EMPLOYMENT LAW TRAINING AND EMPLOYMENT LAW CONSULTANCY

Section Three
 

Case Law Update - Significant decisions from the Courts

This section includes important cases on:

Case Summaries
please click on the links to go to the case detail

Holiday Pay and long-term sickness absence.

More on Holidays!

And yet... more on Holidays!

Sickness absence during annual leave.

Holiday pay on termination of employment

Disciplinary investigations

Length of service criterion in redundancy selection scheme lawful

Legal representation at Internal disciplinary hearings

Compromise agreement "irrationally generous"

Discrimination - victimisation claim over non-payment of tribunal award

Discrimination on grounds of "philosophical belief"

Data Protection court ruling

Disability Discrimination - normal activity

Council sues ex Chief Executive for damages

Sleeping on the job allowance counts towards NMW

Dress code and appearance

Actions for employers

No discrimination without a "detriment".

Agency Staff cannot replace Strikers

Industrial Action Dismissals

Gate Gourmet strikers fairly dismissed

Customer presses for dismissal

Actions for employers

Gross Misconduct - Employers should not wait to act

Transfer of Undertakings;... Tupe or not tupe??

HR Whistleblower gets huge payment.

Volunteers without contracts not covered by DDA

 

Case Summaries

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. 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 has now been heard by the House of Lords. They decided that there is nothing to prevent holiday being 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. What is clear is that on termination of employment, the employee will be entitled to a payment of accrued and untaken holiday pay. Furthermore the Lords decided that claims could be brought under the Wages Act (now Employment Rights Act), which opens up the possibility of holiday pay claims going back several years if the absence has persisted long enough.

Note that this ruling only applies to the statutory element of holiday, 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"?

Sadly this decision has left more questions than answers!
(Case; Stringer and others v HM Revenue & Customs. ECJ)

More on Holidays!

Recent case law, particularly from the European Court, has appeared to give workers rights to carry holiday forward into the next holiday year in certain situations; particularly when illness prevents the worker from taking the holiday. A recent decision in the EAT has restored some balance it seems! A security worker lost his claim for holiday pay and the EAT held " that workers can lose untaken holiday at the end of a leave year, provided that an employer has not operated the notice requirements for requesting annual leave in an unreasonable, arbitrary or capricious way so as to effectively deny requests for leave." Mr. Lyons had a contract that stipulated that the holiday year ended 31 March and no carry over was allowed, so untaken holiday was lost. On 6 March he had 9 days holiday outstanding; and wanted to take them, but failed to use the correct procedures and forms for requesting the leave. The Employer did not pay him for the holiday which led to a grievance complaint before he resigned claiming constructive dismissal. His claim failed, which indicates that holiday rights can be lost at the end of the holiday year provided the employee has had a reasonable opportunity to exercise their rights to take leave.

[Case; Lyons v Mitie Security Ltd. EAT, 18.01.10]

And yet... more on Holidays!

In Shah v First West Yorkshire Ltd an employment tribunal has held that the Working Time Regulations 1998 can be interpreted in accordance with the European Court of Justice's decision in Pereda v Madrid Movilidad SA (see above for case report) to allow annual leave ruined by sickness to be retaken in the following leave year. Thus, the employer's refusal to allow Shah to retake his holiday ruined by a broken ankle in a new leave year was a breach of the Regulations.

Shah booked four weeks of holiday from 22 February to 21 March 2009. Unfortunately, as a result of breaking his ankle in January, he was on sick leave until 18 April, during which he was paid holiday pay (a higher rate than contractual sick pay) for the days he had booked off. When Shah asked to reclaim his holiday entitlement, his Employer stated that the days were 'lost' as he returned to work after the new holiday year started on 31 March. Shah lodged a claim at a tribunal that under the Regulations he was entitled to take his accrued untaken leave; he had been "paid" for them according to the Employer.

The tribunal found that the requirement that holiday entitlement under the Regulations must be exercised in the year of accrual, should be interpreted consistently with the Directive so far as possible. As a result of the ECJ's decision in Pereda, the Directive requires national law to permit an employee who falls sick during annual leave to take that annual leave at a different time, if necessary in the following leave year.

