Regular updates from subject matter experts. 

We have partnered with Furley Page Solicitors to bring you regular employment law updates. For more detailed advice, you can contact Andrew Masters directly and he will be happy to help your organisation with any employment law queries. This is a law firm that we are well acquainted with. You will be in safe hands with Furley Page and will receive very sound advice from Andrew and his team.

Andrew Masters, Partner & Head of Employment
Email: asm@furleypage.co.uk
Tel: 01227 763939
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Autumn 2017

Employment Tribunal fees have been abolished!

In a landmark and momentous decision that was handed down on 26 July 2017, the Supreme Court, in the case of R (Unison) v Lord Chancellor (2017), unanimously found that fees imposed under the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (‘Fees Order’), in respect of proceedings at the Employment Tribunal (‘ET’) and at the Employment Appeal Tribunal (‘EAT’), prevent access to justice and is unlawful. The immediate effect of this decision is that fees cease to be payable in the ET and appeals to the EAT and fees paid in the past, amounting to £32 million, must be reimbursed by the Government. Background Fees were first imposed in the ET and the EAT by the Coalition Government in July 2013. The principal purposes of the Fees Order were to: (1) transfer some of the costs burden of operating ETs and the EAT to those who use the system; (2) incentivising earlier settlement of claims; and (3) disincentivising the bringing of weak or vexatious claims. As an example, there was a Type B issue fee of £250 at the ET for bringing an unfair dismissal and/or a discrimination claim and a further fee of £950 for setting the matter down for a hearing. Therefore, the ET fees alone could be up to £1,200 for a claimant. In the EAT, fees of £1,600 were payable, again in two stages. Claimants and appellants could seek remission of fees if their disposable capital and gross monthly income were both less than specified amounts. Notwithstanding the remission scheme, which had only marginal success, four years after the introduction of the Fees Order it was clear that there had been a significant and sustained reduction in claims being brought at both the ET and the EAT. Whilst the reduction is not wholly attributable to the Fees Order - the Acas Early Conciliation Scheme is also likely to have had an effect – the statistics are stark, there being a reduction of over 70% of claims being brought since the introduction of fees. Political response At the recent General Election in June 2017, there was some cross-party support for the abolition of the Fees Order. Labour, the Liberal Democrats, the Greens and the SNP all pledged that fees should be scrapped. The Conservatives mentioned nothing in their manifesto about fees, but the Government has admitted that the fall in claims was greater than was originally envisaged when the Fees Order was implemented. The Government’s voting partner, the DUP, was also silent on fees as the Fees Order did not apply to Northern Ireland. Unison’s challenge to the Fees Order The public service trade union, Unison, sought judicial review of the Fees Order on the ground that it unlawfully prevented or restricted access to justice. Unison sought to establish that the Fees Order was unlawful on one or both of two conditions: (1) there was a real risk that persons will effectively be prevented from having access to justice; and/or (2) the degree of intrusion is greater than is justified by the objectives which the measure is intended to serve. The Supreme Court decided in favour of Unison with both conditions being met in its favour. Firstly, the evidence before the Supreme Court led to the conclusion that the fees were not set at a level that everyone could afford, even taking into consideration the availability of the remission scheme. The fall in the number of claims was so stark and sustained to enable the Supreme Court to conclude that a significant number of people would otherwise have brought claims, but did not as they found the fees to be unaffordable. It was decided that fees can prevent access to justice not only where they are unaffordable, but also where they render it futile or irrational to bring a claim, since many ET claims do not seek any financial award or seek only modest amounts. Secondly, whilst the objective of transferring some of the cost burden to users had been achieved to some extent, it had not followed that fees which intruded to a lesser extent upon the right of access to justice would have been any less effective. Moreover, it had not been shown by the Government that less onerous fees, or a more generous system of remission, would have been any less effective in meeting the objective of transferring the cost burden to users. Further, in setting the fees the Government had failed to consider the public benefits flowing from the enforcement of rights which Parliament had conferred. The decision of the Supreme Court was principally decided on domestic common law principles thus making it ‘Brexit-proof’. However, in addition, the Supreme Court found that the Fees Order breached the European Union’s (‘EU’) principles of effectiveness and effective judicial protection, imposing disproportionate restrictions for the purposes of EU law. Therefore, the decision under EU law chimed with that of domestic common law principles. In essence, the imposition of the Fees Order was unlawful both under domestic law and under EU law. What’s next? As previously stated, the immediate effect of this decision is that fees cease to be payable in the ET and appeals to the EAT and fees paid in the past, amounting to £32 million, must be reimbursed by the Government. It is highly likely that the number of claims in the ET and the EAT will increase, without the barrier of fees, particularly at a time of economic uncertainty. However, numbers may not increase to pre-July 2013 levels as the Acas Early Conciliation Scheme which, statistically speaking has had some success in resolving disputes, will remain in place. In theory, the Government could, of course, come up with another system with perhaps greater emphasis on costs being met by employers rather than employees. However, such a suggestion appears unlikely for some time given the legal reasoning of the Supreme Court, the practical difficulties and priorities of the minority Government, and relative cross-party support for the abolition of fees. A new Fees Order would also likely threaten a fresh legal challenge. Aside from the above, there remain a number of unanswered questions following this decision: It is currently unclear how claimants that have paid fees since July 2013 will recover their fees. Will users need to apply or will the Government process funds automatically? What about employers ordered to pay costs to winning claimants to reimburse them for the fees they were unlawfully required to pay? Will the employer be refunded by the Government? Or will employers have to ask for refunds from claimants once those claimants have been given their refunds? What about claimants who paid the fee, but then settled their claims? If they get a refund will the employers who settled be able to recover for that part of the settlement representing the fee? Will they recover it from the claimant or the Government? Will potential claimants who were deemed to have been unlawfully denied access to justice be able to sue the Government for the losses caused by their inability to bring a claim? Will they be able to submit late applications to the Employment Tribunal? How will Tribunals treat those applications? In view of the likely increase in the number of claims, will additional resources including financial, be needed to be transferred to the already over-burdened Tribunal Service and/or Acas early Conciliation Scheme? Simply put, and aside from the extant practical questions arising, the Supreme Court in its judgment determined that where access to justice is blocked, society loses out. It again shows that an independent judiciary will, in specified circumstances, intervene to challenge decisions of the executive and defend the principles of the common law. In the employment context, where barriers are erected to enforcing workers’ rights, such rights are effectively worthless, and where employers know that claimants are unable or unwilling to bring claims, the whole system of employment protection is undermined. For further information contact Andrew Masters, Partner & Head of Employment, on 01227 763939 or email asm@furleypage.co.uk

Who’s championing older workers?

