EMPLOYMENT LAW TRAINING AND EMPLOYMENT LAW CONSULTANCY

Section Three
 

Case Law Update - Significant decisions from the Courts

This section includes important cases on:

Redundancy consultation and volunteers

Dismissal for stress related absence

Disability, sick pay and “reasonable adjustments”

Agency workers and SSP

Long hours and driving

Extended probationary periods

Return from Maternity Leave

Age Discrimination

Appearance/sex discrimination

Statutory Dismissal Procedures

National Minimum Wage prosecution

 

Collective Redundancy and Consultation Process

A recent case has confirmed that voluntary redundancies should be included when calculating whether the Employer has to start collective consultation with a union or other representatives in a redundancy situation.

The Employment Appeal Tribunal concluded that when an employer was proposing to dismiss 20 or more employees in total, the statutory consultation obligations were triggered and it did not matter how the redundancies were classified. The collective obligations are triggered when the Employer proposes to dismiss 20 or more in a 90-day period from one establishment.

The consequences of the finding were very serious for the employer. An employer’s failure to comply with its statutory consultation obligations can lead to a protective award being payable to employees affected by the employer’s failure to consult their representatives. This can amount to 90 days’ pay per employee in serious cases.

Remember to include any voluntary redundancies in your calculations.

(Case: Optare Group Limited v Transport and General Workers Union, EAT)

Dismissal for Absence caused by bullying

There have been a number of cases in recent years where the courts have had to decide whether a dismissal for absence can be fair when the Employer has caused the absence in the first place.

The Court of Appeal has again had to consider the fairness of a dismissal where the employee was on long-term stress-related sick absence, caused by bullying and mismanagement at work.

The Court of Appeal has confirmed that such dismissals can be fair stating:-

Note also that someone on long-term absence may well be covered by the Disability Discrimination Act - which requires the employer to make reasonable adjustments anyway.

(Case: McAdie v Royal Bank of Scotland. Court of Appeal)

Disability Discrimination - Reasonable adjustments

A sigh of relief for Employers over this one! Briefly - A woman suffering from clinical depression had exhausted her sick pay entitlement, a pretty generous scheme anyway at 6 months full pay and 6 months half pay. She argued that as she had a disability it was a reasonable adjustment to maintain her full sick pay and not reduce or stop it.

Thankfully the Court of Appeal has seen sense and recognised the potentially massive impact on Employers. The claim was thrown out and the Court stated clearly that Employers are not obliged to extend sick pay as part of a duty to make reasonable adjustments.

(Case: O’Hanlon v HMRC Court of Appeal)

Agency Workers and SSP

The Court of Appeal has ruled that Agency workers who are on a short-term contract of less than 3 months are not entitled to Statutory Sick Pay (SSP). Until 2002 any employee on a contract for less than 3 months was excluded from SSP benefit. However the Fixed Term Employees Regs of that year removed that qualifying period of 3 months - but this case has decreed that Agency workers are not covered by the Fixed Term Employee rules (in fact they are not employees).

(Case: Revenue and Customs v Thorn Baker Ltd. CA)

Long hours and driving

There has been another case where an employer has been sued following a road traffic accident involving an employee driving home.

Mr Eyres worked for Atkinsons Kitchens and Bedrooms. Late one evening, after working a 19-hour day and driving hundreds of miles he crashed his van. He was not wearing a seatbelt and suffered a serious spinal injury in the accident, which left him tetraplegic. Just before the accident, Mr Eyres had been texting on his mobile phone while driving at high speed. The accident occurred when he had to brake suddenly and lost control of the van. He complained that the company was liable because it had caused or allowed him to drive when he was too tired. The court concluded that the accident was probably caused by Mr Eyres falling asleep, rather than using his mobile phone. Atkinsons encouraged a long-hours culture and had been negligent by requiring him to drive in such circumstances and doing nothing to guard against the risk of injury.

Employers must ensure they comply with their duty of care to employees, including meeting the requirements of the Working Time Regulations. Risks taken by an employee may reduce the compensation (contributory), but employers can still be liable if their overall framework, monitoring and managing of safety is inadequate. Exemptions or opt-outs from the Working Time legislation are just that, they are not exemptions from the wider health and safety or negligence issues. Ensure that your risk assessments include those driving on company business, particularly where they may be driving after a long working day. You may recall from an earlier Newsletter that in June 2006, The Produce Connection of Cambridgeshire, a potato farming company, was fined £30,000 with £24,000 costs at Cambridge Crown Court after one of its workers crashed his van into a lorry and died whilst driving home. He had just completed his third consecutive working shift of nearly 20 hours and was thought to have fallen asleep at the wheel from fatigue.

