Section Three

[newsletter-pulldown]

Case Law Update – Significant decisions from the Courts

Case Law Update – Significant decisions from the Courts

This section includes important cases on:

• Illegal working
• The use of covert recordings
• Disability, redundancy and reasonable adjustments
• Implications for businesses
• On call and Working Time rules
• Reference and Data Protection
• Whistleblowing
• Criminal Records
• Data Protection and compensation
• Associative Discrimination – reasonable adjustments
• Dismissal – post natal depression
• Holiday Pay and Commission
• Secondary Industrial Action
• Age discrimination in police forces.
• Use of Occupational Health reports
• Agency Workers rules
• Religion and Belief- Working on Sundays.
• Reduction in hours can be a redundancy situation

Illegal working

If an employee works under an illegal contract of employment, he or she will usually be restricted from asserting the rights and protections that such a contract entails. For example, it is well established that such an employee will not usually be able to bring an unfair dismissal claim, since the effect of a successful claim would be to enforce a contract that the law deems never to have existed. This refusal of the courts to give a remedy is commonly referred to as the ‘illegality defence’, since its effect is to relieve the employer of liability under the contract.

Despite this principle however, the Supreme Court has recently held that a domestic worker could proceed with claims of race discrimination related to her treatment while employed, and her eventual dismissal, despite that the fact that she was working illegally. The connection between the illegality and the discriminatory treatment was insufficiently close to bar the claims. Furthermore, in the view of the majority of the Court, there was evidence to suggest that the worker had been trafficked and the public policy against forced labour outweighed the public policy defence of illegality in this case. The Court accordingly restores a tribunal’s finding of discriminatory dismissal, overturning the Court of Appeal in the process.

[Case; Hounga v Allen. Supreme Court 2014]

The use of covert recordings

Thanks to advances in technology, most employees now carry recording devices in their pockets because their smartphone can be turned into a recorder. Therefore, it is increasingly likely that any conversations between you and your employees may be recorded without your knowledge. It is also possible that a recording device could be left recording when apparently private conversations are taking place.

Surprisingly beyond normal data protection restrictions, there is no specific legislation that prohibits covert recordings during confidential workplace meetings. The question asked by many is: If a recording is made without your authority can this later be produced as evidence in an Employment Tribunal? Surely data protection laws come into play here? This was the question that was addressed in the recent case of Punjab National Bank (International) Ltd and others v Gosain [2014] EAT.

Gosain attended formal disciplinary and grievance meetings with her employer prior to resigning. Without the panel being aware, she recorded both the hearings themselves and the private discussions of the panel that followed. The recordings of the private discussions included some derogatory comments about her and she wanted to produce those recordings at the Employment Tribunal to support her argument that she had been constructively dismissed and had suffered discrimination.

The Employment Appeal Tribunal (EAT) ruled that the recordings were admissible. The EAT drew a distinction between this case and previous rulings. In this case, the EAT decided that the recordings of the private discussions had not included content relating to the actual deliberations of the panel (concerning the offences alleged) which would not have been admissible, but only general discussions.

Following this decision the advice must be that, given the prevalence of recording devices, you take a proactive approach. Make it clear in your disciplinary and grievance procedures whether you will allow recordings. Take charge and include a discussion about recordings at the start of each disciplinary and grievance meeting, so everyone is aware of the approach being adopted.

If recording is permitted, ensure that each party provides their express consent and it is sensible for you to take control of the recording and transcribing if at all possible. Alternatively, ask employees to confirm that their mobile phone has been turned off at the beginning of the meeting and confirm that consent is not given by any party for the content of the meeting to be recorded.

Of course, this does not mean that an employee will not attempt to make a recording anyway, so ensure that nothing is said which you would not want to be heard in public but at least it offers a clear basis on which to argue inadmissibility, if needed. Also, more practically, look out for that bag or jacket left in the room during any adjournment. In the unfortunate case that you do discover a covert recording has been made, you should request a copy of the original recording rather than a transcript from the employee – to ensure that the recording is accurate and complete.

Disability, redundancy and reasonable adjustments

Mr. Dominique was disabled and had previously suffered a stroke. As a result, he frequently made mistakes at work and generally struggled with computers.

