EMPLOYMENT LAW TRAINING AND EMPLOYMENT LAW CONSULTANCY

Section Three
 

Case Law Update - Significant decisions from the Courts

This section includes important cases on:

Holiday Pay and long term sickness absence

Length of service criterion in redundancy selection

Legal representation at Internal discipline hearing

Time off for a "domestic emergency"

Dismissal not effective until read by the Employee

"Heat of the moment" resignation.

Holiday Pay on termination

Homophobic harassment of straight employee

Harassment on grounds of Race.

Religious discrimination - Registrar loses on appeal

Fixed-term workers

Age discrimination and "Partners"

Entitlement to rest breaks

Holiday Pay and long-term sickness absence.

This case has been around for a while now and we have been expecting the decision of the European Court. In a decision sure to disappoint Employers, the ECJ decided that an employee continues to accrue statutory holiday when they are on long-term sick leave and can roll over that leave to the next year. The ECJ did not rule on whether an employee can take holiday while they are off sick, saying that was a matter for national courts, so the House of Lords will need to decide on that. What is surprising is that the ECJ state that untaken holiday entitlement during a leave year when an employee has been off sick can be carried forward to a subsequent leave year - at present the UK's Working Time Regulations bar untaken statutory leave from being taken over to the next leave year.
The case will now return to the House of Lords. They will decide whether paid holiday can be taken while off sick. Employers will now face the prospect of accruing additional costs whilst the employee remains on long term sick, and it may prompt businesses to review their policies on long-term absence with a view to earlier termination perhaps.

Note: though that this ruling only applies to the Working Time element of holiday, currently 4 weeks. Any additional (statutory or contractual) holidays can be dealt with differently by the Employer.

Another unknown factor in all this is the impact on holiday entitlement of long-term sickness, which is less than 12 months duration. If an employee is off sick for nearly 11 months, are they entitled to a month off as soon as deemed "fit for work"? It is hoped the House of Lords will shed some light on this.

Until the Lords give their decision, perhaps the safest option is for Employers to put through some notional holiday leave before the expiry of the leave year if an employer has been away throughout.

(Case; Stringer and others v HM Revenue & Customs. ECJ)

Length of service criterion in redundancy selection scheme lawful

In an unusual case, the union wanted to include service as a selection factor, but the Employer (perhaps concerned about Age Dicrimination) was reluctant to.
The High Court ruled that a redundancy selection policy that took into account length of service was indirectly age discriminatory against younger workers but could be objectively justified on the basis that it pursued the legitimate aim of achieving a fair and peaceful selection procedure. In any event, giving credit for length of service in a redundancy selection policy could be considered a 'benefit' under the Age Regulations and, as such, potentially fell within the service-related benefits exemption from the general prohibition on age discrimination.

(Case; Rolls Royce plc v Unite the Union, High Court (QBD))

Legal representation at Internal hearing

The High Court has recently held that in certain circumstances, an employee has the right to be represented by a lawyer - and not just a workplace colleague or union official - at internal disciplinary hearings.

In this case the Claimant was employed as a music assistant at X School. The School commenced disciplinary procedures against him for breach of trust as a result of him having kissed a 15year old boy. The Claimant was dismissed.

The School had a duty to report the Claimant to the Secretary of State for Children, Schools and Families to determine whether he should be entered on the register or those who are unsuitable to work with children.

The Claimant sought to be represented by his legal representative at the internal disciplinary hearings. The School refused.

The Claimant alleged that the refusal to permit legal representation at the internal hearings constituted a breach of his Human Rights - the right to a fair trial.

The Court held that:

Note: this is a rare situation. Most forms of discipline do not attract the right to bring a representative from outside the organisation, other than a Union officer. This is the position in the new ACAS Code. However if a dismissal would result in some other sanctions coming in, such as being placed on a register of offenders, legal representation would appear to be appropriate.

(Case; R v Governors of XX School. High Court 2009)

Time off for a "domestic emergency".

In this important decision, the EAT has taken a new approach to what many Employers have called "emergency leave" in the past. The EAT has held, in RBS v Harrison, that entitlement to parental leave under the Employment Rights Act 1996 because of the unexpected disruption or termination of care arrangements for dependents, is not limited to last minute unavailability or emergencies.

On 8 December 2006, Mrs Harrison was informed by her regular childminder that she would not be able to look after the children on 22 December. Over the following few days, Mrs Harrison tried to find a replacement carer by contacting her family and other childminders whose services she had used from time to time.  Her husband could not leave the shop because his sole employee was going to be away.

By the following week, Mrs Harrison had used all her contacts but had failed to find a substitute for her regular childminder.  She therefore told her Team Leader, when she went to work on the 13th, about the problem and asked to have Friday, 22 December off.  At that point no suggestion was made to her that she would not be able to have that time off.  She thought that the only outstanding issue was whether it would be time off with or without pay.

However, after a few days, she was told that RBS could not cover her on the 22nd due to staffing levels, and that she could not take that day off. She was also advised that, if she did so, it would be treated as an unauthorised absence.  Mrs Harrison, having no alternative, stayed at home on 22 December to look after her children and was, on 2 February 2007, given a verbal warning, to last for 6 months, for having done so.  Her appeal against that warning failed.

Two months later, in April, Mrs. Harrison applied to Tribunal for a declaration that she had been unfairly treated.

The issue that arose for consideration by the EAT was the meaning of "necessary" and "unexpected". RBS sought to argue that as Mrs Harrison had been notified of the unavailability of her childminder two weeks prior, the termination could not be said to be unexpected. The EAT disagreed stating that the passage of time between the employee's discovery of the forthcoming disruption of care arrangements and that disruption taking effect was to be considered as part of the question whether it was "necessary" for an employee to take the time off.

Key quote;

(Case; RBS v Harrison EAT)

Dismissal not Effective Until Read by the Employee

The EAT has held that where an employee was summarily dismissed by letter sent to her home, her dismissal did not take effect until she actually read the letter.

The employee brought complaints of unfair dismissal and sex discrimination against her employer and an issue arose as to whether her claim had been brought in time.  This in turn depended on what was the effective date of the termination of her employment. 

The employee had attended a disciplinary hearing on 28 November 2006 and was anxious to know the result.  She was told that a letter would be sent to her the following day and that she should expect to receive it the day after, on 30 November.  A letter notifying her of her summary dismissal was sent by recorded delivery to her home address on 29 November and arrived the following day as expected.  The employee was not there as she had left that morning to visit her sister in London. The letter was signed for by her boyfriend's son.

Whilst away, the employee did not enquire as to whether a letter had arrived.  She returned home on the Sunday and it was not until the following morning on 4 December that she asked whether any post had arrived for her and she read the letter.

The employee's claim was filed with the Tribunal on 2 March 2007.  This meant that if the effective date of termination was before 3 December the claim was out of time.  The EAT agreed with the Employment Tribunal that the effective date of termination was 4 December, the day she read the letter and so the claim was in time.  This was not a case where the employee had deliberately not opened the letter or had gone away to avoid receipt (which previous case law had indicated might be an exception to the rule that a letter of dismissal is not effective until read by the employee).  There was no wider rule that an employee must be treated as having been dismissed if he has had a reasonable opportunity of reading the dismissal letter.  Therefore the EAT rejected the employer's arguments that the employee ought to have telephoned home to have the letter read to her.

This case follows previous case law on this issue but is a useful reminder of the law in this area.  The EAT did, however, point out that it is possible for an employer to avoid issues of uncertainty over the effective date of termination by specifying in the employment contract that that employment may be terminated by letter posted to the employee's home address and specifying when the letter is deemed to have been received.   The effective date of termination would then be the date of deemed receipt. 
(Case; L. Barratt v Gisda Cyf EAT 2008)

"Heat of the moment" resignation.

Resignations must be withdrawn quickly if they are not to be implied as accepted. It is good practice to offer a "cooling off period" if an employee resigns in the heat of a discussion.Ali handed in his resignation in the heat of the moment. He was given a 30 -minute cooling off period, after which he confirmed his wish to resign. Four days later he tried to withdraw his resignation but his employer refused. The issue was whether he had withdrawn the resignation before the employer could reasonably have accepted it. The EAT upheld the tribunal's decision that itwas a resignation, and Ali' s unfair dismissal claim failed. Even if there were special circumstances, a delay of four days was too long for the matter to be called in the heat of the moment.

(Case; AIi v Birmingham City Council EAT 2009)

Holiday Pay on termination

Some Employers have an option in their employment contracts that when an employee resigns, or is dismissed, they can be required to take holiday for some (or all!) of the notice period.

In this recent case, the employer gave Mr Briffa one week's notice of termination of his employment. It required him to take 4 days holiday in his last week to use up his outstanding entitlement. He objected and went to Tribunal arguing that this breached his rights under the Working Time regulations. The EAT ruled that it did not breach his rights. The original tribunal had totally overlooked that the basic requirement in the WT Regs to give notice of holidays can be varied or excluded by a "relevant agreement". In this case there was a contractual term that covered the position and was legally enforceable between the parties. This was a "relevant agreement" and therefore overrode the statutory notice on holiday rights.

