Case Law Update – Significant decisions from the Courts

Case Law Update – Significant decisions from the Courts

This section includes important cases on:

• Use of Occupational Health reports
• Agency Workers rules
• Holiday Pay calculation – overtime.
• Long term sickness dismissals
• Constructive Dismissal
• Disability and Reasonable Adjustments – numerous examples!
• Holiday pay on leaving.
• Reason for Dismissal
• Access to e-mails
• Holiday Pay and sickness absence
• Facebook comments – Gross Misconduct yes or no??
• Religion and Belief – Sunday working
• Reduction in hours can be a redundancy situation
• Disability discrimination by association
• Employer vicariously liable for murder?
• Dismissal following a final warning
• Redundancy consultation.
• Redundancy selection
• TUPE and collective agreements

After these important cases we have also added:
A NEW Section – Court Shorts – one line comments on recent case

Recent ones first!

Case Summaries

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.

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]

Holiday Pay calculation – overtime

This Tribunal decision has already been appealed, but could have serious implications for many businesses. Case law in the UK has excluded overtime from holiday pay calculations; unless the overtime was contractual and guaranteed. That looks all set to change. Mr. Neal worked for Freightliner in Birmingham. He worked regular overtime in excess of his contracted hours. The European Court decided recently that holiday pay should include payments that are “intrinsically linked” to their normal pay. Following the logic of this decision, the Tribunal ruled that Mr. Neal was entitled to overtime pay in his holiday pay.

Businesses should now be reviewing their holiday pay situation. However this case has been appealed so hasty action is not recommended. A review might cover how holiday pay is currently calculated in the business, and an idea of the likely costs of including overtime in holiday calculations in the future. The decision only relates to the 4 weeks under the Working Time rules, so any additional holiday can still be paid at basic rates.

Other cases involving holiday pay calculation are currently in the Courts; one involves the calculation of holiday payments where variable commission is earned. Watch this space!!

[Case; Neal v Freightliner Ltd. EAT decision pending. 2014]

Long term sickness dismissals

What is the critical question to be decided in dismissals on grounds of ill-health?

“Whether any reasonable employer would have waited longer before dismissing the employee”, says the Court of Session in BS v Dundee City Council.

The Court of Session stated that in a case where an employee has been absent from work for some time owing to sickness, the following issues would need to be specifically addressed:

1. Whether the employer could be expected to wait any longer and, if so, for how much longer. Relevant factors could include whether the employee has exhausted her sick pay, whether the employer was able to call on temporary staff, and the size of the organisation.

2. Whether the employee had been consulted with, whether her views had been taken into account, and whether such views had been properly balanced against the medical professional’s opinion.

3. Whether reasonable steps had been taken to discover the employee’s medical condition and likely prognosis. It would not be necessary for the employer to pursue detailed medical examination as the decision to dismiss is not a medical question but a question to be answered in the light of the available medical advice.

The Court also pointed out that length of service is not automatically relevant. The important question is whether the length of service, and the manner in which the service was rendered during that period, yields inferences that indicate that the employee is likely to return to work as soon as she can. This is not a new approach from the Courts, but a welcome clarification of the situation.

[Case; BS v Dundee City Council. Court of Session Dec 2013]

Constructive Dismissal

Constructive dismissal is always a resignation by the Employee; who feels that the Employer has fundamentally broken their contract and they cannot continue to work there. A recent case looked at the reasons behind the employee’s decision to resign.

Ms. Wright worked for North Ayrshire Council. She submitted several grievances; two were never responded too, whilst another was not dealt with in a timely manner. The Tribunal accepted these as fundamental breaches of her contract. Furthermore an allegation of theft that was entirely misplaced was made against her by the Council. She resigned.

The tribunal heard evidence of the difficult personal circumstances that she had been experiencing before her resignation. Her mother had been ill throughout much of 2009 and died in January 2010. At about that time her partner was hospitalised following a serious stroke. Having spent a lot of time caring for her mother in her final days, Wright then had to take care of her partner. She found this very difficult as she worked split shifts and attempts to reorganise her working pattern were unsuccessful. Thus, the potential reasons for her resigning were in part to do with her employer’s breaches, but partly to do with her personal circumstances, which might have made it desirable for her to leave work to care for her partner.