Actions for employers:

Make sure that your health and safety policies properly address risks to your workers and that they:

(Case: Eyres v. Atkinsons Kitchen and Bedrooms Ltd. High Court)

Extended Probationary Periods

An Employer used a probationary period of 3 months for new staff. Notice during the probation was only one week, but went up to 3 months notice after completion of the probation. The contract did provide for an extension of the probation period and also made it clear that probation had to be satisfactorily completed before the post was confirmed.

The Employees probationary period ended on 2 January, which coincided with a Bank Holiday, so the employee was not at work. A couple of weeks later the Employer decided that due to poor performance the contract would be terminated. Only a week’s notice was paid. The Employer argued that the woman knew that there were concerns about her performance, and also stated that it had not been possible to have a review on 2 January due to the Christmas and New Year holiday break. In effect the Employer argued that it had an implied right to extend the probationary period in these circumstances.

The EAT disagreed and said that there had been ample time to extend the probationary period, as allowed for in the contract. On 2 January there had been no extension, so the 3 months period came to an end. After that date the employee became entitled to 3 months notice.

Make sure Probationary periods are closely monitored and if there are concerns about performance, attendance or anything else, either extend the probationary period or consider terminating employment well before the probation period expires.

(Case: Przybylska v Modus Telecom EAT)

Return from Maternity Leave

It is well established that a woman returning from Maternity Leave has the right to go back to the same job. Perhaps surprisingly there has been very little case law on what exactly “same job” means - although it sounds pretty clear!

A schoolteacher raised a number of (mainly unsuccessful) tribunal claims against her school over her maternity rights. Of particular interest was the claim that she wished to return to the “reception” class she was teaching prior to going on maternity leave. The school had a policy of rotating teachers anyway, and the head felt it was too disruptive so offered a different class on her return, and she objected to this.

Summarising the outcome considerably, the EAT concluded that she was employed as a teacher, not just a reception class teacher. It also decided that the “place of work” was the School and not a particular classroom. As such the job was the same and her claim on this point failed.

Remember that a woman’s rights to return to the same job are stronger if she has only taken Ordinary maternity Leave. If the woman takes Additional Maternity Leave the Employer can offer a suitable alternative where it is not practicable to offer the old job back.

(Case: Blundell v St Andrews Catholic Primary School EAT)

Age Discrimination

There have not been too many of these (yet!). A cleaner was dismissed by her employer - a dental surgery, 2 days after she was 70. Using an interesting form of communication, the Practice Manager left the cleaner a note in the cleaners cupboard saying that due to her age and health problems her employment was being terminated! Happy Birthday then?

Not surprisingly the Tribunal awarded compensation for Age Discrimination.

Employers can fairly dismiss employees at aged 65 and over - but only if they follow the statutory retirement procedure, requiring, among other things, at least 6 months notice of a planned retirement.

Appearance/sex discrimination

A recent tribunal decision has been interpreted by some as new rights for employees with ginger hair! This is not so, but the woman in question did win compensation for sex discrimination. She was subjected to constant jibes and abuse from management; many of these involved her red hair colour. No new grounds for claiming have been created, despite much media comment. The tribunal felt that the woman’s sex was the main reason for the harassment.

Statutory Dismissal Procedures

The EAT has decided two points on the statutory dismissal procedure - one of a number of cases involving these procedures.

First, it held that the statutory dismissal process does not require notification of the right to appeal to be given in writing by the Employer. Verbal communication is sufficient. An earlier case had already decided that the employee does not have to put their appeal request in writing either, so Employers should respond to a verbal indication of intent to appeal by the Employee.

Second, the EAT overturned an uplift of 40% which the tribunal had assessed because (a) it was a large employer; (b) there had been a general lack of consultation; and, (c) the Claimant had been treated in a 'shoddy' manner. The EAT stated that these were all irrelevant factors. In calculating the uplift, tribunals should only have regard to the Employers failure to follow the statutory procedure. This second point is likely to prove controversial, as there is nothing in the wording of the statute prohibiting tribunals from having regard to the surrounding circumstances.

(Case: Aptuit Ltd v Kennedy EAT)

First criminal prosecution for Minimum Wage breach

An employer has been fined £2,500 and £500 costs in the first National Minimum Wage (NMW) criminal prosecution case.

Children's nursery owner Teresa Aguda pleaded guilty to the charge of obstruction - an offence under the National Minimum Wage Act. Mrs Aguda had prevented HM Revenue & Customs (HMRC) compliance officers from accessing staff records when they were trying to establish whether nursery workers received the NMW.

The judge in the case commented that Mrs Aguda had "demonstrated a clear and deliberate intent to obstruct officers and this was a scandalous breach of the National Minimum Wage legislation".

The six potential criminal offences under the NMW Act are: