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Employment Bulletin – February 2019

Reading Time: 5 minutes

Employee dismissed over Facebook comments awarded £5,376

A company had not acted unfairly when it dismissed an employee for gross misconduct after he made offensive comments about the managing director on Facebook.

However, the employee’s behaviour had not been so bad that it warranted dismissal without any notice pay so he was entitled to compensation.

The tribunal heard that the employee became angry when the company’s Christmas bonuses were reduced in value due to financial restraints. He began posting offensive comments about the managing director.

The employee apologised for the comments at a disciplinary hearing and said that, at the age of 55, he was embarrassed and regretted what he had done.

The company said the comments had been “extremely derogatory” and dismissed him for gross misconduct without notice or pay in lieu of notice.

The Employment Tribunal rejected the employee’s claim of unfair dismissal but ruled that although offensive, his actions had not reached the “high hurdle” required to prove “gross misconduct” and so did not justify dismissal without notice.

The employee was awarded £5,376 compensation.

 

Workers should have received statement of rights after one month

The Employment Appeal Tribunal has ruled that a hotel worker is entitled to compensation because her employer failed to give her a statement of rights after one month of employment.

The case involved three Polish workers who were dismissed after they complained about “persistent shortfalls in their wages, late payment and a falsification of their wage slips”.

Section 1 of the Employment Rights Act 1996 (ERA) requires that an employer should provide employees with a statement on the terms and conditions of work within two months of beginning employment.

However, none of the workers in this case were given such a statement.

The Employment Tribunal at the first hearing held that two of the workers were automatically unfairly dismissed and awarded them four weeks’ pay in compensation.

However, it ruled the third worker had only been employed for six weeks and so the employer had not breached the regulations because the two-month time limit had not been reached.

The Employment Appeal Tribunal has overturned that decision. Judge Stacey held that the obligation “to provide the statement continues for employees with one month or more service, whether or not the employment relationship is ended in its second month.

“It does not follow from the flexibility afforded to an employer by section 1(2) as to when the statement of initial employment particulars must be provided, that there is no requirement to provide a statement if the contract ends within two months.”

Judge Stacey added the following advice to employers: “It goes without saying that whilst sections 1, 2 and 198 ERA 1996 represent the minimum floor of legal rights, it is best practice for the written particulars to be provided as soon as possible to protect both parties and in order to minimise risk of ambiguity or misunderstanding of the terms agreed that form the contractual basis of the employment relationship.”

The case was remitted to the Employment Tribunal to decide whether the employee should receive two or four weeks’ pay in compensation.

A separate claim of race discrimination involving all three workers, which was dismissed by the Employment Tribunal, was remitted back to be heard by a fresh tribunal.

 

Security guard was unfairly dismissed after submitting grievance letter

The dismissal of a security guard after he submitted a grievance letter on behalf of work colleagues has been ruled unfair by the Employment Tribunal.

The case involved an employee who worked for an NHS Trust.

In 2016, the employee emailed the trust’s chief nurse saying that security officers “had lost trust in management” over various issues. He was told by the HR department that he “should not go straight to executive officers but should use the appropriate workforce policy”.

The employee and the other officers then consulted their trade union and raised a collective grievance. It was written by the employee and signed by six other officers.

The trust instructed an independent HR company to investigate the grievance. During the investigation, all the officers except the employee withdrew from the grievance procedure.

Following further internal investigations, a manager in the case concluded that the collective grievance “had been submitted in bad faith and should be considered as a disciplinary matter”.

The employee was later dismissed after a disciplinary hearing concluded that his actions had amounted to gross misconduct.

He brought a claim to the Employment Tribunal, which ruled in his favour. It held that he was unfairly dismissed because the trust’s actions were “outside the range of what was reasonable in terms of investigation, grounds for belief and procedure”.

During the investigation about the allegation that he was acting in bad faith, he was not asked in any depth about the claims or shown notes of interviews with other people involved, nor was he asked for his version of events.

Despite these failings, the investigator went on to recommend the disciplinary proceedings that led to the unfair dismissal.

The employee was awarded £10,990 compensation.

 

SMEs won’t be forced to disclose their gender pay gap

The government has confirmed that small and medium-sized enterprises will not be obliged to reveal their gender pay gap.

Currently, business employing more than 250 people must publish the pay differential between men and women. It’s part of an ongoing strategy to equalise salaries and eradicate discrimination.

Following a review, the Business, Energy and Industrial Strategy (BEIS) select committee recommended that the requirement should be extended to businesses with 50 or more employees.

In its response, the government has urged smaller companies to publish the information voluntarily but has stopped short of making it a legal requirement. It said: “Given the range of metrics required, it was felt that reporting could be particularly burdensome for small and medium sized businesses and so the requirement should be restricted to large employers.”

The government also rejected the committee’s recommendation that organisations should be obliged to publish an action plan stating how they would close the gender pay gap.

“While the Government urges all employers to produce an action plan alongside their figures, we were aware that including it as a mandatory requirement might result in a prescriptive format with limited value to employers and employees.

“By not making them mandatory, we have given employers the freedom to produce an action plan that is relevant to their individual situation which they can truly commit to and embrace.”

Although such action plans are not mandatory, the government statement was clear that companies ought to produce them and do everything possible to reduce pay inequality. “We have been clear that employers must take action to close the gender pay gap in their organisation, beyond reporting.

“Drafting an effective action plan is crucial to this. We estimate that approximately 48% of employers have published action plans alongside their figures in the first year of reporting.”

 

Food supplier prevents former employee soliciting its customers

A food supplier has been granted an injunction to prevent a former employee from soliciting its customers for a rival business.

The former employee had worked as the employer’s marketing manager. There was a non-solicitation clause in his employment contract prohibiting him from soliciting any business from the supplier’s current or potential customers for a 12-month period after termination of his employment.

There was also a non-competition clause prohibiting him from competing with the supplier’s business during his employment and for 12-months post-termination.

The employee left the supplier to work for a rival company. The supplier took legal action to enforce the post-termination restrictions. It sought an interim injunction pending trial.

In giving its judgment, the court said post-termination restraints that were reasonable in terms of space or time were likely to be enforced. It was for the employer to show that a restraint was reasonable for protecting its interest, such as confidential information and customer lists: the right did not extend to mere potential customers.

