Employment law quiz

1. Employment law quiz 2012 Toni McAlindin To receive free bulletins email info@tonimcalindin.co.uk www.tonimcalindin.co.uk

2. Question one • 1. As part of its proposals to change the way disputes are dealt with the Coalition has already made changes to employment tribunals and several more are on the cards. • What changes have already taken place? • What changes are proposed?

3. Answer question one • 1. It has increased the qualifying service for unfair dismissal to two years. Employment judges now sit alone to hear unfair dismissal cases with provisions for a full panel. • Changes include increased use of mediation, all claims to go to ACAS pre-conciliation, the introduction of fees to start and progress a claim, proposed cap on compensatory payments (one year’s pay or median earnings currently £28k) • In addition Mr Justice Underhill has concluded his review of tribunals. Most changes are technical and there will be a rewrite of claim forms.

4. Question two • 2. There has been much controversy over the proposals to allow “protected conversations”. • What is meant by a protected conversation? • How does this differ to a “without prejudice” conversation? • How would this link to a compromise agreement? • What will compromise agreements be called in the future?

5. Answer question two • 2. These will allow frank conversations about employment issue without the existence of a formal dispute. • Without prejudice discussions required there to be a formal dispute on the table which prevented discussions before things had got to a dispute stage. • Concerns have been expressed that the new rules will allow bullying of staff. • New rules will allow employers to offer “settlement agreements” (new name for compromise agreements) before a formal dispute arises • Employees can reject an offer and proceed to a tribunal but will not be able to cite anything from the talks • Proposals talk about “confidentiality of negotiations before termination of employment” • Only applies to unfair dismissal • Includes discussions and offers made

6. Question three • 3. In its Modern Workplace consultative document the Government is proposing to make changes to the following areas: • Equal pay audits; • Flexible working; • Parental provisions; • Working time holidays. • What are these proposals?

7. Answer question three • 3. Government has proceeded with proposals to require tribunals to order an employer to conduct an equal pay audit where it has discriminated on grounds of sex in contractual and non-contractual pay. Obliged to order employer to conduct audit – failure = financial penalty. • Will go ahead with flexible working for all but no details yet available. • Will go ahead with parental leave changes including extending unpaid 3 months to 4 months. May raise age of child from 5. • Proposals to change maternity/paternity leave so that parents can more equally share and take more flexibly eg at same time, part-time etc subject to business need

8. Answer question three continued • 3. Working time holidays highly problematic. Since consultative document issued many judgements of ECJ and UK courts which will affect outcome. • Need to implement Stringer ie those on long term sickness absence will continue to accrue holidays and can carry over. • Proposals to carry over 20 only not longer UK holidays (consistent with ECJ ruling that Member states have discretion to allow only those holidays in the directive or can extend to those given by national law). Longer for maternity leave. • Problem with two main issues ie whether individuals need to have requested holidays in order for this to happen – recent caselaw says no need. • Other issue is how long the carry over will be. ECJ has stated it has to be at least as long as the reference period ie in the UK 12 months.

9. Question four • 4. As part of deregulation the Government is proposing changes to TUPE and to redundancy. • What changes is the Government proposing to TUPE? • What changes is the Government proposing to redundancy?

10. Answer question four • 4. The TUPE changes may be problematic as the main focus is on harmonisation of terms and conditions which is absolutely prohibited by the directive. • Changes to redundancy include looking at the definition of “establishment” – note however following Rockfon, the ECJ has already rules in this area. • A more likely change is to consultation periods for large scale redundancies which will reduce from the current 90 days to either 30 or 45 days. • There will be a Code of Practice looking at when consultation should start, who should be consulted, what should be discussed, how consultation should be conducted, when consultation can be considered to be complete etc

11. Question five • 5. In City of Edinburgh Council v Wilkinson a number of admin and clerical female workers claimed equal pay with male refuse collectors, gardeners, gravediggers and roadworkers. • In order to make a claim the individuals have to work for the same employer – here they did and had to either work in the same establishment – they did not or have common terms and conditions. • The case was heard by the employment tribunal, the EAT and the Court of Session. What was the decision?