He was selected for redundancy on the basis of his poor productivity and accuracy; the selection criteria adopted by the Employer.

He brought claims for unfair dismissal and disability discrimination, alleging that his employer had failed to make reasonable adjustments to the selection criteria applied to him.

The EAT decided that the productivity and accuracy criteria placed Mr. Dominique at a substantial disadvantage, and would therefore warrant a ‘reasonable adjustment’ for discrimination to be avoided. A reasonable adjustment would have been to adjust the scores. The employer had not taken this step, and they were therefore liable for discrimination.

Implications for businesses

Although not a departure from previous cases, it is a reminder that disability protection requires the Employer to demonstrate that it has considered making reasonable adjustments. This extends to redundancy scores and Employers should keep an audit trail to show what reasonable adjustments have been made. It can be fair to dismiss a disabled worker for redundancy – but it is important to show that reasonable adjustments were made, and that the person still fell into the dismissal category despite the adjustments to their score. This case really does highlight the fact that an employer should give full consideration to all reasonable adjustments to ensure that its redundancy process is not discriminatory.

[Case; Dominique v Toll Global Forwarding Limited EAT 2014]

On call and Working Time rules

The Scottish Employment Appeal Tribunal has held that workers on call do not need to be at the workplace to be ‘working’.

The employees, in this case, were ambulance paramedics. When they were on call they were required, by their contracts, to stay within three miles of the ambulance station they had been assigned to for a particular shift. They could stay at accommodation of their choice but the location of the stations meant that they could not stay at home. They also had a target of responding to calls within three minutes.

The question that had to be decided was whether the time they were on call was a rest period or working time for the purposes of the Working Time Regulations.

The Employment Appeal Tribunal held that the time spent on call amounted to working time because the employees were obliged to be present and remain in a specific radius of an area determined by their employer and respond within a specific time.

It said that when determining whether time spent on call is working time or a rest period the distinction between rest and work is whether the place at which a worker is required to be present is or is not determined by the employer. This is because where a worker is obliged to be away from home, or even remain at or within a very close distance from home, that worker’s time is much less their own.

[Case; Truslove and another v Scottish Ambulance Service. EAT 2014]

Reference and Data Protection

Employers should play it safe when asked about a former employee’s job history

The case concerned a senior police officer who had served for over 24 years. Before leaving the force, disciplinary proceedings were instigated against him. By this point in time, the police had adopted the practice of providing standard references for employees who left the force.

After a period of long-term sickness absence (and just before the disciplinary hearing took place), AB resigned from the police to take up a job with a regulatory body. In its reference request, the regulatory body asked for details of AB’s sickness absence and disciplinary history. In accordance with its policy, the police force’s HR department issued AB with a standard, factual reference.

On learning that only a factual reference had been supplied to AB’s new employer, the deputy chief constable of the police force in question decided to send a further reference, which included information about the disciplinary hearing and sickness absence. Before sending it to AB’s new employer, this second reference was sent to AB who, unsurprisingly, objected to this information being passed on to his new employer.

AB served the police with a notice under section 10 of the Data Protection Act 1998 stating that it would be unlawful for the police to send out the second reference because the information in it constituted sensitive personal data. He also instigated public and private law claims against the police.

High Court

The police argued that it had both private and public law duties to inform the regulatory body about AB’s employment history, and felt it had a positive duty to correct the misleading information already given in the first reference.

The High Court found that while the first reference was inadequate, the duty of care imposed on the police did not require a further reference to be provided. The court decided that although the police force does have a public duty to act honestly and with integrity, that was effectively trumped by its data protection duties and its specific duty to AB, who had been led to believe that a standard reference would be provided.

Comment

Although this case involved a public body subject to more stringent public law duties than most employers, it does provide some useful pointers for employers giving references. Employers should remember that:

• if an organisation decides to provide a reference, it has to exercise reasonable care and skill to ensure that the reference is true, accurate, fair and not misleading
• organisations providing references owe a duty of care to both the recipient and the person who is the subject matter of the reference
• references are likely to constitute personal information and potentially sensitive personal information if, for example, they contain details about sickness absence, so organisations must ensure they are complying with the data protection principles
• if organisations promise a reference as part of a settlement agreement, it is sensible to include a provision that allows the employer to refuse to provide a reference if it finds out information after the settlement has been concluded which changes its opinion of the employee.