There is an irony in the world of work, with workers living longer, working longer and yet a fifth of European employees interviewed as part of a recent survey by ADP UK, identifying age as the biggest obstacle in preventing career progression* . By 2022, one in three of working age population is predicted to be aged 50 or over. Around half of older employees expect to work past the traditional retirement age of 65, according to a new CIPD survey that suggests many employers have yet to engage with the changing demographics of the workplace**. Who then is championing the rights of older workers? This issue is certainly on the current government agenda. Its Fuller Working Lives strategy is aiming to take forward Baroness Ros Altmann’s review A New Vision for Older Workers (March 2015) which advances compelling economic and business reasons for engaging with an aging workforce and recommends initiatives to ‘recruit, retain and retrain’ older workers. In their recent election manifesto the Conservatives promised to help all workers seeking to develop their skills in their existing jobs by introducing a new right to request leave for training for all employees; introducing a right to lifelong learning in digital skills; and helping those groups who have in the past found it difficult to get employment, by incentivising employers to take them on. Older workers were not specifically mentioned in the Conservative’s manifesto. Their 2017 Spring Budget, however, contained announcements of two initiatives aimed at recognising that individuals should have the opportunity to retrain and upskill at all points in their life. These included the announcement of an investment of up to £40 million to be spent by 2018-2019 on ‘lifelong learning pilots’ testing different approaches to retraining and upskilling; and an investment of £5 million for identifying how best to increase the number of ‘returnships’ offering routes back to employment for people who have taken a lengthy career break. The initiatives are likely to enjoy cross party support. In its recent election manifesto, Labour promised to set up a commission on Lifelong Learning tasked with integrating further and higher education. The Liberal Democrats explicitly stated that it is no longer the case that skills learned at 18 or 21 will last throughout a career. Its manifesto made particular reference to the ‘mature worker’ with one of its stated objectives being , ‘to create individual accounts for funding mature adult and part-time learning and training, and provide for all adults individual access to all necessary career information, advice and guidance.’ Interestingly, for the most-part, while the parties showed a commitment to developing and encouraging apprenticeships, which will no doubt benefit older workers, the employment provisions of their respective manifestos did not, with the exception of the Liberal Democrats, spotlight older workers. All three manifestos spoke of creating opportunities for 18-24 year olds. The irony of course is that by 2022, the number of people aged 16-49 in the workforce will have reduced by 700,000***. While employers may be inclined, when developing their apprenticeship programmes to focus on the younger age group overlook older workers, demographic trends clearly show that modern workplaces are likely to comprise of a higher percentage of older workers. The case for upskilling, retraining and challenging negative stereotypes of them in preparation for the future is compelling, now more than ever before. What then can be done? Understanding of both the physical, societal and psychological barriers older workers experience when accessing employment, and implementing policies to tackle them ; Understanding the current legislative changes which affect and benefit older workers and implementing them in a positive and proactive manner. Significant barriers to lifelong learning have been identified in a recent report from the Skills Commission – Spotlight On…Lifelong Learning for an Aging Workforce. Health and disability as well as caring responsibilities are listed as two of the physical barriers for older workers remaining in employment. In total, around 20% of 45-59 year olds provide some form of informal care with women most likely to exit the labour market early to care for someone else. These workers form part of the ‘sandwich generation’ with responsibilities for both children and older relatives. Of the psychological barriers, ageism with the negative attitudes towards older workers still prevents them from accessing work. These include wholly inaccurate assumptions such as, for example, that older workers take more time off sick and have difficulty adapting to change. Employers are aware of positive changes introduced by the Equality Act 2010, and yet there have been further changes benefitting older workers. The right to request flexible working, for example, allows all workers who have been employed for 26 weeks to make a request to change their hours, times and/or place of work. The right does not compel employers to agree, yet it is proving popular and facilitating less traditional and more manageable ways of going about our working lives. The recent introduction of the apprenticeship levy requires all employers with an annual pay bill of over £3m to pay 0.5% of their bill as a levy charge. In 2015-2016, 11.3% of those starting an apprenticeship were aged 45-59, a positive start. As the working population increases it is likely that we will witness further legislative changes aimed at encouraging the training and upskilling of older workers. It is imperative for employers to inform themselves of training schemes on offer; to be aware of barriers preventing older workers accessing work; to train up managers in understanding these issues; to promote age-diverse teams; to tackle negative stereotypes; and think of better ways to appeal to and engage with older workers. For legal advice on employment law and HR matters, contact specialist Amanda Okill on 01227 763939 or email ajo@furleypage.co.uk *Age is the biggest obstacle, People Management: July 2017 ** Employee Outlook: Focus on employee attitudes to pay and pensions: Winter 2016-17; CIPD ***A New Vision for Older Workers: Retain, Retrain, Recruit: March 2015

National Minimum Wage – Sleeping Time

Can a worker still be working even when he or she is asleep? It seems like a strange question, but it lies at the heart of an important set of cases recently heard by the Employment Appeal Tribunal. All three involved workers who were required to stay on their working premises overnight but were given a place to sleep for any period when they were not needed. The issue was whether the time that they spent sleeping had to count as working time for the purposes of determining whether they were being paid the National Minimum Wage. The National Minimum Wage Regulations 2015 generally provide that time spent ‘on-call’ at the employer’s premises counts as working time, but provides an exception to that rule for time when the employee is sleeping (providing the employer provides suitable facilities allowing them to do so). The issue in these cases was whether the employees were ‘on-call’ overnight or whether the whole of their time should be treated as working. The Employment Appeal Tribunal (EAT) stressed that there was no easy or simple test to determine the difference between being ‘on call’ at a place of work and actually working. Certainly the fact that an individual had little or nothing to do during a certain period did not mean that he or she was not working. A range of factors had to be taken into account including the employer’s purpose in hiring the employee. In cases where the employer was obliged to have someone on the premises overnight to meet some regulatory requirement then that might indicate that the worker’s ‘mere presence’ amounted to work. The extent of the worker’s freedom to leave the premises during the period in question was also relevant - as was the degree of responsibility that the worker was given and the type of task that he or she could be called upon to perform. In the case of Royal Mencap Society v Tomlinson-Blake the EAT held that the Tribunal was entitled to find that a care worker was working when she performed a ‘sleep-over’ shift even though she was in practice rarely woken and required to perform particular tasks. The employers needed her to be present and on the premises throughout the night and exercise her professional judgment as to what needed to be done. She was performing her role as a carer throughout the night – even when she was asleep. The context was very different in the case of Frudd v The Partington Group Ltd. Here a married couple were jointly employed to work on a caravan park as warden and receptionist. The Tribunal found that they were genuinely ‘on call’ overnight rather than just working, but the EAT found that this decision was not properly explained. The fact that the employer described them as being on-call was not enough and the case was sent back to a fresh tribunal to be heard again. The final case, Focus Care Agency Ltd v Roberts concerned care workers providing a supported living service. Typically two members of staff would be provided to look after a service user during the day and two more overnight. The overnight shift was divided between a ‘waking night worker’ who was required to stay up all night and a ‘sleep-in night worker’ who was there to assist with emergencies but was otherwise allowed to sleep through the night. The EAT held that the Tribunal was entitled to find that the sleep-in hours were served as part of the contract. That contract set out a standard hourly rate – it did not specify a separate allowance for sleep-in shifts. Focus had in fact paid a £25 sleep-in allowance, but the Tribunal rightly held that Mr Roberts had not waived his contractual right to be paid in full for each hour of his shift – even if he was permitted to sleep. The employer’s appeal was dismissed. For further information contact Andrew Masters on 01227 763939.

Dismissals for poor performance

The principles underlying a fair dismissal for poor performance are well established. An employer needs to give the employee a clear explanation of the ways in which his or her performance is falling short and a fair opportunity to meet the required standard before being dismissed. In Awojobi v London Borough of Lewisham, however, the question arose as to whether an employer has a specific duty to look at alternative posts that might be more suitable for the employee. Ms Awojobi had been employed by the council since 2007. She was dismissed for poor performance in January 2014. She had been subjected to a series of performance reviews and improvement plans since March 2013 and the employer concluded that the requisite improvement had not been forthcoming. Ms Awojobi's view was that there was nothing wrong with her performance but that the demands of the job were simply too great for any one person to meet. One issue that arose in her unfair dismissal claim was whether she should have been offered alternative work that may have better matched her abilities. The employer had decided that since the problems with her performance were general rather than specific – focussing on the way in which she organised and prioritised her workload – moving her to a different job would not have helped. As a result the employer had not examined any particular vacancy to see whether it could be offered to her as an alternative to dismissal. The Tribunal found that this was a reasonable approach and rejected her unfair dismissal claim. On appeal, Ms Awojobi argued that there was a specific duty on an employer, when dismissing for poor performance, to give consideration to what other work was available and whether the employee might be able to do that instead. The Employment Appeal Tribunal rejected this. What mattered was whether, overall, the employer had behaved reasonably. There was no rule that that would always include the consideration of alternative work. The employer in this case had concluded that there was no point in considering alternative work because the problems with the employee’s performance would have been the same no matter what role she was in. The employment tribunal had found that this was a reasonable conclusion even though other employers may have viewed the matter differently. There was no basis for overturning the tribunal’s conclusion and the appeal was dismissed. For further information contact Amanda Okill on 01227 763939.