12. Answer question five • 5. The tribunal held that they had common terms and conditions as laid down in the Red Book. It was irrelevant that they worked in different places. • The EAT held they worked at the same establishment even though they did not work in the same physical places. They were at a single establishment – it was unduly restrictive to limit the concept of establishment to a single location. (Note previous cases had looked at single source)

13. Answer to question five • 5. The Court of Session disagreed with the interpretation of establishment. The wording of the legislation was worked “at” not “in” the same establishment. • This indicated a locality rather than a body or undertaking. • However the Court of Session agreed that they had common terms and conditions. • If a male worker moved to a different establishment he would take with him his existing terms and conditions (note this was not the case with the earlier case of North v Dumfries and Galloway Council where the men’s terms would have had to radically change if they moved to a different location). • Whether or not an employee was subject to the terms of the Red book was entirely dependent on the nature of the post irrespective of location or establishment.

14. Question six • 6. In McDougall v Barclays Bank plc the applicant was a Seventh Day Adventist Christian. Due to her beliefs she could not work on the Sabbath which begins at sunset on Friday and ends at sunset on Saturday. She was put forward for a telephone interview where she was asked if she could work Saturdays. She said no and the interview was terminated. • She claimed direct and indirect discrimination. • Barclays gave evidence that it made special arrangements for parents who due to childcare commitments could not work Saturdays. • Did she succeed in her claims?

15. Answer question six • 6. She won both claims. Her direct discrimination claim succeeded by comparing her to a person who could not work Saturdays due to childcare commitments. The bank would have made other arrangements. • Her indirect discrimination claim ie that the provision, criterion or practice to work Saturdays affected someone of her religion could not be justified by the same practice as above ie that the bank could have accommodated this. • Cf. Patrick v IH Sterile Services Ltd dismissal after refusing to work Sundays (Jehovah’s Witness). Shift system. Held Sunday working justified. Company had a contractual obligation to provide sterile laboratory services – this was a legitimate aim and sharing out the work equally across the workforce was an appropriate means of achieving that aim.

16. Question seven • 7. In Crisp v Apple Retail Crisp posted derogatory statements on Facebook about Apple and its products. • They were made on a private page and outside of working hours. • One of his colleagues who had access to the page passed the information on to the store manager. • Crisp was dismissed for gross misconduct. • Apple had a social media policy and it was well known that commentary on Apple products or critical remarks about the brand were prohibited. • Was this a fair dismissal?

17. Answer question seven • 7. Despite having private facebook settings the tribunal decided that there was nothing to prevent friends from copying and passing on comments so he was unable to rely on the right to privacy in Article 8 of the Convention for Human Rights. • He retained the right to freedom of expression but Apple successfully argued that it was justified and proportionate to limit this right in order to protect its commercial reputation. • Dismissal was fair. • Note also Teggart v Tele Tech Ltd – employee on home computer posted offensive comments about female member of staff. She was told as was the company. Dismissal for bullying and harassment. • Claimed breach of human rights. Held bullying and harassment of victim and company vicariously liable. No breach of human rights – once post comments right to privacy has gone. Right to manifest beliefs apply to a philosophy not comments about other people.

18. Question eight • 8. In Readman v Devon Primary Care Trust Mrs R was a nurse who was to be made redundant. Her employer offered her three alternative posts. • One of these, a hospital Matron position was held by the tribunal to be suitable alternative employment. • She rejected all three posts as she wanted to remain in community nursing. • Her employer refused to pay her a redundancy payment on the grounds that she had rejected suitable alternative employment? • What did the appeal court decide?

19. Answer question eight • 8. The EAT held that the test for refusal of suitable alternative employment is subjective not objective (ie would a reasonable employee have rejected the work). • It was determined by looking at the employee in question. • This involves considering why she had rejected the work and whether this was a sound and justifiable reason for turning it down. • The EAT held that it was ie her desire to stay in community nursing. • She was therefore entitled to a redundancy payment.

20. Question nine • 9. In Crawford v Suffolk Mental Health Partnership NHS Trust two nurses were dismissed for mishandling a patient with dementia. • The patient was violent and aggressive, swearing, kicking and punching staff. The two nurses who were long serving with no disciplinary record had tied a sheet around the patient and his wheelchair and tied it to a table as he had been difficult to control. • The employer also referred the matter to the police but no charges were brought. • The employees were suspended for a long period prior to the dismissal causing them considerable distress. • The employees alleged that the suspension was a breach of trust and confidence and amounted to guilty until proven innocent. • They argued that the length of the suspension caused emotional and psychological consequences and damage to their reputation. They argued dismissal was unfair.

21. Answer question nine • 9. The Employment tribunal found dismissal unfair. The EAT held that it was fair. The nurses admitted the restraint but argued it was not an assault and was the only way to control the patient. Only four staff were working in a ward of 17 difficult patients. • The tribunal felt there was no negligence. That tying the patient’s chair to a table leg was not an assault. The ET was critical of the length of the suspension. Dismissal in these kind of cases is a career-changing event. • The EAT held that the tribunal had substituted its own view of what was reasonable rather than looking at the employer’s view. • The Court of Appeal expressed concern about the readiness of employers to suspend employees accused of gross misconduct. It could often be a knee-jerk reaction in which case it would breach trust and confidence. Hard to believe the employer believed these nurses posed a real risk of repeating the behaviour. The court was astonished the matter was referred to the police. The hospital owed a duty to the staff as well as the public. • Each case should be decided on its own merits looking at why suspension is important. In any case it should be brief. • Not open to a reasonable employer to dismiss for tying chair to table.

22. Question ten • 10. In Eddie Stobart Ltd v Morman the branch of the well-known transport company had a depot with 35 employees servicing 5 clients. • The number of clients reduced to two, one of those lost was a major client Vion. • ES closed their site. • The Vion work transferred to FJG Logistics Ltd. • ES took the view that all employees engaged wholly or at least 50% of their time on Vion work should transfer to the new contractor. • Those working on the day shift spent most of their time on Vion work. • Warehouse operatives worked on a variety of work for all clients but it could be ascertained by bar codes which worked mainly on Vion work in the 90 days before the change. Did employees transfer?

23. Answer question ten • 10. No. The EAT held that it is necessary both to consider whether there is “an organised grouping of employees” and whether they are “assigned to a particular amount of work or clients.” • Here the employees were organised in relation to their shifts ie time of day worked, location ie warehouse • They were not organised in relation to a particular customer • It was chance which customer’s work they might do and in some cases mainly did work – in reality rather than choice – for one client • The employees worked for all clients not one in particular • Once the work went and the employees did not transfer, they remained with ES who would be responsible for redundancy payments.

24. Question eleven • 11. In Abellio London v CentreWest London Buses the claimants were bus drivers who worked in the company’s Westbourne Park depot. The bus route was transferred to another bus company which did not have a depot in Westbourne (near the employees’ homes). • All the employees objected to transferring to the new depot in Battersea as it involved extra daily travelling. • They resigned. • Note they did not resign merely because of the new employer but because of a detrimental change to their working conditions. • The work was still there, the bus routes were the same, the new employer wanted to take them on. • Did they succeed in their claim?

25. Answer question eleven • 11. The tribunal and the EAT held that the changes were substantial involving a material detriment to their terms and conditions. • The move was also a repudiatory breach of contract which was a constructive dismissal. • The dismissals were automatically unfair being by reason of the transfer. • Substantial changes to working conditions is wider than contractual conditions. • It is not necessary for changes under this part of the legislation (since 2006) to be a breach of contract.

26. Question twelve • 12. In USA v Nolan the USA was closing its army bases in the UK. Consultation on the closure began almost three months after the decision to close was made. • Miss Nolan made a claim that consultation was inadequate and should have started much earlier. • The case was referred to the European Court of Justice to decide just when consultation on redundancies should begin.

27. Answer question twelve • 12. The Advocate General held that the duty arises when “a strategic or commercial decision which compels the employer to contemplate or to plan for collective redundancies is made by a body or entity which controls the employer.” • It must begin soon enough to have the possibility of being effective. • Unfortunately this is not much help in pin pointing the moment when it should begin. • This may be helped by the Government’s proposal to have a code of practice on redundancy consultation.

28. Question thirteen • 13. In Wilcox v Birmingham CAB Services Ltd W suffered from agoraphobia and travel anxiety. • She was employed at a Citizen Advice Bureau and was required to travel and work in any one of five CABs in Birmingham. • She asked to work some of the time from home but was refused. • She was encouraged to seek medical advice for her anxiety but did not. Her employer did not know about her agoraphobia. • She went off with stress. A number of meetings took place but she did not mention her travel anxiety, did not consult her GP about it and was obstructive in the face of her employer’s attempts to obtain a medical report. • She claimed disability discrimination.

29. Answer question thirteen • 13. The EAT considered the test when the employer alleged ignorance of disability. • It held that no duty to make reasonable adjustments arises unless the employer knows (actually or constructively) both that the employee is disabled and that the employer’s practices put the disabled person at a disadvantage. • Unless the employer knows about disability it cannot know about the disadvantage. • In the present case the employer could not have known about the disability merely from a request to work from home. • Note the employer needs to know about the disability and the impact of the disability. An employer might know that the employee had a bad back or suffered from depression but might be unaware of how the employee was affected by this. However there is also the question of whether the employer knows or should have known and so there is an obligation to try and find out.

30. Question fourteen • 14. In Woodcock v Cumbria Primary Care Trust the Court of Appeal had to decide whether cost saving could be a legitimate defence in an age discrimination case • Mr W was made redundant (genuinely). Various things led to a delay in him being given notice but he was eventually given 12 months notice of redundancy prior to his 49th birthday. • He argued that this was so his notice would expire and he would leave prior to his 50th birthday. • Had he left after his 50th birthday he would have been entitled to an immediate pension and the trust would have had to find the finance to pay for this. • Had the proper procedures been carried out he would have been dismissed long before his 50th birthday. • He claimed age discrimination

31. Answer question fourteen • 14. A tribunal held that this was age discrimination but justified. The treatment was a proportionate means of achieving the trust’s legitimate aim of achieving a cost effective dismissal. • The EAT agreed making comments on “costs plus” ie an employer cannot rely on costs alone but could rely on cost with something more. • The Court of Appeal accepted that it would be rare for cost alone to justify discrimination. However cost can be part of a legitimate aim. • Here the aim was not simply to save cost. Dismissing a redundant employee was a legitimate aim and part of that aim was to save the additional element of cost that comes with an early pension. • Note HM Land Registry v Benson – VR exercise – rejected applicants who would cost more – usually older – EAT held justified due to huge extra cost ie £19.7 m more.

32. Question fifteen • 15. In Seldon v Clarkson Wright and Jakes Mr Seldon who was a partner in a law firm, was retired at 65 against his will. • He claimed age discrimination. • The employer accepted that this was age discrimination but argued that it was justified in order for succession planning and that as a senior partner he was blocking progression of other staff. • In addition the employer argued that dismissal of older staff saved the embarrassment for all parties of managing poor performance. • The case went to the Supreme Court. What did it decide?

33. Answer question fifteen • 15. The Supreme Court held that in order to justify direct age discrimination it is not enough for the employer to show a business need, there has to be some overriding social policy. • Note age discrimination is the only area where there can be justification. The case is a reminder that justification for direct discrimination involves more than for indirect discrimination ie there must be a social policy as well as business need. • Here the social policy was the impact on other staff ie succession and blocking promotion opportunities. • Whilst accepting that there might be justification for forced retirement, the case was referred back on the basis of what age that might be ie 65, 66, 70 or other. • Firms will have to provide statistical arguments that retiring staff at a certain age, really does provide these opportunities for other staff. • See Fuchs v Land Hessen where the ECJ accepted the argument that state prosecutors could be retired at 65 to encourage the promotion of a younger workforce. A similar argument succeeded in Hornfeldt v Posten Meddelande AB

34. Question sixteen • 16.In McGraw v London Ambulance Service NHS Trust Mr McGraw was employed as a paramedic. • He declared in 2005 that he had been abusing Entonox which is used as an anaesthetic and is carried in ambulances and kept in secure locations at NHS sites. • Whilst on sick leave (continued abuse and erratic behaviour resulting in depression and anxiety) he visited an ambulance station at 2.00 am and was challenged by another employee. • He was reported to be heavily intoxicated and visibly disorientated, unsteady on his feet with slurred speech. • Other employees seeing him carrying a canister of Entonox. • He was dismissed for gross misconduct. • He claimed unfair dismissal and discrimination arising from a disability. He argued that due to his depression he had stolen Entonox and this was due to his medication. Did his argument succeed?