The Tribunal ruled that her resignation was primarily a result of her personal circumstances and she lost her case. However on appeal to the EAT, it was held that a breach of contract by the employer only has to be one of the reasons for resigning; it does not have to be the reason. The Tribunal had accepted that there had been serious breaches of her contract and should have asked whether this was one of the factors leading to her resignation. The EAT went on to say that the Tribunal should then go on to consider the role played by the breach when determining compensation. For instance, a tribunal may wish to evaluate whether a claimant would have left employment in any event, and adjust an award accordingly.

Note. Employees can still claim compensation for Constructive Dismissal even if the reason for resigning is only one of a number of factors leading to a resignation.

[Case; Wright v North Ayrshire Council EAT 2013]

Disability Discrimination

The Equality Act means that employers must not discriminate against disabled employees. So far so good, but it’s not always easy to determine whether an employee is disabled or not. An employer has a defence if does not know or could not reasonably be expected to know, that an employee is disabled.

The Employment Appeal Tribunal has recently concluded held that despite an employee advising that he was suffering from bipolar disorder, the absence of a definitive diagnosis because the employee refused to consent to the obtaining of a medical report, meant that the employer did not know, and could not have reasonably been expected to know, that the employee was disabled.

In the case of Cox v Essex County Fire and Rescue, Mr Cox had completed a pre-employment medical questionnaire for the Fire Service. He advised that he had suffered from mild depression but denied that he had a disability. Some years later, following an accident at work, the employer started performance managing him. This culminated in Mr Cox’s suspension for aggressive and threatening behaviour.

Mr Cox submitted a grievance stating that he had been suffering from bipolar disorder for several months. A report from the occupational health department questioned this diagnosis and the employer requested consent to approach Mr Cox’s GP and specialist consultant, to gather more information about his alleged medical condition. Mr Cox refused to consent and was eventually dismissed for gross misconduct. He complained of unfair dismissal and disability discrimination.

The EAT found that the Fire Service did not know and could not reasonably have been expected to know that Mr Cox was disabled. It considered that the employer had done all that it could reasonably be expected to do to find out whether Mr Cox had a disability. It had asked the right questions, but Mr Cox had declined to release certain medical information and therefore there had been no definite diagnosis of Mr Cox being bipolar.

Actions for employers:

Take medical advice if you consider that someone has or may have a disability.

Make reasonable adjustments, for example:

– improve access to or layout of the workplace;

– allow time off, e.g. for treatment, assessment, rehabilitation;

– give some of the disabled person’s duties to another person;

– transfer the disabled person to fill a vacancy;

– change the working hours, e.g. flexitime, job-share, starting later or finishing earlier;

– provide training for disabled workers and their colleagues;

– introduce new or adapt existing equipment, e.g. chairs, desks, computers, vehicles;

– modify instructions or procedures, as appropriate;

– provide suitable alternative work.

– improve communication, e.g. providing a reader or interpreter, having visual as well as audible alarms;

Make sure you keep a note of all agreements.

[Case; Cox v Essex Fire and Rescue EAT 2013]

Making Reasonable Adjustments for Disabled Employees

(some recent examples)

Cases continue to surface regarding the Employers duty to demonstrate that they have made reasonable adjustments when dealing with a potential disability. Here are some recent examples.

Mrs Butcher worked in a vet’s practice and was absent from work due to work related stress and depression. Her employers sent her to a clinical psychiatrist for advice and then failed to act upon the recommendations made. Mrs Butcher resigned and submitted a claim for unfair dismissal to an Employment Tribunal.

The ET found that the employer had failed to make reasonable adjustments and the employee had therefore been unfairly constructively dismissed and that it was an act of dismissal arising from a disability. The employer decided to appeal this decision, however the Employment Appeal Tribunal dismissed the appeal and agreed that the employer had failed to make reasonable adjustments by not considering paying to provide psychiatric treatment which would have enabled the employee to return to work and cope with the work-related stress and depression. (The cost was around £750 and the specialist was confident it would assist in a return to work. Butcher had over 12 years service. Her severe depressive illness was closely connected with pressure of work)

This case highlights the dangers of seeking medical advice and then failing to act on the recommendations given.