Disability discrimination and long-term sickness

The application of disability discrimination law to employees on long-term sickness absence continues to cause difficulties for tribunals. In West v Royal Bank of Scotland plc, Ms West’s long-term back pain was acknowledged as amounting to a disability and led her to take sick leave under the employer’s long-term disability scheme. This provided benefits for a maximum of 4.5 years but required her to relinquish her specific role with the bank – although still remaining as an employee. After a period, however, a fresh occupational health report indicated that she would be capable of returning to work and her benefits under the scheme came to an end. The employer then turned to consider what role she could be allocated and informed her of some 29 vacancies. It told her that she could take any role that she met the qualification requirements for. She insisted, however, that before applying for any of those roles her employer should conduct a full workplace assessment to confirm that suitable adjustments could be made to accommodate her condition. The bank countered that it could not do a full assessment until it knew what role and what workplace were to be assessed. In the event she did not apply for any of the roles and she was eventually dismissed. An employment tribunal rejected her claims of unfair dismissal, discrimination because of something arising in consequence of a disability, failure to make reasonable adjustments and indirect discrimination. In particular, it found that the dismissal was fair for ‘some other substantial reason’ and that the ending of her benefits under the disability scheme was not something that arose in consequence of her disability, but out of the occupational health assessment, which concluded that she was fit for work. She brought an appeal in respect of the findings on discrimination which was upheld, in part, by the Employment Appeal Tribunal. The EAT held that the employment tribunal had not given adequate consideration to the question of whether the occupational health report - which resulted in her benefit being removed - was something that arose in consequence of her disability. There was a strong argument that it had, because the report had been commissioned specifically to assess the extent of her disability. The matter would have to be sent back to a fresh tribunal to determine this issue – and also consider whether the removal of her benefits under the scheme was a proportionate means of achieving a legitimate aim. For further information contact Amanda Okill on 01227 763939

Dress Codes

Warm weather always turns employment lawyers to thoughts of… dress codes. This summer we have had news of male employees sent home from work for wearing shorts, only to return wearing skirts instead. If women are allowed to wear skirts, they say, then why can’t men? Somewhat less dramatically the House of Commons has allowed its own dress code to slip, in that men will no longer be required to wear a tie when speaking in the chamber. The application of sex discrimination law to dress codes is far from straightforward and the courts have been fudging the issue for decades. The basic position is that employers can, reflecting the conventional standards of society, apply a different dress code to men and women provided that, taken as a whole, men and women are being treated equally. That might well allow an employer to prevent men from wearing skirts to work – although that’s probably not an issue that a sensible employer would want to take a stand on. As for the House of Commons, discrimination law does not apply to the treatment of MPs, but the new rule does seem to be in line with a general decline in tie-wearing. Some have argued that tie-less MPs will lose the respect of the public, but that particular ship has surely already sailed. For further information contact Andrew Masters on 01227 763939.

Spring 2018

Employment Tribunal claims on the rise

Just before Christmas, the Government published the latest statistics from the Employment Tribunals. These were of particular interest because they covered the period immediately following the decision of the Supreme Court in July this year that Employment Tribunals fees were unlawful and had to be abolished with immediate effect. It is no surprise that the number of claims has gone up, but the actual figures are stark. Tribunal statistics have to be treated with care because there are lots of ‘multiple’ claims where a large number of individuals bring claims in respect of a single issue with a large employer. Nevertheless the figures for the latest quarter (July to September 2017) show a 64 per cent increase in the overall number of single claims. To take the specific example of unfair dismissal, there were 1,016 claims made in June 2017, but in September the number had increased to 1,594. If this increase is maintained in subsequent months – and there is no reason to think that it won’t be – then this will put a profound strain on the Employment Tribunal system as a whole. The resources allocated to Employment Tribunals have been scaled back in recent years and a dramatic increase in caseload is likely to lead to long delays in listing cases for hearing. Indeed there is already anecdotal evidence of delays of a year or more for some relatively straightforward cases. Employers facing tribunal claims in 2018 may have to settle in for a long haul. For further information contact Andrew Masters on 01227 763939.

Another important holiday case!

It is difficult to think of any area of UK employment law that has been more dramatically affected by rulings from the European Court of justice than the right to paid annual leave set out in the Working Time Regulations. The latest case is that of King v Sash Windows, in which Mr King was engaged as a ‘self-employed’ sales rep. Under his contract he was paid commission only and not given any paid leave. On his retirement, however, he claimed that he was actually a 'worker', and entitled to be paid for all of the holiday pay he had accrued over the 12 years of his employment. In the course of the claim it became clear that Mr King was indeed a worker and had been entitled to take paid annual leave. The question was how much holiday pay he was entitled to recover. The Court of Appeal sought the opinion of the European Court of Justice. The Court referred to previous case law which indicated that an employee on long-term sick leave could not carry over unused holiday for more than 18 months and asked the ECJ whether this limitation also applied when the reason paid leave was not taken was that the employer denied that the employee was entitled to any. The Court held that it did not. The reason a limit had been placed on the carry-over of holiday in cases of sickness absence was consideration for the employer faced with long periods of absence from the employee. That didn’t apply when the situation arose from the employer’s failure to grant paid annual leave. An employer who failed to allow workers to exercise their right to paid annual leave must, said the Court, ‘bear the consequences’. The result for Mr King is that he will be entitled to recover unpaid holiday going back over 12 years. And this ruling affects all UK employers who have not granted paid holiday leave to people whom they have categorised, mistakenly, as self-employed. For further information contact Andrew Masters on 01227 763939.

Direct disability discrimination and a protected characteristic

Direct discrimination involves treating an employee less favourably ‘because of a protected characteristic’. The word ‘a’ is doing a lot of work in that definition, because it makes it clear that the protected characteristic need not actually apply to the employee. An employer who rejects a job application, in the mistaken belief that the applicant is a woman, for example, will be guilty of direct discrimination even if the applicant turns out to be a man. There has been some debate about how this principle applies in the case of disability discrimination, given that disability has a more complicated definition than any other protected characteristic. How aware does the employer need to be of the definition in order to be treating someone less favourably because of a disability? In Chief Constable of Norfolk v Coffey a police officer was refused a transfer from Wiltshire to Norfolk on the grounds that she did not meet the Police National Recruitment Standards in relation to hearing. The officer had mild hearing loss, but had been recruited by Wiltshire Constabulary on the basis that she passed a practical functionality test. When she applied for a transfer, however, she was rejected on the basis that her hearing was below the recognised standard for employment. In her disability discrimination claim, the officer did not allege that she was disabled – taking the view that the extent of her hearing loss was not such as to have a significant impact on her day-to-day activities. However she did claim that Norfolk police had refused to accept her because she was perceived as being disabled. Norfolk denied this, but admitted that it regarded her as ‘restricted’ in terms of how she could be deployed and that that would potentially have caused problems for them in the future. The Tribunal upheld the claim – finding that the decision not to recruit the officer was based on the belief that there were restrictions on how she could be deployed and that she would be a liability to the force. Norfolk Police had therefore perceived her to have the protected characteristic of disability and treated her less favourably on that ground. On appeal, Norfolk argued that direct discrimination could only be established on the basis that they perceived the officer to have an impairment which met the statutory definition of disability – in particular the requirement that the impairment should have a substantial impact on the individual’s day-to-day activities. The EAT upheld the Tribunal's finding. What mattered was not whether Norfolk Police believed as a matter of law that the officer was disabled, but whether it perceived her as having a condition, which would in fact meet the definition of disability. In this case the decision not to recruit the officer was explicable only on the basis that they believed that her condition would be likely to progress to the point where she would be placed on restrictive duties. Since progressive conditions fall within the definition of a disability, the perception that the officer had a progressive condition was enough to mean that the rejection of her application was direct discrimination. For further information contact Amanda Okill on 01227 763939.

Whistleblowing and unfair dismissal

An employee does not need two years’ service to claim unfair dismissal if the reason for the dismissal is that he or she has made a public interest disclosure. One of the difficulties for employers is that an employee who makes disclosures of alleged wrongdoing may also be a difficult colleague to work with - and if he or she is dismissed it may be difficult for the Tribunal to decide whether the dismissal was prompted by the disclosure itself or by the way in which the employee has behaved. In Parsons v Airplus International Ltd the employee was dismissed after just six weeks of work as a legal compliance officer. In the course of her employment she had raised a number of issues that she identified as being public interest disclosures concerned with the way in which the employer was operating its business. The Tribunal found, however, that the dismissal was nothing to do with the matters that the employee was raising, but was a result of her behaviour. She was found to be rude and confrontational in her approach; she made assumptions about the legal position without researching them properly; did not listen to others and was unable to make practical suggestions about what measures should be taken. Instead she was irrationally focussed on her own personal liability for any irregularities and her disclosures were aimed purely at protecting her own personal position. The EAT upheld the Tribunal’s decision. The Tribunal had been entitled to find that the employer had properly distinguished between the making of the disclosures and the employee’s wider behaviour. The Tribunal had not made the mistake of assuming that because the employee was motivated by the desire to protect her own position that that meant that the disclosures were not made in the public interest. The Tribunal had instead found that the matters raised were not in the public interest because they were only concerned with protecting the employee’s own position. That was a conclusion the Tribunal had been entitled to reach. For further information contact Amanda Okill on 01227 763939.