If in doubt, remember, employers do not have to give a reference at all, unless operating in a Regulated industry such as Financial Services.

[Case; AB v A Chief Constable. High Court 2014] 

Whistleblowing

Health and safety adviser working through his own service company was covered by the legislation.

A recent case has confirmed that the law will be applied in an inclusive way, in this instance bringing many agency workers within its scope. The case concerned a health and safety advisor. During the course of a particular project, he made what he said were protected disclosures under the Whistleblowing legislation and claimed employment protection. Hinds worked through a limited company which he hadset up, called Crown Safety Management, through which he offered health and safety advice within the construction and civil engineering industry. He was the sole share-holder, director and employee of the company.  In the tribunal case that followed both parties accepted that operating through a service company in this way was a common (if not required) practice in the construction industry.

Tribunal

The engineering company he was conducting the project for challenged his entitlement to whistleblowing protection. For the project in question, Hinds was appointed via a recruitment agency. He was clearly not an employee but equally, the company argued, did not fall within the defined categories of worker who were entitled to such protection. In this case, there was no contractual relationship between Hinds and the end-user.  The various contracts in place were between Hinds and his own company, that company and the recruitment agency, and the recruitment agency and Keppel Segher.

Keppel Segher argued that the terms of the various contracts in place were clear. Hinds was not personally introduced or supplied to the company (he operated through his own company), he negotiated his own terms with this company (Crown), and the recruitment agency reserved a right to substitute another worker in his place. Keppel Segher maintained that it could not be the employer against which the claim could be made since there was no contract between it and Hinds.

Both the tribunal and the Employment Appeal Tribunal found that Hinds was a protected worker for Whistleblowing purposes. Fundamentally, the EAT reiterated the need for tribunals to take a ‘purposive construction’ to the legal provisions on Whistleblowing, and to provide protection for whistleblowers where possible, rather than deny it. While the contracts in this case provided an important starting point, therefore, the focus of the legislation was on what happened in practice. Hinds had been introduced and supplied as an individual. Furthermore, despite what the contracts said, in reality the end user was in control in the sense of determining the terms on which Hinds was engaged to do the work.

Comment

Employers need to be wary when dealing with possible Whistleblowing issues. The law in this area (similar to discrimination) applies broadly, encompassing not just employees and workers but other individuals, such as home workers, students and agency workers.

It is also important to bear in mind that, since last year, employers and individual managers in the UK can be liable for the harassment or mistreatment of whistleblowers, even by fellow employees..

[Case; Keppel Segher v Hinds EAT 2014]

Criminal Records

The Supreme Court has now upheld the decision of the Court of Appeal in the earlier Secretary of State for the Home Department case.  In that case the court held that when the Disclosure and Barring Service revealed details of a minor conviction (a caution over theft of a bicycle when aged 11) committed whilst T was a child, this was a breach of T’s right to privacy enshrined in the European Convention on Human Rights. As a result of this case, the law has been changed so that certain minor convictions are to be “filtered” from DBS certificates.

T, now in his 20’s  was refused employment because of this offence; and the courts obviously view this as “disproportionate”.

[Case; R v Secretary of State for the Home Department SC 2014]

Constructive Dismissal

Constructive dismissal arises when the Employer fundamentally breaks the contract by its conduct – and the employee resigns in response. Can a delay in resigning amount to an affirmation of a breach of contract? The EAT in this case said that the delay alone was not enough to reject the complaint.

The employee suffered two acts of racial discrimination at work, which the employment tribunal held amounted to a breach of contract. Although initially investigated by the employer, the HR manager ultimately failed to investigate the employee’s grievance.

The employment tribunal held that the employee had affirmed the breach of contract because the last act of mistreatment, the HR manager’s failure to investigate the grievance, was some six weeks before the employee’s resignation.

The EAT overturned this decision. The Court emphasised that the passage of time is not to be taken in isolation. Rather, the principle is whether the employee has demonstrated that they have made a choice (ie to stay or leave), which they will do by their conduct.

They will do so, generally, by continuing to work in the job or by communications which show that they intend the contract to continue. But the issue is essentially one of conduct and not of time.