Employers, not surprisingly find the topic of ‘Reasonable Adjustments’ quite confusing but need to consider the following questions when deciding if an adjustment is reasonable:

• Whether the adjustment would help to alleviate the disadvantage?
• Whether the cost is reasonable when considered against the employer’s size and resources?
• Would the adjustment cause unreasonable disruption?
• Is it possible and practical to make the adjustment?
• Is assistance (financial or otherwise) available from a third party, for example a Job Centre Plus advisor?

Note. Cases are very fact specific. Employers are not required to fund private medical treatment on each and every occasion.

[Case;Croft Vets Ltd v ButcherEAT. 2013]

Further cases include:

A senior Employee had been absent for two months owing to work-related stress when the employer called him to a disciplinary meeting to answer the charge that he was not capable of carrying out the post of marketing director. The Employee responded in writing to the allegation, but said he was too fragile to attend the hearing. The Employer decided not to wait any longer and the meeting went ahead in his absence. He was dismissed with immediate effect. An employment tribunal held that the employer should have made the reasonable adjustment of postponing the hearing until the Employee was well enough to attend. He was awarded £3,000 for injury to feelings.

Note. If an Employee is unable to attend any meetings, the Employer must take reasonable steps prior to dismissal. This might include postponing the meeting; obtaining a medical or Occupational Health opinion to ascertain when a meeting might be possible; offering the opportunity for someone to attend on the Employee’s behalf; asking the Employee to respond to questions in writing, which will be looked at in the meeting; meeting on “neutral territory”.

[Case: Nunn v Charles Robertson (Developments) Ltd ET 2012]

In another case the Employee, who had a learning disability and an IQ of 62, worked as a kitchen assistant at an NHS Trust. She was called to a disciplinary hearing after an ambulance driver claimed that she had spat in his drink, but the letter calling her to the hearing contained long words and phrases she could not understand, and she was not provided with representation. When she was dismissed, D claimed that the dismissal was unfair and that the Trust had failed in its duty to make reasonable adjustments. An employment tribunal upheld both claims, finding that it would have been reasonable for the employer to provide an advocate for D – in the form of a solicitor or learning disability adviser – and to obtain occupational health or focused medical advice prior to the hearing, and to use appropriate language. As these failures prevented D from properly engaging with the disciplinary process, the resulting dismissal was unfair.

Note. Making a reasonable adjustment in a disciplinary situation with a disabled employee extends to allowing a suitable companion to attend – going beyond the normal statutory right of a work colleague or Trade Union Officer.

[Case: Di Benedetto v Guy’s and St Thomas’s NHS Foundation Trust ET 2012]

Yet another example came in the following case.

The Employee (H) was a long serving employee at the Job Centre Plus (JP) in Liverpool. Following a long sickness absence, he presented a GP “Fit Note”, which recommended a phased return to work on reduced hours for 3 months. H suggested a phased return over a period of up to 26 weeks, but the Employer (in line with the Doctors recommendation) proposed a plan for H to build up to his normal hours over 13 weeks. H did not accept this plan, and refused to return to work at all unless the Employer agreed to extend the phased return to 6 months. His request to extend the plan was refused and H was dismissed. He presented a claim on the grounds that the Employer had failed to make reasonable adjustments under the disability sections of the Equalities Act 2010.

The employment tribunal had held that by failing to consider an extension to the plan beyond 13 weeks, the Employer had breached its duty to make reasonable adjustments. The Employer appealed.

Allowing the appeal, the EAT found that the tribunal had incorrectly identified that the provision criteria or practice placing H at a substantial disadvantage was the requirement for him to work, whereas it should have been the requirement for him to work his contractual hours. Noting that employers are often presented with Fit Notes which last a certain duration, the EAT did not consider that it is always necessary for the employer to give an explicit guarantee to extend this period. If at the end of the agreed period, an employee continues to suffer a substantial disadvantage, then although the duty to make reasonable adjustments will still be applicable, it will be judged on the circumstances relevant at that particular time.

[Case; Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins. EAT, 2013]

………………. and finally!!

In Commissioners for Her Majesty’s Revenue and Customs v Whiteley [2013] an employee was disabled due to anasthmatic condition. She reached a ‘trigger’ point at which her absence was sufficiently high so that a disciplinary warning was issued. She argued that a reasonable adjustment was to increase the number of days’ absence she was required to have before a trigger was met, because her asthmatic condition meant that she was more susceptible to respiratory infections.