Protected conversations and unfair dismissal claims

Actually there really isn’t any such thing as a ‘protected conversation’ – that is simply the label that is commonly attached to a rule in unfair dismissal claims. that evidence of ‘pre-termination negotiations’ are not admissible. In practice, this has proved to be a tricky rule to apply. In Basra v BSJJ Ltd the employer was concerned about the performance of the employee and invited him to a disciplinary meeting. Before the hearing, the employer also sent him a letter offering payment in return for him agreeing to leave rather than go through the disciplinary process. The employee responded by accepting that offer and did not attend work the following day, nor on the day scheduled for the disciplinary meeting. No settlement agreement was concluded, however, and the employee was then signed off sick with stress. The employer’s position was that the employee had actually resigned in response to its initial offer and would be entitled to payment when he entered into the appropriate settlement agreement. The employee took the employer’s insistence that his employment had ended as a dismissal which he claimed was unfair. The Tribunal felt that it was obliged to ignore the employer’s offer of settlement because it was made in the course of ‘pre-termination negotiations’. However they found that the employee’s response to that offer was an unambiguous resignation and dismissed his claim. The EAT held that since the law excluded evidence only of ‘pre-termination’ discussions it could not be properly applied until the date of termination had been determined. The Tribunal had therefore been wrong to exclude consideration of the initial offer until it had first decided when the employment came to an end. As a result of this error the Tribunal had failed to take all of the relevant circumstances into account when deciding that the employee’s response to the offer was a resignation. They had also been wrong to ignore the fact that his email accepting the offer was expressed as ‘subject to contract’. The matter therefore had to be sent back to the Tribunal to consider whether a full consideration of the offer and the use of the phrase ‘subject to contract’ would have altered their view that the employee had resigned. For further information contact Andrew Masters on 01227 763939.

Autumn 2018

Date of dismissal – when does notice start?

When an employee is dismissed with notice, that is sometimes done face to face - but notice can also be sent by post. In that case, when does the notice start to run? Does it run from the date it was delivered to the employee’s house, or from the date when the employee actually opened the envelope and read its contents? In Newcastle Upon Tyne Hospitals NHS Foundation Trust v Haywood, Ms Haywood had built up many years of service with the NHS when it became clear that she was about to be made redundant. Her pension entitlement meant that if her redundancy took effect on or after her 50th birthday she would be entitled to a greatly enhanced pension. In the run up to her redundancy she pointed out that she had booked a period of annual leave so that she could take a holiday in Egypt. She asked that the final decision be postponed until her return, but the employer refused. She was entitled to 12 weeks’ notice and the crucial date was 27 April 2011. If she was given notice on or after that date she would be 50 when the notice ended and entitled to the enhanced pension. If the notice was given before that date, then she would only receive a normal redundancy payment. The employer wrote to her by recorded delivery on 20 April. By that time, she was away in Egypt and her father-in-law (who was looking after the house) collected the letter from the Post Office and put it on the hall table. Ms Haywood returned from holiday in the early hours of 27 April and read the letter later that morning. The employer insisted that her dismissal took effect before her 50th birthday on 27 April, but she brought a High Court action claiming that her 12 weeks’ notice did not start to run until she actually read the dismissal letter. The case reached the Supreme Court which, by a majority, decided in her favour. Giving the leading judgment, Lady Hale said that it was an established principle that the termination of an employment contract required actual communication with the employee. It was not therefore enough for the employer to have posted the notice – or even for it to have landed on the employee’s doormat. At the very least it was necessary for the employee to have had a reasonable opportunity of reading it. That meant that for Ms Haywood, notice only began to run once she returned from holiday and read the letter. Lady Hale was at pains to stress that this position was the only the default, where the contract itself made no express provision for when notice would be taken as having been given. Employers might therefore find it useful to include a term in future contracts specifying that notice will be deemed to have been delivered when it is delivered to the employee’s home. Alternatively, employers might consider notifying employees of any dismissal face to face and simultaneously handing over written confirmation. That way there is no room for any ambiguity.

For further information contact Andrew Masters on 01227 763939.

Constructive dismissal and breach of contract

A constructive dismissal occurs when the employee resigns in response to a fundamental breach of contract on the part of the employer. Technically a constructive dismissal may be fair – if the employer can show a fair reason for acting in breach of contract and that is has behaved reasonably. However, it is generally accepted that the situation needs to be quite extreme for it to be reasonable for the employer to act in breach of contract. The most common kind of breach of contract relied upon in constructive dismissal cases is a breach of the implied term of mutual trust and confidence. This is generally expressed as a duty ‘without reasonable and proper cause’ to act in such a way as to undermine the trust and confidence at the heart of the employment relationship. In Mostyn v S and P Casuals Ltd, Mr Mostyn was a sales person whose sales figures had been on a downward slide for some years. The employer was concerned that he was being overpaid for the amount of business he was bringing in and proposed that he should undergo a cut in basic salary and an increase in commission earned for any improvement in his sales. He was not prepared to agree to a salary cut, but after his internal grievance was rejected the employer made it clear that they were going to go ahead. He resigned and claimed that he had been constructively dismissed. The Tribunal held that there had been no breach of the implied term of trust and confidence because the employer had reasonable and proper cause for what it had done. The employee’s sales figures were poor and the employer’s attempts to deal with the problem by proposing to impose a substantial cut in basic salary, offset by an increase in commission, were a reasonable response. The EAT overturned this finding on appeal. In the first place, a unilateral reduction in salary was a breach of an express term in the contract to pay the wages that were agreed. It was no defence to a claim for a breach of an express term for the employer to say that it had a good reason for the breach. Since, however, Mr Mostyn had based his case on a breach of the implied term of mutual trust and confidence, the EAT went further. It held that where the employer had breached an express term of the contract by unilaterally reducing an employee’s salary, it could not then argue that there was reasonable and proper cause for what it had done. There could never be a reasonable and proper cause for reducing an employee’s salary in that way. The Tribunal had found that even if it was wrong on the breach of contract issue, it would have found any constructive dismissal to be fair. However, the EAT held that such a finding could not stand. The Tribunal had found that the reason for any constructive dismissal was the employee’s capability. What it had not addressed was the fact that the employer had not followed its own capability procedure before seeking to impose the pay cut. The case was therefore sent back to a fresh employment tribunal to consider whether the constructive dismissal was fair. Given the EAT’s comments, the prospects do not look god for the employer.

For further information contact Andrew Masters on 01227 763939.

Whistleblowing, public interest and sufficient information

It is automatically unfair to dismiss an employee – or subject a worker to any detriment - for making a ‘public interest disclosure’. That is a disclosure of information which tends to show that certain types of wrongdoing have occurred. There must be a disclosure of information, however, rather than simply and accusation or allegation. In Kilraine v London Borough of Wandsworth the Court of Appeal tried to describe this distinction. Ms Kilraine was made redundant after being suspended from her job for allegedly making unfounded allegations against a number of her colleagues. The Tribunal found that her redundancy was a genuine one and not motivated by her numerous complaints. Nevertheless, the detriment of being suspended would have been enough for a claim to succeed were it not for the fact that the Tribunal held that her allegations did not qualify as protected disclosures. On appeal to the EAT the focus was on two allegations. One was that she had been subjected to ‘numerous incidents of inappropriate behaviour’; the other was an allegation that she had not been given sufficient support when she raised a safeguarding concern. The EAT held that the first allegation did not contain sufficient information to amount to a ‘disclosure’ and the second did not sufficiently identify any legal obligation that had potentially been breached. The Court of Appeal said that there was nothing to prevent an allegation from also being a protected disclosure, provided the allegation contained information which (in the reasonable belief of the worker) tended to show that the requisite wrongdoing had occurred. The concepts of ‘allegation’ and ‘disclosure’ were not mutually exclusive. The Tribunal had to look at the allegation in context and determine whether sufficient information was being conveyed. For example, a hospital employee who accused the employer of breaching health and safety law while pointing at discarded sharps lying on the floor would be disclosing sufficient information even though the specific words used were merely an accusation. In this case, however, the EAT had been right to reject the appeal. The first allegation did not contain sufficient information – there were no particulars given of what the inappropriate behaviour was. The second allegation did contain information – about the manager’s alleged lack of support - but that information did not tend to show any breach of a clearly identified legal obligation. The appeal was dismissed.

For further information contact Andrew Masters on 01227 763939.