Non-solicitation clauses were more favourably looked on than non-competition clauses because an employer was not entitled to protect itself against mere competition on the part of a former employee.

The court therefore granted the injunction in relation to the non-solicitation clause. However, it declined to enforce the non-competition clause because it was wider than reasonably necessary to protect the supplier’s confidential information or trade connections.

Employment Bulletin – January 2019

Reading Time: 4 minutes

Government unveils its Good Work Plan to upgrade employment rights

The government has unveiled what it describes as the “largest upgrade in a generation to workplace rights”.

Ministers say the extensive new measures contained in its Good Work Plan will give businesses greater clarity on their obligations and ensure the enforcement system is fair and fit for purpose.

The new legislation will close a loophole by repealing the Swedish derogation – which currently allows agency workers to be employed on cheaper rates than permanent counterparts.

It will also extend the right to a day one written statement of rights to workers, going further to include detail on rights such as eligibility for sick leave and details of other types of paid leave, such as maternity and paternity leave.

The maximum employment tribunal fines for employers who have shown malice, spite or gross oversight will quadruple from £5,000 to £20,000

The government will also extend the holiday pay reference period from 12 to 52 weeks, ensuring those in seasonal or atypical roles get the paid time off to which they are entitled.

The measures are based on the findings of the independent Matthew Taylor review of the impact of modern working practices, with 51 of the 53 recommendations being implemented.

Other key changes include:

  • ensuring tips left for workers go to them in full
  • ensuring workers are paid fairly by providing agency workers with a key facts page when they start work, including a clear breakdown of who pays them, and any costs or charges deducted from their wages
  • enforcing vulnerable workers’ holiday pay for the first time
  • introducing a list of day-one rights including holiday and sick pay entitlements and a new right to a payslip for all workers, including casual and zero-hour workers
  • introducing a right for all workers, not just zero-hour and agency, to request a more predictable and stable contract, providing more financial security for those on flexible contracts
  • introducing a new naming scheme for employers who fail to pay employment tribunal awards
  • taking further action to ensure unpaid interns are not doing the job of a worker.

Ministers say they want to reflect the reality of the modern working relationships as expressed by the Taylor review.

This means acknowledging that banning zero hours contracts in their totality would negatively impact more people than it helped, and that the flexibility of ‘gig working’ is not incompatible with ensuring atypical workers have access to employment and social security protections.

Read the government’s Good Work Plan

 

Supermarket’s dismissal of diabetic over incontinence incident ruled unfair

A supermarket acted unfairly when it dismissed a lorry driver with diabetes after he had urinated in a delivery yard due to urge incontinence.

That was the decision of the Employment Tribunal in an unusual case relating to disability discrimination.

The driver suffered from type 2 diabetes. One of the symptoms of that condition was urge incontinence (a sudden and urgent need to empty the bladder). On arrival at one of the supermarket’s depots, the driver had suffered a sudden need to urinate.

Fearing that he would not reach the toilet in time, he used the delivery yard. He was dismissed for gross misconduct and breach of health and safety policies and regulations.

The supermarket did not specify what the policy and regulations were and did not seek any medical evidence.

The driver appealed and produced medical evidence that supported his case, but the supermarket upheld his dismissal.

The Employment Tribunal concluded that the supermarket’s investigation was inadequate and was not within the band of reasonable responses. It held that the dismissal was unfavourable treatment arising from the driver’s disability within the terms of the Equality Act 2010.

It ordered the supermarket to reinstate him and awarded him compensation.

The supermarket appealed, saying the tribunal’s conclusions could not stand in the light of CCTV footage showing that the driver had urinated on pallets of trays used for the delivery of food.

The Employment Appeal Tribunal also ruled in favour of the driver. It held that the CCTV was inconclusive, yet the supermarket leapt to conclusions about unnamed and unspecified health and safety regulations. The operative cause of the driver’s dismissal was disability rather than misconduct.

The lack of any reasonable investigation was a critical issue in the tribunal’s ultimate decision that the dismissal was unfair.

 

Uber to fight on after losing appeal over ‘drivers are workers’

Uber says it will continue its legal fight against the ruling that its drivers should be classed as workers.

It made the statement after the Court of Appeal upheld an Employment Tribunal decision in 2016 that drivers were entitled to workers’ rights including the minimum wage.

The tribunal at the original hearing heard that Uber paid drivers weekly, based on the fares charged for trips undertaken, less a service fee for the use of its booking app.

Uber argued that it was merely acting as an agent and that drivers entered into binding agreements with passengers to provide them with transportation services.

The Employment Tribunal ruled against Uber. It concluded that any driver who had the app switched on and was within the territory in which he was authorised to work, and was willing to accept assignments, was working for Uber under a “worker” contract.

It held that any supposed contract between driver and passenger was a pure fiction, bearing no relation to the real dealings and relationships between the parties.

Both the Employment Appeal Tribunal and the Court of Appeal have upheld that decision.

Uber says it will now take its case to the Supreme Court, arguing that most drivers had been self-employed before its app existed.  A spokesperson said: “Drivers who use the Uber app make more than the London living wage and want to keep the freedom to choose if, when and where they drive.”

 

Employee who stole fails with disability discrimination claim

The law provides wide-ranging protection against disability discrimination but that does not extend to employees who’ve been found guilty of stealing.

This was illustrated in a recent case involving an employee who worked for a County Council.

The employee was found to have taken some items from a shop without paying. He was accused of shoplifting and served with a fixed penalty notice.

The council dismissed him following the incident, so he brought a claim of disability discrimination. He claimed the shoplifting incident happened because he was suffering from post-traumatic stress disorder and dissociative amnesia (PTSD).

The council accepted that his illness amounted to a disability but pointed to the fact that stealing was excluded from protection under Regulation 4(1)(b) of the Equality Act (Disability) Regulations 2010.

The Employment Tribunal found in favour of the council. It held that the employee’s claim of disability discrimination had to fail because a tendency to steal was excluded from the Regulations as a protected condition.

The Employment Appeal Tribunal upheld that decision.

Employment Bulletin – November 2018

Reading Time: 6 minutes

Theresa May wants ethnicity pay reporting to tackle discrimination

Prime Minister Theresa May has announced plans for a series of measures to remove the barriers facing ethnic minorities in the workplace

Mrs May has launched a consultation on ethnicity pay reporting in response to the recent Race Disparity Audit, which revealed significant disparities in the pay and progression of ethnic minority employees compared to their white counterparts.

In the first consultation of its kind, the government will invite employers to share their views on a mandatory approach to ethnicity pay reporting, since the number of organisations publishing information on the issue voluntarily remains low.

The consultation will run until January 2019.

Mrs May also wants to establish a pioneering Race at Work Charter, which will commit businesses to a set of principles and actions designed to drive forward a step-change in the recruitment and progression of ethnic minority employees.

Major organisations including NHS England, Standard Life Aberdeen, Norton Rose Fulbright, Saatchi & Saatchi, KPMG, RBS, the Civil Service and WPP are among the early signatories.

Mrs May said: “Every employee deserves the opportunity to progress and fulfil their potential in their chosen field, regardless of which background they are from, but too often ethnic minority employees feel they’re hitting a brick wall when it comes to career progression.

“That’s why I’m delighted to launch the Race at Work Charter, which gives businesses a clear set of actions to work towards in helping to create greater opportunities for ethnic minority employees at work.

“Our focus is now on making sure the UK’s organisations, boardrooms and senior management teams are truly reflective of the workplaces they manage, and the measures we are taking today will help employers identify the actions needed to create a fairer and more diverse workforce.”

Leading employment lawyers say the new measures could lead to a flood of tribunal claims relating to unequal pay and race discrimination.

Please contact us if you would like more information about the issues raised in this article or any aspect of employment law.

 

Woman ‘side-lined’ during maternity leave wins discrimination claim

A compliance officer with an international bank who was “side-lined” after having a baby has won her claims of maternity and sex discrimination.

The employee joined the bank as a senior compliance advisor in 2012. By 2015 she was being considered as a possible candidate for head of department.

In 2016, she went on maternity leave and maternity cover was recruited to take her place until she returned. However, the employee claimed that her duties were really carried out by a colleague who was junior to her at that time.

While on maternity leave, the employee contacted the bank about attending a quarterly meeting but was “strongly discouraged” from doing so. She attended a meeting prior to her return expecting a formal handover to her, but no such handover took place.

When she returned to work, she felt that her position had been eroded. Her maternity cover had left as planned but the junior colleague was now carrying out much of her work. She complained that she was being marginalised.

An internal talent review again identified her as a potential department leader, but this time suggested she would be ready in two or three years.

The employee, who still works for the bank, brought claims of sex and maternity discrimination to the Employment Tribunal, which found in her favour.

It found that while she was on maternity leave, her junior colleague “had taken over nearly the entirety of her role”.

The Judge said: “When [the maternity cover] joined, rather than providing maternity cover by doing the Claimant’s job, she provided support, advice and supervision to [the junior colleague] who continued to essentially undertake the Claimant’s job.

“That is why there was no handover on the Claimant’s return. There was no real intention of [the junior colleague] handing back the work. Since the Claimant’s return, despite the protestations to the contrary, she and [the junior colleague] have been essentially at the same level.

“We find that the Claimant was side-lined on her return from maternity leave and her role was diminished. That is continuing, and we consider it is ongoing maternity discrimination.”

The tribunal also found that the employee had been subjected to sex discrimination because she was not fairly considered for the head of department role in 2015. She and another female candidate had been described as “divisive”. The term would not have been used about a man in similar circumstances and amounted to direct sex discrimination.

 

Company held liable for MD punching employee after works part

A company has been found liable for an assault by its managing director after a Christmas party that left an employee with brain damage.

The incident happened after the director organised and paid for a Christmas party for staff. After the party he arranged for taxis to take some of the attendees to a nearby hotel, where they were staying at the company’s expense.

They all continued drinking and a work-related discussion turned to a new member of staff, who was said to be receiving higher pay than others.

The director began to lecture his employees, and when challenged by a manager, he punched him twice. The second punch knocked the manager to the floor where he hit his head and sustained a serious brain injury.

The issue before the High Court was whether the company was vicariously liable for the director’s actions.

The judge found that it was not, because the hotel drinking session was entirely independent of the Christmas party and unconnected to the company’s business.

The manager appealed, saying that there was enough connection between the managing director’s position and his wrongful conduct to render the company liable under the principle of social justice.

The company argued that the director was a mere reveller at the hotel and was not acting within the course of his employment or his actual authority.

The Court of Appeal found in favour of the salesman. It held that the judge had been wrong to find that there was insufficient connection between the director’s field of activities and the assault.

The drinks occurred on the same evening as the work event paid for and orchestrated by the director. He was present as managing director. His managerial decision-making having been challenged, he took it upon himself to exercise authority over his subordinate employees by summoning them and expounding the extent and scope of his authority with the intention of quelling dissent.

Giving judgment, the Judge said that the director “was purporting to exercise his authority over his subordinates and was not merely one of a group of drunken revellers whose conversation had turned to work.

“He asserted his authority in the presence of around 50% of [the company’s] staff and misused that authority.”

The amount of compensation the salesman should receive is still being assessed.

 

Cashier sacked during TUPE process was unfairly dismissed

A cashier who was sacked by her firm while its business was being taken over by another company has won her claim of unfair dismissal.

The cashier worked for a company (the transferor) which specialised in selling wine and beer.

It got into difficulties in December 2014 so another company (the transferee) agreed to purchase stock and take on any employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), which preserve an employee’s terms and conditions when a business is transferred to a new owner.

The transferee then assumed responsibility for all employees except the cashier, who was dismissed by the transferor two days before the transfer took place. The dismissal letter said: “I am sorry to inform you that due to unforeseen circumstances concerning the business, we must inform you that our business will now cease to trade. As a result, we will unfortunately have to terminate your employment as from today.”

The cashier brought a claim to the Employment Tribunal, alleging that the reason for her dismissal was the transfer of the business, which meant it was unfair under TUPE regulations. She said the transferee did not want her to work for them because she had a strained relationship with one of her colleagues.

The transferee’s defence was based on a meeting on 9 December in which it said that the cashier had objected to the transfer and therefore under TUPE, her claim of unfair dismissal was not valid.

The tribunal found in favour of the cashier. It said it preferred her evidence that the transferee anticipated there would be ongoing difficulties in her working relationship with a colleague.

The Judge said: “It is for this reason that the Claimant was the only employee told that she was not wanted. She did not object to the transfer. The reason for the dismissal was the transfer. As such her contract of employment transferred and she was unfairly dismissed.”

