claimed that his complaints were not protected as they had not been made in the public interest.

Decision

It was held that the disclosure was in the public interest. There was no absolute rule about the numbers that had to be affected before a disclosure was protected. The larger the number the more likely it would be that the employee had a reasonable belief it was in the public interest. However, it was also relevant in this case that deliberate wrongdoing had been alleged by an employer, which was a very substantial and prominent estate agent in the London property market.

Action

A worker in the widest sense is protected against detriment or dismissal for making a protected disclosure. There is no minimum period of service and no cap on the compensation that can be awarded. Recognising what may amount to a disclosure will therefore be important in order to reduce the risk of claims. In this regard the judgment highlights four factors that may be relevant, they are the numbers affected; the nature of the interests and the extent to which they are affected; whether the wrongdoing was deliberate rather than inadvertent and the size and prominence of the employer.

 


Equal same sex pension entitlements

Issue

In the case of Walker v Innospec Ltd and others, the Supreme Court had to rule on whether same sex spouses were entitled to the same benefits as provided to opposite sex spouses. The added complication was that the relevant period when contributions to the pension were being made, pre-dated the introduction of legislation regarding sexual orientation discrimination. Could rights accrue even before the law had changed?

Facts

The benefits payable from Mr Walker’s former employer’s pension scheme were limited so that only pensionable service after 5 April 2005 would count for the purposes of calculating any survivor’s pension for a same sex spouse or civil partner. This meant that if he predeceased him, his spouse would receive a pension of around £1,000 per annum. In contrast a spouse of the opposite sex would be able to include all pensionable service and receive pension of £47,000 per annum.

Decision

The Supreme Court held that a same sex spouse should have the same entitlement as a spouse of the opposite sex. It also rejected the argument that pensionable service and contributions prior to the discrimination legislation coming into effect could be ignored. It considered that the entitlement to pension benefits was not ‘permanently fixed’ as at the time it accrued, but rather the less favourable treatment occurred when the pension became due to be paid.

Action

This will impact employers that made only limited changes to pension schemes on the introduction of the legislation allowing civil partnerships and same sex marriages. Employers will now need to review their pension arrangements to ensure that the scheme provides same sex spouses with equal benefits to those given to opposite sex spouses.

 


June 2017

Self-employed holiday pay windfall

Issue

Under the EU Working Time Directive workers have a right to four weeks paid annual leave. In the UK this is implemented by the Working Time Regulations 1998 (‘WTR’). It sounds simple but ever since the right was introduced it has generated claims in the courts and Employment Tribunal. Potentially the latest challenge in Sash Window Workshop Ltd v King could be one of the more costly for business as it concerns the situation where a self-employed contractor is found to be a worker and entitled to holiday pay rights under the WTR.

Facts

Mr King worked on a commission-only basis as a self-employed salesman for Sash Windows from June 1999 until 6 October 2012. Unsurprisingly being self-employed Mr King was never paid for holidays. However when he retired Mr King brought claims in respect of accrued but untaken holiday together with claims for pay for holidays he had taken each year throughout his 13-year engagement.  The claim proceeded through the national courts until it was referred to the European Court of Justice.

Decision

The Advocate General’s opinion was that employers were under an obligation to provide an ‘adequate facility’ for workers to exercise their right to paid annual leave. If it had not the worker would be entitled to recover payment for the accrued leave right from the start of their engagement. Whilst in cases where the employee had been too sick to take their leave the accrual was limited to 18 months no such limitation would be appropriate where the employer had not allowed for paid leave.

Comment

The case will now be considered by the full European Court of Justice which is not bound to follow the Advocate General’s opinion but in most cases does. The potential consequences for businesses that rely on self-employed contractors are considerable. Given that their terms and conditions will not contain provision regarding holiday pay it may result in compensation being backdated to the date that the contractor was first engaged, overriding the two year limitation that would normally apply to holiday pay claims in the UK.

 


 

Culpable conduct

Issue

Dismissal on grounds of ‘conduct’ is one of the five potentially fair grounds for dismissal. It will generally be relevant where the employee is guilty of misconduct and has been subject to disciplinary proceedings. However could conduct be a fair reason if an employee made an innocent mistake? The recent case of JP Morgan Securities v Ktorza considered the question if it was necessary to find that the employee was culpable before the dismissal could be fair.

Facts

Mr Ktorza was employed on the sales desk. Following an external inquiry into a sales practice of short filling buyer’s orders, instructions were given that this should stop with immediate effect. This was confirmed at training sessions which all sellers attended. However two months later Mr Ktorza attempted to short fill an order. He was suspended and following a disciplinary procedure dismissed. Throughout the process he had denied knowing that the sales practice had been changed.

Decision

The initial decision of the Employment Judge was that the dismissal was unfair on the grounds that Mr Ktorza was not guilty of ‘culpable’ misconduct. His evidence and that of his manager was that he had not known about the change in policy and had acted innocently. However on appeal it was held that the unfair dismissal decision could not stand as there was no rule that conduct had to be shown to be culpable or negligent in order to establish a fair ground for dismissal. The appropriate test was whether the decision to dismiss was in the band of reasonable responses.

Comment

The decision highlighted that in assessing whether the dismissal was fair there was no further requirement other than establishing dismissal was within the band of reasonable responses. A rule that it had to be shown that the employee had been guilty of culpable conduct would have introduced a requirement for a form of criminal level of liability that was not appropriate in employment cases. The case was remitted to apply the correct approach.


 

Share sales and transfers

Issue

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) provides protection to employees in the event that there is a sale or transfer of the undertaking in which they work. The application of TUPE is limited though to situations where the identity of the employer changes. It is a limitation that has meant share sales will usually not trigger TUPE. However the recent case of ICAP Management Services Ltd v Berry and BGC Services (Holdings) LLP highlights that a transfer by way of a share sale will not exclude the application of TUPE in every transaction.

Facts

Mr Berry, a Divisional Chief Executive Officer, had given 12 months’ notice that he was resigning. He was placed on garden leave shortly afterwards when it was revealed that he intended to join a competitor on the expiry of his notice. Half way through his notice period a share sale of the part of the group in which he was employed led to him arguing that there had been a TUPE transfer. He purported to exercise his right to object to the transfer and then claimed he was free to join the competing company as his employment had come to an end automatically by operation of law.

Decision

Following an application for an injunction to prevent Mr Berry from joining the competitor the High Court had to decide whether TUPE applied in this situation. It considered the crucial question was not whether there had been a share sale but whether the purchaser had become responsible for carrying on the employer’s day to day obligations. On the facts it decided it had not. Whilst there had been evidence of cost savings measures there was nothing to show an intention to take over the running of the business. Therefore TUPE did not apply and the injunction was granted.

Comment

Whilst it was decided that on the facts of this case TUPE did not apply the outcome could have been different if it could have been shown that the day to day management arrangements had been taken over. As it was the top level, changes in relation to governance and management structures was not sufficient. It is a useful decision that shows where a new owner has stepped into the shoes of the seller as the employer – it may be a TUPE transfer whether or not the transfer was implemented by way of a share sale.


Appeal reasons and the disciplinary procedures

Issue

When dismissing an employee it will clearly be important for the employer to identify the reason. Failing to do so is likely to lead to the conclusion that the dismissal was substantively and procedurally unfair. The issue in the recent case of Elmore v Darland High School (2) Wrexham Council was whether it could also the make dismissal unfair if the appeal panel did not give reasons for its decision to support the original decision to dismiss.

Facts

Concerns had been raised about Mrs Elmore’s performance as a teacher as her class had performed particularly poorly in the examinations. She was subsequently dismissed following a performance management process, which concluded that she had failed to meet the teaching standards required in the school. Mrs Elmore appealed on the grounds that her appraisals had rated her performance as ‘adequate’. When her appeal was dismissed she claimed unfair dismissal relying on – amongst other things – the fact that the appeal panel had not given her reasons for its decision.

Decision

It was held that this did not make the dismissal unfair. Due to the lack of evidential basis for suspecting that the appeal panel had irrelevant or irrational considerations in mind, or having approached the appeal hearing in an improper way or on an improper basis, it was permissible to draw the inference that the appeal was dismissed on the same grounds – and for the same reasons – as those identified by the deciding officer at the capability hearing, in reaching the conclusion that she should have been dismissed.  

Comment

There had been no appeal panel member at the Tribunal hearing to clarify the reasoning but equally there was no legal requirement that in every case where reasons for dismissing an appeal were not given that an appeal officer had to give evidence. However, the specific circumstances would have to be taken into account as where new evidence or new arguments had been advanced at the appeal stage a failure to provide a reasoned appeal outcome decision together with a failure to call any evidence from an appeal panel witness could have led to a finding of unfair dismissal.


 

Travelling to work for free

Issue

Following the decision of the European Court of Justice in Tyco*, that time spent travelling to work was ‘working time’ for mobile home based workers, many employers have reviewed their work arrangements to ensure that working time limits are not breached. However the issue in the recent case of Thera East v Valentine was whether pay could be awarded for this working time even if the contract of employment excluded it.

Facts

Mr Valentine was a Support Worker assisting disabled persons in the community.  His employment contract provided that he would be paid for 2033.57 hours per year inclusive of his annual leave entitlement.  His actual working hours were 1815.07 per year.  Any hours worked in excess of this would generally be taken as time off in lieu. Mr Valentine claimed his travelling time should be counted for these purposes despite his employment contract stating that paid hours did not include time taken to travel from home to the first place of work and from the last place of work back home.

Decision

It was held that applying Tyco the time he spent travelling to the first appointment and home from the last appointment had to be regarded as working time for the purposes of the Working Time Regulations. However it did not follow that there was an automatic right to be paid for this time. The Tribunal could not make a declaration that there had been an unlawful deduction from wages. Any claim for payment would depend on the terms of the contract of employment. 

Comment

The decision highlights that the Tyco decision impacts only working time rights and restrictions. It needs to be taken into account when assessing whether the worker has exceeded the maximum total weekly hours, or has had the required minimum breaks. It does not provide a statutory right to pay. When assessing if the contract did make a reference simply to hours of work may have left it possible to claim wages but here the contract terms were clear that there was no entitlement.

*Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL & Anr [2015] ICR 1159.


May 2017

Online tests may discriminate

Issue

The Equality Act 2010 provides protection for disabled job applicants in that the arrangements for recruitment should not place them at a disadvantage by reason of their disability. If they are and the employer cannot justify the arrangements it will amount to indirect disability discrimination and the duty to make reasonable adjustments will be triggered. In the recent case of Government Legal Service v Brookes the requirement in a recruitment process for candidates to complete multiple choice questions online highlighted the risks for employers.

Facts

Ms Brooks, who had Asperger syndrome, applied for a trainee solicitor post but failed at the first stage of the recruitment process which required she complete an online ‘situational judgement test’. This involved multiple choice questions as a means of testing the candidate’s ability to make effective decisions. Ms Brooks’s request to be permitted to submit answers in a short narrative form because of her condition had been refused. Ms Brooks claimed that the recruitment process discriminated against her.

Decision

It was held that she had been subject to discrimination. The policy of requiring all applicants to take and pass the online test placed people who had Asperger syndrome at a particular disadvantage. The medical evidence supported her claim that she was put at that disadvantage and no alternative explanation for Ms Brooks failing the test had been put forward. The argument that the test was in any event justified as it was to test a fundamental competency was rejected.

Comment

A recruitment test will not amount to unlawful discrimination if the employer can show that it was a proportionate means of achieving a legitimate aim. The test may have been necessary to establish the candidate had the necessary skills to do the job. However in this case Ms Brooks had proposed adjustments which the Tribunal had found to be reasonable. The decision-making powers of the small number of candidates with Asperger’s could properly have been measured by requiring them to answer this type of test in narrative format.


Three-month gap breaks series

Issue

Fulton and another v Bear Scotland Ltd will be remembered as the landmark holiday pay case in which it was established that overtime payments had to be included in the calculation of holiday pay. However it also decided that when making compensation claims a series of deductions could only be established if there wasn’t a gap of more than three months between any deductions. This had a big impact on whether compensation could be claimed as there was a time limit of three months to bring a claim from the last deduction in any series.  This part of the ruling has now been challenged by the claimants in Fulton and another v Bear Scotland Ltd (No.2).

Facts

Whilst the claimants had succeeded in arguing that overtime payments and other supplemental payments should have been included in the calculation of their holiday pay when the case subsequently returned to the Employment Tribunal to calculate what monies were due, it was found that the majority of their claims had been made out of time. This was principally due to the series of underpayments being broken by interruptions of at least three months during which no deductions occurred.

Decision

In the Employment Appeal Tribunal for the second time the focus was on whether the parts of the original judgment concerning the three month gap were meant to be binding. It was held that they were correct and binding. In so doing it rejected the argument that this may be in conflict with the interpretation of a “series” of acts in a discrimination claim. It considered that different considerations were in play as there were obvious differences between deductions and acts of discrimination which may be isolated events, or part of an on-going course of conduct.

Comment

The three-month qualification in respect of establishing a series of deductions had been probably the most controversial and surprising part of the original Bear Scotland judgment.  There had been no warning beforehand that this interpretation may be applied to a provision that had been in operation for many years. Of course it had the effect that whilst claims could be made in respect of outstanding holiday pay the forecasted apocalypse for businesses was avoided. Whether it will stand up to scrutiny in the Court of Appeal is still to be seen.


Clear and unambiguous notice

Issue

Once notice has been given there is no right to unilaterally retract it. There is no obligation on the employer to agree to a request to retract notice. It is therefore important that an employee considers carefully before resigning from their post. However is it clear that the employee has given notice of resignation? Sometimes the words that the employee uses can be open to different interpretations even where it is in writing as was seen in the recent case of Levy v East Kent Hospitals University Foundation Trust.

Facts

Mrs Levy’s relationship with a work colleague had deteriorated to such an extent that she had applied for a transfer to another department in the hospital. When informed her application was successful she had a further row with a colleague and handed her manager a letter stating “Please accept one month’s notice from the above date.” Her ‘resignation’ was formally accepted the same day. However she was then informed that the other department was withdrawing the offer. Mrs Levy’s request to retract her resignation was refused.  She submitted a claim for constructive unfair dismissal but later amended it to a claim for straightforward unfair dismissal.

Decision

The Trust denied that she had been dismissed, relying on her voluntary resignation. However the Tribunal held that the words in her letter were not clear and unambiguous as submitted by the Trust. It had to be taken into account that her letter of ‘notice’ was written when she thought she was transferring to another department. Given that background an objective consideration of her letter would lead a reasonable observer to conclude that Mrs Levy was doing no more than informing her manager at the earliest opportunity of her intention to accept what was then a conditional offer of a transfer. It was not sufficiently clear to be termination of her employment.

Comment

The case shows that the question of whether employment has been terminated must be approached in an objective manner.  What the parties may have considered was the position may not reflect the true position in law. Clearly this may leave the employer in a difficult situation as where it considers that there has been a clear resignation it will not generally have given any thought as to what grounds there could be for dismissal. The onus being on the employer to establish a potentially fair reason for dismissal and where no evidence is given on the issue by the employer the Tribunal would always have to conclude that there had been an unfair dismissal.


Redundancy not due to disability

Issue

It will be unlawful for an employer to treat an employee unfavourably because of something arising as a consequence of their disability unless the employer cannot show justification for the treatment. However to what extent does the employer’s treatment of the employee need to be influenced by the ‘something’ arising from disability? In the recent case of Charlesworth v Dransfields Engineering Services Ltd the fact that there had been disability related absence was held not sufficient to show the employer had acted unlawfully.

Facts    

Mr Charlesworth, an office manager, had been absent for two months recovering from surgery to treat renal cancer. Some three months later he was advised that he was at risk of redundancy as the business needed to cut costs. During the consultation process the business was described as being a ‘top heavy’ in management. It had been realised during his absence that it was not necessary to retain the role of manager in his branch. Mr Charlesworth was given notice of dismissal for redundancy. He claimed disability discrimination.

Decision

It was accepted that there was a link between his absence and his dismissal because his absence provided the employer the opportunity to observe the way in which the work was dealt with leading to the realisation that it could manage without him. However it was held that his absence was not an effective or operative cause of his dismissal. In order to show that he had been discriminated against he would have to show that his absence had been a ‘significant’ influence on the decision to make him redundant and it had not. The claim was dismissed.

Comment

The judgment usefully clarifies that  something arising as a consequence of the disability must be the cause of the unfavourable treatment and that a mere link is insufficient alone. Here it was taken into account that the employer may have in any event realised that the business could manage without a branch manager in post even if Mr Charlesworth had not been absent.


Comparing mums and dads

Issue

Legislation provides that a pregnant woman is protected against being subjected to a detriment at any time for a reason connected to her pregnancy or statutory maternity leave. There are in addition a wide range of statutory rights that apply just to women on maternity leave. However where the employer puts in place contractual rights that enhance those given by statute will it give grounds for a man to claim sex discrimination? The recent case of Ali v Capita Customer Management considered the key question of whether a man could compare himself with a woman who had given birth.

Facts

Mr Ali’s wife had been diagnosed with postnatal depression and advised that an early return to work would aid her recovery. As a result Mr Ali made a request that he be allowed to take leave to care for his daughter. He was told that he could take the time off under Capita’s shared parental leave rules. However Mr Ali would be entitled only to statutory pay. Mr Ali claimed sex discrimination on the grounds that under the terms of their contracts a female employee would be able to take 14 weeks’ leave on full pay following the birth of her child.

Decision

It was noted that Mr Ali accepted there was a distinct difference between maternity and paternity leave in the two weeks immediately following childbirth, given that mothers must take at least this fortnight off to help them physically recover. However beyond those first two weeks, for the following 12 weeks the Tribunal held that he was being less favourably treated than a woman would be taking care of a child. It was accepted that he could compare his treatment with that of a woman who was on maternity leave.

Comment

Previous cases have found it is not unlawful to provide enhanced maternity pay without making any similar benefit available for men due to the fact women are in a unique position following childbirth. However the Judge considered that as men were being encouraged to play a greater role in childcare, a generalised assumption that it was right to provide enhanced benefits to women only was no longer acceptable.  It is a controversial decision but it is important to understand that as this is a first instance decision another Tribunal hearing a claim on similar facts could reach an entirely different conclusion.


April 2017

Early conciliation?

Issue

Claimants are required to contact Acas before commencing proceedings in the Employment Tribunal under what is referred to as the Early Conciliation Scheme. This is intended to give the parties an opportunity to reach a settlement and in order to make sure the claimant doesn’t feel rushed into submitting the claim the usual time limits are extended. However the recent case of Commissioners for HM Revenue & Customs v Garau has highlighted important exceptions under the Conciliation Scheme where no extension of time will be automatically granted.

Facts

Mr Garau had been given notice of dismissal when he contacted Acas. He was still under notice when the early conciliation came to an end. His final day of employment was 30 December which would mean any claim would ordinarily have to be presented by 29 March, i.e. within 3 months. However on 28 March he contacted Acas again. This time the conciliation period lasted until 25 April. Given that Early Conciliation allowed for claims to be submitted one month after conciliation had ended and Acas had sent a certificate he submitted his claim in the Employment Tribunal on 25 May.

Decision

It was held that the claim had been presented outside of the time limits. Whilst Early Conciliation usually added time to the limitation period it could only do so when conciliation took place whilst the ‘clock was ticking’. The conciliation prior to his employment coming to an end did not have any impact on the 3 months he had to submit a claim as it was prior to the start of the time limit. The second notification to Acas also had no impact on the time limit as it was a mere voluntary exercise outside of the statutory scheme with which Mr Garau had already complied.

Comment

This case resolves the uncertainty that has been caused by conflicting decisions regarding the impact of conducting Acas Early Conciliation before the time limit for making any claim has even started. This makes clear that there will be no automatic extension of time in such circumstances. However potentially of even greater impact is the decision that only the first Early Conciliation will fall under the scheme. This could raise potential time limit issues for claimants who might issue a second notification to correct an error on the original or who have multiple claims to bring against the same employer.


Redundancy or is it recruitment?

Issue

Typically in a redundancy situation a group of employees will be subject to a scoring exercise and the ones with the lowest marks will be selected. There is an alternative approach though, particularly where there is a reorganisation of duties, in that the employer may dismiss the whole group of employees and then invite them to apply for the reduced number of ‘new posts’. The recent case of Green v London Borough of Barking & Dagenham has highlighted that this alternative selection process will still be subject to the same level scrutiny regarding fairness.

Facts

Ms Green was one of three PO6 job holders who had been informed that as part of a restructure their jobs were to disappear. They were all invited to compete for two new PO6 posts that had been created. The selection process was that they would sit a test and attend an interview in the same way as a new job applicant. Ms Green scored the lowest of the three PO6 candidates in the written test and at interview. She claimed unfair dismissal.

Decision

It was held that this was still a redundancy situation and that in assessing an unfair dismissal claim it was appropriate to determine fairness in relation to selection.  Even though the process was seeking to determine who would be best qualified and who had the most relevant abilities and skillset the Employment Tribunal still had to decide in the proceedings whether the dismissal fell within the range of reasonable responses. As in the traditional redundancy situation it would have to decide if the process of selection – here carried out by means of an assessment and interview – was fair.

Comment

The decision confirms that there is no special exemption where the selection process is carried out as a recruitment exercise. It would be relevant how far an interview process was objective, but it should be taken into account that an employer’s assessment of which candidate will best perform in a new role is likely to involve a substantial element of judgment. However it will clearly be unfair if an appointment is made capriciously, or out of favouritism or on personal grounds.


Maternity discrimination

Issue

It is unlawful pregnancy and maternity discrimination to treat a female employee unfavourably because she is exercising the right to maternity leave. In some cases the reason for the treatment will be clearly discriminatory whilst in others the reason for the treatment may not be immediately apparent and questions will need to be asked as to what the employer had in mind when it was taking the action. The recent case of Interserve FM Limited v Tuleikyte highlighted how the reason why question could lead to some surprising results.

Facts

The employer had a policy under which any employees who had been absent and not in receipt of pay for three months or more would be ‘cleansed’ from their books. Ms Tuleikyte did not qualify for statutory maternity pay and as a result the employer recorded her as a leaver whilst she was on maternity leave. She contacted the employer and the error was realised. It was agreed that when she returned it would be recorded that she had been continuously employed. However Ms Tuleikyte never did return and brought a complaint of maternity discrimination.

Decision

It was initially held that her claim succeeded as it had been unfavourable treatment when her name had been removed from the employer’s books. However this decision was overturned on appeal on the grounds that it had not been shown the unfavourable treatment was because the employee was on maternity leave. Employees on leave who received maternity pay had not been removed from the records and the policy had also been applied to employees absent for other reasons.

Comment

The case highlighted that the mere fact a woman happened to be on maternity leave when subject to unfavourable treatment was not enough to establish direct discrimination. In a claim for maternity discrimination it has to be shown that the unfavourable treatment was because of the claimant taking maternity leave.


Managing sickness absence

Issue

Dismissal on grounds of capability is a potentially fair ground for dismissal. However the employer will still have to establish that it is reasonable and proportionate to dismiss even where the employee’s absence has been long-term. In the recent case of O’Brien v Bolton St Catherine’s Academy the Court of Appeal gave some important guidance as to the approach that employers should take to new medical evidence at an appeal and deciding when to dismiss.

Facts

Ms O’Brien had felt unsafe in parts of the school after a pupil had assaulted her. She was signed off work with stress. The medical evidence was that it would be difficult for her to return. More than a year passed and neither Ms O’Brien nor her GP were able to estimate a return date.  A formal capability hearing followed at which she was dismissed on grounds of capability. However when she appealed a note was presented from her GP that suggested her return to work was imminent. Such a turnaround was treated with suspicion though and the decision to dismiss was upheld.

Decision

It was acknowledged that it might well be fair to dismiss an employee who has been absent for over 12 months.  While an employee can easily advance the argument “give me a little more time and I am sure I will recover”, there comes a time when an employer is entitled to some finality. However the decision to dismiss must be fair on the basis of the information available to the employer at the time of the appeal. It followed that once the school had received the new medical evidence from Ms O’Brien’s GP it had been wrong to dismiss her without making further investigations.

Comment

The severity of the impact on the employer of an employee’s continued absence can help establish the point in time when dismissal becomes justified. An employer will not be expected to wait indefinitely for evidence that the employee is able to return. However if there is evidence that the employee can return it has to be given full consideration even if it is only available at the appeal stage as fairness is judged on the complete dismissal process not just when the initial decision is made.


Minimum wage for sleeping duties

Issue

Are employees entitled to minimum wage for the hours that they spend at work sleeping? It has been a controversial question that has led to differing opinions being given in employment judgments. The three recent cases of Focus Care Agency Ltd v Roberts: Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake were joined together to decide if one test could be identified to establish whether sleep in duties would attract minimum wage.

Facts

The Focus and Mencap cases both involved carers who had been paid an allowance or flat rate. Their caring duties during the night varied and whilst they could sleep they had to be present at all times. The Partington case was different as it involved a warden at a caravan park who was required to remain on site and be on call overnight. All claimed that they should be paid national minimum wage for their hours whether they were called upon during the night or not.

Decision

The argument that national minimum wage was never intended to apply to these type of work arrangements was rejected. The test was whether they were ‘working’ by simply being present. In order to answer this it was necessary to take a ‘multi-factorial approach’. No one factor would be decisive but the purpose of engaging the worker; their inability to leave the premises; the degree of responsibility they undertook and the immediacy of the requirement to take action were singled out as likely to be relevant in most cases.

Comment

Unfortunately the judgment does not provide a straightforward test. Given there is no easy answer as to whether sleep-ins should “count” for minimum wage purposes it means each individual organisation has to still consider its own circumstances and potential risk carefully. The fact that the National Living Wage for workers aged 25 and over has recently been increased to £7.50 means that risk could be costly. However an appeal is likely so expect this issue to be in the spotlight again later this year.


March 2017

It’s all in the mind

Issue

Can an employee claim that he has been harassed on grounds of disability even if he is not disabled? It is clear that protection against discrimination extends to those who are perceived to have a protected characteristic. However the perception issue can cause some difficulties in practice as was seen in Peninsula Business Service Ltd v Baker which considered what the employer would need to be shown to have in mind before it could be said they perceived the employee was disabled.

Facts

Mr Baker had informed his line manager that he had dyslexia and was disabled. Shortly afterwards a different manager arranged for covert surveillance as it was suspected that he was either working elsewhere or was simply not carrying out his duties. Disciplinary proceedings were subsequently instigated against him and he was told about the surveillance. This caused Mr Baker to be upset and as a result he brought claims for harassment and victimisation.

Decision

Mr Baker had not shown that he satisfied the definition of ‘disability’ in the Equality Act. It was not sufficient that he had alleged that he was disabled. He may have been harassed on grounds of disability if the unwanted conduct was because the employer had perceived him to be disabled. However that would depend on him showing that the very specific legal definition of what would amount to a disability was in the discriminator’s mind when their perception was formed.

Comment

The protected characteristic of disability is not a simple question of fact. An employer will know for example the employee’s skin colour or sex but if the employee has dyslexia the employer will not necessarily know that he is ‘disabled’ in that in accordance with the equality legislation he has an impairment that has a long term and substantial adverse effect on his normal day to day activities. The perception of the employer will be the key issue and unless the impact is obvious the conclusion that the unwanted conduct is because of a ‘disability’ may be difficult to establish.


Effective date of notice

Issue

Employers are under a statutory and contractual duty to give an employee notice of dismissal unless they are guilty of gross misconduct. When that notice is given may dictate when the employment relationship will come to an end.  However will notice start to run from the day that the employer issues it to the employee or will it only run from the date the employee actually reads it? That was the issue that came before the Court of Appeal in the recent case of Newcastle Upon Tyne NHS Foundation Trust v Haywood.  

Facts

Ms Haywood was placed at risk of redundancy following a merger of NHS bodies. Alternative jobs were discussed but rejected and she informed her employer that she was going on holiday from 19 to 27 April. The employer noting that she was contractually entitled to be given 12 weeks’ notice decided it could not wait for her return but issued her notice in writing on 20 April. This was sent by recorded delivery, ordinary post and emailed. If effective when issued her notice would come to an end before Ms Haywood turned 50 and her pension entitlement would be significantly reduced.

Decision

It was held that Ms Haywood was entitled to an enhanced pension payment. She had still been employed as her 50th birthday as the notice was only effective as at the date that she had read it. It rejected the employer’s argument that the notice had been effectively given when it was posted out to her. What was required was actual communication of the notice and that had not happened until Ms Haywood had returned from her holiday.

Comment

Employers can give themselves a level of protection by specifying in contracts when notice is deemed to be accepted. Deemed receipt of notice provisions in a contract will not affect the termination date in respect of certain statutory rights but it will protect employers in respect of contractual type claims relating to accrual of benefits.


Suitability and reasonableness

Issue

Redundancy is a potentially fair reason for dismissal provided that the employer follows a fair and reasonable process. In particular employers will be expected to offer the employee at risk any suitable alternative employment. If the employee unreasonably refuses to accept a suitable offer they will lose their entitlement to a redundancy payment. In the recent case of Dunne v Colin and Avril Ltd t/a Card Outlet it was highlighted that assessing this was a two stage process.

Facts

Mrs Dunne a book-keeper worked 24 hours a week. Her position was under threat of redundancy. After discussions she was offered an alternative role which involved 16 hours of book-keeping and 8 hours working in the warehouse. She declined this offer as she said it wasn’t consistent with her being a book keeper. She did not mention that she had a medical condition which meant that the warehouse was too cold for her to work inside. She was dismissed on grounds of redundancy but received no redundancy pay because her refusal of the alternative work was unreasonable.

Decision

It was held that whilst the alternative roles may have been suitable given that it was substantially office based and her pay remained the same it did not necessarily follow that her refusal of the post was unreasonable. These were separate issues. Whether the refusal was unreasonable involved an assessment of her reasoning. Just because she did not raise the effect of the cold warehouse environment on her medical condition prior to dismissal did not mean that it could not be relied upon by her later as part of her reason for refusing the alternative employment offered.

Comment

The suitability of alternative employment was an objective assessment that had to take into account the employee’s skills and the terms of the alternative job including status, pay, hours etc. The next and entirely separate question was whether the refusal was unreasonable taking into account amongst other things the employee’s personal situation. This would include a wide variety of factors including the employee’s health and their life outside the workplace.


Incompetence or discrimination

Issue

An employee may believe that they have been the victim of unlawful discrimination if they are poorly treated. However will evidence of poor treatment be sufficient to infer that they have suffered discrimination? Usually the employee will need to show something more than just poor treatment to succeed in a claim of discrimination as was highlighted in the recent case of Kent Police v Bowler.

Facts

Mr Bowler had applied for promotion. He had been supported and encouraged by his manager. However Mr Bowler considered that following a change in the management team his attempts to obtain promotion were all blocked. He pursued a grievance and appeal alleging race discrimination, but these were paid little attention by the grievance officer who completed the investigation in a lackadaisical manner making numerous mistakes in the report he produced.

Decision

It was held that the way in which the grievance was conducted should not automatically lead to the conclusion that the grievance officer held a stereotypical view that Mr Bowler was being oversensitive about being treated badly because of his race.  There had been a lackadaisical approach but this was the first grievance that the officer had dealt with and the evidence showed that he had been out of his depth and ill-equipped to deal with it.

Comment

Proving and finding discrimination is always difficult because it involves making a finding about a person’s state of mind and why they have acted in a certain way towards another. Inferences may need to be drawn in relation to the treatment that the employee has faced. However where other reasons are put forward to explain the failings those need to be carefully considered as incompetence does not amount to discrimination.


Accuracy of liability information

Issue

An employer has a legal obligation to provide liability information regarding the employees that are about to transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). The transferee will have a right to bring a claim for compensation against the employer in respect of their losses should they fail to provide this information. However as the recent case of Born London Ltd v Spire Production Services Ltd shows mistakes in the information may not always give grounds for a claim.

Facts

A group of over 30 employees transferred from Spire to Born under a ‘service provision change’. Ahead of the transfer Spire had informed Born of the employee liability information under two separate headings, ‘contractual’ and ‘non-contractual’. Under ‘non-contractual’ it included a Christmas bonus. Following the transfer Born discovered that this bonus was in fact contractual. Born brought proceedings against Spire seeking compensation of around £100,000 to cover the costs of the bonus going forward.

Decision

It was held that there had been no breach of the employee liability information requirements. The statutory obligation to provide the information did not stipulate that the employer had to say whether or not a term as to remuneration was contractual. Therefore the employer had complied with its duties under TUPE even if it had wrongly indicated that the bonus was non-contractual. In the circumstances the Employment Tribunal could not make any order for compensation to be paid.

Comment

The decision highlights the importance for the transferee to carry out due diligence before the transfer. This will include enquiries to establish whether employee remuneration is contractual or not. In some cases there will be a purchase agreement under which the employer provides the transferee with warranties and indemnities which the transferee can subsequently rely upon if wrong information is provided. However in practice these are rarely available in cases involving a service provision change.


February 2017

5-weeks Holy days

Issue

It is not unusual for employers to limit the number of weeks holiday that can be taken at any one time. However if a request for a longer holiday is refused it may be challenged as discriminatory if the reason for the further time off relates to religious beliefs.  In the recent case of Gareddu v London Underground Ltd claims had been brought that the employer’s refusal to allow an employee a 5-week holiday amounted to discrimination but was the extended holiday really for religious reasons?

Facts

Mr Gareddu, a Roman Catholic, had between 2009 and 2014 been given permission to take 5 consecutive weeks’ holiday in the summer during which he returned to his native Sardinia. His request for a similar period off in 2015 was declined. He was told that the maximum holiday period that could be taken was 3-weeks. Mr Gareddu claimed this discriminated against him as it was part of his religious belief that each summer he had to attend a number of ancient religious festivals with his family in Sardinia.

Decision

The claim was dismissed on the grounds that the evidence did not show there was a religious requirement for him to take 5 weeks off to attend particular religious festivals. It had been found that in previous years Mr Gareddu had not invariably attended these festivals. He may have attended some but it appeared to be down to which his family wanted to go to. It concluded that the asserted requirement to attend the series of festivals over a five-week period had not been genuine.

Comment

It was found that the real reason for wanting to take five weeks’ holiday was the desire to be with his family.  Had it been for genuine religious reasons the employer would have to justify their refusal of the request by showing that the ‘provision, criterion or practice’ (PCP) of limiting holiday to no more than three weeks at a time was a proportionate means of achieving a legitimate aim. That would have required the needs of the business to be balanced against the discriminatory impact on the individual.