So, for example, if the Employee was off work due to sickness following a breach of contract by the Employer, this will not be conduct which indicates they have accepted the breach and will carry on working.

[Case; Chindove v Morrisons Supermarkets EAT 2014]

Data Protection and compensation

Reported claims for breaches of Data Protection are not that common, so it is interesting to see how a court decided compensation when an employee’s data requests were not dealt with well. These claims are not made in Employment Tribunals when seeking damages for loss and distress.

Breaches of data protection law can be damaging for individuals affected. They can also be distressing. A recent case has considered compensation for both types of damage, and suggests that obtaining compensation for distress may be easier than previously thought.

The law draws a distinction between compensation for actual damage (such as financial loss) and compensation for distress. Compensation for distress can only be claimed if individuals affected can jump two hurdles. First, they must prove financial damage. If they can do so, they may then seek compensation for distress as long as they can prove that they have suffered it. Just showing distress on its own is not sufficient.

From a policy perspective, this distinction limits the scope of compensation. Strict compliance with data protection law is virtually impossible, and data controllers breach it all the time. To obtain compensation data subjects have to go further than saying, for example, “My employer did not comply. It was just so upsetting“. They have to show financial loss too.

In the recent case the claimant made a subject access request to the Ministry of Justice (“MoJ”) in September 2006. In December 2006, he issued proceedings alleging breach of the subject access provisions. He made three further subject access requests between then and September 2007 and a further two in July and December 2009. The MoJ was slow in handling these requests and claimed legal professional privilege in relation to one disputed item.

The court awarded purely nominal damages of one pound (£1) for breach without any specific evidence of quantifiable loss beyond the observation that the claimant had spent a considerable amount of time and expense pursuing his rights.  The court then used the award of one pound as a trigger to award compensation for distress of £2,250.

Key implications of the decision are:

Data subjects aggrieved by non-compliance with data protection law will be able to claim damages for distress as long as they can show at least “nominal damage”.

The court awarded £2,250 for distress in relation to delay, which was 17 months in relation to some information, and six years in relation to one disputed item. (In a previous case, the court awarded £750 for a one-off error.) Without evidence of serious damage to privacy rights, this begins to suggest a rough tariff and indicates that awards for distress will rarely be large.

The court emphasised that the distress must be caused by non-compliance with data protection rights – and took a limited approach to assessing and evaluating compensation. This is a different approach from that adopted in discrimination claims for injury to feelings    ( with awards in a range of £600 to over £30,000 in the most serious cases).

Those who have been bombarded with subject access requests may have some sympathy with the MoJ’s plight in dealing with this. The legislation offers some protection against serial requests by providing that, where a controller has complied with a request, it is not required to comply with an identical or similar request until a reasonable interval has elapsed.

[Case; AB v Ministry of Justice. High Court 2014]

Associative Discrimination – reasonable adjustments

An employee has the right not to be less favourably treated because of his association with someone with a protected characteristic such as a disability. In Hainsworth v MoD, Ms Hainsworth was a civilian employee of the British armed forces, based in Germany. She was not disabled, but her daughter has Down’s syndrome. Ms Hainsworth requested a transfer to the UK to enable her daughter to access specialist education. Her request was refused. She claimed that the refusal amounted to a breach of the employer’s obligation to make reasonable adjustments. The Court of Appeal held that the right to reasonable adjustments only applies to requests for the assistance of disabled employees or prospective employees. Any attempt to stretch this to cover a disabled person associated with an employee is outside the protection of the Equality Act. This confirms an earlier decision by the EAT on this case.

[Case; Hainsworth v MOD CA 2014]

Dismissal – post natal depression

This decision confirms previous case law in this sensitive area. Ms. Lyons worked at a Job Centre Plus. She was pregnant in 2009 when she also involved (as a car passenger) in a fatal traffic incident. Whilst on maternity leave L was diagnosed as suffering from moderately severe post-natal depression.

Two days before her scheduled return to work in mid-September 2010, she saw her GP and was signed off with post-natal depression until 14 October, before commencing a period of sick leave that invoked the employer’s attendance management policy. She never returned to work and was eventually dismissed in March 2011. She brought a number of claims in the employment tribunal, including that her dismissal amounted to direct sex discrimination or to pregnancy and maternity discrimination. The tribunal ruled against her and she appealed to the EAT.