Race Discrimination

In City Hospitals Sunderland v Iwuchukwu, the employee was a breast surgeon and the only black African consultant employed by the Hospital. There were several concerns raised about his performance. His level of post-operative complications in relation to his breast reconstruction work was higher than it should have been, and concerns were expressed about his patient selection, recording of complications, adherence to procedures and ability to work in a team. The process for addressing the performance of surgeons is complex and involves an independent investigation. While these were ongoing Dr Iwuchukwu was placed under a restriction of practice order which basically involved preventing him from treating patients. It was eventually decided that the concerns about his performance were sufficiently serious that formal capability procedures were needed. The process was threatened however when Dr Iwuchukwu raised a detailed grievance alleging race discrimination in the way in which he had been managed. The employer considered that the grievance was being raised in an attempt to frustrate or delay the capability procedures and ultimately refused to consider it on the basis that it had been presented more than a month after the events concerned. While a subsequent grievance was referred to an independent investigator who rejected allegations of discrimination, his original grievance was never fully considered. When he was dismissed on the grounds of capability he claimed unfair dismissal and race discrimination. The Tribunal rejected a number of his specific allegations but upheld his claim that the refusal to deal with his grievance was on the grounds of race. The Tribunal also upheld his unfair dismissal claim on the basis that the employer had been too hasty to restrict his clinical duties and that as a result his capability had been further impaired. The EAT allowed the appeal. The Tribunal had found that the employer had genuinely believed that the grievance was simply an attempt to frustrate the capability process. This provided a complete explanation for their refusal to consider the grievance fully and there was no room for the tribunal to infer discrimination. As for unfair dismissal, the Tribunal should simply have focussed on the facts as they existed and were known to the employer at the time of dismissal. By that time the Tribunal accepted that there were fair grounds for dismissing Dr Iwuchukwu on the grounds of capability. The Tribunal had been wrong focus on their view that the employer’s earlier conduct had contributed to that situation. The issue of unfair dismissal was sent back to the Tribunal to be reconsidered. The claim of race discrimination was dismissed.

For further information contact Amanda Okill on 01227 763939.

Religious harassment, context is crucial

In harassment cases, context is crucial. A seemingly innocent remark, when placed in its proper context, may well amount to unwanted conduct that violates an employee’s dignity. Similarly, a comment that sounds inappropriate at first may in fact turn out not to be harassment once its context is understood. In Bakkali v Greater Manchester Buses (South) the comment that was at the centre of case certainly appeared worrying. An employee approached a Muslim colleague - Mr Bakkali – in the staff canteen and said ‘are you still promoting IS/Daesh?’. Obviously this is a comment that has the potential to amount to religious harassment, but a Tribunal subsequently held that, viewed in its proper context, it did not meet the test. The events leading up to the comment began some two weeks earlier when Mr Bakkali had a conversation with his colleague based on a report from a German journalist about life in the Islamic State. Mr Bakkali quoted the journalist as saying that ISIS were enforcing ‘law and order’ and that they were ‘proficient fighters’. The Tribunal held that when the colleague made his subsequent remark it was intended as a reference to their earlier conversation rather than to Mr Bakkali’s religion and dismissed the claim for harassment. On appeal Mr Bakkali argued that the Tribunal had applied the wrong test. It had asked whether the comment was because of religion – the test in a direct discrimination claim – rather than related to religion which was what mattered in a claim for harassment. The EAT agreed that the two tests were different. Conduct may not be because of the protected characteristic but could still be related to it. What was required was a close consideration of the context of the alleged harassment to determine whether or not it was related to the protected characteristic in issue. This was exactly the approach taken by the Tribunal which had concluded that, in context, the comment complained about was related to an earlier conversation about a newspaper article and was not related to religion or race. The appeal was dismissed.

For further information contact Tessa Robinson on 01227 763939.

Paying wages during suspension

When an employee is suspended pending a disciplinary investigation then the rule is that he or she is entitled to receive full pay during the period of suspension unless the contract expressly states otherwise. In Rice Shack Ltd v Obi the question was whether that rule also applied when the employee was able to find work elsewhere while the suspension was in place. Ms Obi was employed on a zero-hours contract and shifts were allocated to her through a WhatsApp group. On average she worked just over 15 hours a week. In March 2016 she was told that she was being suspended after an altercation at work and no further shifts were allocated to her. No disciplinary hearing was arranged, however, and she raised a grievance about her suspension in May. A grievance meeting took place, but no conclusion was reached and the situation simply continued through to December when she was again offered work. She said that she would only be prepared to take further work if she was properly paid for the period of her suspension. By that time, she had brought a claim alleging unlawful deductions from her wages as she was not being paid for the work she missed as a result of her suspension. In the course of her claim it was disclosed that she had actually been working full-time for another employer since August 2016 and the employer, while accepting that she should be paid in respect of the period leading up to that time, argued that once she was working elsewhere she was no longer entitled to be paid. The Tribunal disagreed, and its conclusion was upheld by the Employment Appeal Tribunal. The employer had conceded that during the period of her suspension she was entitled to be paid at the rate of her average earnings until the suspension was lifted. There was no evidence however that this had ever happened. It was also accepted by the employer that the employee was entitled to work elsewhere and was not required to inform them when she did so. The EAT held that there was no evidence that the existence of her other employment would have prevented her from accepting work offered by the employer – it was clear that other employees also had second jobs. It was the employer’s decision to suspend the employee and to do nothing to resolve the situation for many months after it had done so. The situation was entirely of the employer’s own making and the employee was entitled to recover her lost wages for the whole period of the suspension.

For further information contact Andrew Masters on 01227 763939.

Heat of the moment resignations

Once an employee has given notice of resignation, the general rule is that he or she cannot withdraw that notice without the employer’s agreement. There is a limited exception where notice is given in the heat of the moment and is then promptly withdrawn. But there is a limit to how much time the courts will give to either an employee or an employer to reconsider an over-hasty giving of notice. In Walker Smith v Perry’s Motor Sales Ltd, Mr Walker Smith was a manager of a car dealership when a series of financial irregularities came to light. These were mostly the result of the actions of a financial controller, but he was nevertheless accused of failing to exercise enough oversight of the financial affairs of the dealership and keep senior management appropriately informed. On 4th June 2016 he was told that he was invited to a disciplinary hearing to take place four days later. He immediately submitted his resignation – giving three months’ notice - but the employer insisted that the disciplinary hearing go ahead. As a result, he was told on 13th June that he was being dismissed without notice. In notifying his employer that he intended to appeal against this decision, Mr Walker Smith said that he was withdrawing his resignation on the basis that it had been given in the heat of the moment when he was feeling stressed and upset. The appeal was unsuccessful, and he claimed unfair dismissal. The Tribunal upheld his claim, finding that dismissal fell outside the band of reasonable responses. The financial controller responsible for the irregularities did not report to Mr Walker Smith who should not have been held responsible for the problems that had arisen – although he was guilty of culpable conduct in failing to communicate some issues to senior management. The difficult issue was compensation. The Tribunal decided that he was 50 per cent to blame for his dismissal and reduced his compensation accordingly, but they also held that he had been entitled to withdraw his resignation because it had been given in the heat of the moment. As a result, his loss of earnings could be calculated without the assumption that his employment would have ended three months later in any event. The employer appealed. The EAT held that while a resignation given in the heat of the moment could be withdrawn by the employee – this had to be done promptly, and Mr Walker Smith had waited too long. In any event, by the time he told his employer that he wanted to withdraw his resignation it was already too late because he had just been dismissed and his employment was over. It was true that the employer had said that it did not accept his resignation, but it was clear from the context that what they meant by this was that they would not allow his resignation to get in the way of the disciplinary process. To complicate matters the EAT also found that the Tribunal had no evidence to support their conclusion of culpable misconduct justifying a 50 per cent reduction in his compensation. The result was that Mr Walker Smith was entitled to full compensation for his losses – but his losses did not extent beyond the three-month period at the end of which his resignation would have taken effect in any event.

For further information contact Tessa Robinson on 01227 763939.

Pimlico Plumbers and ‘Worker’ status

We have seen a flurry of cases in the past year looking at who qualifies as a ‘worker’ in the context of employment law. A worker is someone who is contracted to provide personal service to an employer and who is not running a business undertaking of which the employer is merely a customer or client. Workers may not count as employees for the purposes of claiming unfair dismissal or redundancy rights, but they nevertheless qualify for a range of employment rights including the minimum wage and paid annual leave. They also qualify for rights under the Equality Act and it was the right not to be discriminated against that was to the fore in the case of Pimlico Plumbers Ltd v Smith. Mr Smith was a plumber whose contractual documentation was rather complex – and had been changed several times. Many aspects of his work resembled normal employment. He wore Pimlico Plumber branded clothing, drove a Pimlico Plumbers’ van and generally presented himself to customers as being part of the Pimlico Plumbers business. However, he was taxed as self employed and took full advantage of the allowances available in respect of business expenses. He also had considerable control over how he organised his work. He was responsible for purchasing raw materials and supplies and sold these back to Pimlico Plumbers at an agreed mark-up. When he suffered a heart attack he sought to reduce his working hours. He complained that Pimlico Plumbers did not provide him with appropriate flexibility and support and brought a number of claims in the Employment Tribunal including unfair dismissal and disability discrimination. The Tribunal found that he could not bring an unfair dismissal claim because he was not an employee. He was, however, ‘in employment’ for the purposes of the Equality Act and the Tribunal allowed his claim on this ground to proceed – along with a number of other claims in relation to annual leave and unlawful deductions from wages. Pimlico Plumbers took their appeal all the way to the Supreme Court arguing that Mr Smith was genuinely self employed an unable to benefit from any employment rights. Their key argument was that Mr Smith was not obliged to provide personal service at all because he had the right to send a substitute in his place. It is well established that if an individual has the right to send a substitute then he or she is neither an employee nor a worker, but in this case the Supreme Court rejected the argument. There was no express substitution clause in Mr Smith’s contract; Pimlico plumbers were simply arguing that he could, if he wished, arrange for another of their plumbers to do work that he had arranged. This was too limited and vague a right to outweigh the fact that the dominant feature of the relationship between Mr Smith and Pimlico Plumbers was one of personal service. The appeal was dismissed and the Tribunal will now be able to consider the substance of Mr Smith’s complaints.