The EAT suggested two approaches that could be used when managing absence trigger points with a disabled employee:

1. To identify how much of the absence related to the disability and exclude that from the number of days that added together to reach the trigger point.

2. To estimate how many days’ absence someone with a particular disability could reasonably be expected to have, and to reduce the number required to reach a trigger point accordingly.

[Case; Commissioners for Her Majesty’sRevenue and Customs v Whiteley [EAT 2013]

Holiday pay on leaving.

Zero hours arrangements have had their critics of late and another case highlights the potential for these to be misused. A woman worked on a zero hours basis for Edinburgh Woollen Mills in Reading. This contract provided that on termination she would be paid £1 for any unused holiday entitlement. When she left, she was entitled to 3 days untaken holiday, and in accordance with her contract was duly paid £1. She complained to a Tribunal. The Working Time rules allow payment in lieu of untaken holiday to be covered in a “relevant agreement”. EWM argued that this contract was a relevant agreement thus allowing them to pay a nominal amount. The Tribunal disagreed, stating that any “relevant agreement” must pay at least the amount that would have been paid if the leave had been taken whilst in employment. The woman was awarded the 3 days holiday pay.

Note. The woman claimed 3 days holiday pay; apparently worth about £176. Since July the claimant would have been required to pay a Type A issue fee of £160 to make the claim, followed by a further £230 for the hearing. Would she have been deterred in making her legitimate complaint by the new rules?? This is part of the wider Judicial Review into fees requested by Unison and a Scottish Law Firm.

[Case; Podlasiak v Edinburgh Woollen Mill Ltd, Reading Employment Tribunal, 2013]

Reason for Dismissal

There are only five legally fair reasons for dismissing an employee: Conduct; Capability; Redundancy; A Statutory reason and Some other Substantial Reason. In a recent case an NHS Consultant was suspected of working privately whilst off sick and on full pay. She had been warned twice before about this, but still argued that she did not appreciate how serious this was!! The disciplinary panel decided this amounted to fraud and dismissed for gross misconduct. Her claim for Unfair Dismissal reached the EAT; where a number of points were made. The Court agreed that there was a danger in Employers using emotive terminology such as “fraud”, “theft” and “dishonesty” in disciplinary letters. To convict for Fraud or Theft requires a higher burden of proof than necessary to justify a fair dismissal. The Court suggested that it would be safer to use a description of the conduct under investigation (in this case perhaps “evidence suggesting that you have been working in the private sector whilst off sick”).

The EAT also said that although Gross Misconduct was the decision reached, dismissal should not be seen as “inevitable”, so consideration must still be given to mitigating circumstances. The case was referred back to the tribunal to reconsider.

[Case; Brito-Babapulle v Ealing Hospital NHS Trust. EAT, 14.6.13.]

Access to e-mails.

The increased use of technology in the workplace has created issues that Employers have not had to contend with in the past. The Court of Appeal has become involved in a dispute over access to e-mails sent and received by the ex CEO of a major shipping company (Mr. Adkins). Whilst in post he forwarded all incoming mails to his personal computer, and sent all his mails from the same personal device. The Employer had no copies to refer to. After he left, a dispute arose over the placing of a multi million pound order for a new vessel with a Chinese Company. Adkins refused the firm access to his mails, and the CA has recently ordered that they be disclosed. The lower courts had decided that the information was not “property” and ruled in favour of Adkins.

Note. To avoid problems like this, it is worth considering, where appropriate, to state in employment contracts that all correspondence in connection with employment must be on agreed devices with copies available at all times to the Employer. It may also be worth considering a clause providing for the disclosure of all electronic information about the Company on request, including on and after termination of employment

[Case: Fairstar Heavy Transport v Adkins. Court of Appeal 2013]

Holiday entitlement while on sick leave

Currently, employers have to provide workers with 5.6 weeks’ paid holiday, which is made up of four weeks’ ordinary leave and 1.6 weeks’ additional leave. Although workers should be allowed to carry over up to four weeks’ ordinary leave to the next leave year if they are unable to take holiday due to sickness, the Employment Appeal Tribunal recently held that the 1.6 weeks’ additional leave does not carry over automatically in the absence of any agreement between the parties (perhaps in the employment contract for example).