The EAT also rejected her complaints. It ruled that the case of Brown v Rentokil (a European Court decision for 1998) was the important precedent here. As the dismissal was outside the protected period (covering pregnancy and maternity leave) an Employer can justify dismissal when normal absence triggers are reached. A man would have been treated in the same way, which defeats the sex discrimination point. The Brown case also confirmed that when a pregnancy-related illness arose during maternity leave and persisted after that (protected) period, an employer was (after the end of maternity leave) permitted to take this into account.  Again it is possible to justify dismissal in the same way that a man’s absences for illness are taken into account.

[Case; Lyons v Job Centre Plus EAT 2014]

Holiday Pay and Commission

Does the Working Time Directive require that holiday pay should include commission payments that are part of remuneration?

Yes, held the European Court of Justice (ECJ), this recently decided case.

Mr Lock was a salesman on a basic salary with variable commission paid in arrears. Mr Lock’s commission depended not on the time worked, but the outcome of that work, i.e. sales achieved. Mr Lock could not earn commission whilst on leave, and therefore would lose income by taking it. He brought a claim in the Leicester employment tribunal for his ‘lost’ holiday pay after taking leave in December 2011 to January 2012.

The employment tribunal made a reference to the ECJ to ask, broadly, if in calculating holiday pay, Member States must take measures to ensure that a worker taking leave is paid by reference to commission payments that the worker would have earned if at work, and, if so, how to work out that holiday pay.

The ECJ answered ‘yes’ to the first question, but left the calculation as a matter for the national courts to decide. This decision appears to be in line with the spirit of the Directive – to ensure that workers take paid leave and are not deterred by loss of pay during their leave.

The case reaffirms the principle that where a worker’s pay consists of a basic salary and variable elements directly linked to work, then holiday pay should be paid on the basis that a worker receives pay comparable to normal pay whilst on holiday.

Employers should review their leave arrangements to ensure that commission or other relevant variable payments are factored into holiday pay due under the Directive

[Case; British Gas v Lock ECJ 2014]

Secondary Industrial Action

In what will come as a blow to trade unions, but is likely to be welcomed by employers with a unionised workforce, the European Court of Human Rights rejected (May 2014) the argument that the ban on secondary action represents an unlawful restriction on the rights of Trade Unions.

The Court held that in what it termed a ‘legislative policy area of recognised sensitivity’, a state’s room for manoeuvre was wide enough to encompass the UK’s existing ban on secondary action.

The continuation of the ban on secondary action will particularly affect unions with members who have been subject to outsourcing. The RMT’s complaint focused on a situation where, two years after a TUPE transfer, the transferee sought to impose reduced terms and conditions. The union had wished to call out its members at the transferor company in solidarity with those at the transferee, but the law prevented it from doing so.

[Case; National Union of Rail, Maritime and Transport Workers v United Kingdom ECJ 2014]

Age discrimination in police forces.

Because Police Officers are not “employees” they cannot be dismissed or made redundant  as ordinary employees can. A number of Police Forces, facing the need to cut costs, invoked a regulation allowing the force to require a police officer at or below Chief Superintendent level to retire. The officer must have served 30 years and be entitled to minimum levels of pension too. The Forces took legal advice which apparently suggested that although this practice would be indirect age discrimination, it could be justified. In a recent test case, involving a number of forces, a Tribunal has said that the practice was not justified. The main stumbling block appears to be that the Police employers did not seriously consider alternatives – invoking the rule across a number of Forces in very similar ways. To defend claims like this, employers need to demonstrate that the practice was a proportionate response to a legitimate aim. The Tribunal saw little or no evidence of other options being considered, such as career breaks or more part time working to achieve savings. The Court also looked at evidence from other Forces who did not implement this regulation and apparently achieved similar savings through other means.

This is a costly blow to those Forces who adopted this measure. It also serves as a reminder to all Employers that forced early retirement, whilst possible, needs to be carefully justified.