For further information contact Andrew Masters on 01227 763939.

Government guidance on dress codes

To describe the Government’s guidance on workplace dress codes as an anti-climax is an understatement. The issue has been under consideration since the campaign launched by Nicola Thorpe who was sent home from her assignment as a receptionist at PWC for not wearing high heel shoes back in 2016. Ms Thorpe launched a petition gaining 150,000 signatures, with the result that the issue was considered in Parliament by the Petitions Committee and the Women and Equalities Select Committee. They recommended – back in January 2017 – that the Government issue guidance clarifying the law. It has taken more than a year for the Government to come up with this guidance and the results are underwhelming. It simply confirms what we already know. A dress code that places more restrictive requirements on women than on men (or vice versa) will be discriminatory. It is possible that a requirement on women to wear high heel shoes will be lawful – but only if the dress code applying to men is, taken as a whole, equally restrictive. To be fair to the Government, it is hard to provide clear guidance when the law itself is inconclusive. Previous cases have been quite tolerant of different dress requirements being imposed on men and women in order to ensure that their appearance conforms with conventional standards. But nowadays it is not at all clear that there are conventional standards of appearance to be enforced and a new case looking at the issue afresh is overdue. Nevertheless, while we may not have clear case law on the wearing of high heels in the workplace, it doesn’t take much thought to see what the likely outcome of a case on that particular issue would be. The starting point must be that it is difficult to see how a specific requirement for women to wear high heel shoes at work can be matched by an equally restrictive requirement placed on men. What item of traditionally male dress can cause that level of discomfort? Requirements to wear high heel shoes, make up, or short skirts are not in truth anything to do with looking smart, professional or business-like. They are about dressing in a way that is seen as attractive to the opposite sex. That is not a requirement that is imposed on men in any normal working environment, but it is clear that it is a standard regularly imposed on women. That is sex discrimination. Whatever the Government guidance says (or does not say) an employer who tries to defend a dress code requiring women to wear high heel shoes is almost certain to lose – and look bad in the process.

For further information contact Amanda Okill on 01227 763939.

Spring 2019

Overview by Andrew Masters

Whatever the rest of 2019 holds in store, you might think it unlikely that the Government would have time to give serious thought to the reform of employment law. Nevertheless as 2018 drew to a close a range of measures were announced implementing some of the recommendations of the 2017 Taylor Review of Modern Working Practices. It has to be said that none of the changes are revolutionary and the timetable for most of them is far from clear. One area of likely change under the Government’s plans relates to the right to a written statement of terms and conditions. The right is currently one enjoyed by employees only. But from 6 April 2020 employers will have to provide a statement for their workers too. In other words, people who for tax purposes are treated as self-employed but who have an obligation to provide personal service and could not be said to be running their own independent business will be entitled to a written statement from their ‘employer’ setting out the terms and conditions under which they will work. What is more, this will be a right that applies from day one of their ‘employment. The current requirement excluding contracts which last for less than one month will be abolished and the employer will no longer have two months to issue the statement. Most of the details required will have to be given to the employee or worker by day one of their contract. The content of the statement will also change, with the employer having to give more details about the employee or worker’s working hours – including whether or not it is expected that working time will be variable. This change in is intended to address some of the uncertainty experienced by those on zero-hours contracts, but falls well short of any obligation on employers to provide a minimum amount of guaranteed work. For further information contact Andrew Masters on 01227 763939.

Worker status – Uber drivers are workers

In Uber BV v Aslam and Others the Court of Appeal has held that Uber drivers are ‘workers’and therefore entitled to be paid the national minimum wage and given paid annual leave. What is more, the Court has agreed with the Tribunal and the EAT that an Uber driver is working not just when actually transporting a passenger but also while logged on to Uber’s system and waiting to be assigned to a job. Uber’s argument has always been that it is merely the intermediary between the individual driver and the passenger. The driver, they say is not working ‘for’ Uber at all, but just using Uber’s software platform to find work from individual assignments. However this argument has now been rejected by the Employment Tribunal, the EAT and the Court of Appeal. The Courts have not been impressed by the elaborate contractual documentation which spells out what Uber believes its relationship with drivers to be. Instead they have chosen to look beyond that documentation and focus on the reality of the relationship. A particularly important factor is the pressure that is applied to drivers to accept work that is offered to them. A driver who is logged in on the Uber system is presumed to be willing to accept work and if his acceptance rate falls below 80 per cent then he is automatically logged out of the system for a short time as a penalty. The Court of Appeal held that this showed that the driver was engaged under a contract to perform work. The legal battle is unlikely to end here. The Court of Appeal only reached its decision by a majority with one of the judges accepting that Uber was acting as an intermediary between the driver and the passenger in much the same way as a standard mini-cab firm. An appeal to the Supreme Court is likely. For further information contact Andrew Masters on 01227 763939.

Unfair Dismissal – Employers and fair investigations

In a disciplinary process it is important that the employer carefully identifies exactly what the employee is accused of doing and carries out a fair investigation. Crucially an investigation must not be focussed simply on gathering evidence against the employee – it is important that the employer also considers any evidence that tends to support the employee’s case. In Asda Stores Ltd v Raymond the employee was a lorry driver who was seen getting out of his cab and urinating in the delivery yard of a large shopping centre. His employer said that this was a breach of trust and confidence, a ‘deliberate and serious breach’ of Health and Safety Regulations and ‘serious or wilful neglect to Company property’. The investigation that was conducted was very brief and simply involved the manager watching the CCTV footage that showed Mr Raymond urinating in the yard. The employer took the view that once it was established that he had indeed urinated in the yard, there was nothing more to consider. Mr Raymond’s explanation that he was overcome with a sudden and urgent need to urinate, which resulted from his Type 2 diabetes and that he did not have time to get to a toilet was simply rejected with no attempt to establish the true medical position. The Tribunal found that the dismissal was both unfair and an act of discrimination arising from Mr Raymond’s disability. The employer had not simply accused Mr Raymond of urinating in the yard, but of doing so in ‘deliberate and serious breach’ of health and safety Regulations. They had not identified or even considered which Regulations, if any had been breached. They had asserted that his actions were in breach of the employer’s policies, but had not been able to identify which policies, nor considered the extent to which they had been properly communicated. The Tribunal found that the dismissal was unfair and also discriminatory. Unusually, they ordered that Mr Raymond be reinstated – finding that there was no basis on which Asda could have lost trust and confidence in him as an employee. The employer appealed arguing that the evidence clearly showed that Mr Raymond had urinated on pallets that would be used for loading and unloading food that would be delivered to customers – and that the health and safety implications of such conduct were clear. However the EAT viewed the CCTV evidence that the Tribunal had also seen and rejected this argument. It was not clear from the footage whether or not Mr Raymond had urinated directly onto the pallets – and there was no evidence that this question had been specifically addressed either in the original investigation or in the cross-examination of Mr Raymond before the Tribunal. Given the unchallenged evidence that Mr Raymond was overcome by a sudden need to urinate and did not have time to reach a toilet, the EAT held that he had done nothing that would get in the way of his reinstatement. The appeal was dismissed. For further information contact Amanda Okill on 01227 763939.