35. Answer question sixteen • 16.The tribunal asked whether his attempt to steal Entonox arose from his depression ie was a result, outcome or effect of his depression. • It could find no link between the depression and attempted theft or between the medication he was taking and his actions. • Medication was likely to make him sleepy and not prone to committing theft. • If it was wrong it would still have found dismissal was an appropriate means of achieving a legitimate aim.

36. Question seventeen • 17. In Leach v Ofcom L was employed by Ofcom. • Before starting the job he travelled to Cambodia and was arrested on suspicion of having sexually abused children on a previous visit but was not charged. • The UK Serious and Organised Crime Authority became aware of the allegations as did the British press. • The Metropolitan Police Child Abuse Investigation Command contacted Ofcom and gave information under a limited disclosure procedure which identified a number of complaints and stated this was the tip of the iceberg. • A disciplinary hearing was conducted and L denied all allegations. • Ofcom’s press adviser gave the view that there was significant reputational damage to Ofcom if the allegations were true and covered in the press. • He was dismissed for breach of trust and confidence. Was this fair?

37. Answer question seventeen • 17. A tribunal accepted dismissal was fair for an SOSR reason ie breakdown of trust and confidence. • Ofcom had not simply accepted the word of the various authorities, it had attempted to find out what happened and hold investigatory and disciplinary proceedings – at least as much as was possible given the circumstances. • EAT held that Ofcom was entitled to protect its reputation in the event that the allegations were true. • The Court of Appeal considered that the only relevant question was whether the reason for dismissal could be SOSR. • It worried about the growing trend to use “trust and confidence” as an automatic solvent of obligations which it is not. • It was important to identify why the disclosure of this information made it impossible to keep employing L. • It accepted reputational damage. • An employer who receives information from a legitimate authority as here must in principle and subject to safeguards be entitled to treat the information as reliable. • An employer would have neither the expertise or resources to independently verify the allegations. • Aware of potential injustice but did the employer act reasonably – yes.

38. Question eighteen • 18. In Taurus Group Ltd v Crofts Mr Croft was employed as a security guard by Reliance at the Glasshouse. • The Glasshouse was managed by Ely Properties which went into administration and the management of the site passed to CRM. • They continued to pay Reliance for security until Reliance lost the contract to Taurus. • Reliance thought this was a TUPE transfer and that Mr Croft would then be employed by Taurus. • This was the same work done by a different contractor and now for a different client. • Was this a TUPE transfer?

39. Answer question eighteen • 18. The tribunal held that this was a service provision change and Mr Croft did transfer to Taurus. • The EAT disagreed holding that the wording of the 2006 regulations on service provision change requires the services carried out before and after the change to be on the behalf of the same client. • The case is on appeal as it clearly has major ramifications.

40. Question nineteen • 19. In Pulse Healthcare v Carewatch Care carers were employed by a contractor on a zero hours contract. • The contract passed to a new contractor and the carers argued they should transfer. • The court had to consider whether they were employees as only employees could transfer. • The contractor argued that this was an ad hoc arrangement and that these individuals were not employees.

41. Answer question nineteen • 19. The tribunal found that the contract given to the carers did not reflect the true situation. • They performed services, they were obliged to carry out the work offered and had to do it personally. • These were not individual discrete contracts but were an umbrella contract. • This was a critical care package of a most challenging kind which could not depend on an ad hoc arrangement. • Global contracts with full continuity of employment and therefore employees were capable of transferring.

42. Question twenty • 20. In Dominguez v Centre informatique due Centre Ouest Altantique, Prefect of Centre Region the ECJ had to consider whether carry over of holidays due to sickness apply to the 20 days in the directive or any longer period applied in Member states. What did they decide? • In Niedel v Stadt Frankfurt am Main the ECJ had to consider what rights sick workers had to carry over leave above the 20 days provided in the directive. The case also asked whether the right to any carry over leave expired after a set period of time. • What did the court decide in these cases?

43. Answer question twenty • 20. In both cases the court decided that it is for each Member state to decide what amount of holidays can be carried over provided this is no less than the 20 days laid down in the directive. • Where a member state provides more leave (as in the UK) it is for the UK to decide whether carry over (for lost holidays due to sickness) can apply to a longer period of leave. • It is possible to provide that any carried over leave can be taken within a set period provided the set period is no less than the original reference period for leave (in the UK this is 12 months).

44. For regular employment law bulletins contact Toni McAlindin at info@tonimcalindin.co.uk