The Regulations aim to protect workers' health and safety by ensuring they have a period of leisure each year, rather than storing up holiday over several years. It is consistent with this purpose to allow workers who did not have a period of leisure due to ill health to take that leave in the following year if necessary.

[Case; Shah v First West Yorkshire. Leeds ET Feb 2010]

Sickness absence during annual leave.

In another case likely to anger Employers, the ECJ has handed down its decision in the "Pereda" case - which suggests that a period of illness whilst on holiday does not count towards the minimum period of 4 weeks paid annual leave under the Working Time Directive (WTD).

Mr. Pereda, a specialist driver, suffered an accident at work around 14 days before the commencement of his allocated period of 4 weeks annual leave. The injury put him out of action for 6 weeks. His sick leave therefore almost entirely overlapped with his planned holiday but his request for an additional period of annual leave was refused. Under the ECJ's ruling his period of sick leave should not have counted towards his holiday time.

The ruling emphasises that there can be no exceptions from the entitlement to paid annual leave, the purpose of which is to enable a worker to rest and enjoy a period of relaxation and leisure. By contrast the purpose of entitlement to sick leave is to ensure that he can recover from being ill. Consequently, if a worker decides not to take annual leave during a period of illness, he must be granted a replacement holiday period to ensure that he is not deprived of his entitlement to rest, relaxation and leisure. This principle is likely to apply whether the employee falls sick before or during the actual period of leave.

Note again though that this will only apply to the holiday required under the WTD.

(Case: Francisco Vicente Pereda v Madrid Movilidad S.A. ECJ 2009)

Holiday pay on termination of employment

Recent case law, including the "Stringer" case about holiday pay during long-term sickness absence, has confirmed that claims can be made for untaken holiday using the Employment Rights legislation, better known as the Wages Act 1986 concerning deductions from wages. The Working Time Regs discourage carry over from one year to the next, so on termination, only one years outstanding holiday pay could be claimed under this legislation. However the Wages Act allows for claims to be made going back over many years, providing the claim is made within 3 months of the last in a series of deductions.

A recent case highlights the significance of making a claim under the correct law. A Ms Wang worked for a Chinese Herbal Medicine shop in Shaftesbury avenue (BTRT UK Ltd.). She was recruited in China, and under a verbal contract was told she was entitled to 30 days holiday a year. In the event she only took 4 days per year when the shop closed for Bank Holidays, plus one short holiday in China.

On the (unfair) termination of her employment, she was awarded 131 days outstanding holiday pay, coming to over £25,000! The Employers appeal was unsuccessful - confirming two things in particular. Courts can, and do, make decisions on "verbal" promises; untaken holiday can be carried forward and claimed as back pay in entirety, on the termination of employment.

(Case; BTRT UK Ltd v Ms. P Wang EAT 17/07/09)

Disciplinary investigations

Admission of the offence does not remove the need to investigate

A case decided by the EAT is a timely reminder of the importance of carrying out a proper investigation in a disciplinary case. This can apply even where an employee admits guilt. However case law also tells us that where the Employee does admit the offence, the amount of investigation can be less. (In fact in another recent EAT decision, Manor Oak v Kelly, the Court overturned a tribunal finding of unfair dismissal, saying that once the Employee had admitted a mistake, no further investigation was required).

Nena Okoro was employed as an assistant catering manager, with 17 years of unblemished service. When the company was presented with an iPod Nano as a corporate gift, Ms Okoro asked her line manager, Mr Cannon, if she could take it home. He refused, but Ms Okoro took it anyway.

Mr Cannon discovered that the iPod was missing and asked about it, but Ms Okoro would only say that she knew where it was and that she knew who had taken it. Two weeks later, she admitted that she had taken the gift as a joke and returned it unopened. (So she was fired by a Mr. Cannon??)

Compass considered that her behaviour constituted gross misconduct and Ms Okoro was suspended on full pay. An investigatory meeting was arranged but later cancelled. Ms Okoro was invited to attend a disciplinary meeting, as a result of which she was summarily dismissed. She complained that her dismissal was unfair.