Disciplinary hearings – Employee requests postponement

Under the statutory right to be accompanied, an employee may postpone a disciplinary or grievance hearing if his or her chosen representative is not available. However, the employee is then obliged to specify an alternative date which is both reasonable and which falls within five working days of the date proposed by the employer. But even if the employee fails to meet this requirement, this will not necessarily mean that the employer will be acting reasonably in refusing to postpone the hearing. In Talon Engineering Ltd v Smith, the employee was invited to a disciplinary hearing to answer charges of gross misconduct. Her union representative was away at a conference on the proposed date and so she proposed an alternative date, just under two weeks later. The employer refused to postpone the hearing any further (it had already been postponed once because of the employee’s sickness absence) and the employee refused to attend without her chosen representative. The hearing went ahead in her absence and she was dismissed. The Tribunal held that the dismissal was unfair. A reasonable employer would have allowed the postponement of the hearing for a short period to allow the employee’s chosen representative to attend. By proceeding in her absence, the employer had denied her a fair hearing. The EAT agreed. The right to be accompanied was distinct from the right not to be unfairly dismissed. The fact that the employer had not been in breach of the right to be accompanied – because the employee’s proposed date for the hearing was more than five working days after the date chosen by the employer – did not mean that the dismissal was fair. The EAT also held that the employee could not be criticised for refusing to attend the hearing in the absence of her representative. It is worth remembering that in this case the employee was proposing a relatively brief postponement – even it was for more than five working days – that the employer could have accommodated quite easily. Nevertheless, this decision leaves employers in an uncertain position when an employee requests the postponement of a disciplinary hearing. Such requests should only be refused after careful consideration and advice. For further information contact Tessa Robinson on 01227 763939.

Transfer of Undertakings – Unrelated changes to terms and conditions

One of the most difficult aspects around the law of TUPE transfers is the restriction on employers changing an employee’s terms and conditions. Any change is void if the reason for it is the transfer itself – with only very limited exceptions. However, TUPE does not prevent a change to terms and conditions that have nothing to do with the transfer. Drawing a distinction between a change which is because of the transfer and a change which merely follows it is not easy. In Tabberer v Mears Ltd the employer acquired a number of employees as a result of a TUPE transfer who had previously been employed by a local authority. Their terms and conditions included an allowance designed to compensate them for loss of earnings caused by the time they spent travelling from one depot to another. The original rationale for the allowance no longer applied – apart from anything else all but one of the depots had closed – but the allowance was still being paid. The employer decided to make a change and pushed through a variation of the contract, removing the allowance. A group of workers claimed that the change was void because of its link with the TUPE transfer. The Tribunal rejected the claims for unpaid wages and the EAT upheld that decision. The reason for the change was that the allowance was outdated and irrelevant. The transfer was part of the background to the change but was not the reason for it. There was nothing in TUPE that prevented the transferor from introducing changes for an unrelated reason. For further information contact Amanda Okill on 01227 763939.

Legal advice and discrimination

In X v Y Ltd, X was employed as a lawyer and was made redundant as part of a major reorganisation which took place after his employer, Y Ltd, acquired an additional business. He claimed that the real reason for his dismissal was his disability and the fact that he had made claims of disability discrimination. There had been ongoing concerns expressed about his performance over a number of years, but his case was that these arose from the consequences of his Type 2 Diabetes and Obstructive Sleep Apnoea. His allegation that his claims of disability discrimination were the real cause of his dismissal were based in part on an email that had been leaked to him. In that email one of Y Ltd’s lawyers advised them that the reorganisation provided an opportunity to make X redundant as part of a wider exercise. The alternative, the email suggested was an ‘impasse’ with ongoing employment tribunal claims and ‘no obvious resolution’. Y Ltd argued that since this email was legal advice given by their lawyers, it attracted legal advice privilege and was inadmissible in evidence. X argued that the email, fell within an established exception to the rule, that legal advice could not be used in evidence if it appeared to have been given for the purpose of ‘effecting iniquity’ – in other words, advising the client to engage in unlawful or improper behaviour. The Tribunal held that the email did no more than advise the employer of how to limit its exposure to a legal claim and agreed that it was subject to legal privilege. X appealed to the EAT. The EAT took a more serious view of the advice given in the email. It was clear that there was a strong prima facie case that the employer was being advised that it could use the wider redundancy exercise as a cloak to disguise the real reason for dismissing X – which was his complaints of discrimination and requests for reasonable adjustments. This was a sufficient level of ‘iniquity’ to take the advice outside the scope of legal professional privilege and the email could therefore be used by X in his evidence. For further information contact Andrew Masters on 01227 763939.

Resignation and unfair dismissal

If an employee gives notice of resignation and the employer accepts it, then the normal rule is that the employee cannot withdraw that notice without the agreement of the employer. An employer tried to take advantage of this rule in East Kent Hospitals University NHS Foundation Trust v Levy– but came unstuck. Ms Levy was an administrator in a hospital. She had worked there for more than 10 years, but recently she had had a number of problems with co-workers and had been spoken to about her attendance record. She applied for an internal transfer and was offered a place in the hospital’s radiology department. She then wrote a note to her manager saying, ‘please accept one month’s notice from the above date’. Her manager responded with a note in which he accepted her resignation and wished her luck in her future employment. A few days later the radiology department withdrew its offer to her – after discovering more about her attendance record. Ms Levy then tried to withdraw her notice and remain where she was, but the employer refused to accept this withdrawal and insisted that her employment came to an end after her notice had run its course. She successfully claimed unfair dismissal. The Tribunal held that while the giving of notice would usually amount to an unambiguous resignation that could not be withdrawn without agreement, the context in this case was important. The employer knew that Ms Levy had accepted an internal appointment and would not therefore be leaving her employment with the Trust. As a result, her manager had not completed a staff termination form when she submitted her notice. The Tribunal concluded that the objective meaning of her note was not that she was leaving her employment but that she was leaving her role in the Records Department. The EAT held that the Tribunal was entitled to reach this view. This meant that when the offer from radiology was withdrawn, the employer’s insistence that Ms Levy’s employment should end when her notice expired amounted to a dismissal. For further information contact Tess Robinson on 01227 763939.

Redundancy and alternative work

Any employer proposing to make an employee redundant should consider whether there is any alternative work that might be offered to the employee and avoid the need for a dismissal. But this duty does not stretch to creating a vacancy by dismissing other employees – even if they have only been recruited recently. In Colquhoun v Independent Living Support the employee was an IT worker who was made redundant in May 2016. There was evidence however that the prospect of making him redundant was discussed at a managerial level as early as January that year. In March an internal planning document had referred to outsourcing the employer’s IT requirements, but there was no discussion of redundancy with the employee until May. The employer said that it was only at that point that it became clear that changes in their external funding necessitated a change. The employee argued that as recently as April, the employer had actually recruited new staff – albeit in different roles – and that he could have been offered one of those positions as a suitable alternative to his, now redundant, post. The Tribunal rejected his claim. The employer had only made the decision to dismiss the employee in May and had handled the process in a reasonable way, bearing in mind the circumstances they were facing. On appeal the EAT agreed. By the time the decision to make the employee redundant was actually taken there were no vacancies available as alternative work. The employer was not obliged to create a vacancy by dismissing one of the existing members of staff. The employer has perhaps been lucky in this case. The Tribunal might have found that a reasonable employer, knowing that a potential redundancy was in the air, would have held back from any recruitment exercise until it knew whether or not a redundancy was necessary. It helped the employer in this case that the additional recruitment took place in a different department without the knowledge of the manager responsible for making the redundancy decision. An employer who recruits new staff despite knowing that a redundancy is imminent elsewhere in the business may well be acting unreasonably if it does not at least consider giving the redundant employee a chance to apply for one of the vacancies. For further information contact Amanda Okill on 01227 763939.

Minimum Wage and ‘sleep-over’ shifts

A case of particular importance to the care sector is the Court of Appeal decision in Royal Mencap Society v Tomlinson Blake. The case concerns the question of whether the time spent by an employee on a ‘sleep-over’ shift counts as working time for the purposes of determining whether the employee has been paid the National Minimum Wage. It is typical in such shifts for the employee to be expected to sleep on the premises, ready to deal with any situation that may arise. There is no doubt that if the employee does have to get up in the night then that time counts towards minimum wage entitlement, but what about the time when the employee is actually asleep? The Court of Appeal held that time spent sleeping could not be seen as working time for the purposes of the National Minimum Wage. This overturned the EAT’s conclusion that there were circumstances in which sleeping on the premises was the very work that the employee was engaged to do – for example to meet regulatory requirements that there must always be a certain number of staff members on the premises. Prior to this case, HMRC had been actively pursuing employers in the care industry who had not been paying the National Minimum Wage in respect of sleepover shifts. They have put this action on hold pending an appeal to the Supreme Court. For further information contact Andrew Masters on 01227 763939.