The Employment Appeal Tribunal has upheld that decision.

The case is a timely reminder that businesses cannot use transfers as an opportunity to dismiss employees they consider troublesome. TUPE offers significant protection and employers must ensure they follow the correct procedures to avoid costly claims and tribunal cases.

Employment Bulletin – October 2018

Reading Time: 3 minutes

Huge rise in homophobia claims to employment tribunals

There has been a surge in homophobia claims to Employment Tribunals over the last 12 months.

The number of claims involving discrimination on the grounds of sexual orientation rose from 203 in 2016/17 to 377 in 2017/18 – a rise of 85%.

The chief executive of the Equality and Human Rights Commission, Rebecca Hilsenrath, said: “There is no room in today’s Britain for prejudice and harassment of the LGBT community and sadly these figures show it’s still very much a feature of the landscape. This really needs to stop, and quickly.

“Everyone has the right to a working environment that helps them achieve their full potential.”

She said the figures showed that the introduction of tribunal fees five years ago had discouraged people from bringing claims, but now they were ready to proceed again because the government had abolished fees following a Supreme Court ruling that they were unlawful.

Legal experts say while the abolition of tribunal fees was partly responsible for the increased number of claims, it was also likely that changing attitudes played a major part.

Victims of homophobic discrimination have become more assertive and aware of their rights. They are less likely to suffer in silence as they may have done in the past, and more likely to take legal action to protect themselves.

The rise in claims relating to homophobia reflects an overall rise in tribunal claims since the abolition of fees.

Figures released by the Advisory, Conciliation and Arbitration Service (ACAS) show that notifications to bring a claim increased in the year to July 2018 by 17,000 (19%). The number of cases that went on to appear before a tribunal rose by 7,000 (39%).

The ACAS helpline received 783,000 calls in the year to July. The top three categories were discipline, dismissal and grievances; contracts; wages and the national minimum wage.

Businesses may wish to check that their employment policies are up to date to reduce the risk of costly and time-consuming claims from employees.

Removal of travel allowance ‘did not contravene TUPE’

A decision to remove an “outdated and unjustified’ travel allowance did not contravene an employer’s obligations under TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006).

That was the decision of the Employment Appeal Tribunal (EAT) in a case involving a team of electricians.

The EAT was told that the electricians had worked for the Council before being transferred to a company.

While at the council they could claim the Electricians Travel Time Allowance, which had been operating since 1958.

The company wanted to update working practices and so gave notice that the allowance would be scrapped as it was outdated and unjustified.

The electricians claimed this contravened TUPE as the allowance had been available before the transfer.

The Employment Tribunal found in favour of the employer, ruling that the reason for ending the allowance was not because of the transfer but simply because it was outdated.

The EAT has upheld that decision.

Prison inspector loses disability case, but court criticises employer

A prison inspector has lost his claim of disability discrimination, but the case led to the Court of Appeal criticising the approach taken by his employer, the Ministry of Justice.

The inspector started working as a prison inspector in 2010. He began suffering from depression in 2012, which led to him taking time off work in the spring of 2014.

His illness persisted, and he applied for early ill-health retirement in November 2014.

His application led to a long, drawn out process lasting 13 months. The inspector blamed the delay on unnecessary bureaucracy within the prison service. His line manager also expressed concerns about the lack of progress.

When his ill-health retirement assessment was eventually issued, it contained several errors, which took further time to correct. The final decision to allow his retirement wasn’t made until December 2015.

The inspector retired the following February and brought numerous complaints of disability discrimination and harassment.

The Employment Tribunal dismissed the majority of the complaints but allowed three. He was awarded £100,000 compensation. That decision was overturned by the Employment Appeal Tribunal (EAT).

The case went all the way to the Court of Appeal, which also ruled against the inspector. It held that although the MoJ’s processes were slow and unwieldy, they were not so deficient that they amounted to discrimination.

However, Lord Justice Underhill, was critical of the MoJ. He said: “…it is no credit whatever to the MoJ that its ill-health retirement processes, which by definition are applied to people who are to a greater or lesser extent vulnerable, are so…arcane and unwieldy; and I would endorse the EAT’s recommendation that they be reconsidered.”

This is a case that was brought because of the inadequacies of the MoJ’s processes for dealing with a straightforward request for ill-health retirement. Employers may wish to check their own policies for such matters to reduce the risk of claims that can be both costly and time-consuming.

Employment Bulletin – September 2018

Reading Time: 5 minutes

Optician was discriminated against following maternity leave

An optician has won her claim of unfair dismissal and discrimination after her employer tried to reclaim training costs following her maternity leave.

The employee signed a training and services agreement which stated that she would be liable to repay any training costs if she left the company within three years of registering as a dispensing optician.

She eventually registered after four years of training. Eight months later she informed the company that she was pregnant and requested to go on maternity leave.

She had only completed 16 months of the three-years post-qualification period. That would continue when she returned from her maternity leave.

When the time came, the employee was reluctant to return at the planned date as her daughter was suffering from health problems.

She asked for more time off in the form of holiday pay or a sabbatical, but her request was refused. She was told that if she resigned she would be liable to repay £11,000 under the training agreement.

She resigned and said that the employer had ‘fundamentally broken’ their contract due to the way they had dealt with her pregnancy and maternity leave.

However, the employer made a formal demand for the £11,000 and withheld her holiday pay for the final year.

The Employment Tribunal found that there was nothing in the contract that would justify the company pausing the employment for maternity or any long-term absence.

The judge said: “The imposition and use of the ‘pause clause’ appears to us to be a classic case of unfavourable treatment (because of) maternity leave, and thus unlawful discrimination on the basis of pregnancy or maternity.”

 

Two days made all the difference in employer’s right to dismiss

Timing can be crucial when deciding to dismiss an employee, as shown in a recent case before the Employment Appeal Tribunal (EAT).

The case involved an office manager who was dismissed for gross misconduct on 20 September 2016. There was no investigation, no hearing and no appeal.

The alleged misconduct related to her knowledge that a colleague was planning to leave the business, and the employer’s view that she was rude and difficult to work with.

The employee’s length of service was two days short of the necessary two years needed to bring a claim of unfair dismissal.

She brought her case to the Employment Tribunal, which ruled that her effective date of termination was not the day she was dismissed but the date on which her notice period would have expired a week later. This meant she would be able to bring a claim.