Agreeing with Ms Okoro, the court pointed out that although there will be some cases in which an employee admits misconduct where no further investigation would be needed, in most cases an investigation should be carried out to determine if there are any mitigating factors, and to assess the gravity of the misconduct itself.

Ms Okoro had defended her actions by explaining that she and her line manager had a working relationship which included practical jokes. Taking the iPod was one such joke, although perhaps a misjudged one. If Compass had properly carried out an investigation into the incident and the circumstances surrounding it, the nature of their working relationship would have been discovered, and Ms Okoro's behaviour would have been seen in its proper context. By failing to carry out the investigation, the employer was at fault and the dismissal was unfair.

(Case: Compass Group v Okoro EAT 2009)

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.

The case was appealed, and the Court of Appeal has made a declaration that the use of length of service as one of the selection criteria in a redundancy selection process does not contravene the age discrimination regulations. It would not be advisable to rely on length of service as a sole factor, or to place too much weight on it in redundancy selection.

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

Legal representation at Internal disciplinary hearings

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 (R) 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 forming a relationship with a 15 year 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.

R 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 pretty 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, affecting the right to work in some way - legal representation would appear to be appropriate.

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

This decision has also had an effect on a different case. Dr Kulkarni was subject to disciplinary proceedings following an allegation by a patient that he had placed a stethoscope under her underwear without her consent. He claimed that the refusal of his request to bring a lawyer to his disciplinary hearing was a breach of his right to a fair trial. The High Court initially held that he was not entitled to legal representation. The potential professional ramifications for Kulkarni if the allegations were upheld were not enough to persuade the court otherwise.

The later High Court decision in R (on the application of G) v Governors of X School (which did not mention this case) seemed difficult to reconcile with this. G was a music assistant accused of having an inappropriate relationship with a 15-year-old boy. He was found to have a right to legal representation, on account of the gravity of the likely consequences (including a potential lifetime ban on working with children) should the disciplinary charges be upheld.
The Court of Appeal has now overturned the High Court decision and has held that Kulkarni has a right to legal representation. The finding was based on a specific contractual entitlement to legal representation in a Department of Health document applicable to doctors and dentists in England. However, the Court of Appeal's comments on the human rights issue broaden the potential implications of the case well beyond this population.

This is not just a concern for public sector employers, whose employees can bring a freestanding claim for breach of their human rights. Tribunals are required to interpret unfair dismissal legislation so far as possible to comply with human rights law. When considering whether an employer has fairly dismissed an employee (whether in the public or private sector), any alleged breaches of human rights may be taken into account.
Employers in regulated sectors - for example, the finance, education and medical sectors - should still give careful consideration to requests for legal representation, where the disciplinary charges may be relied or on referred to by a professional or regulatory body. Note, however, that leave to appeal has been granted in both cases and further debate is likely.

Key points for employers

Compromise agreement "irrationally generous"

Mrs. Gibb was the Chief Executive of Maidstone NHS Trust at the time of an outbreak of a "superbug". After an investigation, a report was very critical of the leadership and management of the Trust in that difficult period. The Trust decided to terminate her employment, with a generous compromise deal attached (approx £250,000 it is alleged). All parties agreed the deal in the usual way for a compromise deal to be binding. However, before payment was made, the Healthcare Commission final report into the outbreak was published; this prompted the Dept of Health to instruct the Trust to withold the payment. Subsequently some of it has been paid, but Mrs Gibb sued in the High Court for the unpaid element.

The Judge decided that the amount had been "irrationally generous" , and refused to order further payment.

The case has been referred to the Court of Appeal.

It would now appear that Compromise deals are open to challenge, at least in the Public Sector; so the amounts paid need to be justifiable and based around some analysis of potential claims and compensation levels. If need be these can then be defended in court.

(Case; Gibb v Maidstone and Tunbridge Wells NHS Trust High Court 09)

Discrimination - victimisation claim over non-payment of tribunal award

A really surprising number of claimants never receive the compensation awarded by a tribunal; around 40% where the awards are over £5000. A recent case dealt with just that issue, and came up with an interesting solution.