Disciplinary decisions

Issue

In some disciplinary cases there will be no dispute as to whether the misconduct has taken place. However it will still be an important part of the disciplinary officer’s role to have an open mind and to consider all the evidence presented from the investigation. The recent case of Portsmouth Hospitals NHS Trust v Corbin highlighted the importance of these principles when deciding what sanction to impose.

Facts

Ms Corbin, a Radiographer, had been subject to disciplinary allegations. She had during the course of that disciplinary process put together a defence pack complied at home which included extracts from patient records. Her submissions were accepted and she was given only a warning. However it was subsequently raised that her actions had breached patient confidentiality. A further disciplinary process was instigated following which she was summarily dismissed.

Decision

It was held that the dismissal was unfair. The dismissal officer had taken the view that if it was established there had been misuse of confidential information the employee had to be dismissed for gross misconduct. However the investigation officer had noted that confidentiality policies did not provide guidance regarding preparation of documents for disciplinary proceedings and also observed that staff may feel isolated in such circumstances. These comments and the fact there could be various degrees of breach had not been adequately considered.

Comment

It’s a clear warning that the individual circumstances of the case will always have to be considered. The constraints of a ‘fixed penalty’ approach to certain types of disciplinary offence can easily lead to a finding that the dismissal was unfair. The fact the employee has committed the misconduct will still be taken into account though when the amount of compensation is assessed as this will be reduced to reflect the contributory conduct.


‘Sweetheart’ union recognition

Issue

Can an employer prevent a union from gaining recognition through statutory processes by simply recognising a different union that may take little or no part in negotiating better terms for the workforce? It’s been an issue that looks to have finally been resolved following some protracted litigation in the case of The Pharmacists’ Defence Association v (1) Boots Management Services (2) Secretary of State

Facts

Boots had rejected the application for recognition made by the Pharmacists’ Defence Association Union (PDA) and had prevented compulsory recognition being imposed by reaching a limited agreement for collective bargaining with the Boots Pharmacists Association. PDA’s had made several challenges to this and ultimately argued that the legislation which allowed for its recognition to be blocked in this way was invalid as it was contrary to the European Convention on Human Rights.

Decision

The challenge to the legislation has been rejected. Whilst the Court accepted that the right to engage in collective bargaining was an essential element of the right of freedom of association the legislation did not put an absolute stop to the enjoyment of that right. The obstacle to recognition and collective bargaining that had been identified could be removed under the same legislation by the employees requesting that the other union or association be de-recognised.

Comment

The Court of Appeal clarified that whilst the right to bargain collectively with the employer was an ‘essential element’ of the rights protected under the Human Rights Convention it did not confer a universal right on any trade union to be recognised in all circumstances. It continues to be the case that employers will be advised to recognise more ‘friendly’ unions in circumstances where it wants to prevent another union from gaining compulsory recognition and collective bargaining rights.


Collective not individual bargaining

Issue

Can the employer agree new terms and conditions directly with employees even if there is a collective bargaining agreement in place that provides a negotiation framework with a recognised trade union? It is the type of issue that can trigger threats of industrial action but as the recent case of Dunkley and others v Kostal UK Ltd showed it can also be grounds for claims of substantial statutory compensation.

Facts

The employer’s offer of a pay rise plus bonus in return for changes to sick pay and overtime rates had been put to a ballot by the union. The offer was rejected. In response the employer made the offer to each employee individually stating that if they did not accept there would be no Christmas bonus. As a result a number of employees accepted. The remaining employees were approached again the following month and threatened with dismissal if the offer was refused. The Union brought proceedings claiming the employer had ignored the collective agreement

Decision

The Tribunal rejected the employer’s argument that the offers were intended only as interim measures until the impasse could be resolved. The offers made to the employees directly would have the effect of permanently changing their terms so that they would no longer be determined by a collective agreement. It was satisfied that the main purpose behind the employer’s actions was to avoid collective bargaining as the decision to make offers direct was reached immediately after the rejection of their initial proposals.  The union’s claim succeeded.

Comment

Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 is rarely used but it prohibits an employer from making offers to members of a recognised trade union where the purpose of the offer is to cease collective bargaining. If it is breached each affected employee is entitled to claim an award from of £3,830. This means the total costs can be huge. In this case if each claimant were to receive two mandatory awards representing the two unlawful offers the total compensation would be around £425,000.


Employment status

Issue

Employment rights and who can claim them? It’s a topic that has been making headlines in the last few months as the work arrangements that have grown ‘gig economy’ businesses have come under ever increasing scrutiny. The case of Pimlico Plumbers v Smith is the latest case to explore whether those who provide their services as self-employed will also be able to claim statutory rights as ‘workers’.

Facts

Mr Smith entered into a contract with Pimlico Plumbers Ltd to provide services as a self-employed plumber. Under the terms of the agreement he was expected to work 40 hours per week, wear a Pimlico uniform and drive a Pimlico van. Mr Smith’s ability to work for himself or other companies was also restricted under the agreement.  Some years later when Mr Smith had a heart attack Pimlico brought the work arrangement to an end. Mr Smith brought claims in the Employment Tribunal.

Decision

The Court held there were three categories of work engagement. Firstly employees under a contract of service; secondly the self-employed who carried on a profession or a business undertaking on their own account, and thirdly persons who were self-employed but provided their services as part of a profession or business undertaking carried on by someone else. It held that Mr Smith fell into this third category which meant that whilst he could not claim employee rights he did have ‘worker’ protection.

Comment

In terms of employment law there are certain rights that are exclusively for employees, for example, protection against unfair dismissal and the right to a redundancy payment. However there are other rights, for example, paid holiday, national minimum wage and protection from discrimination that will also apply to those who are workers. The key requirement is that they are under an obligation to provide the work personally. As Mr Smith had no unfettered right to send a substitute to carry out the work in his place he was a worker despite the fact he was for tax purposes still self-employed.


January 2017

Warnings from the past

Issue

Disciplinary warnings are generally expressed as being live for a fixed period of time. The Acas Code of Practice on Disciplinary and Grievance procedures states that the employee should be told how long the warning will remain current and “of the consequences of further misconduct, or failure to improve performance, within the set period.” However the recent case of Stratford v Auto Trail VT Limited has highlighted that even historical warnings may be relevant in some circumstances.

Facts

Mr Stratford had ignored his employer’s strict prohibition on the use of mobile phones on the factory floor. It was the eighteenth time he had been subject to a formal disciplinary meeting during his thirteen years with the employer although there were no live warnings. His use of the phone merited a Final Written Warning but due to his disciplinary history, the repeated warnings both formal and informal and the likelihood that he would be back in trouble again he was dismissed.

Decision

It was held that Mr Stratford had been fairly dismissed for conduct reasons. Crucially it was held that the employer had been entitled to have regard to Mr Stratford’s disciplinary record and his attitude to discipline in general and had been entitled to decide that enough was enough. This was repeated misconduct over a long period of time which was different from where one spent warning was used to class the current offence as more serious.

Comment

Previously in Diosynth Ltd v Thomson [2006] IRLR 284 it had been highlighted that an employer should not rely on an expired warning to elevate a lesser offence to such a level that it would result in dismissal. However as this case shows there may be any number of other circumstances, including where dealing with repeat offenders, where it might be reasonable for the employer to have regard to an expired warning taking into account all the circumstances of the case.


 

Handbags” rather than violence

Issue

A policy of zero tolerance towards violent conduct in the workplace will clearly indicate that any employee found guilty of such misconduct will be at risk of dismissal. However it does not necessarily mean that dismissal should automatically follow as was as shown in the recent case of Arnold Clark Automobiles Ltd v Spoor. There will still need to be a full consideration of all the facts regarding the incident and the record of the individual who faces the allegations.

Facts

Mr Spoor was a motor vehicle technician with more than 42 years’ service and an exemplary disciplinary record. A misunderstanding with an apprentice over a printer had led to a short scuffle with Mr Spoor grabbing him by the collar. Mr Spoor apologised and the two had shaken hands. The Workshop Manager decided no formal disciplinary action was required as it was just ‘handbags’ but when HR was notified disciplinary action was taken and Mr Spoor was summarily dismissed.

Decision

It was held that the procedure that had been followed and the decision to dismiss were both outside the range of reasonable responses. There should have been more input from the workshop management and Mr Spoor’s previous exemplary long service record should have been taken into account. Too much reliance had been placed on the fact there was ‘zero tolerance’ and not enough on the facts.

Comment

Clearly particular care is needed before summarily dismissing an employee who has spent their entire working career with one employer. The fact that management had made a decision that the matter was not sufficiently serious as to warrant formal action would cast doubt on the disciplinary process from the start even where there is a laudable aim of showing zero tolerance towards violence.


 

 

Redundancy or refusal to relocate?

Issue

There may be a clause in the contract of employment that states the employer has the right to vary the employee’s work location. However how much reliance can be placed on this if it has never been used? In the recent case of Kellogg Brown & Root (UK) Ltd v (1) Fitton (2) Ewer the issue was whether employees who refused to move from a site that was closing should be treated as redundant or dismissed for failing to follow instructions.

Facts

Offices in Greenford were closing and all employees were to be relocated to an existing site at Leatherhead under a mobility clause. Compensation arrangements for further travel costs were put in place. However two employees refused to transfer. Their journeys would be an hour or even two hours longer and one was approaching retirement. Due to their refusal disciplinary proceedings were instigated which resulted in their dismissal.

Decision

It was held that the reason for their dismissals had been alleged misconduct rather than redundancy as that was what the employer genuinely had in mind when it made the decision to dismiss. However even though the disciplinary procedure had been followed the dismissals were still unfair as the mobility term relied upon had been too general and the instruction to move had been unreasonable taking into account the circumstances of the two employees.

Comment

The case highlights the limitations on a general mobility clause. If employees are needed to transfer between specific different locations there will be a need for a mobility clause to address this by reference to the locations. However where in practice employees are not required to be mobile a general power to relocate should only be exercised in a reasonable manner taking into account the personal circumstances of the employees and the impact of the move.


 

Limits on union representative protection

Issue

Employees have statutory protection from detriment or dismissal for taking part, or having taken part, in trade union activities. However in practice it can be difficult to determine what is a union activity and what is not particularly when the individual is the trade union representative. The recent case of Metrolink Ratpdev Ltd v Morris highlighted how important it is to consider all the facts in order to conclude whether the individual has been participating in trade union activities.

Facts

Mr Morris was the Representative for the union Workers of England. A restructure led to a number of employees being considered for new posts as Customer Service Leaders. Five failed the assessment and four of these five were members of the union. Subsequently Mr Morris was contacted by one of the members and told a photograph had been taken of a manager’s diary which revealed the comments that had been made in the assessment. He asked for this to be forwarded to him and used it to challenge the assessment. However he was later dismissed for retaining stolen confidential data.

Decision

The initial decision of the Employment Judge had been that he was automatically unfairly dismissed as he had been acting in his capacity as the Trade Union representative when he had received and stored the information. However on appeal it was held that as a matter of principle retention of unlawfully obtained information for trade union purposes should not enjoy the protection of being a trade union activity. The finding of unfair dismissal could not stand.

Comment

The case shows just how difficult it is to assess where the line should be drawn between union activities and other conduct that it not protected. The union rep had been placed in a difficult position when the members had turned to him with the information they had obtained. However as he had known the information had been unlawfully obtained and that these were private and confidential notes from a senior manager’s diary he should not have accepted it or shown it to others.


Gross failure to act

Issue

Gross misconduct is misconduct that is so serious it justifies summary dismissal. It must be an act that fundamentally breaches the contract and will typically involve such acts as theft, fraud or physical violence. However can failing to take action also amount to gross misconduct sufficient to justify summary dismissal? That was the issue before the Court of Appeal in the recent case of Adesokan v Sainsbury’s Supermarkets Ltd.

Facts

Mr Adesokan a regional manager with 26 years’ service had become aware that contrary to the employer’s rules a colleague had suggested to store managers in his area that they focus on getting more positive feedback in an internal employee satisfaction survey even if it meant having less than 100% take part.  He told the colleague to correct this but failed to follow it up when he did nothing happened. As a result Mr Adesokan was summarily dismissed for gross misconduct.

Decision

It was taken into account that he had not been dishonest and had not made a conscious decision not to take steps to remedy the situation. However given Mr Adesokan’s seniority his failure to act was a serious breach of the standards expected of him. It concluded that despite his long service negligently failing to act was gross misconduct which so undermined the trust and confidence in the employment relationship that it justified his summary dismissal.

Comment

What constitutes gross misconduct may vary according to the particular circumstances of the employer and the work the employee was carrying out. In this case the employer was a well-known national company and the employee was in a senior position with overall responsibility for several stores. Given his seniority the employer was entitled to expect higher standards of him in relation to ensuring that its policies were followed and as a result the employer was entitled to dismiss without notice.


December 2016

Salary diverted not sacrificed?

Issue

In March the case of Peninsula Business Services Ltd v Donaldson addressed the tricky problem of how to deal with child care vouchers during maternity leave if they have been provided through a salary sacrifice arrangement. The fact that employers cannot make deductions from statutory maternity pay and the employee is entitled to continue to receive all their non-cash benefits could lead to potential cost difficulties for an employer. Could childcare vouchers be regarded as ‘cash’? 

Facts

Peninsula operated a childcare voucher scheme under which employees would receive child care vouchers through a salary sacrifice arrangement. However entry to the scheme was conditional on the employee agreeing that their right to vouchers would be suspended during maternity leave. This was to avoid having to fund the vouchers at a time when deductions could not be made. Mrs Donaldson considered these terms discriminatory and brought proceedings alleging pregnancy and maternity discrimination.

Decision

It was held that where the employer provided a scheme to allow an employee to opt for child care vouchers by way of salary sacrifice the true picture was that the vouchers still represented part of the employee’s salary. The money had been simply diverted away. On this interpretation the vouchers could still be regarded as part of the employee’s ‘remuneration’ rather than non-cash benefits and as there was no right to retain remuneration during maternity leave there had been no detriment. The claim was dismissed.

Comment

The conclusion that the vouchers were really ‘pay’ is helpful for employers but it does appear to have been heavily influenced by the potential cost difficulties for employers and the fact this may discourage others from offering what was a valuable voluntary benefit. It should be noted that following this decision the guidance issued by HMRC was rewritten to remove all reference to their recommendation that child care vouchers had to be continued during maternity leave even where they were funded through a salary sacrifice scheme.


Pay & reasonable adjustments

Issue

The duty to make reasonable adjustments is unique to the protected characteristic of disability. Where the duty arises, the employer must effectively treat the disabled person more favourably than others in an attempt to reduce or remove that individual’s disadvantage. The case of G4S Cash Solutions (UK) Ltd v Powell was one of the most important of the year as it highlighted that the extent of the employer’s obligations under these provisions could have an impact on pay provisions.

Facts

Mr Powell an engineer developed back problems and it became clear he was no longer fit for jobs involving heavy lifting or working in confined spaces. He was given new duties. As a ‘key runner’ he would deliver parts and keys to the other engineers.  Several months later though he was told that if he wished to remain in this alternative role he would have to accept a lower rate of pay. Mr Powell was dismissed when he refused

Decision

It was held that there had been an agreed variation of Mr Powell’s contract so that his job had changed. There was no reason in principle why the duty to make reasonable adjustments should be read as excluding any requirement to protect an employee’s pay in conjunction with other measures to counter the employee’s disadvantage through disability. Pay protection was just another form of cost that an employer would incur if it was reasonable.

Comment

Previous claims for full pay during sick leave have met with little success. It would only be in exceptional circumstances that the employee would be entitled to continue to receive normal pay for no work. However this decision shows that where the employee is given a different role or where the original role is changed in order that they can continue to work it does not necessarily follow that the pay rate will also change. Maintaining salary will have to be assessed on a case by case basis taking into account the extent of the change in duties and the resources of the employer to decide if it is reasonably financially viable.


Taking care of the rest

Issue

The Working Time Regulations 1998 (WTR) provide that generally an adult worker is entitled to a minimum of 20 minutes rest in any six hour work period. If a request for rest was made and refused the worker could bring a claim in the Employment Tribunal. However the case of Grange v Abellio London Ltd showed that employers had an obligation to ensure rest periods could be taken in practice rather than only when a request was made.

Facts

Mr Grange was required to monitor the arrival and departure times of bus services to ensure they were running on time. Initially, his working day lasted eight and a half hours, the half hour being unpaid and treated as a rest break. In reality, it could be difficult for him to take that break. When staff were told that the length of their working day was to be reduced to eight hours so that they could leave work half an hour earlier he considered it would be impossible and brought a claim.

Decision

The employers disputed any liability on the grounds that it had not refused him a rest break as no request had ever been made. However it was held that it was not necessary for a request to be made as the entitlement to a rest break will be refused if the employer put in place working arrangements that failed to allow the taking of 20 minute rest breaks. Previous rulings which required workers to make a request for a rest break were not followed as they did not provide “real world” protection.

Comment

The main impact of this decision is that it will now be possible employers will face claims that workers have been unable to take rest breaks because of the amount of work expected or deadlines given. Employers should consider whether their working arrangements enable workers to take their statutory minimum rest breaks. It may even be necessary to make adjustments to working practices if a heavy workload appears to make this impossible for workers.


Holiday pay calculations

Issue

The EU Working Time Directive which the WTR implement provide that all workers should be entitled to a minimum of four weeks paid leave. However the question that frequently arises is how the pay should be calculated? In particular should commission be added to the holiday pay a sales executive would normally receive? The case of British Gas Trading Ltd v Lock concerns the continued dispute as to whether an employer can just pay a worker basic pay in respect of the time they spend on holiday.