[Case; Harrod and others v Chief Constable WM Police and others ET 2014]

Use of Occupational Health reports

Employers often rely on medical reports to ascertain whether an employee has a disability. In a worrying decision, the Court of Appeal has ruled that an employee may be disabled even though a report from Occupational Health stated that in their opinion, the employee was not disabled. The case involved a council worker allegedly suffering from a stress related condition – one of the more problematic reasons for absence. The Employer obtained a report from Occupational Health (OH) which clearly stated that the employee was not covered by the (then) Disability Discrimination Act.

The man was eventually dismissed and brought various claims to Tribunal. The Council argued that the man did not have a disability; the Court of Appeal disagreed and sent the case back for rehearing in Tribunal. The Court considered the OH report to be “threadbare”, with no reasoning provided to support its decision. The Court advised Employers to form their own opinion and not to merely follow OH advice without question. This is a tough decision!

Note. Employers sometimes have to make a management decision based on medical information. It is not the Medical Advisors role to make the decision, only to offer advice. Management has to take responsibility for the final decision: obtain Medical advice first, and then review it before making a decision to dismiss. Ask OH to justify their opinion, particularly when dealing with a suspected disability, which has a statutory rather than a medical definition.

[Case; Gallop v Newport City Council. Court of Appeal, 2013]  

Agency Workers rules

In a decision that appears to drive a coach and horses through the Agency Workers rules, a tribunal decided that the protection did not apply to workers who were not “temporary”. In this case, workers were allocated to a client by an Agency. Many had been there a long time, some apparently 25years! Because of this the Agency staff sought parity of terms with the clients own workforce – which after 12 weeks is what the Agency worker rules require. However because the workers were based at the client on “an indefinite basis”, a tribunal decided that they were not temporary and fell outside the protection of the regs.

Cases are always fact specific and it is important to note that none of the workers ever worked for another client, and the claimants written statement of terms and conditions specified CA Ltd’s plant in Derby as his place of work.

The important distinction to be made following this case is between an assignment that is merely long term and an assignment that is actually permanent. There are many agency workers who have been assigned to the same end-user for several years, but there is no reason to doubt that they are covered by the Agency Workers Regulations. Usually, there is a fixed period for their assignment, which has been renewed on regular occasions. That is very different from this case, in which the employees were specifically recruited to work for one particular client on an open-ended basis.

[Case; Moran and ors v Ideal Cleaning Services Ltd and anor. EAT, 13.12.13]

Religion and Belief- Working on Sundays.

Ms. Mba worked as a care officer at a care home run by the local council. The home provided short residential breaks for children with serious disabilities. Continuity of care was a top priority. The home operated around the clock and staff worked in a three shift rota. Full time staff, including Mba were contracted to work on two out of three weekends on the rota.

Mba asked to abstain from Sunday working due to her Christian beliefs, and for 2 years the Home accommodated her requests. However after two years, due to staff changes and tighter budgetary constraints, the Home informed Mba that she would, in future, be expected to work Sundays as part of her contractual rota pattern. She refused to do so. She was issued with a final warning under the disciplinary procedure and resigned.

The EAT agreed with the Tribunal that the Employer could justify this decision. The Home had the legitimate aims of ensuring: gender balance on each shift; appropriate levels of seniority and experience; continuity of care: providing a cost effective service in light of tougher budgetary constraints and fair treatment of all staff (other staff having to cover her Sundays). The Court also noted that for 2 years the home had made changes to accommodate her beliefs. Accordingly Mba’s claim of Religious discrimination was unsuccessful.

[Case; Mba v London Borough of Merton EAT 20]

Reduction in hours can be a redundancy situation

An employee who was dismissed because she refused to agree a reduction in her hours was dismissed for redundancy said the EAT in a recent case. Previous case law, also decided at EAT level, had indicated that for a redundancy situation to occur, there had to be a reduction in the numbers of employees. In future therefore, if an Employer imposes a significant cut in hours to avoid dismissals for redundancy, and dismisses those employees who do not agree the change, could still face a redundancy claim. Employers, in the past, have treated the dismissal as being for “some other substantial reason” avoiding the need for redundancy payments. This is no longer a safe assumption. In view of the conflicting EAT decisions it is hoped that the higher courts get the opportunity to clarify the law.