Limiting discrimination claims

Tribunal hearings can be a complicated business, especially when there are multiple allegations of discrimination to wade through. An Employment Tribunal has a wide discretion in managing claims so as to deal with the issues efficiently, but it was held that they went too far in the case of Tarn v Hughes. Dr Tarn was the partner in GP surgery who alleged that she was discriminated against after becoming pregnant. She brought a Tribunal claim alleging 21 acts of direct discrimination, 19 acts of harassment and 6 acts of victimisation. As part of the case management process the Tribunal expressed concern at the sheer number of allegations being made and directed that Dr Tarn should select a maximum of 10 allegations for the Tribunal to determine. Those allegations would then be considered at a full hearing and Dr Tarn would be able, if necessary, to pursue any outstanding allegations in a further hearing. The EAT held that this was the wrong approach. In a complicated discrimination claim it was important for the Tribunal to look at the evidence as a whole and consider the big picture. It was not possible to prevent a claimant from pursuing legitimate claims unless they clearly had no prospect of success and could be struck out. In effect, the Tribunal in this case, had unfairly required the employee to choose her ’10 best points’ and focus on them. She was given the choice of referring to other allegations as part of the background to those 10 claims, but if she did so, the Tribunal had made it clear that she would not then be able to pursue those matters as claims in their own right. The Tribunal had not appreciated the unfairness that that would cause. The matter was sent back to the ET to reconsider how the case should be managed. For further information contact Amanda Okill on 01227 763939.

Meaning of disability

Some conditions are excluded from the definition of disability. A tendency to steal, set fire to things or abuse others is deemed not to amount to an ‘impairment’ within the meaning of the Equality Act – as are exhibitionism and voyeurism. The Regulations setting out the exclusion appear to apply only where the disability itself consists of the excluded tendency, for example where the employee’s condition is kleptomania or pyromania. However, the statutory guidance published in accordance with the Equality Act makes it clear that the exclusion can also apply where the tendency arises as a result of some other disability, but the discrimination complained of is related solely to the impairment that is excluded. The case of Wood v Durham County Council illustrates the approach. Mr Wood suffered from severe depression and PTSD. He was stopped by police outside a Boots Chemist with a number of items he had not paid for, and issued with a fine and a Penalty Notice for Disorder. He did not tell his employer of this incident, but since he was employed as an Anti-Social Behaviour Officer, his employers were told by the police that he was no longer allowed to enter a police station under any circumstances. This effectively prevented him from performing his job and the employer was also concerned that his behaviour could bring them into disrepute. After an extended disciplinary process, he was dismissed. He claimed disability discrimination and the first issue to consider was whether he was disabled. His conditions would normally have been sufficient to amount to a disability, but the employer argued that since his dismissal arose from his tendency to steal, the condition that gave rise to that tendency was excluded from the scope of the Equality Act. The Tribunal accepted this argument and dismissed his claim. The EAT agreed with the Tribunal. Mr Wood had argued that he could not be regarded as having a tendency to steal because, firstly, this was an isolate incident that was insufficient to demonstrate a ‘tendency’ and secondly because he had simply walked out of the shop in a dissociative state – he had not been acting dishonestly and could not be said to have stolen anything. The EAT rejected these arguments. Since he was claiming that the incident was a result of his disability, he was himself arguing that this was the sort of behaviour that would tend to result from his disability. As for his dishonesty, while a Penalty Notice for Disorder was not a conviction as such, it did involve him admitting in writing that he was guilty of theft. The Appeal was dismissed. For further information contact Amanda Okill on 01227 763939.

Disability Discrimination and early retirement

One of the many differences between direct discrimination and discrimination because of something arising in consequence of an employee’s disability is that direct discrimination is based on less favourable treatment whereas discrimination ‘arising’ is based on unfavourable treatment. But when is treatment unfavourable? In most cases it might seem obvious, but in Williams v Trustees of Swansea University Pension Scheme it was anything but. Mr Williams had a number of disabilities which affected his performance at work. As a reasonable adjustment his employer moved him to part-time work but, some time later, he was persuaded to seek ill-health early retirement. His application was accepted and he retired on an enhanced pension. However, it was partly based on the part-time salary he was earning at the time he left, rather than the full-time salary he had previously enjoyed. It was clear that the fact that he had been working part-time arose as a result of his disability – but was a pension based on that part-time salary ‘unfavourable treatment’? The Supreme Court has now held that it was not. The pension he received was in fact a very favourable one. Anyone who was still able to work would not have been allowed to retire on such favourable terms. Mr Williams’ problem was that, by definition, anyone who qualified for ill-health early retirement would also be disabled within the meaning of the Equality Act. The whole ill-health early retirement scheme was aimed at the favourable treatment of disabled people – and this did not become unfavourable treatment just because in theory some other disabled people might have received a pension that was even higher. For further information contact Tess Robinson on 01227 763939.

Worker status and the right to union recognition

Most of the cases dealing with the employment status of workers in the gig economy have concerned claims for paid annual leave or entitlement to be paid the national minimum wage. In the case of R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee, the claim concerned the right to union recognition. A group of Deliverooriders sought recognition for their union to negotiate terms and conditions on their behalf. Deliveroo resisted the application and so the case came before the Central Arbitration Committee for determination. The legislation dealing with union recognition requires the union to be representing a group of workers – and ‘worker’ is defined in the same way as for other employment rights. Central to the definition is that the individual worker has an obligation to provide personal service to the employer – and it was on this issue that Deliveroo focussed in resisting the claim. They pointed out that Deliveroo riders – who pick up food from restaurants and deliver it to customers – were engaged under a contract with a ‘substitution clause’. This allowed any Deliveroo rider to arrange for deliveries to be made by another person on their behalf. There was no need for the rider to obtain the permission of Deliveroo first, or to appoint a substitute that Deliveroo had approved. It is well established that an unlimited right to send a substitute is inconsistent with the obligation to provide personal service and means that the individual cannot be a worker unless the substitution clause is a sham. The Central Arbitration Committee (CAC) held that the substitution clause in this case was genuine – having heard evidence from a number of riders who had indeed regularly arranged for other individuals to undertake deliveries on their behalf. The claim for union recognition was therefore dismissed and the union sought to challenge that decision by way of judicial review. They argued that the right to collective bargaining was enshrined in Article 11 of the European Convention on Human Rights and that this right could not be restricted by the courts applying a narrow definition of who counted as a worker. The High Court rejected this argument. There was nothing in the case law of the European Court of Human Rights to suggest that the right to collective bargaining extended to those who were not in an employment relationship. Nor was there anything to suggest that the UK definition of what constituted an employment relationship was a breach of human rights law. The Central Arbitration Committee's decision was upheld. For further information contact Andrew Masters on 01227 763939.

Long-term sickness and dismissal

Incapacity is a potentially fair reason for dismissal. And while the dismissal of an employee who is on long-term sickness absence is likely to be unfavourable treatment because of something arising in consequence of a disability, the employer may well be able to show that it is a proportionate means of achieving a legitimate aim. In Awan v ICTS, however the situation was complicated by the employer’s sick pay scheme. The employee was originally employed by American Airlines who operated a contractual long-term incapacity scheme under which employees who were incapable of working continued to receive 2/3rds of their pay for as long as they remained off sick. Mr Arwan was off sick with depression and when his normal sick pay expired, he transferred to this long-term sickness benefit. His employer then outsourced Mr Arwan’s department to ICTS and his employment transferred under TUPE. His new employer tries to find an insurance policy matching the benefit that he had been receiving through American Airlines, but their chosen provider refused to provide cover for employees who were already off sick. As a result ICTS was left in the position of covering the costs of Mr Arwan’s absence themselves. When it became clear that there was no prospect of him returning to work within a reasonable time frame he was dismissed. The Tribunal found that the dismissal was fair and also that the unfavourable treatment arising from his disability was justified as a proportionate means of achieving a legitimate aim. On appeal however the employee argued that there was an implied term in his contract that the employer would not terminate his employment because of long-term sickness absence as that would defeat the purpose of the benefit provided by the contract. The EAT agreed that the whole point of the long-term absence benefit would be defeated if the employer was free simply to dismiss the employee for long-term absence. The employer tried to argue that the contractual right was no more than to benefit under the insurance scheme and that this did not apply once the insurance was no longer available. The EAT noted that the contract was not expressed in this way. Mr Arwan was given an entitlement to long-term absence benefit – there was no suggestion that this was dependent on suitable cover being available. There was therefore an implied term in the contract that the employer would not dismiss the employee for long-term sickness absence. The existence of this implied term did not necessarily mean that the dismissal was unfair and discriminatory but it was a highly relevant factor that the Tribunal should have taken into account. The case was therefore sent back to a fresh Tribunal for these issues to be reconsidered. For further information contact Amanda Okill on 01227 763939.