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  1. Employment law quiz 2011 Toni McAlindin To receive free bulletins email info@tonimcalindin.co.uk www.tonimcalindin.co.uk

  2. Question one • 1. In T L Russell and others v Transocean International Resources Ltd offshore oil workers worked two weeks off and two weeks on. The employer argued that this included holidays. The employees argued that they were entitled to holidays on top of this and should be allowed to take the holidays from weeks when they would otherwise work. Who was right?

  3. Answer question one • 1. The court decided that they were entitled to holidays on top of their normal time off. However the entitlement could be satisfied by them taking the holidays on weeks when they were not at work ie their breaks. Overall they had many more breaks than the law required. Had the court decided otherwise other professions such as teachers would have been entitled to holidays during the school term.

  4. Question two • 2. In Lisboa v Realpubs a “gay pub” was taken over and made into a gastro pub and wanted to attract a wider clientele. An employee was asked to display a sign saying “this is not a gay pub” and was asked to seat customers not looking overtly gay in prominent positions near the window. • The pub wanted gay customers but also a wider clientele. • Could the employee make any claim? • Would it make a difference if he was gay himself? • What was the end result – ie is this still a gay pub?

  5. Answer question two • 2. The employer did not want to dissuade gay customers but wanted a wider clientele. There was nothing unlawful about this nor was taking steps to encourage this as long as it did not involve treating gay customers less favourably as a result. The EAT believed the policy did have this affect. Asking Mr Lisboa to carry out these acts constituted less favourable treatment on the grounds of sexual orientation regardless of the sexual orientation of the employee. This type of case will be more common since the Equality Act.

  6. Question three • 3. In Desmond v Nottinghamshire Police a teacher was attending a conference. On his way to his hotel he asked a female for directions. Later that night she was sexually assaulted. She mentioned that she had given him directions. He was arrested. It became apparent that he had nothing to do with the incident. However the information remained on his record and was disclosed during an enhanced disclosure as the police had failed to erase the information. He claimed they were liable for the consequences of their negligence. Were they?

  7. Answer question three • 3. The court decided that there is no relevant head of claim under negligence law against the police. The police had a duty to provide any “relevant” information but if it was negligently given there was no remedy under the law on negligence as the police owed no duty of care as a matter of public policy.

  8. Question four • 4. In Locke v Candy & Candy the individual’s contract had a bonus clause which provided that the employee had to be employed by the company in order to receive a bonus. • He was a model employee and a high performer. His bonus was £160,000 after 12 months service. He was dismissed before the 12 months with 6 months pay in lieu of notice. • The employer had a contractual right to make a payment in lieu of notice. • Was he entitled to a bonus?

  9. Answer question four • 4. He was not entitled to a bonus. The contract was clear. The company had a right to make a payment in lieu and end employment immediately. He was therefore not employed at the date the bonus fell due. He was therefore not entitled to the bonus. He had insufficient service to claim unfair dismissal even adding on the statutory one week (he was dismissed 10 days before achieving one year’s service).

  10. Question five • 5. In RBS v Ashton the employee suffered from migraines leading to significant periods off work. Under the employer’s absence policy she would normally have had a warning and had sick pay stopped. In 99.5% of cases sick pay was stopped. It was based on trigger points depending on duration and frequency. • Due to length of service her eligibility for sick pay was 52 weeks. • Her duration and frequency would normally have triggered a warning and no sick pay. • Eventually the employer felt it had made considerable adjustments and gave her a disciplinary warning and stopped her sick pay. • She complained of disability discrimination. Was it?

  11. Answer question five • 5. The EAT held that there was no failure to make reasonable adjustments. The action to discipline and remove sick pay was a legitimate exercise by the employer within its policies. There was no substantial disadvantage to the employee compared to non-disabled employees as all employees were treated the same. It would rarely be a reasonable adjustment to continue to extend sick pay.

  12. Question six • 6. In CLECE SA v Maria Socorro Martin Valor and Ayuntamiento de Cobisa the ECJ had to decide whether a change of service provider was a transfer. • A local authority contracted out cleaning of schools. It terminated the contract and brought it back in house. • It declined to employer the contractor’s staff. • No assets transferred between the parties. • Was this a transfer under the Acquired Rights directive?

  13. Answer question six • 6. The court decided that as no assets or staff had transferred, the directive did not apply. • Remember this is a case under the directive and not UK legislation. • Although UK legislation follows the directive, the 2006 TUPE specifically provides that a change of service provider is covered by the UK act.