[Case; Packman Lucas Associates v Fauchon. EAT, 16.5.12]

 

Court Shorts!

(Very brief case summaries, more recent first.)

Constructive Dismissal

An Employee gave notice to his Employer, and then claimed constructive dismissal. He gave, and worked, more notice than his contract required. The Tribunal said that by working longer than he was required to do under his contract, he had undermined his complaint of constructive dismissal. Cockram v Air Products EAT.

Ageist remark (again!)

Yet another example of a one off age related remark that landed the Employer in trouble. Mr. Clements worked for Lloyds Banking. During a performance related discussion his Manager commented “you are not 25 anymore”. He resigned later, following further issues. The Tribunal agreed that the remark was discriminatory as it was a reference to his age.

Minimum Wage and sleepover

On the facts of this case, a care worker was entitled to the minimum wage whilst working a “sleep in” shift. The Employer was legally required to have a competent person on site overnight and the carer was required to check residents every 40 minutes.  On those facts, the £25 allowance paid was insufficient as the NMW did apply to each hour worked. Middle West Care Home v Slavikowska. EAT

Same sex harassment

Just a reminder that occasionally, claims of sexual harassment involve same sex issues. A man was inappropriately touched on a number of occasions in the course of his employment by other male employees. This eventually led him to complain after he walked out of his job (as a pizza delivery driver). He was awarded nearly £8000 for injury to feelings and loss of earnings.

Compensation for failure to consult effectively

A reminder as to how much a failure to consult can cost the Employer is evident in this appeal. Unison won the original case against the London Borough of Barnet over a failure to comply with the duty to consult over proposed redundancies and TUPE mergers (the claim involved the Councils failure to provide information on the numbers of agency workers engaged in the affected areas). The Tribunal awarded a total of over £850,000 to the employees affected. The Employer appealed to the EAT and the case has been sent back to the Tribunal to reassess the amount. But this case does highlight how expensive these failures can be.

Domestic altercation and dismissal

A fairly minor domestic altercation between two employees who were in a relationship outside work was not grounds for dismissal. Employers need to be wary of over reacting to incidents outside work. The Court said that… “it was difficult to see how an employee pushing another employee onto a sofa during a domestic argument could reflect on the employer-employee relationship”. CJD v Royal Bank of Scotland. Court of Session 2014.

Police dogs and pregnancy!

Was it a detriment for a police dog handler to have her dog removed from her when she was no longer operational due to pregnancy?

Yes, held the EAT in Metropolitan Police v Keohane, the removal of the dog, called Nunki Pippin, which was apparently permanent, produced a risk of an impact on career progression and loss of overtime on the Claimant’s return, and so was a detriment.

Whilst the Police’s need to keep a search dog operational might have been the major factor in the removal decision,  that did not mean that the Claimant’s pregnancy was not a cause of it. The Tribunal’s findings of fact were that the Claimant’s pregnancy had been a factor in the decision, rather than “merely the context within which the circumstances had arisen”. The detriment did not need to be caused solely, or even mainly, by a discriminatory motive, it was enough that pregnancy was a significant and material influence on the decision.

Civil Partners.

The EAT has held that the surviving civil partner of a deceased employee may have their pension entitlement restricted to that accruing after 5 December 2005, the date on which same sex couples could enter into civil partnerships.

Data Protection.

A forensic scientist working with mental health patients at Broadmoor Hospital was suspended from work on grounds of possible gross misconduct. The alleged offences stem in part from breaching patient confidentiality. A member of the public complained to the NHS Trust that the Consultant had discussed her work in such a way that her place of work, as well as individual patients could be identified. All of this occurred whilst travelling on a train.

Further investigation by the Trust has identified that the Consultant would also dictate notes to secretarial staff whilst on the train; again these dictated reports contained sensitive patient information. This could result in dismissal, although a final decision has not yet been made.

Ensure you take your Data Protection responsibilities seriously, and more importantly, your staff do too!

TUPE.

An Employment Tribunal found no reason in law why an incoming Employer could not discipline an Employee for an act of misconduct that occurred just prior to the completion of a business transfer of a pub to new owners. Balcombe v The Lane End Public House.

Data Protection.