An IT specialist was awarded £72,000 for race discrimination, but the employer refused to pay anything, even after the claimant obtained a County Court Judgement. In a further claim, he then alleged that the failure to pay amounted to an act of Victimisation - less favourable treatment in connection with an earlier complaint of discrimination. The Tribunal said they could not hear the claim as it was to do with "enforcement" - ie a dispute over non-payment and outside the tribunals powers.

The case went to the EAT , then Court of Appeal. They ruled that the case could be heard in tribunal, in part to establish why the Employer had not paid the compensation awarded.

As a result of this case, Employers need to be aware that a failure to pay the compensation in discrimination cases could lead to further claims, including victimisation, for which compensation is uncapped.

(Case; Rank Nemo Ltd v Coutinho Court of Appeal 09)

Discrimination on grounds of "philosophical belief"

Belief in climate change can be a 'philosophical belief' leading to a claim under discrimination laws.

Under the Employment Equality (Religion or Belief) Regulations 2003 it is now unlawful to discriminate against a person on the ground of his or her religion or belief. 'Belief', for this purpose, is not confined to a religious belief but expressly covers any 'philosophical belief. The original requirement was that the "belief" was similar to a religious belief - this is no longer the case. This has opened up the prospect of claims for a range of reasons. However, few discrimination cases have been brought under the Regulations on this basis, which makes this case of particular interest.

An employment tribunal found that the claimant's belief that carbon emissions must be cut to avoid the catastrophic consequences of climate change could amount to a philosophical belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003. The belief affected most aspects of the claimant's life - such as his choice of home and method of travel - and was sufficiently cogent, serious, cohesive and important, as well as worthy of respect in a democratic society, to qualify as a philosophical belief. The Claimant alleges that he was unfairly selected for redundancy due to his "environmental" beliefs, which he regularly expressed to his employers.
The Tribunals decision was confirmed by the EAT, so the case will now return to a tribunal for further consideration of the facts.

The EAT confirmed that the "belief" must be:

On a similar basis (belief), several Police Authorities have reportedly given special leave rights to Police Officers who are practicing Pagans - another genuine philosophical belief.

(Case; Nicholson v Grainger plc and ors. London Central Employment Tribunal, 09; EAT 2010)

Data Protection court ruling

A private investigator who compiled a list of "troublemakers" in the construction industry has been fined £5000 for breaching the Data Protection Act. The list was built partly on the basis that the employees were allegedly trade union activists, shop stewards or had been involved in instigating industrial action. The Information Commissioner has also stated that enforcement notices will be served on 17 businesses in the construction sector, including some "big names". They apparently paid to use the "service" when they were recruiting.

Because making selection decisions on the basis of trade union membership or activity is unlawful, it also opens up the possibility that unsuccessful job applicants, who can point to the list as a reason for rejection, may seek compensation from the firms involved. As this is a form of discrimination, compensation is not subject to the usual "capping". There could be an issue over whether these claims to tribunal would be "in time" - ie within 3 months normally. Tribunals do have powers to extend the time period.

Disability Discrimination - normal activity

The definition of a disability involves meeting a four-stage test, as set down in the DDA of 1995. Two elements of this require the claimant to establish whether the persons "impairment" has a substantial impact on "normal" day to day activities. Occasionally cases help to shed some light on what this actually means!

Mr. Adams, a police officer, had health problems, which meant he found it hard to do his night shift duties. His employer made a number of adjustments, transferring him to a new area and allowing him to finish his night shift early, at 4.00 am on occasions. Unfortunately his problems persisted and he was dismissed. He claimed disability discrimination and the employer argued that working nights was not a "normal" day-to-day activity. (Skip to jokes about how night work can be a "day-to-day" activity!).

The EAT decided that sufficient numbers of employees work nights in a wide range of occupations, so held that working nights was a normal activity, and allowed his claim to proceed.