The EAT overturned the decision. It held that although the law provided for the effective date of termination to be at the end of the statutory minimum notice period, that was subject to the employer’s right not to give notice.

In cases like this involving gross misconduct, where the employer could lawfully dismiss without notice, there was no statutory minimum notice period, and therefore no extension to the effective date of termination.

However, the tribunal had not made a finding as to whether the employee was guilty of gross misconduct such that the employer would have been entitled to terminate the contract without notice. That question was therefore remitted to the tribunal for it to determine the misconduct issue.

 

Employee who threatened staff wins unfair dismissal appeal

When dealing with disciplinary issues at work it’s essential that employers are consistent in the way they treat different cases.

A lack of consistency can undermine a decision, as illustrated in a recent case before the Employment Appeal Tribunal.

It involved an employee who had made threatening comments about senior staff members on two occasions. At a disciplinary hearing, he apologised for his behaviour, but he was dismissed for gross misconduct.

He brought a claim for unfair dismissal to the Employment Tribunal, arguing that he had been treated differently to a female employee who had kept her job following two incidents of physical violence at work.

The employer submitted that he had not raised the argument at the disciplinary hearing or the internal appeal. It was unaware of the alleged incidents involving the female employee and there was no evidence that he had been treated more harshly than another employee in a comparable situation.

The tribunal did not expressly deal with the disparity of treatment argument and found that the employee had been fairly dismissed for two separate incidents of extreme verbal threats.

The Employment Appeal Tribunal overturned that decision. It held that the tribunal was wrong not to have addressed the argument that the employee had been treated differently to the colleague who had kept her job despite incidents of physical violence.

The case was remitted to a different tribunal for a rehearing.

 

Woman told harassment claim was ‘immature’ awarded £15,000

A woman who was told she was “immature” for complaining about sexual harassment at work has been awarded £15,000.

The employee told the Employment Tribunal that for the last two months of her employment she was subjected to sex discrimination by the owner of the business.

She said he made sexual comments and touched her inappropriately on numerous occasions. She told him not to touch her but felt powerless as he was her boss.

The employee also said she was subjected to abuse and unfavourable treatment from colleagues. This would range from derogatory comments about her age and religion to being treated differently to her male co-workers by a colleague.

The employee told the owner about these issues and he began an investigation. However, she didn’t feel included in the process and submitted a grievance. She complained about the abusive language and behaviour of her colleague but received no response.

Instead she was dismissed by the owner, who said that she was immature and that the business was “not a kindergarten”.

After the dismissal, the employee was signed off work for six weeks as her stress and anxiety had left her feeling physically ill.

She brought complaints to the Employment Tribunal of sex discrimination and a failure to pay her notice pay and holiday pay, saying that she had been dismissed because of the formal complaint she had made against the colleague.

The employer didn’t appear at the tribunal, which found in favour of the employee.

The Judge concluded that there were a number of aggravating features. He said “Firstly, it was experienced over a period of three months. Secondly, it involved unwanted sexual advances as well abusive and derogatory treatment on a regular basis. Thirdly, it caused physical and mental illness. Fourthly, it resulted in her losing her job.”

He ordered the company to pay £15,000 to the employee for injury to her feelings, loss of earnings, notice pay and holiday pay.

 

Bus driver who became stranded in flood wins dismissal claim

A bus driver who was fired after driving his vehicle into a flooded area has won his claim of unfair dismissal.

The employee worked for his employer for eight years when the incident happened. He believed that he would be able to get through the flood, but he underestimated the depth of the water.

He became stranded in the middle of the road as the bus filled with water and began to float. There were no passengers on board and on the advice of the police, the employee smashed a window to escape.

The employer dismissed him for gross misconduct, saying that he should have had the foresight not to drive into the water.

The employee brought a claim of unfair and wrongful dismissal. The Employment Tribunal ruled in his favour. It stated that a reasonable employer wouldn’t have characterised the employee’s behaviour as “gross misconduct”.

It added that the employer had failed to provide the employee with training or advice for a situation such as the one he encountered.

The ruling was upheld by the Employment Appeal Tribunal.

Dismissing the company’s appeal, Lady Wise said: “The absence of proper training or advice to the claimant about how to respond in the situation he was faced with …were matters known to the respondent at the time of the decision to dismiss… these facts also indicated against dismissal being a reasonable response.

“In short, the claimant’s conduct was, taking account of known mitigating circumstances, simply not a sufficient reason to dismiss had the decision been taken reasonably by a reasonable employer.”

 

Employment Bulletin – August 2018

Reading Time: 4 minutes

Pimlico and Hermes ‘worker’ rulings could affect gig economy

The Supreme Court ruling in the Pimlico Plumbers case and the Employment Tribunal decision involving Hermes help to clarify the difference between ‘worker’ and ‘self-employed’ and could have a significant impact on the gig economy.

The long running dispute involving London based Pimlico was initiated by one of its plumbers, Gary Smith.

Mr Smith had carried out work for the company for almost six years. He had entered into two agreements, stating that the company was not obliged to offer him work and he was not obliged to accept it.

The company manual stated that he was required to wear a company uniform, carry a company ID card, use a company mobile phone and hire a company van when carrying out the work. He was expected to work five days per week for 40 hours.

He had the right to decline jobs or send another company operative in his place if he could not attend.

He brought claims for unfair dismissal, unlawful deductions from wages, unpaid annual leave and disability discrimination. The Employment Tribunal concluded that he was not a “worker” under a contract of service for the purposes of the unfair dismissal claim, but he was a worker within the meaning of the Employment Rights Act, the Working Time Regulations 1998, and he was in “employment” within the meaning of the Equality Act 2010.

Those decisions have now been upheld by the Supreme Court. The justices said Mr Smith should be classed as a worker, not as self-employed, meaning he is entitled to various employment rights such as holiday pay.

In giving his ruling, Lord Wilson, said: “Although the contract did provide him with elements of operational and financial independence, Mr Smith’s services to the company’s customers were marketed through the company.

“More importantly, its terms enabled the company to exercise tight administrative control over him during his periods of work; to impose fierce conditions on when and how much it paid to him, which were described at one point as his wages; and to restrict his ability to compete with it for plumbing work following any termination of their relationship.”

The chief executive of Pimlico Plumbers, Charlie Mullins, criticised the decision and said he would consider further legal action.