Earlier Tribunal decisions suggested that the additional 1.6 weeks leave granted by the UK Government should be treated the same as the 4 weeks entitlement from the WT Directive – i.e. it should carry over. A decision from the ECJ suggested otherwise; so the Government could impose conditions on the 1.6 weeks additional leave – such as it cannot be carried over in the event of long term sickness absence. This case interpretation means that there is no requirement for further legislation on this.

[Cases; Sood Enterprises v Healy EAT.; Neidel v Stadt Frankfurt am Main ECJ 2012]

Facebook comments “Gross Misconduct” – Yes or No?

There is an increasing amount of case law involving employees posting information onto the Internet, which then involves the employer in some way.

Mr. Crisp, an Apple store worker posted derogatory comments about Apple and its products on a “private” Facebook page, outside working hours. A colleague who received these as a “friend” passed them to the store Manager, and Mr. Crisp was dismissed. The unfair dismissal claim failed. Apple had a very clear Social Media policy (Employers take note!). The firm’s Induction process also made it clear that commentary on the products, or critical remarks about the Apple brand were strictly prohibited. The Tribunal decided that there was nothing to prevent Mr Crisps “friends” from passing on his comments to the wider community, so he could not rely on Privacy rights in this regard.

A different opinion was reached by the High Court in another recent case. Mr. Smith, a Christian, employed by Trafford Housing as a housing manager, posted on his Facebook page that he thought that “gay marriage was an equality too far”. He then went on to discuss this view with others. Mr. Smiths Facebook profile gave the name of his Employer. The Employer suspended him over these remarks, and he was subjected to the discipline procedure. He was found guilty of gross misconduct and told that he could have been dismissed. However in view of his exemplary and long employment record, he was to be demoted to a non managerial post with a 40% salary loss.

Smith commenced an action in the County Court. (as he had not been dismissed, he claimed breach of contract and this cannot be taken to an Employment Tribunal unless the employment is terminated). Eventually it reached the High Court who made a number of points:

• The comments were entirely polite, not harmful or derogatory.
• No reasonable reader would have concluded his views were made on behalf of the Employer.
• Diversity means that employees will hold a variety of views on any given issue.

The Court held that the comments were not gross misconduct and Mr. Smith should not have been demoted.

Employers should give serious consideration to developing a Social Media Policy with the workforce. Identifying the Employer on a Social Media page in itself is insufficient to infer that all postings implicate the Employer. Where comments are entirely lawful and polite they are unlikely to be a breach of any policies or codes Employers have in place.

[Cases; Crisp v Apple Retail ET 2011; Smith v Trafford Housing High Court 2012]

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]

Disability discrimination by association

In one of the first reported cases concerning Associative Discrimination, a worker claimed he lost his job after taking time off in connection with his wife’s disability. Mr Bainbridge lost his job on a fixed term contract as a welder. It had been renewed a couple of times, but was not renewed again after he took some time out at short notice because of his wife’s health. The Tribunal felt that in the absence of any other plausible reason, his contract had not been renewed because of his absences at short notice. As this was in association with his wife’s disability he was awarded £10,500 and the Employer was told to offer him future work when available. The latter point is a reminder that Tribunals have power to order more than mere compensation.

[Case; Bainbridge v Atlas Ward Structures ET 2012]

Employer vicariously liable for murder?

In a potentially significant decision, The Upper House of the Court of Session overturns a claim against Sainsbury’s under the Protection from Harassment Act. Over a lengthy period of time, R, a Lithuanian national who worked for Sainsbury plc as a shelf stacker, was racially harassed by a colleague, M, who was employed as a night shift worker. M was known to be a member of the British National Party and openly held extreme racist views about Eastern Europeans coming to work in the United Kingdom. He frequently made racist comments, and was aggressive and argumentative.

After a series of incidents between the two, another argument ensued in the staff toilets, during which punches were thrown. After this, M was witnessed behaving strangely, pacing up and down and talking to himself. Later, he took a knife from the kitchenware section of the store and fatally attacked R. He was subsequently convicted of murder and jailed for life

.

In April 2012, R’s family commenced proceedings against Sainsbury’s in the civil court under the Protection from Harassment Act 1997, on the basis that M’s conduct, in stabbing a man to death, should properly be regarded as an extreme form of harassment for which the Employer should be vicariously liable. This decision overturns a ruling that the death was closely linked to employment, sufficient to make the Employer liable. The Court felt that it was not just and reasonable to hold employers vicariously liable for all acts of harassment solely on the basis that employees were engaged to work together.

Furthermore, the Court considered that M’s acts could not be regarded as so closely connected with what he was employed to do that they could be seen as ways of carrying out his authorised duties. The fact that M had a known propensity to be violent to immigrant workers was irrelevant to the issue of vicarious liability.

[Case; Vaickuviene and ors v J Sainsbury plc, Court of Session (Inner House) 9/2013]

Dismissal following a final warning.

Several recent cases have occurred where the Employer dismissed for a further offence, after a final warning had earlier been issued. The dismissals were not for Gross Misconduct and therefore relied on the existence of earlier final warnings. The cases all indicate that the Employment Tribunal will often review the circumstances surrounding the issuing of the final warning when considering whether the subsequent dismissal was fair and reasonable. However the higher courts have warned against Tribunals looking too closely into the background of earlier warnings unless the evidence suggests that the final warning was issued in bad faith or was “manifestly inappropriate”. Whether the employee appealed the final warning or not was also considered to be significant in one case.

Employers need to ensure that their procedures are followed and they act reasonably throughput the entire process.

[Cases; Davies v Sandwell MBC CA 2013; Simmonds v Milford Club EAT 2013; Buzoli v Food Partners Ltd. EAT 2013]

Redundancy Consultation – 1

In 2011 the Agency Workers Regulations were introduced, providing extra rights for Agency workers. These rules also added an obligation on Employers to provide information regarding Agency workers to employee or trade union reps in a redundancy consultation exercise. Recent cases have been taken up by Trade Unions where the Employer has failed to provide this information. In one case the Court awarded 60 days pay to each employee who was affected by the failure to consult effectively.

Employers need to be aware of this fairly new obligation when consulting with Unions over proposed redundancies or indeed Tupe mergers. The duty includes providing information on the numbers of Agency workers employed, where they are working and the type of work they are carrying out.

[Case; UNISON v London Borough of Barnet]

Redundancy Consultation 2 – Meaning of “establishment”

There has been uncertainty and conflicting case law as to the definition of “establishment” which is found in collective redundancy legislation. In the case of Usdaw v Ethel Austin Ltd (in administration), also known as “the Woolworth case”, the EAT has held that the words ‘at one establishment’ in S.188 of the Trade Union and Labour Relations (Consolidation) Act 1992 must be deleted to ensure compliance with the EU Collective Redundancies Directive.

This is a very significant decision meaning that the duty to consult (with either a trade union or elected representatives) over collective redundancies is therefore triggered where an employer is proposing to dismiss at least 20 employees as redundant within 90 days, irrespective of where those employees work. Thus, on the facts of the case, where thousands of employees were made redundant at hundreds of separate retail stores nationwide, all employees, including those working in stores where fewer than 20 redundancies took place, were entitled to protective awards for breach of the TULR(C)A.

The liquidation of retail chains Woolworths and Ethel Austin in 2008 and 2010 resulted in the loss of several thousand jobs. The recognised trade unions brought claims before employment tribunals that the administrators failed to comply with their duty to consult. The law states that an employer ‘proposing to dismiss as redundant 20 or more employees at one establishment’ within a 90-day period must consult about the dismissals with the appropriate employee representatives. The tribunals found that there had been a failure to comply with the duty to consult but, treating each individual store as a discrete ‘establishment’, decided that there was no duty on the administrators to consult on redundancies at any store with fewer than 20 employees. Accordingly, the tribunals only made protective awards where 20 or more employees were dismissed at one store. This meant that around 4,400 workers – 1,210 at Ethel Austin and 3,233 at Woolworths – did not receive protective awards. The unions appealed to the EAT, arguing that this construction of the law was contrary to the Directive’s objective of protecting workers’ rights on redundancy. The EAT agreed with the trade unions views.

As this penalty will effectively fall on the taxpayer (due to the companies ceasing to exist) the Government has appealed the decision.

Redundancy selection

It seems that Employers cannot quite get it right when it comes to the tricky decision on selection criteria! Previous cases have criticised Employers for being too subjective; the criteria must be fair, reasonable and objective. In a recent case the Employer went to such great lengths to be objective, they did not involve the line managers at all and the EAT said this was unfair! The Employer chose competency based selection criteria, also used by the Employer when recruiting. The assessments were carried out by the HR team; none of the managers who worked with the staff were involved in the process. A number of those selected on this basis complained of unfair dismissal. The EAT agreed the dismissals were unfair, and said it would have expected the assessments to involve the line managers as they were in the best position to assess the qualities of the staff. The EAT recognised that assessments by Managers carried a risk of prejudice or subjectivity, but said this was acceptable as the decision makers would be aware of this and moderate accordingly.