This decision follows the same logic as another Police case a short while ago, (Paterson v Metropolitan Police EAT 07) when an officer with Dyslexia claimed that taking part in examinations for promotion was "normal day to day" activity. The EAT in this case also said that they considered this to be a normal part of business life for many workers, so ruled that Paterson was protected by the DDA.

(Case; Chief Constable Of Dumfries and Galloway v Adams EAT 09)

Council sues ex Chief Executive for damages

It is most unusual for an Employer to take legal action for damages against ex-employees. In this case the Employer felt that the Employee had mislead them during recruitment, by not revealing her true state of (mental) health.
The Employer's claim for substantial damages against its former employee, alleged that she made fraudulent and negligent misrepresentations in the pre-employment medical questionnaire by failing to disclose her history of recurrent depressive illnesses. She was subsequently offered the position of Chief Executive, but soon had relationship problems, went off sick and never returned. The Council sued her for nearly £1 million, largely made up of the ill health pension costs incurred.

The Council were unsuccessful. The Court was critical of the pre-employment questionnaire - which contained vague questions about health, but nothing specific enough. Although Ms. Laird failed to disclose the full picture of her state of health, the Court felt that she had answered the questions on the form in an honest manner. Although she was still taking anti depressants at the time of her application this was not disclosed. (A question asking if she was currently taking any medication would have required her to disclose this.)

Given the pressures to be found in senior positions such as this, Employers need to ensure that their pre-employment questionnaires are robust enough.
If you do not ask for specific information, the applicant is under no duty to disclose it voluntarily.

(Case; Cheltenham Borough Council v Laird. High Court 09)

Sleeping on the job allowance counts towards NMW

Hours where an employee is required to be at work, even if allowed to sleep during an on-call period, are deemed to be working hours under the Working Time Directive.

Recently the EAT considered whether a 'sleeping in allowance' should be included for the purposes of calculating the National Minimum Wage.

Mr Smith was contracted to work 15 hours per week at a residential care home. He was occasionally required to sleep there and be on call for night duty. When he did so, he received a 'sleeping-in allowance' of £25 per night. He did not receive any further payments under his contract in respect of the overnight duty, as he was never woken up while he was on call. Both parties agreed that the time Mr Smith spent sleeping at the care home amounted to working time for the purposes of calculating his average hourly pay for NMW purposes.

The EAT held that the 'sleeping-in allowance' amounted to a payment for performing a sleep-in duty. It was not an 'allowance' and could be taken into account for the purposes of calculating whether Mr Smith was paid the NMW.

(Case; Smith v Oxeter Learning Disability NHS Trust EAT)

Dress code and appearance

This is always an emotive subject. In the latest case from the Employment Appeal Tribunal (EAT), the Court has said that requiring a male employee to cut his shoulder-length hair did not amount to discrimination or harassment simply because a female employee would not, in similar circumstances, have been required to cut her hair.

Before he started training as a police constable, Mr Dansie asked whether or not the length of his hair would be acceptable to the police force. He was told that it would comply with the dress code policy, which required the standard of dress to be smart, fit for the purpose and to portray a favourable impression of the service. Management guidance specified that hair should be neat, not cover the ears and should be worn above the collar. Long hair was required to be neatly and securely fastened and worn close to the head.

Mr Dansie reported for training with his hair slicked back and in a bun on the back of his head. He was told to have his hair cut or disciplinary action would be taken. He reluctantly had it cut to avoid removal from the training programme, but complained to an employment tribunal that he had been unlawfully discriminated against because a female officer would have been allowed to keep hair of that length.

His complaint was unsuccessful and he appealed to the EAT. On appeal, the Court confirmed that the correct test is whether, taking into account current standards and conventions, as well as the specific needs of the profession in question, the employer's dress code as a whole was asking its employees to display an equivalent level of smartness between men and women. A female recruit who had not complied with the gender neutral dress/appearance code necessary for the service would have been treated in the same way. The dress code of the Metropolitan Police was, overall, equally balanced between the sexes, so it had not discriminated against Mr. Dansie by requiring him to cut his hair.

Actions for employers

No discrimination without a "detriment".

In Keane v Investigo and ors the EAT has held that a job application must be genuine before any detriment under the Employment Equality (Age) Regulations 2006 can be suffered. Thus, where a claimant did not genuinely want the jobs she applied for, she did not suffer age discrimination when she was not considered for them.

K, a 51 year old accountant, made around 20 online applications for jobs for which she was over qualified. All the job adverts were clearly aimed at recently qualified accountants, involving responsibilities for someone of comparatively limited experience. As soon as it became clear that she was not being offered an interview, if not sooner, K served the employment agency in question with a questionnaire under Reg 41 of the Age Regulations. She then lodged claims of age discrimination at an employment tribunal, initially against eleven agencies. Six of those claims were settled and so only five went forward for hearing.

At a tribunal hearing, K's representative made the concession that if she was found not to have been genuinely interested in the jobs she applied for, she could not be said to have suffered a detriment or disadvantage as a result of not being put forward for that position, even if the advert give rise to a finding of discrimination on the ground of age.

[Case; Keane v Investigo and ors. EAT Feb 2010]

Agency Staff cannot replace Strikers

The Postal workers dispute and strikes at the end of 2009 threw up an unusual situation. The Post Office proposed recruiting 30,000 temporary workers to help reduce the backlog of post and keep the service going during strike action. The Employer always took on temporary labour in the run up to Christmas, but the numbers were much higher than normal, due to the strikes.

However the Communications Workers Union (CWU) challenged the legality of this in a legal action. This was a surprise move for many who work in HR. The potential illegality comes from a little used clause in the Conduct of Employment Agencies Regulations 2003. This provides that it is illegal for an employment agency or employment business to provide temporary workers to perform " the duties normally performed by a worker who is taking part in a strike or other "official" industrial action"; ie authorised by a recognised Trade Union. The risks are not a major concern for the hiring organisation (The Post Office) - it is the Agency that can be fined and the owners can be disqualified for up to 10 years. The case did not get to court as the strikes were called off as talks recommenced, but it would have been an interesting one to follow!

Industrial Action Dismissals

Gate Gourmet strikers fairly dismissed

The EAT upholds a tribunal's decision that six strikers were either fairly dismissed for taking part in unofficial industrial action or had no right to claim unfair dismissal. In doing so, the EAT confirms that in circumstances of mass industrial action which is causing enormous disruption to an employer's business and which requires an immediate and firm response, a policy of summarily dismissing any employee who is absent without leave or explanation and trying to sort out the exceptional cases of genuine non-participation by way of an appeal process can constitute a reasonable response.

The case also demonstrates how important it is for employees who are absent from work for an apparently legitimate reason to minimise contact with pickets, as this could be construed as participation in the action.

Customer presses for dismissal

There are six fair reasons for dismissal. One of the fair reasons is "some other substantial reason" (SOSR). One of the areas in which SOSR tends to be invoked is where a third party, such as a customer, puts pressure on an employer to dismiss.

A recent case with this issue. Connect provided a minibus service for disabled children, under contract to the Council who had the absolute right to veto the employment of any individual to provide the service. Mr Henderson, worked for Connect as a minibus driver. Initially he had a clear CRB check, but later allegations were made concerning his nieces. The police did not prosecute Mr Henderson and he protested his innocence. Nevertheless, the South Tyneside Safeguarding Children Board reviewed the case and decided that abuse could have taken place and that Mr Henderson should no longer work with children. Mr Henderson was suspended while Connect tried to persuade the Council to reconsider its decision. These attempts failed and, since it had no other roles available for Mr Henderson, Connect dismissed him. Mr Henderson complained of unfair dismissal. The employment tribunal concluded that the dismissal was fair and Mr Henderson appealed to the EAT.

The EAT upheld the original tribunal's ruling. It said that the customer or client is under no obligation to behave fairly towards the employee. In this case Mr Henderson may have been unfairly treated by being unable to put his case to the South Tyneside Safeguarding Children Board, but however unfortunate for him that did not make it unfair for the employer to dismiss him.

This type of case can be very uncomfortable to deal with and employers have to think matters through fully before taking a final step to dismiss.

Actions for employers

Follow a proper formal procedure, ensuring the employee is given all his statutory rights.

(Case; Henderson v Connect (South Tyneside) Ltd. EAT)

Gross Misconduct - Employers should not wait to act

Gross misconduct is deemed to be a "repudiatory breach" of the contract by the employee; normally resulting in a summary dismissal with no notice or pay in lieu of notice. A recent decision at the Court of Appeal is a reminder to Employers that they must not wait too long before taking action. It is recommended that an employee suspected of an offence of gross misconduct is immediately suspended from work (on full pay) pending an investigation and action. Failing that the Employer must confirm that action is anticipated - i.e. the Employer reserves its position.

In this particular case the employee went off sick before the Employer commenced any disciplinary proceedings. The Employer waited for the employee to return from absence before commencing disciplinary action. During the period of absence the Employer wrote to the employee, reminding him that he remained bound by certain terms in the contract; but no mention was made of the misconduct issue. Had the Employer intended to take disciplinary action in response to the breach, it should have expressly reserved its position in that regard said the Court.

The delay meant that the Employer had lost the opportunity to dismiss summarily for gross misconduct.

[Case; Cook v MSHK Ltd and anor. Court of Appeal, 2009 EWCA Civ 624.]

Transfer of Undertakings;... Tupe or not tupe??

Since 2006, a "service provision change", where a contract is put out to tender for example, can lead to a TUPE situation. The case law indicates that it is a matter of fact for a tribunal to decide whether the SPC is caught by the TUPE rules. The more differences there are between the two types of service provided, the less likely it appears that TUPE will apply.
A change in the nature of the services provided led to a finding of no SPC in this case. The client (BMW) switched its catering contract from a full canteen service, supplying hot and cold food, to a reduced service selling pre-prepared sandwiches and salads. A tribunal found that the new service was 'materially different' to the old one. The tribunal interrogated the differences between the two service contracts, as opposed to seeing whether they fitted into a broadly similar category. On appeal, the EAT approved of this approach. This approach means that if there are significant changes in the way the service is provided, TUPE may well not apply to protect the employees.

(Case; OCS Group UK Ltd v Jones and anor (Brief 890) EAT 0038/09.)

HR Whistleblower gets huge payment.

Former Equalities Officer for Redcar and Cleveland, Pauline Scanlon, has been awarded £442,400 in compensation at tribunal. She was dismissed after complaining that the council breached it's own equal opps policies by not advertising an HR Manager job. Scanlon was backed by her trade union in her claim. The Council are reportedly planning an appeal after being "surprised" at the size of the award.

Compensation for "Whistleblowing" dismissals do not require one year's service, and the awards are not subject to the Statutory cap on unfair dismissal payments.

Volunteers without contracts not covered by DDA

Volunteers are not employees and therefore do not have employment rights, including protection under the Disability Discrimination Act.

X, a disabled woman, applied to be a volunteer with the Mid Sussex CAB, working four to five hours per week. She signed a volunteer agreement described as being "binding in honour only... and not a contract of employment or legally binding".

Throughout the course of her work with the CAB, X did not attend the bureau 25-30% of the time when she was expected to be there. The CAB didn't object either to this, or to X changing the days on which she worked. Eventually, she was asked to stop volunteering. X brought a claim of disability discrimination. She argued that the DDA should be interpreted widely by deeming her to have been "in employment", thus giving her protection. At tribunal, her claim was unsuccessful and she appealed.

Agreeing with the tribunal. the EAT found that X was not entitled to claim disability discrimination under the DDA. Nor did the EAT agree either that the Government had not complied with the directive, or that sections of the DDA needed to be rewritten to extend protection to voluntary workers without a contract.

This case confirms that volunteers without a contract are not entitled to protection under current discrimination legislation. However, the decision in this case is not intended to cover all voluntary workers. Volunteers engaged under contracts are entitled to protection under discrimination legislation.

[Case; X v Mid Sussex Citizens Advice Bureau]