The Hermes case involved 65 of its drivers. The Employment Tribunal in Leeds held that they were workers, not self-employed contractors.

It’s likely that both the Pimlico and the Hermes rulings will have an impact on the growing gig economy and may influence several other cases coming before the courts involving companies that rely on people they classify as self-employed.

The government is already considering recommendations made in the Taylor Review of working practices to improve worker rights, but no firm decisions have yet been made.

 

Firm discriminated against pregnant woman by extending probation

The Employment Tribunal has ruled that an employer discriminated against a woman when it extended her probationary period after discovering she was pregnant.

The employee was appointed as a contracts administrator on 8 June 2016 and agreed a start date of 20 June. However, five days before she was due to start, she discovered that she was pregnant.

The employee didn’t inform the employer of her pregnancy before she took up her position as she didn’t believe it was necessary to do so.

She eventually told her office manager that she was 12-weeks pregnant on 25 July. The office manager appeared to be “completely thrown” by the news but later held a meeting with the employee and told her that her employment would not be affected.

However, over the following months her probation period was twice extended amid concerns about her performance and at a meeting on 20 December, she was told she would have to undergo another probation period after returning from maternity leave.

She brought a claim of direct discrimination on the grounds of pregnancy

Under section 18 of the Equality Act 2010, an employer discriminates against a woman if in the protected period in relation to a pregnancy of hers, she is treated unfavourably because of the pregnancy.

The Employment Tribunal found in the employee’s favour.  The Employment Judge said: “We are entirely satisfied that the Claimant’s pregnancy was an effective cause of her probationary period being extended for a second time and that the Claimant was therefore, again, subjected to unfavourable treatment because of her pregnancy.”

A second hearing was scheduled to determine how the situation should be remedied and to set the level of compensation if appropriate.

 

Dismissing employee for failing to complete training was ‘not unfair’

A pharmaceutical company was within its rights to dismiss an employee who failed to complete mandatory online training courses.

That was the decision of the Employment Appeal Tribunal in a recent case involving a medical sales rep.

In January 2016, the employee was dismissed for failing to complete two online training courses.

He took legal action claiming unfair dismissal. He didn’t deny that he failed to complete the training but said that was only because he was prioritising more important tasks.

The employer claimed their trust in the employee had been damaged and dismissed him for gross misconduct, which was later reduced to serious misconduct.

The tribunal ruled in favour of the employee. It said that the employer had been wrong to consider the actions as gross misconduct. Given that this was later downgraded to serious misconduct, a warning would have been the appropriate disciplinary action.

However, the EAT has overturned that decision. A Judge described the approach of the tribunal as “fundamentally flawed”.

She said there had been too much focus on the nature of the employee’s misconduct when the severity of the employer’s response was the key to the case.

The Judge said: “The tribunal’s approach in this case was flawed: it unduly limited the potential range of reasonable responses by applying a general rule as to when dismissal might be fair in cases of conduct falling short of gross misconduct, when no such rule is laid down.”

However, she added that it would not be right for the EAT to reach its own verdict regarding the case, and that it must be put before another employment tribunal to be settled.

 

 

Employment Bulletin – July 2018

Reading Time: 4 minutes

Cycle courier deemed to be a ‘worker’ entitled to holiday pay

A cycle courier with a taxi firm was a ‘worker’ rather than a self-employed contractor and so was entitled to holiday pay

That was the decision of the Employment Appeal Tribunal in a case involving Addison Lee Ltd and one of its riders, Mr C Gascoigne.

Addison provided a taxi and courier service. Mr Gascoigne’s employment contract stated that he was “an independent contractor”, that nothing in the contract rendered him “an employee, worker, agent or partner” of the company and that he should not hold himself out as such.

He provided his own bike and could choose when he worked. He was paid weekly with a piece rate for each job and a fixed rate for waiting time. He paid his own tax and national insurance and was registered with HMRC as self-employed.

The company deducted an “admin fee” and a payment for insurance cover. Each courier had a company ID and an allocated call sign, and was supplied with a radio, a palmtop computer and GPS tracker.

When available for work, couriers would contact the controller by radio or phone and log on to the allocation system. The company’s position was that Mr Gascoigne worked under a zero hours contract and that it had no obligation to offer him work and there was no obligation on him to accept any such offer.

The Employment Tribunal at the initial hearing referred to the contractual provision that if Mr Gascoigne was logged on to the system he was “deemed to be available and willing to provide Services”.

It found that he was working under the company’s direction and not “running his own business” and was subject to a “classic wage/work bargain”. It held that the contract did not reflect the reality of the parties’ legal relationship.

The Employment Appeal Tribunal has upheld that decision.

 

HMRC targets firms failing to pay minimum wage rates

HMRC is continuing to clamp down on firms that fail to pay the National Minimum Wage and is urging underpaid workers to come forward and complain.

The latest figures show that the number of workers getting the money they’re owed has doubled over the last year.

In 2017 to 2018, HMRC investigators identified £15.6m in pay owed to more than a record 200,000 of the UK’s lowest paid workers. That was up from £10.9m for more than 98,000 workers in the previous 12 months.

HMRC launched its online complaints service in January 2017, and this has contributed to the 132% increase in the number of complaints received over the last year.

The figures are published as the government launches its annual advertising campaign designed to encourage workers to take action if they are not receiving the National Living Wage or the National Minimum Wage. The online campaign, which runs over the summer, urges underpaid workers to complain by completing an HMRC online form.

Industries most complained about to HMRC include restaurants, bars, hotels and hairdressing.

Business Minister Andrew Griffiths said: “Employers abusing the system and paying under the legal minimum are breaking the law. Short changing workers is a red line for this government and employers who cross the line will be identified by HMRC and forced to pay back every penny.”

Failure to pay the minimum rates can result in fines of 200% of the arrears, public naming and, for the worst offences, criminal prosecution.

From 1 April 2018, the government’s National Living Wage rate increased by 33p to £7.83 per hour for those aged 25 and over.

The National Minimum Wage increased:

  • by 33p to £7.38 per hour for those aged 21 to 24
  • by 30p to £5.90 per hour for those aged 18 to 20
  • by 15p to £4.20 per hour for those aged 16 to 17
  • by 20p to £3.70 per hour for apprentices.

 

Police officer wins claim over pay for shared parental leave

A police force discriminated against a male officer by paying him less while he was on shared parental leave than a woman would have received while on maternity leave.

That was the decision of the Employment Appeal Tribunal in a case involving Leicestershire Constabulary and one of its officers.

The officer’s claim relied on the ‘provision, criterion or practice’ (PCP) applied by the chief constable of paying only the statutory rate of pay for those taking shared parental leave, whereas women on maternity leave were entitled to full pay for the equivalent period.

The Employment Tribunal rejected his contention that women on maternity leave were valid comparators for men on shared parental leave and so dismissed his claim of direct discrimination.

It then applied that finding in rejecting his indirect discrimination claim. It further rejected that claim on the basis that the PCP did not put men at a disadvantage compared with women.

The Employment Appeal Tribunal (EAT) upheld the decision on direct discrimination but said that the tribunal had been mistaken in using that as a reason to reject the claim of indirect discrimination.

The law required the tribunal to identify the alleged disadvantage and to undertake a comparative exercise to decide whether the PCP put men at a disadvantage compared with women in no materially different circumstances.

The officer was justified in claiming that the provision of offering only statutory pay for shared parental leave disadvantaged men as they did not have the option, available to women who had given birth, of taking maternity leave at a higher rate of pay.

The (EAT) said the tribunal had erred in holding that the PCP did not put men at a disadvantage.

 

Meat company prevents employee using confidential information

A meat company has been granted an injunction preventing a former employee misusing its confidential information about customers and product prices.

The court heard that the company supplied fresh meat to commercial catering customers. One of its employees resigned after working as a sales executive for two-and-a-half years.

During his employment, he had direct contact with customers, taking and processing orders and seeking new clients.

The company alleged that before resigning, he had emailed a list of contact details of customers to his personal email account. It also alleged that he had been misappropriating documents, dealing with their customers on the side and taking cash payments, which he kept.

He was alleged to have impersonated a Food Safety Agency officer to denigrate the company to customers, and to have withheld funds owed to the company.

The judge said the list of customers and prices was confidential information and the employee had owed a duty of trust to the company. There was prima facie evidence of misappropriation and misuse of information to the company’s detriment. The employee might have had grounds to complain about his employment, but that was not an excuse to misuse information.

The court held that there was a serious issued to be tried at a full hearing. Until that hearing took place, it granted an injunction ordering the employee to return all the confidential material and preventing him from misusing it.

 

 

Employment Bulletin – June 2018

Reading Time: 5 minutes

EU to introduce high level protection for whistleblowers

The European Commission has proposed a wide-ranging new law to strengthen protection for whistleblowers who uncover unlawful activities in their company or organisation.

It’s thought the new measures are likely to be adopted by the UK as part of our future trading relationship with Europe after Brexit.

A Commission statement says “The new law will establish safe channels for reporting both within an organisation and to public authorities. It will also protect whistleblowers against dismissal, demotion and other forms of retaliation and require national authorities to inform citizens and provide training for public authorities on how to deal with whistleblowers.”

First Vice-President Frans Timmermans said: “Many recent scandals may never have come to light if insiders hadn’t had the courage to speak out. But those who did took enormous risks. So, if we better protect whistleblowers, we can better detect and prevent harm to the public interest such as fraud, corruption, corporate tax avoidance or damage to people’s health and the environment. There should be no punishment for doing the right thing.”

The proposals ensure EU-wide protection for revealing breaches of EU legislation in public procurement, financial services, money laundering and terrorist financing, product safety, transport safety, environmental protection, nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, privacy, data protection and security of network and information systems.

It also applies to breaches of EU competition rules, violations and abuse of corporate tax rules and damage to the EU’s financial interests.

All companies with more than 50 employees or with an annual turnover of over €10m will have to set up an internal procedure to handle whistleblowers’ reports.

We shall keep clients informed of developments.

 

Lack of pay rise resulted in ‘unlawful deduction of wages’

A local authority’s decision not to award incremental pay increases resulted in unlawful deductions of wages for some of its employees.

That was the decision of the Court of Appeal in a case involving Nottingham City Council and three groups of its employees.

The authority’s administrative staff were graded on a “spinal column”, with each spinal column point (SCP) denoting a salary level. They were entitled to move each year to the next SCP until they reached the top of their grade.

Manual workers had no such progression and so the authority wanted to eliminate that difference.

It created a new “core contract” with new terms and conditions for all employees, which did not explicitly mention pay progression but discussed bands and SCPs. A booklet illustrating the new system was issued, which stated that employees would gain an SCP each year.

In July 2010, the authority reached a collective agreement with the relevant trade unions, which did not explicitly refer to pay progression. The new terms took effect in November. In December, it announced a freeze on pay progression.

In 2013, the unions activated a grievance procedure. The authority denied that there was any contractual right to pay progression, and if there had been, the employees had accepted a variation to their contract by continuing to work without protest until 2013.

The case went all the way to the Court of Appeal which ruled in favour of the employees. It held that the terms accepted by the administrative staff were contained in the booklet, which stated they had an entitlement to a pay progression.

The fact that the other two groups of employees never received the booklet was not important. The core contract implied pay progression. New employees would reasonably understand that their position would be the same as that of existing employees.

The court also rejected the authority’s submission that the employees had accepted the variation by continuing to work without protest. It held that the variation had been wholly disadvantageous to the employees, yet the matter had not been put to them as requiring their agreement.

There had also been union protest before and after implementation of the freeze.

 

Manager with reduced role under TUPE was ‘unfairly dismissed’ 

An NHS manager who was told her role was being reduced by half during a TUPE transfer was unfairly dismissed.

The employee was a senior clinical commissioning manager who worked two days a week from home. She was considered a highly valued employee.

In February 2015, she made a protected disclosure in relation to tender irregularities for a new contract for ambulance services. Because of her disclosures, the procurement process was cancelled and put out to tender again.

In November 2015, the employee’s employment was transferred under TUPE to a Clinical Commissioning Group.

The transfer consultation proceeded smoothly until a meeting that took place in February 2016. The employee said that two hours before the meeting, she was told that she would no longer be able to work from home and that half of her responsibilities were going to be taken from her.

She felt the change was due to her making a protected disclosure and so she lodged a grievance under the whistleblowing policy. An internal investigation found “no relationship between the whistleblowing raised in the previous year and the events surrounding the change to [the employee’s] role”.

The employee was upset and went on sick leave. She later resigned and brought a claim of unfair dismissal.