It is recommended that, wherever possible, assessments are carried out by more than one manager to help avoid problems of bias; and that input from a line manager should be included.

[Case; Mental Health Care UK v Biluan EAT 2013]

TUPE and collective agreements

Transferred terms are not ‘dynamic’

Recently the European Court of Justice gave its decision in Alemo-Herron v Parkwood Leisure Ltd. This case considered whether clauses in employment contracts which oblige an employer to follow decisions of a third party (such as a national negotiating body) in setting pay levels, are binding on a new Employer.

The claimants were originally employed in the public sector by the London Borough of Lewisham. Their contracts of employment entitled them to pay increases in accordance with collective agreements negotiated from time to time by the National Joint Council for Local Government Services (the NJC). Following an outsourcing exercise in 2002, the claimants transferred under the TUPE regulations to a private company, CCL Ltd. In May 2004, they were transferred yet again, under Tupe, to Parkwood Leisure.

In June 2004, a new agreement was reached with the NJC that awarded a pay increase to relevant employees for the period of April 2004 to March 2007. As only public authorities can participate in the NJC, Parkwood was not a party to the negotiations for the new agreement and did not comply with the new NJC terms. The claimants brought claims for unlawful deductions from wages, arguing that, under TUPE, the contractual terms incorporating the NJC collective agreement had transferred to Parkwood, and, therefore, Parkwood was obliged to increase their pay.

In British law, the answer was originally that such clauses are dynamic in nature, thus transferring to the new employer under TUPE even if the new employer has no say in the national bargaining arrangements. But the ECJ disagreed saying that a dynamic clause referring to collective agreement undermines the balance between the interests of the transferee in its capacity as employer, on the one hand, and those of the employees, on the other. Under Article 16 of the Charter of Fundamental Rights of the European Union, an employer must have the right to conduct a business and assert its interests effectively in a contractual process to which it is a party. This allows it to negotiate the process of determining changes in the working conditions of its employees with a view to its economic future.

A dynamic interpretation, i.e. allowing the later agreement to affect the transferred employees would be inconsistent with the Charter. Member States are not therefore permitted to allow dynamic clauses referring to collective agreements negotiated and adopted after the date of transfer where the transferee employee does not have the opportunity of participating in the negotiating process by which such a collective agreement was concluded.

Comment:

Whilst the ECJ did not rule that dynamic clauses would never be enforceable against a transferee employer, it seems that, where the collective agreement originates from the public sector and the transferee operates in the private sector (as is often the case), the static approach will be preferred. For organisations that provide services to the public sector in particular, this is a welcome decision, which provides a level of certainty and control over salary costs that will greatly assist both when operating existing contracts and when tendering for new contracts in the future.

[Case; Alemo-Herron v Parkwood Leisure ECJ 2013]

Court Shorts!

(Very brief case summaries, more recent first.)

• 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 decisionhas not yet been made. Ensure you take your Data Protection responsibilities seriously, and more importantly,your staff do to!

• 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

• Associative Discrimination.The EAT has held that the duty to make reasonable adjustments in cases of disability does not apply to associative disability discrimination. Hainsworth v M.O.D. EAT 2013

• Choice of Companion.The EAT has held that two workers were denied their legal right to be accompanied when the Employer refused their first choice of union official, requiring them to obtain another companion. The Court ruled that the “reasonableness” criteria does not extend to the identity of the companion. Toal v GB Oils 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.

• Data Protection.The Court of Appeal agrees that damages for “distress” can be due to an individual whose data protection rights have been infringed. However damages will not be assessed as in discrimination cases as hurt feelings. In this case £750 was awarded. It was not an employment case, the breach was of information in connection with a finance deal, but the same will apply to any work related breach. Halliday v Creation Consumer FinanceObesity and Disability Discrimination.The EAT confirms that obesity is not a disability in its own right; but the impact on the individual may lead to disability protection under the legal definition. Walker v Sita Ltd. 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.