Facts

Mr Lock, an energy sales consultant, had decided to take time off over Christmas and New Year at the end of 2011. When he went back to work on 3 January 2012 he found that his pay was substantially lower as he received only his basic salary having not been in work to generate the commission which made up approximately 60% of his full remuneration. Mr Lock claimed that the reduction of his pay was a breach of the statutory provisions

Decision

The Leicester Employment Tribunal; the European Court of Justice; the Employment Appeal Tribunal and this year the Court of Appeal have all held that the worker taking the minimum statutory holiday should not be financially worse off than if they had been in work. Where results based commission was normally earned it should continue to be paid even if the worker could not generate it on holiday.

Comment

Commission payments should be treated the same as overtime payments normally received and included in the holiday pay. However this ‘enhanced’ holiday pay is in respect of only four weeks leave (or the pro rata equivalent for part time workers) not any further holiday that may be given. Also take into account as it is limited to rights granted under EU law the Brexit process may mean that at some point in the future it might be that this particular form of employment protection will not be retained.

Employment status

Issue

The recent ruling in Aslam and others v Uber BV and others was an important decision not just because it had an immediate impact on thousands of Uber drivers but also because it has the potential to impact many other businesses that rely on a bank of ‘self-employed’ individuals to carry out the work that is central to the business.

Facts

A group of taxi drivers who used the Uber app in order to get work and were then in turn paid by Uber brought claims contesting that they were self-employed. They argued that the work arrangements were controlled to such an extent by Uber that they were in reality their ‘workers’ and entitled to the statutory rights that applied to workers which included the right to be paid the National Minimum Wage, holiday pay and pension.

Decision

The Employment Tribunal agreed with the drivers. It regarded the drivers as ‘working’ for Uber when they logged into the app in their taxis and were ready to take passengers.   It rejected the argument that Uber just enabled the individuals to work for themselves as taxi drivers through the technology it offered. The reality was that it was not a technology company it was in the business of supplying transportation services and the Uber drivers had been vital to the success of the business.

Comment

It should be emphasised that the drivers were not found to be ‘employees’ with employee rights like unfair dismissal or redundancy pay. However their worker status does mean that they will have certain protections including the right not to be paid less than the appropriate national minimum wage rate and to receive at least 5.6 weeks paid leave per year.


November 2016

Disability and ability to work

Issue

A person will be regarded as disabled for the purposes of the Equality Act 2010 if he or she has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her “ability to carry out normal day-to-day activities”. The recent case of Lee v HSBC Bank Plc considered whether the fact the employee had been ‘signed-off work’ was sufficient to show their impairment did have a substantial impact on her normal day to day activities.

Facts

Mrs Lee, a bank cashier, had started to suffer from anxiety and depression which resulted in disturbed sleep. This led her to be absent from work on a number of occasions and then continuously from February 2014. All her absences were covered by certificates from her GP which confirmed that she was unfit for work due to mental impairment. However she was eventually dismissed when she refused her employer’s request that she attend a psychological capacity assessment.

Decision

It was held that her claims of unfair dismissal and disability discrimination both failed.  It was held that her claims of disability discrimination could not succeed as she was not ‘disabled’ within the scope of the Equality Act.  Whilst she suffered mild anxiety and depression it did not have a substantial impact on her day to day activities. In particular it rejected her argument that it was sufficient that her GP had stated that she was unfit to work.

Comment

Whilst it was accepted that where a condition of anxiety and depression was diagnosed by a GP and the patient was advised to refrain from work it was evidence of a substantial effect on day-to-day activities it was not conclusive from it that the person was disabled. That was a question of fact for the Employment Tribunal to determine taking into account all the surrounding circumstances including the evidence given at the hearing and the individual’s activities whilst signed off work.


Final warnings

Issue

Generally an employer will have to show that it was reasonable to dismiss even where conduct reasons exist and a disciplinary procedure has been followed. The existence of any previous warning would clearly be relevant to the issue. However what about where a final warning was found to be “manifestly inappropriate”? The recent case of Bandara v BBC highlights how this may have an impact on the fairness of the dismissal.

Facts

Mr Bandara had been given a final warning in relation to two incidents which the employer had referred to as potentially gross misconduct. These had related to him raising his voice during an argument and two months later failing to give news time to the birth of Prince George. Shortly afterwards there were further allegations of bullying and intimidating. The disciplinary officer taking into account the live final warning concluded that he should be summarily dismissed for gross misconduct.

Decision

Whilst it would not normally look behind the reason for the final disciplinary warning the Tribunal found in this case that it had been manifestly inappropriate to impose such a warning as neither of the two charges considered constituted gross misconduct and Mr Bandara had almost 18 years’ unblemished service. If the employer had attached significant weight to this warning when deciding to dismiss it was difficult to see how the employer’s decision could be reasonable.

Comment

The dismissal might not necessarily be found to be unfair if in the circumstances the employer treated the manifestly inappropriate warning as no more than background or as indicative of the standard to be expected of an employee. The employer may have then fairly dismissed for the misconduct alleged in the new proceedings. However it will need to be made clear what influence the previous warning had on the decision making process.


Serious allegations and levels of investigation

Issue

The employer needs to show not just that the decision to dismiss was reasonable but also that the investigation of the allegations was reasonable too. Where the allegations involved are so serious that there could be consequences for the employee’s future career the investigation is likely to be the subject of particular scrutiny as was seen in the case of  Tykocki    v Royal Bournemouth and Christchurch Hospitals.

Facts

Ms Tykocki, a Healthcare Assistant, had been accused by a patient of ignoring her requests for pain medication and forcibly stopping her from calling out. The investigator concluded that statements were not required from other nurses on duty that night as they could not confirm that the incident had taken place. In the course of the disciplinary proceedings that followed further statements were taken from the patient in which she not only confirmed her earlier complaint but also alleged seeing Ms Tykocki leaving a patient on a commode for 4 hours. Ms Tykocki was summarily dismissed.

Decision

It was held that the investigation had been flawed given that the stakes were so high for Ms Tykocki. The decision not to call evidence from the other nurses ignored the fact that their accounts could have added to the broader picture of whether it was likely that events had taken place as alleged.  Similarly the further allegations made by the patient should have been investigated. If these had been found to be entirely false it might have cast a different light on her credibility.

Comment

In cases where allegations are so serious that they will have an impact on the employee’s future career the requirement for a reasonable investigation will mean that the employer will be expected to investigate exculpatory matters just as much as incriminating ones. The decision here highlights how easily the employer’s investigation may fall foul of this requirement and call into question the fairness of the dismissal.


Bonus maternity pay

Issue

As a general rule a settlement agreement will state that any monies paid are in full and final settlement of all claims arising from the employment or its termination. The intention will be to include all actual or potential claims. However the employee may be owed some statutory payments which are outside the scope of a settlement agreement as the employer discovered in the case of Campus Living Villages UK Ltd v Joanne Sexton and HMRC.

Facts

Ms Sexton agreed a settlement offer of £60k having been made redundant just a month before her expected week of childbirth. The compensation was in full and final settlement of all claims but no reference was made to statutory maternity pay (SMP). Her subsequent claim for SMP was refused by the employer who maintained that the settlement included everything. Ms Sexton reported the issue to HMRC which decided in her favour. The employer appealed.

Decision

It was held that the maternity pay was due. Ms Sexton had satisfied the statutory conditions for receiving SMP so she had an absolute right to the payment of it. She could not contract out of that right as the legislation provided that any such agreement which purported to exclude the right to SMP was void. It would have been possible for the settlement to record that payment included a sum which represented maternity pay but it had not done so.

Comment

Probably the most startling fact about this case is not that she was due SMP but that it amounted to a total of £42,325.26. How? Ms Sexton had been paid the sum of £44,077 under a discretionary bonus scheme during the 8-week period when her earnings were calculated. This had a huge impact on the amount that fell due for the first 6 weeks of SMP when Ms Sexton would receive 90% of her pay. Fortunately for the employer the majority if not all of the payment can be reclaimed from the HRMC.


Racially related pay rates

Issue

Can an employer pay a new employee less because of their immigration status? An employer may be concerned that they will be taking a risk if they invest a lot of money and resources into a recruit who may be told that they no longer have the right to work in the UK. The case of Fairlead Maritime Limited v Parsoya considered whether that could amount to race discrimination that extended even past the point when the employee had been paid the correct market rates.

Facts

Mr Parsoya, an Indian national, had successfully completed an MSc in Newcastle University. He applied for and was appointed to a post as a Naval Architect.  However he was paid only £25k per year despite the fact the post was advertised as paying between £30k and £40k.  He was told that the difference in pay was due to his “employability status”. Mr Parsoya’s pay did eventually increase to £30k when he obtained his Tier 2 visa but contrary to assurances given he received no back pay.

Decision

Mr Parsoya’s claim that the pay arrangements amounted to unlawful race discrimination succeeded.  It was held that the employer had operated a policy regarding visa requirements and pay which had placed Mr Parsoya because of his nationality at a particular disadvantage. In addition the non-payment of those monies owed was a continuing state of affairs that lasted up to the point of his resignation.

Comment

The employer had failed to keep promises that the shortfall in pay would be made up when Mr Parsoya had obtained a long-term visa so it was perhaps unsurprising that the claim succeeded. The finding though that the ‘discrimination’ continued past the point when the employee was in receipt of pay at the correct rate is the more interesting issue as that highlights that the impact of a past discriminatory policy could come back to haunt an employer a considerable time later.


October 2016

Different but fundamentally the same

Issue

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) employees benefit from statutory protection where there is a “service provision change” (“SPC”). This is defined as being where work is outsourced, brought back in-house or transferred from one service provider to another. However the protection will only apply where the activities carried out remain fundamentally the same. In Salvation Army Trustee Co v Bahi & ors the question was whether the differences in how support was provided to the homeless meant that the activities had changed.

Facts

Coventry City Council provided a range of support services to homeless people through a network of agencies. The Council decided that it wanted a single point of access and awarded the contract to the Salvation Army Trust (SAT).  There were a number of differences in the way that it provided the accommodation and support. The accommodation was hostel based; greater limits were placed on how long individuals could stay; the age eligibility was higher and support workers were available for longer hours. SAT considered that these changes meant TUPE did not apply.

Decision

A number of support workers disagreed with SAT and claimed that their employment transferred under TUPE. Their claims were successful as it was held that despite the differences the activities were fundamentally the same. In reaching this decision it was emphasised that the term “activities” had to be given its ordinary, everyday meaning. That meant it was to be defined in a common-sense and pragmatic way.  It should not be defined too generally, but an excessively detailed definition would risk defeating the purpose of the statutory provisions.

Comment

Changes in the way in which services are delivered can lead to real difficulties in assessing whether TUPE will apply. This case was typical of many in which parties having opposing views were unable to reach agreement as to whether TUPE applied or not leading to protracted litigation. It was noteworthy that in the judgment it was suggested that consideration should be given to establishing a “fast track” Employment Tribunal or some form of agreed procedure to which the parties could subscribe in order to avoid the expense of a dispute like this.

 

Risks of full time rosters

Issue

In the recent case of McFarlane and Ambacher v EasyJet Airline Company Limited the issue of how employers deal with flexible working requests has highlighted the need for care when applying a policy that requires employees to work a minimum number of hours. In particular the ruling of the Bristol Employment Tribunal shows the importance of considering the needs of employees returning from maternity leave.

Facts

Following their return from maternity leave two members of cabin crew requested shorter eight hour shifts so that they could continue breastfeeding their babies. Both their requests were supported by their respective GP’s who had both independently recommended that their shifts should be limited to no longer than eight hours duration.  The requests were refused on the grounds that it was not operationally possible. Only temporary groundwork roles were offered as an alternative.

Decision

It was held that the refusal to limit their shifts to a maximum of eight hours was not justified and amounted to unlawful indirect sex discrimination. The employer’s argument that their policy was a proportionate means of achieving a legitimate aim was rejected despite the pressures of meeting both customer needs and regulatory requirements. It was found bespoke rosters had been arranged on other occasions and had not caused disruption to the service.

Comment

If a blanket policy is applied by which all requests for shorter working hours will be refused then there will be a big risk that this may amount to unlawful discrimination. A safer approach is to assess each request on its own merit.  It was also relevant that here the employer had failed to undertake a risk assessment despite the GP’s comments that there was a risk to health if they worked in excess of eight hours. It should be remembered that if there is a risk to health and no suitable employment is available the employee may need to be suspended from work on full pay.

 

Stage by stage justification

Issue

The application of an attendance management policy in relation to a disabled employee may lead to claims under the Equality Act 2010 of “discrimination arising from disability”. That is where an employee has been treated unfavourably because of something arising in consequence of their disability. The defence of justification is available to the employer but the recent case of Buchanan v The Commissioner of Police of the Metropolis shows that this means more than just showing the attendance management policy was itself is justified.

Facts

Mr Buchanan suffered from post-traumatic stress disorder. His long-term sickness absence was being managed under the Force’s “Unsatisfactory Performance Procedure” which was derived from the Police (Performance) Regulations 2012. There were three stages to the process. Mr Buchanan had reached stage two of the process as he had failed to return to work on dates stipulated in improvement notices issued under the procedure. Mr Buchanan brought a claim of discrimination arising from disability. The police argued that its actions were justified in the circumstances.

Decision

Whilst the argument of justification had been initially successful the Employment Appeal Tribunal overruled it holding that it was not just the attendance management policy that had to be justified. The police force like any other employer could easily justify the existence of an absence management procedure. It was clearly a legitimate aim to reduce absence and having a policy in place was a proportionate means of achieving that aim. What had to be considered and justified were the specific decisions made in respect of Mr Buchanan.

Comment

In reaching this decision it was recognised that if just a general approach was taken that there would be a real risk the aim of the statutory protection would be undermined.  Where the legislation referred to the employee being treated unfavourably, it was the decisions and actions of the employer which constituted the “treatment”. On a practical level whenever a warning or other action is taken against the individual the decision maker will need to balance the employer’s aim of maintaining satisfactory attendance levels against the discriminatory impact on the employee to decide what is appropriate.

 

Reasons for dismissal 1,2,3…

Issue

A disciplinary process may involve more than one allegation against an employee. It may be that in some cases not all of the allegations are substantiated but the employer may still decide that it will dismiss on the basis of those other allegations that have been substantiated. If might be that they are regarded as sufficiently serious to justify dismissal. However as was seen in Broecker v Metroline Travel Ltd where the employer is dismissed for all the allegations they have to all be considered by the Tribunal in a claim of unfair dismissal.

Facts

Mr Broecker was employed as a bus driver. All bus drivers were aware of the requirement that they must check the bus every day prior to taking the bus out. Mr Broecker made a number of reports about trivial faults often just as the service was due to leave but sometimes midway along the route. He had received final warnings but persisted to make these reports. Eventually disciplinary proceedings were taken in relation to four separate incidents. Two of these related to reports he had made but two related to his driving and wasting time. The result was that he was dismissed

Decision

Mr Broecker’s claim of unfair dismissal initially failed. It was taken into account that he had been subject to a final warning and that even if only half the allegations were established it would have been reasonable to dismiss. However this was reversed on appeal. Two of the four allegations in the disciplinary hearing had concerned issues that were connected to protected disclosures. Those could not be ignored as the employer had made the decision to dismiss on the basis of all four allegations not just the two that were not related to the protected disclosures.

Comment

The judgment is a reminder not just about the risks connected with taking disciplinary action regarding conduct that could be seen as connected to a public interest disclosure but also regarding the way in which dismissal decisions are recorded. If the employer had concluded that each allegation was proven and that it decided to dismiss in respect of each then it may not have been held to be unfair. It is also a good example of a case in which it was found that the warning given should have been ignored as it was manifestly inappropriate being linked to the employee reporting  a safety concern to the police.

 

Dismissal needs to be communicated

Issue

If an employee is supplied to work through an Agency and the Hirer gives notice will the agency worker be dismissed? Will it be the Hirer that is regarded as the employer? Will a failure to provide work amount to a dismissal? These were all issues that featured in the case of Sandle v Adecco UK Ltd which highlighted the importance of communications between employer and employee.

Facts

Miss Sandle was employed by Adecco (an employment agency) and assigned to work at BASF as a commercial lawyer. The involvement of the Agency was limited to introducing her and she had little contact with it later. All her communications were with the Hirer with whom she hoped to work for direct. However BASF eventually gave her notice that her assignment was to be brought to an end. She completed her notice but made no contact with the Agency which later prepared her P45 but never posted it out to her. Miss Sandle claimed unfair dismissal against both Adecco and BASF.

Decision

It was held that Adecco was her employer and not BASF. However Adecco denied that it had dismissed her. It was held that the Agency was correct. There had been no dismissal. Whilst the hirer had given her notice that the assignment was to end it had not dismissed her as it was not her employer.  The key point was that there had to be communication of dismissal from the employer to the employee. The Agency may have prepared her P45 but as it had never been sent to her the termination of her contract had not been communicated.

Comment

Miss Sandle could have resigned and claimed constructive unfair dismissal on the basis that the Agency had been in breach of its contractual obligations to make efforts to find her work but she had not. Possibly if not an agency worker the failure to provide her with work would have been sufficient to communicate to her that her job was at an end. More perplexing though is if you looked at this from the point of view of the employer and the practical difficulties that it may face when it wishes to end the contract of employment of an employee who has gone missing.