Not an employment case (very few are). The Information Commissioner has fined a local authority £80,000 for a serious breach of security. Sensitive information about special needs children wasleft unencrypted on a memory stick which went missing.

Date of dismissal.

If an employee’s solicitor informs her of her dismissal a day before the employee reads a dismissal letter, is the effective date of termination the date that the solicitor tells her?

Yes, held the EAT in a recent decision. The Claimant did not attend a disciplinary hearing and was communicating with her employer through a solicitor due to illness.  The employer emailed the solicitor on 6th July to inform her that the Claimant was to be summarily dismissed; the solicitor told the employee of the decision on 7th July; the employee read the dismissal letter on 8th July.  At a pre-hearing review, an employment tribunal held that the effective date of termination was 7th July, so the claim for unfair dismissal was struck out as out of time as the claim was presented a day late on 7th October. Robinson v Fairhill Medical Practice. EAT 2013

Age discrimination.

Too old to drive? A 77 year old man was turned down for a taxi driving job as the firm’s insurers refused to provide cover. This was held to be Indirect Age Discrimination. The firm could have made further enquiries about insurance cover which a tribunal thought was a proportionate response. They acted after one phone call to their broker, which was not enough. Foreman v Oasis Taxis ET 2013

Appeals.

Where possible, Employers need to provide a different Manager to deal with any Appeals (discipline or grievance). Mr. Blackburn raised a grievance with Aldi regarding various matters including health and safety and his treatment by his manager. The grievance was dealt with by the regional director and partly upheld. Blackburn appealed to the next level – to the group director. However the appeal was again dealt with by the same regional manager in a meeting lasting just 20 minutes. Blackburn resigned and claimed constructive dismissal. The EAT referred to Aldi’s own procedures and the ACAS Code of Practice on Discipline, pointing out that “appeals should be dealt with impartially and wherever possible by a manager not previously involved in the case…”. Not surprisingly the Court said that an organisation the size of Aldi should have been able to make this provision. Blackburn v Aldi Stores EAT 2103

Surveillance.

Not for the first time, the Courts have sanctioned the use of covert surveillance on an employee suspected of dishonesty. Mr. Gayle was filmed several times at a squash court when he claimed to be at work. He argued this was a breach of his Right to Privacy under the Human Rights Act. The EAT ruled that this did not affect the fairness of his dismissal. City and County of Swansea v Gayle EAT 2013.

Age discrimination.

Remarks like “It might be possible to train a younger worker” and “…can’t teach old dog and new tricks” were capable of being ageist. James v Gina Shoes. EAT.

Calling a 64 year old salesman Yoda and changing has car number plate from OAB to OAP was evidence of age discrimination and the “only joking” defence did not work! Nolan v CD Bramhall  ET

Age laws protect the young too you know!

One particular case, Roberts vs. Cash Zone was based on the fact that Miss Roberts was referred to by her supervisor as a ‘kid’, a ‘stroppy kid’ and a ‘stroppy little teenager’. The Tribunal decided that the supervisor was being judgemental and derogatory; making assumptions about stereotypical behaviour. They considered that the statements resulted in belittling the employee and therefore creating a hostile environment. Miss Roberts was awarded £2000 for injury to feelings.

Another Age Discrimination case involving a teenager, Williams v Mistral Telecom Limited, demonstrates the rights that employees have, even with little or no length of service. Mr Williams had only worked for his employer for three-and-a-half hours before he was dismissed because of his age, being told that the Company only employed people aged 18 or over. At the Tribunal the Company stated Health and Safety reasons as one of the factors for this. The Employment Tribunal did not agree that the dismissal was justified and awarded Mr Williams £4,000 for injury to feelings.

A reminder that discrimination claims need factual evidence to support them. A 53 year old Asian Male was dismissed on capability grounds after only 6 months in the job as a solicitor with a Law Firm. His replacement was a black, younger female and the guy promptly alleged discrimination on race, sex and age discrimination! The Court ruled that he had failed to clearly set out clear factual allegations to support unfair discrimination: ie more than the plain facts that the new applicant was female younger and black! The Race and Sex complaints were struck out, whilst the Age complaint was referred back to Tribunal despite being described by the EAT as “borderline”.  CLC Solicitors v Methuen, Court of Appeal.