(Case: Industry and Commerce Maintenance v Briffa EAT 2009)

Homophobic harassment of straight employee

Stephen English is a heterosexual man. He complained that he was subjected to homophobic banter at work (including being called names such as 'faggot') simply because he had attended a boarding school and lived in Brighton. 

Under the Sexual Orientation Regulations, harassment is defined as 'unwanted conduct by person A on grounds of sexual orientation which has the purpose or effect of violating person B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B'.

Mr English argued that he had been harassed on grounds of his sexual orientation. His claim was rejected because: 

The EAT reluctantly concluded in 2008 that Mr English had not been harassed within the meaning of the Sexual Orientation Regulations i.e. 'on the grounds' of sexual orientation, since the banter was not based on a perception or even incorrect assumption that he was homosexual.

The case has now been heard by the Court of Appeal. In a commonsense ruling the Court has reversed the original decision, finding that homophobic banter directed at an employee can be harassment, even where the victim is not gay, his tormentors do not perceive him to be gay and he knew that his tormentors did not perceive him to be gay.

In reaching their conclusion the Court considered that the fact that Mr English was repeatedly taunted as if he were gay was enough to bring the case within the Regulations. It said that even though Mr English is not gay, the fact that his tormentors knew he is not gay, meant that his treatment was to do with his sexual orientation. Similar definitions of harassment are contained in race, religion or belief and age legislation.

Actions for employers

(Case; English v Thomas Sanderson Ltd. Court of Appeal 2009)

Harassment on grounds of Race.

A director had said to a senior employee who was leaving the company, "We will probably bump into each other in future, unless you are married off in India". She claimed that amounted to an act of harassment on grounds of her race.

Upholding the tribunal's finding that it did amount to harassment, the EAT reminds practitioners that the 'old' case law on harassment, created before the statutory definition, should be largely disregarded - as should case law under the Protection from Harassment Act 1997.

(Case; Richmond Pharmacology v Dhaliwal)

Religious discrimination - Registrar loses on appeal

The EAT have recently overturned a decision of an Employment Tribunal - finding that the employment tribunal committed fundamental errors of law when it found that a Christian registrar suffered religious discrimination when she was threatened with dismissal for refusing to carry out civil partnership services which give rights to same-sex couples akin to marriage. The Council had committed itself to the non-discriminatory provision of its services, and it could not therefore constitute direct discrimination contrary to the Religion or Belief Regulations when it sought to discipline the claimant for refusing to abide by this policy - even though her reason for refusing was her religious belief. Nor had it harassed the claimant on account of her religious belief. Furthermore, the tribunal's finding of indirect discrimination could not stand as the Council had been fully entitled to insist that she carry out the functions of her job in a non-discriminatory way.

In another similar case, a counsellor for Relate lost his claim for religious discrimination after being dismissed for refusing, on religious grounds, to counsel same sex couples.

(Case; London Borough of Islington v Ladele, EAT 2009)

Fixed-term workers

Potentially a very significant Irish case appealed to the European Court of Justice. Various issues were decided, the most important of which was that the principle of non-discrimination against fixed-term workers extends to occupational pension entitlements. Moreover, these entitlements were found to have direct effect as far as public authorities are concerned. This would mean that existing or recently employed fixed-term employees who were denied membership of an occupational scheme or only offered membership on an inferior basis to permanent employees since 2002 could now bring cases to tribunal seeking compensation
(Case; Impact v Minister for Agriculture and Food (Ireland) (2008) [IRLR 552])

Age discrimination and "Partners"

The EAT overturns a tribunal's decision that the age discrimination inherent in obliging partners in a law firm to retire at 65 was objectively justified. Although the firm's aim of maintaining a congenial culture by limiting the need to expel partners through performance management was potentially legitimate, it did not justify a retirement age of 65 in the absence of evidence that performance tended to decline at that age.
Note too that the usual defence of reaching the Statutory Retirement Age does not apply to an Equity Partner in a law firm - they are not "employees", so retirement at 65 must be objectively justified.

(Case;Seldon v Clarkson Wright and Jakes, EAT 2009)

Entitlement to rest breaks

The EAT holds that the Working Time Regulations 1998 entitle a worker to one rest break during the course of the working day where the daily working time exceeds six hours, and not one break for each and every six hours worked. While certain workers, such as those involved in security or surveillance, are excluded from the general right to a rest break, if it is possible to grant the worker an equivalent period of compensatory rest then that period must be given. If this is not possible for objective reasons, the employer must afford the worker such protection as may be appropriate to safeguard his or her health and safety. The EAT also holds that compensatory rest must be taken during working time.

Thus, Mr. Hughes, who worked 12 hour shifts was only entitled to one 20 minute break in that shift.

(Case; Corps of Commissionaires Management Ltd v Hughes. EAT 2009)