September 2016

Wages and reasonable adjustments

Issue

The Equality Act 2010 provides that an employer is under a duty to make reasonable adjustments in respect of a disabled worker who is placed at a substantial disadvantage in the workplace.  The adjustments should be aimed at enabling the employee to remain in work for example by reducing hours or modifying duties. However the case of G4S Cash Solutions (UK) Ltd v Powell shows that it is possible the duty to make adjustments might extend to protecting an employee’s pay too.

Facts

Mr Powell was an engineer who could no longer carry out his work due to a bad back. Instead he was given driving duties delivering parts and keys to the other engineers who were out on jobs. Mr Powell came to consider that this newly created role was his on a permanent basis. This arrangement continued up until the employer announced that his pay would have to be reduced to reflect that he was no longer doing engineering work. Mr Powell refused to accept the pay cut and was dismissed.

Decision

It was held that it had been a reasonable adjustment to employ him on the other duties and to maintain his original salary. It considered that pay protection was no more than another form of cost that it might be reasonable for an employer to incur. It could be compared to the costs involved in providing extra training for a worker where necessary.  In the circumstances of this case it was a reasonable step for the employer to take.

Comment

Previous claims that full pay should be maintained during periods of sickness absence have failed on the grounds that the duty to make reasonable adjustments was designed to enable disabled people to play a full part in the world of work and not to pay them for work that they could not carry out. Whilst it might not be reasonable in every case to maintain pay this case does show that fewer duties or responsibilities will not necessarily result in a reduction of pay.

Bogus claimants

Issue

The EU Equality Directives prohibit an employer from discriminating against job applicants on the grounds of, amongst other things, age and sex. The issue in the case of Kratzer v R+V Allgemeine Versicherung AG was whether these Directives could be relied upon by a job applicant who had applied for a post in anticipation of it being rejected so that he would be able to make a claim for compensation.

Facts

A German company, advertised for three legal trainees. Mr Kratzer a lawyer and former manager submitted an application which was rejected. He immediately claimed that this was age discrimination and demanded 14,000 Euros in compensation. He even refused to talk to the company about the position until it paid up. When he subsequently learnt that all the trainee positions had been given to female applicants he claimed an additional 3,500 Euros in compensation for sex discrimination.

Decision

It was held that where an application was submitted only for the purpose of obtaining a claim for compensation the job applicant was not protected by the Equality Directives.  The person making the application solely to claim discrimination could not be regarded as a ‘victim’ or a ‘person injured’ which the Directives were intended to protect. The artificial nature of the application could lead to the finding that a claimant in these circumstances was attempting to use the law for abusive or fraudulent ends.

Comment

The UK national courts made similar findings in two ‘serial job applicant’ cases decided in 2010. In Keane v Investigo and others and Berry v Recruitment Revolution and others it was confirmed it would be an abuse of process if failed applicants brought discrimination claims in respect of jobs in which they had no genuine interest. The judgments made it clear that those who tried to exploit the Equality laws for financial gain were liable to find themselves facing an order for costs.


Client key issue in service contract

Issue

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) provides protection to employees on a business transfer or service provision change. However the service provision change protection is limited to where there is an organised grouping of employees carrying out the same activities for the same client. The case of CT Plus (Yorkshire) CIC v Mr J Black And Others (2) Lincolnshire Road Car Ltd t/a Stagecoach highlights that ‘the client’ may not necessarily be the same as the user of the service.

Facts

CT Plus operated a subsidised park and ride bus service under a contract with Hull City Council. Another bus company Stagecoach considered that it could operate this route without a subsidy. The Council was not authorised to run a subsidised service in competition with a commercial service and had to end its contract with CT Plus. The following day Stagecoach began operating its service along the same route carrying the same passengers but refused to accept that the bus drivers transferred to it under TUPE

Decision

It was held that Stagecoach was correct and that the drivers of CT Plus did not transfer under TUPE. Specifically, the activity carried out by CT Plus was the running of the park and ride service on behalf of the Council. When that ended Stagecoach started to carry out the same activity but it was not carried out “on the Council’s behalf”. It was operated by Stagecoach for its own commercial interest. The fact the Council was no longer the client meant that this was not a service provision change.

Comment

The case highlights that although the users of the bus service i.e. the passengers, essentially remained the same, they were not the clients for the purpose of the TUPE Regulations. The key to identifying the client is to assess who the service is being carried out “on behalf of”. Stagecoach was operating the service for the purpose of making a profit rather than it being on behalf of any third party. The drivers of CT Plus were in this situation redundant.


Refusing subject access request led to unfair dismissal

Issue

The Data Protection Act 1998 provides individuals with the right to make a subject access request (SAR) to find out what information a data controller holds about them. However the extent to which this can be used as a means to obtain discovery of documents that may assist in litigation has been regarded as limited in practice. The case of McWilliams v Citibank though shows that sometimes a failure to deal with the request may contribute to a dismissal being unfair.

Facts

Following an industry wide investigation into exchange rate fixing Ms McWilliams a trader for Citibank, had been suspended. Her manager had already been dismissed regarding similar allegations. During her suspension Ms McWilliams made a SAR for copies of all data held by certain managers that related to her and were connected to the disciplinary proceedings. The request was refused as disproportionate. At the subsequent disciplinary hearing she was dismissed despite maintaining that she had only followed what was normal practice for traders at the time.

Decision

It was held that the dismissal was unfair. The employer had failed to carry out a reasonable investigation. In particular it had failed to adequately follow up the employee’s suggestion that sharing confidential information had been an accepted practice among traders. Importantly though it also found that the handling of the SAR materially affected her ability to defend the disciplinary allegations. She had been suspended when she made it and had been reliant on the employer carrying out a sufficient investigation.

Comment

The Tribunal commented that whilst employees sometimes make a SAR in disciplinary proceedings that is ‘little more than a fishing exercise’ this was not the case here. Ms McWilliams had made the request to show that management were aware of the practices that were at the centre of the allegations. As the employer did not respond and did not sufficiently investigate the issue it went to the fairness of the dismissal. Whilst this is only a first instance decision employers should be wary of rejecting an SAR out of hand simply because there are disciplinary proceedings on-going.


Earlier Conciliation

Issue

It is a legal requirement that a claimant contact Acas under the early conciliation procedure prior to submitting a claim in the Employment Tribunal. The question in the recent case of Compass Group Group v Morgan was whether the employee could include in their claim things that had happened after contact with Acas or whether the claim should be limited to matters that had already happened at that time?

Facts

In October 2014, Ms Morgan submitted a grievance to her employer about being instructed to work at an alternative location in a less senior capacity. On 14 November she contacted Acas in accordance with the Early Conciliation process. An EC certificate was issued on 3 January 2015. Ms Morgan resigned two months later on 18 March 2015. She brought claims on 20 March which included a claim for constructive unfair dismissal which the employer claimed should not be allowed to proceed as it had not been the subject of Early Conciliation.

Decision

It was held that the claim could proceed. There was no temporal limitation. The statutory requirement was to contact Acas before instituting proceedings ‘relating to any matter’. The word ‘matter’ should be interpreted broadly and may encompass not just the precise facts of a claim but also other events at different times and/or dates and/or involving different people. There was not even an obligation to identify the matter itself or the nature of any actual or prospective dispute when contacting Acas

Comment

It is relevant that when notifying Acas the ‘would-be claimant’ has an option to refuse to take part in any form of conciliation and will in those circumstances simply be issued with a certificate. There was no obligation to provide the factual details or any background to the dispute. However the judgment does suggest that where matters have been notified to Acas the subsequent Employment Tribunal proceedings should relate to them. Therefore it leaves open the question of whether a completely unrelated could be litigated using any Acas Certificate.


August 2016

A scandalous disciplinary case

Issue

Carrying out a full investigation forms a key part of the disciplinary process. It will set the whole basis for the hearing and the decision making process that follows it. The fact that the investigator’s report is amended before it is passed to the disciplinary panel can call into question the adequacy of the investigation and the fairness of the process as was seen in the recent case of Dronsfield v University of Reading.

Facts

A disciplinary investigation was conducted into allegations that Dr Dronsfield had not reported a brief affair that he had with one of his students. The investigator had concluded in his report that there had been no abuse of power and that it had been an error of judgement for the Professor not to report the consensual relationship. However the final version of the report omitted those findings following advice received from a HR officer. A Disciplinary Panel subsequently decided that Dr Dronsfield should be summarily dismissed for gross misconduct. He claimed that the dismissal was unfair.

Decision

It was held that the changes in the report raised questions as to the reasonableness of the investigation. The report had initially not found evidence of “good cause” for dismissal but had concluded that Dr Dronsfield had been guilty only of an error of judgement. This had been a significant conclusion that had been removed from the final report. The judgment confirmed that HR’s advice should be limited essentially to matters of law and procedure, as opposed to questions of culpability, which were reserved for the investigating officer.

Comment

The decision confirmed the observations made in the previous case of Ramphal v Department of Transport 2015 regarding the limits on HR’s role in the disciplinary investigation. The fact that here and in Ramphal the investigation report had been significantly amended was sufficient to cast doubts on the process. Separately it was also held that the University had to apply its Charter which only provided for dismissal of academic staff on certain specified grounds. It would need to consider whether Dr Dronsfield had been guilty of conduct which was of an “immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment“.


Inflated harassment

Issue

Compensation awards in discrimination cases will usually include an amount for ‘injury to feelings’. The amounts awarded are not subject to any statutory limitations. However guidance given in the Court of Appeal in Vento v Chief Constable of West Yorkshire 2002 suggested that in most cases they should be between £500 and £25,000. Subsequently in Da’Bell v NSPCC 2010 those figures were uprated to take into account inflation. The recent case of (1) AA Solicitors Ltd t/a AA Solicitors (2) Ali v Majid has now given the green light for further upward adjustment.

 

Facts

Miss Majid, a law student, had during her six week period of employment endured repeated advances and inappropriate comments from the firm’s sole lawyer Mr Ali.  This included one comment that he intended to have a bed installed in one of the offices for the two of them to share. Miss Majid “politely rejected” his advances and was dismissed. Miss Majid brought a claim of sexual harassment and put forward 40 or more occasions when Mr Ali had caused her to feel humiliated.

 

Decision

It was held that she had suffered sexual harassment and an award was made for £14,000 for injury to feelings despite the period of employment being relatively brief. In calculating this award it was confirmed that the impact of inflation should be taken into account. Importantly there was no need for Tribunals to wait for a higher court to calculate the amount of the adjusted sum after inflation. It was directed that was an exercise that should be undertaken by each Tribunal on a case by case basis.

 

Comment

The latest published RPI figures from the Office for National Statistics state that there have been inflationary increases of 22.7% since the guidance in Da’Bell suggested that awards for injury to feelings should range between £600 and £30,000.  This could mean that there may well be substantial increases to the sums awarded for injury to feelings compensation if Employment Judges apply the inflationary statistics. It should also be taken into account that this is in addition to a 10% increase that applies to all awards in relation to ‘general damages’ in all civil cases.


Pay for work related illness

Issue

It is not uncommon for sick pay to be set at a reduced amount and to be limited for a certain period of time. However some contractual schemes provide for full pay to continue for an extended period where the illness or injury has been caused by the employee’s work. The application of such a contractual sick pay scheme raised questions in the recent case of Cooke v Highdown School & Sixth Form Centre and Governors.

Facts

Mrs Cooke, a teacher, had been employed on nationally agreed terms and conditions which provided that where an approved medical practitioner had confirmed that illness had arisen out of and in the course of her employment full pay should be allowed to continue. Mrs Cooke was absent due to stress following criticisms about her teaching. The certificates provided by her GP confirmed she was suffering from “stress at work” and “work related stress”. She brought a claim in the Tribunal when the school subsequently reduced her sick pay.

Decision

It was held that her claim should be dismissed.  Whilst it was possible that her GP might be an ‘approved medical practitioner’ the notes on the certificates provided had not sufficiently identified that work had been the cause of her stress. It was just as possible that the stress had been caused by something else in her life and that she had then suffered stress at work. She had not established a right to continue to receive full pay in the circumstances.

Comment

The reduction in her pay whilst she was absent due to sickness had only been one part of Mrs Cooke’s claim in the proceedings before the Employment Tribunal. Whilst she lost the dispute about the sick pay terms the case does highlight the importance for employers of clearly expressing the circumstances where entitlement to full pay will continue to apply even where the employee is absent.


No right to reject case

Issue

Amendments to the rules of procedure that apply in the Employment Tribunal introduced a number of new provisions in 2013 including a ‘sift’ stage which required that an employment judge should reject a claim without a hearing if he or she considered that it was in a form that could not ‘sensibly be responded to’ or was otherwise an abuse of process. However the recent case of Trustees of the William Jones’s Schools Foundation v Parry has cast doubts on the validity of such a practice.

Facts

Ms Parry had instructed solicitors to submit claims for unlawful deduction from wages and unfair dismissal. The day before the statutory deadline the claim form was submitted. The details of the claims were stated as being contained in a separate attached document. However the attached document had mistakenly referred to the details of an entirely different claim. The employer argued that in these circumstances the claim should have been dismissed without a hearing as it was not in a form which could not ‘sensibly be responded to’.

 

Decision

It was clear that in these circumstances the employer could not sensibly respond to the claim as it would have no idea what was being alleged. According to the ET rules this meant that the judge was bound to reject the ET1. However it was held that the amendments to the legislation that provided for proceedings to be determined without any hearing were invalid. The employer’s appeal was rejected and the case was allowed to continue.

Comment

It is rare that the courts will reach a finding that amendments to statutory provisions are invalid. The basis for the finding was that the changes were not authorised under primary legislation that restricted the circumstances where a claim could be determined without any hearing. No reference was made to the provisions under which claims could be rejected for failing to comply with Early Conciliation requirements but it appears that the same arguments could be made if a claim was rejected without a hearing.


Local bargaining

Issue

Where a request for trade union recognition is rejected the union may apply to the Central Arbitration Committee (CAC) for an order for compulsory recognition. However it will first need to identify what would be an appropriate ‘bargaining unit’ for the purpose of collective negotiation and representation. The recent case of Lidl v Central Arbitration Committee and GMB shows that this may be only a small unit within a large workforce.

Facts

Lidl refused a request from the GMB union for recognition. It applied to the CAC for compulsory recognition in respect of a group of warehouse operatives based at the Bridgend distribution centre. Lidl disputed that this was an appropriate bargaining unit as it comprised only 223 employees or 1.2% of the total workforce of 18,203. Lidl emphasised that it operated what was described as a “one Lidl” culture, comprising one organisation with a single set of policies and procedures. 

Decision

Lidl’s argument that the proposed bargaining unit would result in unacceptable fragmentation for agreeing terms and conditions was rejected. It was held that the proposed bargaining unit was appropriate. It was not necessary to determine whether the proposed unit would be the best or most appropriate before the application could be approved. 

Comment

The case highlights the risks where negotiations concerning recognition and collective bargaining fail. In order to get recognition it will be easier to show majority support for the union where a small group of employees is put forward. However it may cause the greatest administrative burden for the employer going forward when it wishes to introduce new terms that will impact the whole workforce and not just a small part of it.


July 2016

Unwritten appeal powers

Issue

If an employee successfully appeals against the employer’s decision to dismiss they will normally have no need to bring or proceed with a claim for unfair dismissal. However there will be occasions where the employee never intended to return and has appealed for other reasons. Whether the ‘reinstated’ employee will be able to make a claim for unfair dismissal in those circumstances can be a cause of dispute as was seen in the case of Folkestone Nursing Home Ltd v Patel.

Facts

Mr Patel a healthcare assistant had been charged with sleeping on duty and falsifying residents’ records. His defence was that he was sleeping during his rest break and that he had been unable to complete the daily record sheets because of an interruption. Mr Patel was dismissed for gross misconduct but his appeal was successful and he was reinstated. However Mr Patel did not return to work and instead submitted a claim of unfair dismissal.

Decision

It was held that that the dismissal had ‘vanished’ and that there could be no claim for unfair dismissal. In so finding the initial decision that the disciplinary policy had to expressly refer to a power to reinstate was overturned. There was no requirement that the disciplinary procedure had to make provision for reinstatement. Neither was there an obligation that every aspect of the disciplinary charge had to be addressed. The key issue was that it had been made clear he had been reinstated.

Comment

The case of Roberts v West Coast Trains 2005 had established that a successful appeal could prevent an unfair dismissal case proceeding and the subsequent case of Salmon v Castlebeck Care 2015 had determined that there was no requirement for the appeals procedure to expressly give the right to reinstate. This decision applies the key findings from both those cases. Mr Patel’s argument that this was just an offer of reinstatement was rejected.

The power of the appeal

Issue

It has previously been established that an employer may, by following a full disciplinary appeal process, cure procedural defects that would have otherwise caused the dismissal to be unfair, for example by providing the employee with copies of the evidence previously withheld. However the recent case of Khan v Stripestar Ltd had to consider the extent to which an appeal would be able to save an original disciplinary decision that had been made in substantively unfair circumstances.

Facts

Mr Khan supervised a vehicle repair workshop. He had bought a vehicle and had arranged for repairs to be carried out under the pretence that they were for a customer. When this was discovered he was dismissed. The hearing lasted no longer than six minutes and he was given no opportunity to make any representations. Mr Khan claimed the reason was that the manager conducting the hearing had also been involved in the deception. Mr Khan’s appeal was heard by another manager and rejected. He claimed unfair dismissal.

Decision

It was held that the original six minute disciplinary hearing had been wholly inadequate and given that the manager conducting it had been aware that the repairs were for Mr Khan and not a customer the dismissal by him was substantively and procedurally unfair. However the appeal process had been carried out by a manager that had not been involved. He had carried out a full investigation before confirming that Mr Kahn should be dismissed and this cured any unfairness from the earlier stage.

Comment

This case raised the issue of whether there were limits to the extent to which an appeal could remedy a defective first stage in the disciplinary process. It highlights that the appeal manager will be the ultimate decision maker and that the whole disciplinary process will be considered when deciding whether the employer has acted fairly. So whilst simply rubber stamping the original decision to dismiss will not help a thorough and full appeal process can save almost any fault from the first stage.

Unconscious discrimination

Issue

In discrimination claims it is rare that a discriminatory intention will ever be admitted. The finding that there has been discrimination will usually be based on an inference following the establishment of facts that showed there had been less favourable treatment and the employer’s failure to explain this on other grounds. In the case of Geller and Geller v Yeshurun Hebrew Congregation the issue was the extent to which the potential for unconscious discrimination should be taken into account.

Facts

Mr and Mrs Geller both worked at the same centre. Mrs Geller had started carrying out the work following her marriage to Mr Geller. The centre’s committee could not decide how Mrs Geller should be paid for the work carried out. Proposals that they would award a joint salary fell through when it was decided that there was no longer a requirement for them. Mr Geller was consulted about the potential redundancy but there no communication with Mrs Geller who claimed sex discrimination.

Decision

It was held that whilst the committee members of the centre may have given evidence that they treated Mrs Geller differently from Mr Geller because of a genuine belief regarding her casual employment status consideration had to be given to the question of subconscious or unconscious discrimination. It had to be recognised that the witnesses may have had preconceptions, beliefs, attitudes and prejudices that could have influenced the decision making process.

Comment

Subconscious discrimination is by its very definition something that the decision maker does not realise is affecting him or her. The evidence given had to be assessed on the basis that there may have been “stereotypical assumptions based on her gender – i.e. that women are not breadwinners”. One practical consequence is that consideration should be given to equality training that raises awareness amongst managers to help show such assumptions did not influence a decision.

Who knows about blowing the whistle?

Issue

If an employee who has made a public interest disclosure is treated less favourably or dismissed as a result they will have a claim against the employer. One of the main issues in this type of claim is whether the disclosure was the reason for the treatment or whether it was because of something else. In the case of Royal Mail Group Limited v Jhuti the question was whether causation could be established where the decision maker did not know the employee had made a disclosure.

Facts

Soon after Ms Jhuti had started work she began to suspect that a work colleague had breached Royal Mail rules and Regulatory requirements. She reported her suspicions to her line manager. However in response he put her on a performance management plan and said she did not understand the processes. Ms Jhuti submitted further complaints but was just offered a settlement to leave. When this offer was refused another manager dismissed her on grounds of poor performance.

Decision

Ms Jhuti had clearly made protected disclosures and had been treated detrimentally as a result. The fact that the dismissal decision had been taken by a manager who had not been aware of her protected disclosures and genuinely believed that Ms Jhuti was a poor performer did not prevent her claim succeeding. The investigation had been manipulated by her line manager who had been in possession of the true facts and so the action could still be attributed to the employer.

Comment

The question for determination was what the reason or principal reason was for the treatment. Whilst in most cases that means that the facts known to the person who made the decision to dismiss have to be established this case shows that the knowledge of others in the organisation will sometimes be sufficient. In this way a whistleblowing claim will be easier to establish than one of direct discrimination where it is necessary to establish knowledge on behalf of the actual decision maker.

Who is liable for disclosures?

Issue

An employee or worker who has made a public interest disclosure will get protection against detriment and dismissal. The individual will be able to bring the claim against the employer as that is who will generally be responsible for their treatment.  However the recent case of McTigue v University Hospital Bristol NHS Foundation Trust considered the position of agency workers and the potential liability of the third party to which the worker was assigned.

Facts

Ms McTigue had been employed by an agency and assigned to carry out nursing duties at the University Hospital Bristol NHS Foundation Trust. When she was informed that she had been removed from this assignment she considered that the reason was that she had made protected disclosures to the Trust. She brought a claim of unlawful detriment against the Trust. However the right to bring the claim was disputed as she was not the Trust’s employee or worker.

Decision

It was held that in respect of whistleblowing protection there was an extended definition of worker in the legislation that was included primarily to protect agency workers. That provided that if the individual was supplied to work to an NHS employer and he or she did not determine his or her own terms and conditions they would be regarded as a worker and would qualify for protection.

Comment

It was taken into account that the legislation was specifically designed to secure whistleblowing protection for those who typically had contractual work arrangements with the NHS that meant they would not normally have protection. Only if the individual was self-employed so that they substantially determined their own terms would they not be a worker under the extended definition.


June 2016

No waiver for pre-termination negotiations

Issue

In principle discussions to resolve workplace disputes that are referred to as ‘without prejudice’ will be ‘privileged and therefore inadmissible in subsequent court proceedings. There is also a statutory rule that exit terms discussed in ‘pre-termination negotiations’ will be inadmissible if the employee brings a claim of unfair dismissal. In the recent case of Faithorn Farrell Timms LLP v Bailey the extent and application of these inadmissibility rules was challenged when an employee attempted to disclose the fact discussions had taken place in support of her claims. 

Facts

Mrs Bailey decided to start discussions with the employer about a possible exit package when she found out that she would not be able to continue to do part-time hours.  There followed an exchange of without prejudice correspondence in which terms were suggested under which she would leave. However no agreement was reached and Mrs Bailey formally raised a grievance in which she made it clear that she was openly relying on matters set out in the negotiations. She later resigned and brought claims that included constructive dismissal and sex discrimination. 

Decision

It was held that the negotiations were not admissible as evidence. The statutory rules regarding pre-termination negotiations had a wide application. Not only was the content of any offers made or discussions held inadmissible the fact that there had been such offers or discussions was also inadmissible. Mrs Bailey could not rely on the existence of such negotiations in support of an unfair dismissal claim. Neither was she allowed to bring into evidence the discussions by reference to communications between management and HR regarding them.

Comment

The judgment is the first to give guidance on the application of the admissibility of evidence following the rules regarding pre-termination negotiations which were introduced some three years ago. It should give some reassurance to employers in relation to the confidentiality of the discussion. In addition to highlighting the extent of the rule it also showed that it differed from the common law without prejudice principle in that there was no right to waive the statutory rule regarding inadmissibility.


Cultivating post termination restrictions

Issue

In trying to enforce a restrictive covenant the employer will have to overcome a number of obstacles. Restrictions will only be valid insofar as necessary to protect the employer’s legitimate business interests; the reasonableness will have to be shown as at the time that they are entered into and there has to be consideration given for the benefit of the covenant. All those issues were called into question in the recent case of Pickwell & Nicholls v Pro Cam CP Ltd.

Facts

Mr Pickwell and Ms Nicholls had both been hired as trainee agronomists in 2009 and 2012 respectively. Some weeks after being given letters which had set out the terms of their employment they had been sent detailed formal contracts which included amongst other things the introduction of restrictive covenants. In 2015 the two employees accepted offers of employment from a competitor and disputed the validity of the covenants.

Decision

The High Court held that the covenants were enforceable. It rejected the argument that there had been no consideration provided on the grounds that their continued employment; their training and their introduction to new customers was sufficient consideration. The introduction of the restrictions had been a variation to their contractual terms which had been accepted by them. Neither was it unreasonable that they had still been trainees when the covenant was entered into.

Comment

The case may provide some reassurance for employers in relation to the enforceability of post termination restrictions. However cases regarding these covenants tend to be very fact sensitive. In the last 18 months there has been a case in which continued employment was not found to amount to consideration and another similar one in which the covenants were unreasonable as they had been imposed when the employee was still a trainee. Here though it was clear that the employment would not have continued as it had if the covenants had not been accepted and that their timing did not make them unreasonable as it had been relatively recent.


No uplift for ill health dismissal

Issue

The Acas Code of Practice on Disciplinary and Grievance Procedures explicitly states that it applies to dismissals for conduct and performance and that it does not apply to dismissals for redundancy or the expiry of a fixed term contract. However its application to other dismissals that do not fall within these two categories has been an issue of contention particularly as a breach may result in a 25% uplift to an unfair dismissal award. In Holmes v Qinetiq Ltd the issue was whether it would apply in cases that involved dismissal on grounds of sickness absence.

Facts

Mr Holmes, a security guard, was disabled and suffered with pain in his back, legs and hips. This had caused him to be absent for considerable periods of time which had eventually led to his dismissal. His claim of unfair dismissal was conceded as the employer had failed to obtain an up to date medical concerning his ability to work even though an operation had been planned in the month that he had been dismissed. The claim was contested though in relation to the question of whether the compensation should be uplifted by 25% to reflect the failure to follow the Acas Code of Practice.

Decision

It was held that that the procedure under the Acas Code of Practice applied only where there was a “disciplinary situation”. This meant that an uplift to compensation would only be appropriate in situations where there was a breach of rules or codes of behaviour that could generally be described as misconduct. It would not apply where a procedure was being followed because of an employee’s ill health as in that situation there was no allegation of culpability.

Comment

This is the clearest guidance yet that the Acas Code only applies if the procedures concerns allegations of culpable conduct. However it was recognised that there might be other situations in which the Code could be applied for instance where the employer has chosen to proceed by reference to the ACAS Code on the mistaken basis that the situation with which it was concerned was a disciplinary situation or even in a sickness absence management situation where the ill health was not genuine or there had been a failure to comply with absence reporting procedures.


Workplace students get protection

Issue

With greater numbers than ever attending university the number of work placements required for students looks bound to increase. Ordinarily, a person undertaking vocational training can make a claim for discrimination in the Employment Tribunal. In the recent case of Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust the question was whether students whilst on a work placement would be able to claim the same protection in the Employment Tribunal.

Facts

Ms Blackwood was studying for a Diploma of Higher Education in Mental Health Nursing. Her university arranged a vocational placement with the Trust. However, the Trust withdrew the placement when it found out that due to childcare responsibilities she would be unable to comply with shift patterns requiring her to work late or through the night. Ms Blackwood submitted claims of indirect sex discrimination against both the University and the Trust. However it was disputed that she had the right to do so. 

Decision

It was accepted that there was an exception to the usual right for a worker to bring a claim in the Employment Tribunal where it is the university that “has the power to afford access” to the training. However it was held that to leave such a gap in protection would not be compatible with EU discrimination Directives. In order to remedy this gap it was decided that further words would be read into the Equality Act in order to preserve the worker’s right to bring claims in the Employment Tribunal against the provider of the work placement.

Comment

A student could bring a claim in the county court against the university if it failed to provide access to a placement or did so in a discriminatory way. The decision makes clear that where discrimination occurs during the course of the work placement a claim can be brought against the provider or the university in the Tribunal. It’s a conclusion that will be of significance for many professions where a standard part of their educational course involves a vocational placement to a third party work provider.


Reorganisation breakdown

Issue

In some cases dismissal is blamed on a complete “breakdown in the employment relationship”. This may sometimes involve conduct issues or a breach of company rules but not always. It might be just that colleagues fail to work together or that there is a clash of views. In the recent case of Phoenix House Ltd v Stockman the issue was whether the employer had acted reasonably in dismissing an employee who had fallen out with a colleague following a reorganisation in the workplace.   

Facts

Following an organisational restructure Ms Stockman’s position as Financial Accountant was removed. She was instead given the role of Payroll Controller which was a more junior position. She felt unfairly treated by her manager. Their falling out led to both grievance and disciplinary proceedings being instigated and Ms Stockman being absent on sick leave. At a subsequent meeting she was told there was no way for her to come back to work with her manager and that she would be dismissed because the working relationship had irretrievably broken down.

Decision

Her claim for unfair dismissal succeeded. The employer had unfairly put the burden on Ms Stockman to show that the relationship had not broken down. This was not a case of an employee being in a senior key role in a small management team. Ms Stockman was a middle ranking clerical employee. Her job might not even bring her in day to day conduct with the person with whom she had a difficult relationship. She had never had the opportunity to demonstrate in practice that she could not work harmoniously with her colleague as she had been absent from work on sick leave.

Comment

Dismissal because of a breakdown in the employment relationship has been held to amount to ‘some other substantial reason’ (SOSR) that justifies dismissal. However the decision highlights that it might be easier to show that the impact justifies dismissal where the person is in a senior role within a small team. It is also important to note that the decision confirmed that whilst the dismissal was unfair as a SOSR dismissal it was not a case where the Acas Code Practice on Disciplinary Procedures applied and therefore no uplift could be made to the award of compensation.


May 2016

Would you believe it!

Issue

Whilst the Equality Act 2010 makes clear that discrimination in the workplace because of religion or philosophical belief is prohibited it does leave open the question of what will qualify as a ‘philosophical belief’. The leading case to consider the issue identified five key factors, that it is a genuinely held belief: more than just an opinion or viewpoint; it concerns a substantial aspect of human life; be cogent, serious, cohesive and important; worthy of respect in a democratic society, compatible with human dignity and not in conflict with the fundamental rights of others. The issue in Harron v Dorset Police was whether a belief that public expenditure was being wasted met these requirements and qualified for the statutory protection.

Facts

Mr Harron is a part time employee in an administrative role within the Dorset Police Force.  He had become angry and frustrated at what he considered was the waste of public monies in the way that the organisation was run. He regarded it as suffering from too much bureaucracy being ‘top heavy’ with over remunerated people. He felt that it was his duty to the public to raise these issues but complained that because he had made known his views he had been treated with negativity. He brought a claim that he had a profound belief in “the proper and efficient use of public money in the public sector” and had been subject to less favourable treatment at work because he had made it known.

Decision

At the Employment Tribunal it was held that whilst Mr Harron may have genuinely held the belief and it was worthy of respect it did not qualify for protection as it was more a set of values than a belief. It also did not meet the requirements that it concerned a substantial aspect of human life or that it had sufficient cogency. However on appeal it was held that the Tribunal may have set the bar too high. The criteria had to be considered and the individual’s basis for holding that belief. Whilst a belief must relate to matters that are more than merely trivial, the assessment should not be too demanding in this regard. It was held that the Tribunal had been wrong to strike out the claim which needed to be reconsidered.

Comment

The decision highlights how wide the scope of protection may be for employees under the heading of ‘philosophical belief’. This may catch out the unwary employer as there is no minimum period of service required and even job applicants can rely upon its protection. Previous cases have established that a commitment to ‘green’ living; a belief in the higher purpose of public service broadcasting; a commitment to public service for the common good are all protected beliefs. Now saving money in the public sector might be added to that list.


Belief in marriage vows

Issue

The protection against discrimination on grounds of religion or philosophical belief prohibits direct discrimination, harassment, victimisation or indirect discrimination. The ‘indirect’ claim arises where there is a ‘provision criterion or practice’ that the employer applies to all which puts workers at a particular disadvantage because of their religion or philosophical belief. In the case of Pendleton v Derbyshire County Council and The Governing Body of Glebe Junior School the issue was whether the employer’s reaction in unusual circumstances could give grounds for such a claim.

Facts

Mr & Mrs Pendleton were teachers in separate schools within the same locality. Mr Pendleton was convicted of sex offences relating to child pornography. Mrs Pendleton had been entirely unaware of his activities. However her employers informed her that by staying with her husband following the conviction she was acting against the ethos of the school and making it impossible for her to carry out her safeguarding responsibilities. She refused to leave him as she believed in the sanctity of her marriage vows. Following her subsequent dismissal she claimed that she had been subject to indirect discrimination on the grounds of her belief.

Decision

The Employment Tribunal had considered that the indirect discrimination claim could not succeed as the employer did not have a policy in place that put a group of employees at a particular disadvantage. It had simply reacted to what were unusual circumstances. However on appeal it was held that the employer’s response, even though it was a very unusual situation, could still be described as the operation of a practice or policy. While the employer might not have applied that policy or practice previously this was how it would respond in such circumstances and that was sufficient for the employee to be able to claim the statutory protection.

Comment

The term ‘practice’ would suggest that there was in place a policy that had been applied on more than one occasion. However as this case shows the fact a practice or decision has not been applied previously may not necessarily prevent a claim of indirect discrimination from succeeding. However any employer in such circumstances will still have a good defence if it is able to show that the practice is justified. In this case the claim succeeded because it was held that dismissal was not a proportionate means of achieving a legitimate aim.


Risks of a long hours culture

Issue

The health risks of working excessive hours have long been recognised. However could just the fact of having a long hours culture put an employer at risk of a claim of discrimination? In the recent case of Carreras v United First Partners Research the issue was whether an expectation or assumption that employees would work late could constitute a practice that would place a disabled employee at a disadvantage and so trigger the duty to make reasonable adjustments?

Facts

Mr Carreras, an analyst in a brokerage and research firm, had historically worked long hours. However following a road traffic accident while riding his bike he started to have continuing problems with dizziness, fatigue, and headaches. This caused him to have difficulties when trying to concentrate or focus particularly at the end of the day. Eventually he made a formal objection to working in the evenings because of these problems. A heated exchange with his manager followed which resulted in Mr Carreras resigning and bringing claims of discrimination.

Decision

The employer argued that whilst it did sometimes request that employees work late this was not a practice that placed Mr Carreras at any disadvantage because it was always possible for him to simply say ‘no’. In other words late nights were voluntary rather than a requirement. However the employer’s argument was rejected. It was held the requests and expectation that employees would work late was sufficient to establish that there had been a disadvantage and that the duty to make reasonable adjustments for a disabled employee applied.

Comment

The judgment highlights how a long hours culture can place some employees under pressure to work late. In this case it was found that there was an expectation of when employees would work late not if they would work late. This was capable of placing a disabled worker at a disadvantage. It’s also possible that this could be regarded as placing women at a disadvantage where child care commitments mean late hours are not possible.  Whilst there is no corresponding duty to make reasonable adjustments there could still be a finding of indirect discrimination if the policy cannot be justified.


Loose connection?

Issue

The Equality Act 2010 provides protection to disabled employees who are treated unfavourably because of something that arises in consequence of the employee’s disability. Perhaps the most common example is where an employee is treated unfavourably because of a period of disability-related absence. However there can be claims even where the link with the employee’s disability is far less clear as was seen in the case of Risby v London Borough of Waltham Forest.

Facts

Mr Risby a paraplegic was asked to attend manager workshops. Initially these were to take place at a private venue that had wheelchair access. However for cost-saving reasons the venue was switched to the basement of one of the Council’s buildings which did not have wheelchair access. Mr Risby became very angry and made racial comments over the way in which the event had been organised which upset a junior colleague.  Mr Risby was summarily dismissed for losing his temper and brought a claim for discrimination arising from disability. 

Decision

The initial decision was that his claim had to fail as the fact he had lost his temper was not as a consequence of his disability. No link could be made with his disability. However on appeal it was held that there was sufficient evidence to meet a loose causation test. If Mr Risby had not been disabled by paraplegia, he would not have been angered by the decision to hold the workshop in a venue he could not access. It followed that his misconduct was the product of indignation caused by that decision and his claim could proceed.

Comment

The decision highlights that a very broad approach will be taken to the issue of whether the conduct in question was as a consequence of the disability. In this case it was even recognised that Mr Risby had a personality trait of shortness of temper which did not arise from his disability and was also a cause of his conduct but that did not mean that the other cause, which was related to his disability should be disregarded. It appears that in such cases the employer will have to defend the claim on grounds that its actions were justified in any event.


Injury to feelings limited to discrimination

Issue

A successful claim for discrimination under the Equality Act 2010 may result in compensation being awarded not just for the claimant’s financial losses but also for ‘injury to feelings’. A successful claim in relation to a breach of the Working Time Regulations 1998 (WTR) may result in an Employment Tribunal awarding such compensation as it considers ‘just and equitable’ in the circumstances. The question in the case of Santos Gomes v Higher Level Care Ltd was whether this too could include compensation for injury to feelings.

Facts

Miss Gomes was employed in a hostel that provided accommodation and support for vulnerable young people. After her employment came to an end she brought a number of claims including breach of the WTR. In particular she alleged that her employer had failed to provide her with the minimum rest breaks. The Employment Tribunal agreed finding that she had not been provided with the minimum 20-minute rest break in her six hour plus shifts. The parties had agreed that she should be paid £1,220 but Miss Gomes argued that she should in addition be awarded compensation for injury to feelings.

Decision

It was held that there was no power for an Employment Tribunal to award compensation for injury to feelings under the WTR. Unlike discrimination claims under the Equality Act 2010, there was no express provision to allow for this. The fact that Regulations prohibiting less favourable treatment in relation to Part-time Workers and Fixed-term Employees expressly excluded such compensation did not mean it was not appropriate to imply such a power.

Comment

The judgment makes clear that there is no right to claim compensation for injury to feelings in relation to breaches of the WTR. However if the breach did cause the worker to suffer damage to their health, for example following repeated failings to provide appropriate rest periods, appropriate compensation could be awarded. Most commonly such a claim would be brought like any other claim for personal injury compensation in the civil courts but it was suggested in the judgment it could also be taken into account by the Employment Tribunal in a WTR claim.


April 2016

How long is an EC month?

Issue

The Acas Early Conciliation (EC) procedure requires that a prospective claimant contact Acas before submitting proceedings in the Employment Tribunal. In order to allow for sufficient time to take part in conciliation the usual three month time limit for submitting claims is extended so that the claimant will always have at least a month following the end of the conciliation period. Calculating the end date for that extra month was the issue in the case of Tanveer v East London Bus & Coach Company Ltd which confirmed that it should be the corresponding date in the following month. 

Facts

Mr Tanveer was dismissed on 20 March 2015. His solicitors contacted Acas on 18 June and an EC certificate was issued on 30 June.  His claim for unfair dismissal and disability discrimination was submitted on 31 July. Had the claim been presented one day out of time? Mr Tanveer argued that his claim was in time as the calendar month extension started ‘after’ 30 June i.e. on 1 July. However the employer argued that the claim was out of time.

Decision

It was noted that the EC provisions did refer to the extension of time being “one month after” the date when Acas issue the EC certificate. It held though that the “corresponding date” rule should apply. This requires that a period of a month or months “from” or “after” a particular date will end on the corresponding date in the relevant month, so one month after 30 June was 30 July. Mr Tanveer’s claim had been issued one day outside the three month time limit.

Comment

The Employment Tribunal does have the power to allow an extension of time if the claim is late. In deciding whether to exercise this discretion there are different tests depending on the type of claim being brought. In relation unfair dismissal it is whether it had been reasonably practicable to bring the claim in time but in in relation to discrimination claim it is whether it would be just and equitable to extend time. The latter test being easier to meet meant that the discrimination part of Mr Tanveer’s claim was allowed to proceed whilst his unfair dismissal claim was rejected.


The decision maker

Issue

Where it is claimed that an employer discriminated against an employee by dismissing them in retaliation for having previously raised complaints the key issue will be the real reason for the treatment or in other words what was in the mind of the decision maker. This can be a difficult to establish as was highlighted in the recent case of Cousins v The Forum@Greenwich in which there was evidence that one senior person had made discriminatory comments but not that he had influenced the decision to dismiss.

Facts

The Chair of the Board of Trustees had recommended that Ms Cousins be dismissed at the end of her probation period after she had complained about him making discriminatory remarks in a meeting. The Board did not accept the his recommendation to dismiss but on the prompting of another Trustee decided to extend the probation period for a further six months. At the end of the extended probation period she was interviewed regarding her failure to produce reports. Her admission that she had not read the instructions regarding the reports led to her dismissal. She claimed race discrimination.

Decision

It was held that her claims of discrimination should be dismissed. There had been concerns about her performance in the role and her ability to produce reports which had led to her probation being extended. Whilst the Chair had made discriminatory comments he had played no part in the dismissal decision. The decision to dismiss was taken at a later stage following an investigation into her failure to carry out reasonable management instructions.

Conclusion

If Ms Cousins had been dismissed directly following the recommendation of the Chair of the Board that may have resulted in a finding of race victimisation. It would have been his decision and following the complaints about his discriminatory comments it would appear that causation could have been established. However as this case highlights where there are further events and others make the decision the chain of causation will be broken


Religion in the workplace

Issue

The Equality Act 2010 provides protection against discrimination on the grounds of religious belief. The importance of this protection is underlined by the fact that under Article 9 of the European Convention on Human Rights a person has the express right to manifest their own religious belief. However in the case of Wasteney v East London NHS Foundation Trust it was shown that this would not prevent disciplinary sanctions being imposed where the employee had been guilty of misconduct.

Facts

Miss Wasteney, Head of Forensic Occupational Therapy and a devout Christian, was subject to disciplinary proceedings and given a warning following a complaint from a junior Occupational Therapist of Muslim faith. It had been alleged that Miss Wasteney had tried to impose her religious views on her by repeatedly inviting her to church events; giving her a book about the conversion of a Muslim woman to Christianity and laying hands on her whilst praying. Miss Wasteney brought claims that the disciplinary action was less favourable treatment on the ground of her religious belief.

Decision

It was held that the employer had been entitled to take the action against her. The Convention rights she had relied upon were not absolute and evidence had shown that the junior employee had not consented to the conduct towards her. The disciplinary action had been taken because a junior colleague had made serious complaints about acts which had blurred professional boundaries and placed improper pressure on her.

Comment

The claim failed as it was considered that the employer would have taken a similar approach had she been pressing a particular non-religious point of view. The religious context of the comments was not really the reason behind the imposition of the disciplinary sanction.  It shows that a distinction has to be drawn between the situation where an employer disciplines an employee for simply manifesting a religious belief, which would be unlawful discrimination and where disciplinary action is taken against an employee for improperly manifesting a religious belief, which an employer is within its rights to do.


Post termination restrictions rejected

Issue

Whilst post-termination restrictive covenants are often used and can provide valuable protection for legitimate business interests there has always been concerns about enforcement. If the restriction is viewed by the Court as unreasonable they will be rejected as a restraint of trade and contrary to public policy. The recent case of Bartholomews Agri Food v Thornton usefully highlighted that the timing and extent of the restrictions are key factors when reasonableness is being assessed.

Facts

Mr Thornton, an agricultural adviser, had been employed by Bartholomews since 1997. In December 2015 he gave notice of resignation stating that he intended to start work for another agricultural company. Bartholomews relying on a post termination restriction in his original contract attempted to prevent him doing so by applying for an injunction to last for six months from the date his employment ended. Mr Thornton disputed the restriction was enforceable.

Decision

The application for an injunction was dismissed. The restriction had been drafted much wider than was reasonably necessary as it prohibited him dealing with any customers rather than just the customers he had been associated with before leaving.  In addition the reasonableness had to be judged as at the time it had been entered into and in 1997 Mr Thornton had just been starting out as a trainee clearly making such post-employment restrictions inappropriate.

Comment

The decision highlights the importance of limiting the restriction to the extent necessary to protect the legitimate business interest and to consider the status of the employee when the agreement is made. If it was unreasonable then the fact the employee has since been promoted will not help enforce it. Interestingly the argument that payments made for compliance should support its enforceability also did not succeed as it was considered that it would allow a restraint of trade to be purchased.


Contractual terms or staff policies

Issue

Generally an employer does not have a right to unilaterally change contract terms. However policies and procedures regarding work matters may not have contractual status and so may be amended without agreement. Sometime distinguishing between the two can be difficult as was highlighted in the recent case of Department for Transport v Sparks and others in which it was argued that the absence management provisions of a staff handbook were in fact contractual terms.

Facts

The Handbook stated that all its terms that were apt for incorporation were to be incorporated into the contract. There was a provision that if in any 12 month period the employee had taken a number of short term absences which together exceeded 21 working days the “trigger points” would have been exceeded and the line manager could take the matter forward in accordance with the relevant attendance procedures. The employer’s attempt to vary these trigger points in the policy was challenged on the grounds that they were contractual.

Decision

The employer’s argument that the provisions were not contractual terms but mere notes of guidance or good practice was rejected. It was held that the absence trigger point provisions had been incorporated into the contracts of employment and did have legal force. As a result the employer had no right to unilaterally impose a new policy of attendance management.

Comment

Whether a provision in a staff handbook is incorporated into an individual’s employment contract so as to have legal force will ultimately depend on the precise terms used in each case. The key question though is whether the provision in question is apt for incorporation. That requires consideration of the language used in the employment documents as a whole. If an employer wished to avoid the risk it would be better to use express language to clarify the status as being con-contractual.


March 2016

It’s all in the mind

Issue

In order to establish that an employer has directly discriminated or failed to make reasonable adjustments in respect of a disabled employee it has to be established that the employer was aware or should have been aware of the individual’s disability. However the question that was raised in the recent case of Gallop v Newport City Council was who actually needs this knowledge? Will the employer be deemed to know if just one person in the organisation knows or does it have to be the decision maker? 

Facts

Mr Gallop had been signed off work sick with stress. However an occupational health report advised the employer that he was not “disabled” and was not covered by the Disability Discrimination legislation. During the absence the employer received complaints from a number of employees regarding Mr Gallop’s conduct which resulted in disciplinary proceedings and his summary dismissal for gross misconduct. He brought claims which included disability discrimination. 

Decision

The claims were dismissed. It was held that the reason for dismissal was conduct rather than disability. There had also been no failure to make reasonable adjustments to the disciplinary procedure as the disciplinary officer had been unaware that Mr Gallop was disabled.

Comment

The Code of Practice: Employment and Occupation 2004 indicates that knowledge of disability by one person in an organisation may be sufficient to establish the employer’s knowledge. However that guidance was not followed. Preference was given instead to the comments of the Court of Appeal in CLFIS (UK) Ltd v Reynolds 2015 where it had been stated the focus should be on the mind of the decision maker rather than the state of mind of others in the organisation. There was no evidence in this case that anybody involved in the dismissal process had acted as they had done because of Mr Gallop’s disability.


Split service was same activity

Issue

When the scope of the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) was expressly widened in 2006 to include ‘service provision changes’ it was thought it would remove all uncertainty as to the application of TUPE. However it soon became apparent that the requirement the activities remained fundamentally the same and that a group had been organised to carry out those activities could still lead to employees falling outside the protection of TUPE. The recent case of Arch Initiatives v Greater Manchester West Mental Health NHS Foundation Trust and others shows though a more liberal interpretation of when a transfer may fall within the ambit of TUPE.

Facts

The Trust had a team of employees within the “Alcohol and Drugs Directorate” providing support for residents within the Bolton Council catchment area. The Council decided to reorganise the service and put it out to tender. It invited new potential support providers to bid for either case management functions or treatment but not both so splitting the current service functions. Arch Initiatives made a successful bid for the case management function but refused to accept that any employees transferred to it under TUPE as it would not be carrying out the same service.

Decision

It was held that TUPE did apply as despite the split in function the “activities” would still be fundamentally the same. There was no express statutory requirement that the relevant activities should constitute “all of the activities” carried out by the outgoing contractor.  In the circumstance here there had been two organised groupings of employees carrying out the activities. One group had performed the case management function in relation to drugs services and the other group, which comprised one individual employee, carried out case management functions for alcohol services. Both groups should have transferred to Arch under TUPE.

Comment

The decision highlights that where there is a service provision change the fact the new provider may be carrying out only part of the service will not prevent TUPE applying.  Despite there being no express statutory reference to the transfer of part of a service provision in TUPE the Employment Appeal Tribunal considered that it would be appropriate to apply this wider interpretation. The decision has also usefully confirmed that more than one grouping of employees may be carrying out the activities and included in the transfer.


Salary diverted not sacrificed?

Issue

A common problem for employers over the last few years has been how to deal with child care vouchers during maternity leave if they have been provided through a salary sacrifice arrangement. The fact that employers cannot make deductions from statutory maternity pay and the employee is entitled to continue to receive all their non-cash benefits can lead to potential cost difficulties for an employer. However the recent case of Peninsula Business Services Ltd v Donaldson suggests that these difficulties may be avoided if the scheme’s entitlement is expressly limited.  

Facts

Peninsula operated a childcare voucher scheme under which employees would receive child care vouchers through a salary sacrifice arrangement. However entry to the scheme was conditional on the employee agreeing that their right to vouchers would be suspended during maternity leave. This was to avoid having to fund the vouchers at a time when deductions could not be made. Mrs Donaldson considered these terms discriminatory and brought proceedings alleging pregnancy and maternity discrimination.

Decision

It was held that where the employer provided a scheme to allow an employee to opt for child care vouchers by way of salary sacrifice the true picture was that the vouchers still represented part of the employee’s salary. The money had been simply diverted away. On this interpretation the vouchers could still be regarded as part of the employee’s ‘remuneration’ rather than non-cash benefits and as there was no right to retain remuneration during maternity leave there had been no detriment. The claim was dismissed.

Comment

The conclusion that the vouchers were really ‘pay’ is helpful for employers but it does appear to have been heavily influenced by the potential cost difficulties for employers and the fact this may discourage others from offering what was a valuable voluntary benefit. It is a conclusion that conflicts with guidance issued by HMRC and although the judgment highlights that no legislative ground was put forward in support the HMRC view it is of course central to the tax treatment of the employee’s wages and national insurance. It remains to be seen whether the decision will be appealed but in the meantime it has opened the door for employers to review how their salary sacrifice and child care voucher scheme interacts with its maternity leave arrangements.


 

Commission and OT for holiday pay

Issue

The calculation of holiday pay continues to cause confusion. The EU Working Time Directive requires that for at least 4-weeks of the year holiday pay is calculated by reference to actual earnings which would include overtime and commission. The case of Lock v British Gas Trading Ltd which represents the latest in the continuing litigation that this has inspired challenges whether the UK national laws can be interpreted in this way without going against the intention of Parliament.  

Facts

The background to the case was that British Gas operated a commission scheme which accounted for a substantial proportion of some worker’s wages in sales positions. Mr Lock was one of these workers. He would receive basic salary plus results-based commission during his annual leave but when he returned to work he would receive only basic pay having been unable to generate commission whilst on leave. He brought a claim and the European Court of Justice confirmed that this contravened the EU Working Time Directive.

Decision

The Employment Appeal Tribunal upheld the decision of the Tribunal that the UK legislation could be read in a way that gave effect to the EU Working Time Directive. In reaching this decision it was held that the same principles should be applied as were in regards to non-guaranteed overtime in the case of Bear Scotland v Fulton. It was decided the cases could not really be distinguished and the earlier decision that had inserted words into the statutory provisions in order to ensure compliance should be followed.