The Employment Tribunal rejected her claim that there was a link between her treatment and the protected disclosure so her complaint of unfair dismissal because of whistleblowing was dismissed.

However, it found she was unfairly dismissed because the reduction in her role breached the terms of her employment contract.

The Judge said: “I am satisfied that there was a very substantial and significant reduction of the Claimant’s role, duties and responsibilities. The loss was not attributed to any TUPE factor.

“In those circumstances the removal of duties amounted to a breach of an express term or terms of

the contract. There is no doubt having regard to the extent of the reduction in duties that it was a fundamental breach which went to the root of the contract of employment.”

Compensation will be decided at a separate hearing.

 

Disabled employee wins claim over ‘forced evening work’

A disabled employee has won a constructive dismissal claim after his employer ‘forced’ him to work evenings.

The employee joined the firm in October 2011. He regularly worked 12 to 14-hour days that stretched well into the evening.

In July 2012 he was involved in an accident that resulted in him developing issues such as dizziness, fatigue, headaches and difficulty concentrating.

He worked reduced hours when he returned from recuperating, but after six months his working day start increasing again until 6.30 to 7pm.

When he initially agreed to work late, his employer expected that he would continue to do so indefinitely.

However, after four months he objected to working into the evening. This led to a heated exchange between the employee and one of the owners of the business.

The owner berated him in front of his colleagues and demanded an apology. He also said that if he didn’t like it he could leave.

The employee resigned due to the owner’s conduct and because he was being ‘forced’ to work evenings.

He brought proceedings for disability discrimination and constructive dismissal. He told the Employment Tribunal that he would have retracted his resignation if he had been asked to do so.

The company claimed the employee would have resigned from his job anyway as his wife had accepted a job in the US.

The tribunal ruled that this was why he had resigned rather than the argument with the owner over evening hours. It also said that the employee had not been ‘required’ to work evening hours; just that it was ‘expected’ of him.

However, the Employment Appeal Tribunal (EAT) overturned those decisions. It said that the tribunal had displayed a narrow view of the circumstances.

It held that the employee resigned in response to a fundamental breach of his employment contract.

The Court of Appeal upheld the EAT ruling.

Gig Economy case calls for contract reviews

Reading Time: 2 minutes

Businesses who use self-employed personnel to deliver their services to clients are being urged to review their contractual arrangements with staff in light of a ground-breaking Supreme Court case.

That’s the advice from Mark Ridley, Partner in the employment department at Band Hatton Button solicitors, after the Supreme Court ruled that self-employed plumber Gary Smith, who had been working for Pimlico Plumbers between 2005 and 2011, should have been given workers’ rights.

Although Smith was VAT registered and paid self-employed tax, he had been working solely for Pimlico Plumbers for six years in a branded uniform and van, and he was required to work a minimum number of hours per week.

As such, it was ruled that he was entitled to workers’ rights such as holiday and sick pay, despite Pimlico’s claim that Smith had the freedom to reject work and find a replacement.

In light of the ruling, Mark Ridley is advising businesses to monitor what specific agreements are in the contracts they draw up for self-employed members of staff.

He said: “Whilst Mr Smith was technically able to reject work other factors outweighed this, such as there being no unfettered right to send a substitute in his place with an obligation to personally perform the work for Pimlico plumbers – he also wore the company uniform, drove their van and had to work a set number of hours. As such it could not be said that he was self-employed and that the company was his customer.

“Mr Smith has now been classified as a worker, which entitles him to protection of the national minimum wage, paid annual leave, right to rest breaks, pension contributions and some employment tribunal claims.

 “Cases such as this one reinforces the growing call for the government to regulate the rights of workers in the ‘gig economy’ which is made up of short-term and freelance contracts.

“Self-employed workers are likely to explore their own position and rights off the back of this court case, so companies operating such contracts would be well advised to review their practices and contracts.

“Despite some quarters hailing this as a watershed moment for the rights of ‘gig economy’ workers, cases will still be monitored on a case-by-case basis, hence the importance for businesses to review their contractual agreements carefully.”

Employers must tackle their game plan before kick-off

Reading Time: 2 minutes

With the 2018 World Cup about to kick-off in Moscow, football fans will have their eye on the ball, whether for England or their home country.  

But it’s not just the players who need to warm up, as UK business needs to tackle the tournament challenge head-on, with the potential of lost working hours due to employees staying home to watch the games and disagreements in the workplace over competing team interests.  

Experts say the best approach is to revisit your policies now, before kick-off, and if there are any gaps in guidance, make sure to get them covered.  Then, it’s down to reminding everyone of the importance of staying within the boundaries for any workplace discussions, and a reinforcement of company attitudes towards absenteeism and any likely issues that may arise, such as alcohol consumption or watching games during working hours.   

Said Mark Ridley, employment expert with Coventry solicitors Band Hatton Button: “Major sporting events like the World Cup build a competitive atmosphere and when this spills over into the workplace it may inflame existing tensions, and that can spell difficulty for employers.

“With today’s multi-cultural workplaces there is more chance that ill-considered comments fuelled by nationality or race may give rise to offence, and the employer could find themselves liable for the actions of their employees and face claims for discrimination.” 

Policies should cover equal opportunities and non-harassment with clear disciplinary procedures for anyone who shows inappropriate behaviour with colleagues on grounds of nationality, colour or race.  

Companies also need to be sure their sickness absence procedures are up-to-date, that everyone knows the formal process to be followed and what will happen if there is an unauthorised absence.  Once the tournament is underway, if it is thought that any employee has taken time off to see a match, it’s worth making sure that back-to-work interviews are undertaken and the reason for absence investigated. There may have been a legitimate reason, but showing that any absence will be checked shows the focus is on and may help to see off subsequent absences among the workforce.

Similarly, attitudes towards alcohol consumption and use of internet during working hours for personal use should be addressed in the company handbook.  

“If you haven’t drawn up policies for any of these areas, then now is the time to do so,” added Mark.  “Also, you should check that existing policies are still fit for purpose.  Technology is developing quickly, and most people now have smartphones they can use to watch games. So, if previously you’ve only considered the use of company equipment in your internet policy, now is the time to tackle what happens if someone is making personal use of the internet during working hours on their own equipment.” 

ENDS

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This is not legal advice; it is intended to provide information of general interest about current legal issues.