Comment 

Permission for the case to proceed to the Court of Appeal has been given. However subject to this decision being overruled in the future it appears that where wages vary with overtime or commission an average pay calculation may need to be used to assess the holiday pay due. This is despite the UK laws as originally drafted appearing to give a right to be paid basic pay only during holidays. The added complication is that EU law only relate to 4-weeks holiday per year and un-amended UK laws apply to anything in excess.


PHI benefits and retirement

Issue

Providing an employee with the benefit of permanent health insurance (PHI) can provide valuable assistance when a long term illness means that he or she is no longer capable of work. However it can also raise many issues for the employer regarding the terms and conditions under which the insurance policy may limit the benefits. In the recent case of Smith v Gartner UK Ltd the issue was whether the cover would end at what had been a compulsory retirement age.

 

Facts 

After being off sick for six months in May 2003 Ms Smith started to receive 75% of her wages under the PHI scheme. The policy stated that she would be eligible to continue to receive payments until she returned to work or until she reached retirement age which at that time was 60. Following the introduction of age discrimination legislation in 2007 all staff were informed by email that the age limits for benefits would increase.  However in 2014 Ms Smith was told that her benefits would cease when she reached the age of 60. She brought claims for her wages and direct age discrimination.

 

Decision

It was held that the employer’s contractual obligation was to provide insurance rather than make the wage payments under the insurance contract.  It followed that there had been no unlawful deduction from wages. In relation to the age discrimination claim the reason that the payments stopped at 60 years of age was that this was a term of the insurance policy as at the time she had first accepted payments. It was therefore not a discriminatory act by her employer for payments to stop at the age of 60.

 

Comment

The decision highlights that it is the contractual wording which is the key issue when considering claims in relation to insurance and other benefits. In the circumstances the Ms Smith could not succeed in her claim against the employer as the treatment was simply due to the terms of the insurance policy. Her employer could not have put her on the newer policy that provided for increased age limits as she did not meet the eligibility criteria of being in active work prior to the cover commencing.

 

February 2016

No limits on lay off 

Issue

Contractual provisions that allow an employer to lay off an employee in times of low demand are not uncommon in some sectors of industry. Statute provides some protection for the employee in the form of guaranteed pay and a right to request redundancy pay if after four weeks of continuous lay off there is no new work expected. However in the recent case of Craig v Bob Lindfield & Son Ltd the issue was whether the employee could also have a claim for constructive unfair dismissal if the period for which they were laid off was unreasonably long.

Facts

The employer, a design and technology company, exercised its contractual right to lay-off employees following a downturn in work. Mr Craig was one of the employees affected. After five weeks of lay off he sent an email stating that he had found a new job and requesting statutory redundancy pay. His request was refused on the grounds that the employer was expecting new orders very soon and still required him to carry out the design work. Mr Craig resigned and brought a claim that he had been constructively dismissed because the lay-off period had gone on for an unreasonable period.

Decision

His claim failed. It was held to be inappropriate to imply a term as to the reasonableness of a lay-off period as statute already provided a scheme to protect the employee’s interests in these circumstances. The right to request redundancy pay after a specific number of weeks and the right of the employer to challenge the entitlement showed that the interests of the parties had already been considered by Parliament. In any event it was not considered that the actual period of lay off had been unreasonable in all the circumstances.

Comment

The case shows that it will be difficult for the employee to bring a claim for constructive dismissal in these circumstances. If the contract has a right to lay off the employer will be entitled to use it without any imposed limitation on the length of the lay-off. However an exception might be where the employer abuses such a right by keeping an employee on lay off when there was no reasonable prospect of there ever being an upturn in work. This could amount to a breach of the implied term of mutual trust and confidence.


 

No added time 

Issue

Identifying the date that the employee’s contract comes to an end or the effective date of termination can be important for a number of reasons when there is an employment dispute. Not least because of the fact there are strict time limits as to when claims have to be submitted in the Employment Tribunal. In the recent case of Wallace v Ladbrokes Betting and Gaming Ltd the issue was whether the resignation date could be delayed by the subsequent actions of the employee or employer. 

Facts

When Miss Wallace’s grievance was rejected she gave notice of her resignation to take effect on 26 October. She was invited to re-consider and told that she would be given a chance to reflect. She was also told that she could still appeal against the grievance outcome. Miss Wallace did appeal. However it was again rejected. When she received the formal response on 15 November she considered that her employment had come to an end. On 30 November her P45 was issued to her and this confirmed her last day as 15 November. Was her claim of constructive dismissal submitted on 13 February within the three month time limit?

Decision

It was held that her claim had been submitted outside the three month time limit and that the Employment Tribunal did not have jurisdiction to hear it. The effective date of termination was 26 October as she had communicated to her employer in her resignation letter. Therefore the time limit for her constructive unfair dismissal claim was three months from that date i.e. 25 January. The employer had given her the opportunity to request that her notice was retracted but she had failed to do so. The subsequent grievance appeal made no difference and neither did the date shown on her P45.

Comment

Gateley represented the successful employer in this case. Where there is a clear resignation there is no right to subsequently unilaterally withdraw it or change the notice period.  The effective date of termination is a matter of law rather than agreement so if the employer makes a mistake subsequently and continues to pay the employee or puts the wrong date on the P45 it issues this will not change the date the contract came to an end for statutory purposes. Whilst the facts in this case arose prior to the requirement for Acas Early Conciliation the same principles will apply to the date that a claimant needs to notify Acas.


Hurt feelings at end of employment

Issue

The requirement for Acas Early Conciliation together with the fees needed to instigate Employment Tribunal proceedings have helped to focus the minds of both employers and employees on compromise. Settlements can benefit both parties in a dispute by saving costs. This may also take the form of structuring a payment in order to reduce the tax liability. However the recent case of Moorthy v HMRC highlights that caution is required in relation to the tax status of any termination payment.

Facts

Mr Moorthy had been made redundant from a senior role with an engineering contractor and had received a statutory redundancy payment of £10,640. Subsequent Tribunal proceedings for age discrimination and unfair dismissal were settled for £200,000.  Mr Moorthy claimed that he should receive this tax free. He argued that in addition to the £30,000 allowance for termination payments the rest should be exempt as compensation for injury to feelings rather than compensation for pecuniary losses.

Decision

It was held that all payments connected to termination were subject to tax aside from the first £30,000 and certain specific exempt payments. One of these exempt payments that an employer could make tax free was “on account of injury to … an employee“. However compensation in respect of “injury to feelings” compensation did not fall into this exemption. The statutory tax exemption would require some sort of medical condition whilst injury to feelings did not.

Comment

Previous decisions in the Employment Appeal Tribunal that suggested a tax exception would always apply for injury to feelings compensation appear to have been flawed. Whilst if paid during the course of employment it may have been tax free where paid in respect of termination it fell to be taxed. In practice this may lead to questions as to whether payment was in respect of termination or some earlier act of discrimination. However it seems certain that employers will want to play safe and deduct tax from the sums agreed.


Did dress down dismissal discriminate? 

Issue

Dress and appearance policies are not uncommon in the workplace. However where there are different rules applied between departments in the same office or different treatment of men and women it can cause confusion and some resentment. The recent case of JJ Food Service Ltd v Mohamud highlighted some of the risks that can arise when enforcing such rules and the claims that may result where an employee is dismissed for complaining about the policy.  

Facts

The employer had a dress code which required employees in the finance department, including Mr Mohamud, to dress in an “appropriate, smart/casual manner”. He noticed in other departments that jeans were allowed and so on two consecutive Fridays he too came to work in jeans. He was given a warning. His complaints about unfair treatment in comparison with other departments were dismissed as were his complaints about how women in the Finance Department were allowed to dress. When he wore jeans to work a third time he was dismissed. He brought complaints under the Equality Act 2010. 

Decision

It was held the Finance department had a no jeans rule that it applied to both men and women so there was no direct sex discrimination. However the Tribunal held that he had been subject to victimisation because he had been dismissed for challenging the policy which he had alleged was unfair and discriminatory. On appeal it was directed that the Tribunal had to make clear that it was the allegations of sex discrimination that had influenced the employer’s decision and not his persistent questioning of the policy. The case was remitted back so it is still possible that the decision will stand. 

Comment

The employer had when deciding to dismiss taken into account that Mr Mohamud did not have sufficient service to claim unfair dismissal. The case is a reminder that an employee who complains about inconsistent treatment on grounds of a protected characteristic, for example sex, will be protected under the equality legislation regardless of how long they have been employed. Whilst the Tribunal has still to clarify whether it was the way in which he complained or the allegation of sex discrimination that was the cause of the dismissal in practice it may be difficult to show that the two are separate.


Heavy weight disability decision 

Issue

Being ‘disabled’ for the purposes of employment law means having an impairment that has a substantial and long-term adverse effect on an employee’s ability to carry out ‘normal, day to day activities’. The guidance to the Equality Act 2010 suggests that the expression ‘normal day to day activities’ should be interpreted as meaning ‘things people do on a regular or daily basis’. However the recent case of Banaszczyk v Booker shows that the particular workplace activities of the individual should also be considered.

Facts

Mr Banaszczyk was employed as a picker in a warehouse. His duties included loading cases of goods which could weigh as much as 25kg. Following a car accident he had difficulty lifting heavy loads. As a result, his ‘pick rate’ fell below what the employer had set as an acceptable standard. Subsequent medical reports suggested he might not be able to reach the pick rate within the foreseeable future. Mr Banaszczyk was dismissed on grounds of capability. He brought a claim of disability discrimination but his employer disputed he was disabled.

Decision

It was held that Mr Banaszczyk was disabled. It was clear that the impairment that had resulted from the car accident caused him difficulties in lifting heavy weights. It had been shown that he was substantially slower than other warehouse pickers. The employer’s argument that the impairment did not impact on his ‘normal day to day activities’ was rejected. The key issue was that it was part of his daily duties.

Comment

This decision highlights that workplace activities are to be considered as ‘normal day to day activities’ even though such activities may not be ‘normal’ for everyone. The test may be more appropriately considered as being whether the impairment impacts on the ability of the person to partake in professional life. The focus should be upon the impact on the individual – it is not to show disadvantage compared with the population as a whole. In practical terms the result means that the employer should have considered whether there were reasonable adjustments that could have been made to his role.


 

January 2016

Instruction to speak English

Issue

If a foreign national is told to speak only English in the workplace will the employer be guilty of race discrimination? In the recent case of Kelly v Covance Laboratories it was found that whilst such an instruction could amount to unlawful discrimination and even harassment the reasons for the instruction would have to be considered to assess if it was in the circumstances not connected to the employee’s nationality

Facts

Mrs Kelly, a Russian, was employed by Covance which carried out animal testing at its laboratories. Animal rights activists had targeted the company and it had been discovered that some activists had worked undercover in the company in order to obtain information to further their campaign. Mrs Kelly was seen frequently using her mobile phone at work and having long conversations in Russian. She was told that all her conversations should be in English. When Mrs Kelly later resigned she brought a complaint of race discrimination.

Decision

It was held that an instruction linked to an employee’s race or national origins could amount to unlawful direct discrimination and harassment so that the burden of proof shifted to the employer to show otherwise. The employer though had been able to show that the reason for the instruction was not because Mrs Kelly was Russian, but because it suspected she was an undercover activist, or spy, who was targeting the company and staff.

Comment

It needs to be taken into account that this decision was against a background of activists using information they had acquired whilst undercover to disrupt the business and to even target individual employees. The employer had to be vigilant and had reasonable suspicions regarding the conduct of the employee. However generally an employer should be wary of giving an instruction that an employee should not speak their national language as it will give grounds for the employee to claim they have been subject to discrimination.

 


Prison frustration

Issue

An employee’s non-attendance at work may give grounds for dismissal. However if the employee is unable to attend at work because of something that is beyond either the employer or employee’s control the contract may be deemed “frustrated” meaning that there will be no need to dismiss and no risk of a claim for unfair dismissal. Will a prison sentence frustrate the contract? The recent case of Carter v Aulds Bakeries highlights the difficulties that an employer may encounter when an employee unexpectedly receives a custodial sentence.

Facts

Mr Carter had been given a 6 month custodial sentence for dangerous driving and public disorder. His employer had been told that he hoped to be out much sooner. He was released after two months but on attending work was told that his employment had ended. He was sent letter to confirm this but he was initially given no right to appeal as the employer said that the contract of employment had been frustrated rather than him being dismissed.

Decision

It was held that Mr Carter had been unfairly dismissed. The employers had followed no process when it had communicated to him that he was no longer employed. Whilst it had initially stated that the contract had been frustrated it had belatedly agreed that it would hold an appeal but only when the hearing for unfair dismissal had been listed. The internal appeal process had resulted in a full hearing but it had not cured the initial defects in the procedure as it too had been flawed.

Comment

It may yet be that even though Mr Carter has succeeded in his claim for unfair dismissal he may not receive any compensation. In awarding compensation the Judge will need to consider whether it is just and equitable to make any reduction to the compensation that would have normally been awarded on the grounds that Mr Carter was in the end by his actions entirely to blame. However to make no award would be unusual.


Appealing disciplinary sanctions

Issue

It will rarely be appropriate for an employer to increase a disciplinary sanction on appeal even if there is an express power to do so. Dismissing an employee who appeals against a final warning will carry with it a considerable risk of a finding of unfair dismissal. In contrast where an appeal results in the employee not being dismissed it might be thought that this removes the risk of a claim. However the recent case of British Airways Plc v Higgins shows that sometimes even reducing a sanction might leave the employer in trouble.

Facts

Mr Higgins, an Aircraft Maintenance Supervisor, had been dismissed when his employer had discovered that he had not followed safety procedures and in particular had not properly checked work carried out by contractors. On appeal the sanction was changed to demotion – by three grades – and a final warning that would remain on his personnel file for two years. In response Mr Higgins resigned and claimed that this amounted to a fundamental breach of contract.

Decision

It was held that by imposing the extended final warning and demoting him by three grades with the resulting loss of pay and benefits the employer had acted in a way that had breached the implied term of ‘mutual trust and confidence’. Thus was a fundamental breach of contract that entitled Mr Higgins to resign. His claim of constructive dismissal therefore succeeded.  The Employment Tribunal awarded him compensation although it was reduced by half to reflect his contribution towards his dismissal.

Comment

When an appeal results in the employee being reinstated the effect is that the dismissal vanishes. The employee will have no claim for unfair dismissal even if proceedings have already been issued. However as this case highlights imposing a different sanction can cause complications. The appeal officer should ensure not only that the disciplinary policy provides that an alternative sanction can be imposed but also that it would be appropriate in the circumstances. In practice a discussion with the employee might help make it clear whether a lesser sanction would be accepted.


Mitigating loss as own boss

Issue

A successful claimant in an unfair dismissal case will usually be entitled to an award of compensation. However the amount of compensation may be substantially reduced if the employer can show the claimant has failed to take reasonable steps to mitigate those losses. This might be the employer’s only argument where liability is clear but as the recent case of Cooper Contracting Ltd v Lindsey shows it can be a difficult point for the employer to establish.

Facts

Mr Lindsey a carpenter had succeeded in his claim for unfair dismissal. When considering remedy evidence was given that Mr Lindsey had since his dismissal taken up self-employment as a carpenter despite the fact that there had been employment opportunities available which paid as much as his previous earnings. The employer challenged the award of his losses on the grounds that he had failed to take reasonable steps to mitigate his loss.

Decision

Mr Lindsey was awarded full compensation based on his loss of earnings from the date of dismissal to the date of the hearing and future loss going forward for a further three months. The burden of proof had been on the employer to show that there had been a failure to mitigate. Despite producing evidence that other jobs were available it had failed to persuade the Tribunal the claimant had acted unreasonably. It had been open to Mr Lindsey to become his own boss.

Comment

The burden of proof rests upon the employer to persuade a Tribunal that the compensation should be reduced because there has been a failure to mitigate. This case highlights that the Tribunal will not generally adopt a too demanding standard in its approach to the question of whether the claimant has acted unreasonably in their attempts to mitigate. However wherever it is an issue the employer should still document as much evidence as possible of the availability of suitable vacancies and obtain evidence from recruitment agents as to the local job market.


 

Monitoring for misconduct

Issue

Article 8 of the European Convention on Human Rights provides that “Everyone has the right to respect for his private and family life, his home and his correspondence.” However employers will frequently want to monitor the communications of employees in the workplace? Will it breach the employee’s Human Rights if the employer then takes action regarding personal communications sent by the employee? It was an issue raised in the recent case of Barbulescu v Romania.

Facts

A Romanian employee was asked by his employer to create a Yahoo Messenger account to respond to enquiries from clients. The employer monitored the use of the account and discovered that he was using it to send personal messages during work time. He was dismissed for breaching company rules which stated that use of the employer’s computers or other communication equipment for personal purposes was strictly forbidden.

Decision

His claims that the dismissal was unfair were dismissed by the Romanian Courts. He then took his case to Europe where the court has confirmed that any potential breach of his Convention rights had been justified. The rights to privacy were not absolute and had to be balanced against the rights of others. It was held that it was not unreasonable for an employer to want to verify that its employees were completing their professional tasks during their working hours rather than carrying out other activities.

Comment

A key factor to the decision was that the employer was monitoring a workplace system which it expected would only contain professional information. Personal use of the computer was after all strictly forbidden. Employers will need to ensure that employees are informed of what restrictions apply when communicating online in the workplace. In practice this will generally be part of a wider policy regarding employee activities online in and out of the workplace.


 

 

 

 


This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.