  14. Question seven • 7. In NURMT v Serco & combined cases the Court of Appeal heard an appeal against a number of injunctions awarded to stop strike action on the grounds that the balloting rules had not been complied with. • The unions had argued that UK law was too complex and breached the European Convention on Human Rights. • Some of the details were incorrect partly due to administrative error, accidental issues and the difficulty the union had in keeping membership records up to date. Some of the information was not in the union’s possession. • Did the union succeed in having the injunctions overturned?

  15. Answer question seven • 7. This case is important as the courts have, after different reasoning in earlier cases, held that the provisions of TULRCA 1992, allows for accidental ballot errors to be disregarded. This can save a ballot where genuine and immaterial errors occur (accidentally balloting two members not entitled to vote). • The provisions regarding information about categories of workers entitled to vote only requires disclosure of information in the union’s possession. Although it should be as accurate as possible, there is no obligation to improve existing records. • A union can refer to general job categories not specific jobs. • In other words as long as not positively and materially misleading, errors and accidents are ignored

  16. Question eight • 8. A new consultation paper on Modern workplaces covers four specific areas • Flexible working • Working time holiday carry over • Equal pay audits • Flexible working • What is proposed in each of these areas?

  17. Answer question eight • 8. Flexible working • To be introduced for all employees. The existing statutory procedure will be replaced by a duty to consider requests “reasonably” and a statutory code of practice will be issued to give employers guidance on how to handle requests and demonstrate a reasonable process. Concerns re competing interests eg childcare, disability etc • Equal pay • Employment tribunals would be able to require that employers that have discriminated on the grounds of sex in relation to contractual or non-contractual pay matters conduct an equal pay audit

  18. Answer question eight continued • 8. Working time regulations 1998 • Will be amended to allow four weeks’ statutory annual leave to be rescheduled and/or carried over into the next leave year when a worker falls ill during annual leave. For maternity, paternity, parental and adoption leave it will be 5.6 weeks of leave. Appears to be no limit to when this can happen. • KHS AG v Winfried Shulte decision by Advocate General of the ECJ appears confusing re the above. • Case asks whether the ability to accrue leave or to carry over is limited in time. Asks whether Member states can limit a worker’s entitlement to minimum paid annual leave to the holiday year in which it accrues, even for those on prolonged sickness and if not whether it can be limited to 18 months. • AG concluded that directive does not preclude capping leave. Allowing leave to be taken sometime after it has accrued does not achieve the directive’s purpose. • 18 months might be ok but six months may be too short a time, for Member states to draw up own rules??????? Implications for UK.

  19. Answer question eight continued • 8. Parental leave • 18 weeks maternity leave for the sole use of the mother, maternity pay and allowance as now • Fathers would continue to receive two weeks’ paternity leave at flat rate in first 8 weeks • Remainder (34 weeks – 21 paid, 13 unpaid) to be shared between parents, taken when they choose, including together, in weeks or days depending on business need, to be reclassified as parental leave available to either parent on an equal basis (same for adopters or same-sex couples) • 21 weeks of pay reclassified as parental pay

  20. Answer question eight continued • 8. Parental leave continued • Part of the period of flexible parental leave will be reserved for the exclusive use of each parent ie four weeks • This would be paid at the flat rate • Could be taken when the parties wish after birth and even together • Means an extra four weeks in total ie if mother takes mandatory 18 weeks then flexible 34 there needs to be another four weeks for the father • Increase right to existing unpaid parental leave to 18 weeks, consider raising age of child (currently 5) • Rules on taking leave to take account of business need ie employer may not be able to accommodate part-time or short periods of leave • Consider unpaid ante-natal leave for fathers

  21. Question nine • 9. The Agency workers regulations come into force in October 2011. • They will join other discrimination laws such as part-time and fixed-term regulations. • What are the main provisions of the regulations?

  22. Answer question nine • 9. An agency worker will be entitled to similar terms and conditions as if directly employed after a 12 week period. It does not apply to the genuinely self-employed, itself a difficult concept particularly for those who work as contractors and as limited companies. • The legislation does not cover all terms and conditions ie pensions, occupational sick pay are excluded but pay related matters and holidays are included. • Complex rules apply re the calculation of the 12 week period and which weeks break continuity. There are penalties for employers who try and avoid the 12 week rule eg by hiring for 11 weeks only. • Where the worker moves to a substantially different position even for the same employer, continuity begins again • An individual can have continuity with different agencies • The agency worker does not become an employee and therefore statutory rights such as unfair dismissal, redundancy etc will not apply.

  23. Question ten • 10. In Autoclenz Ltd v Belcher the Supreme Court (unusual for a case on employment status to reach this court) has heard a case where individuals had documentation stating that they were self-employed contractors. • They paid their own tax and had to purchase their own insurance, uniforms and materials. Their contracts stated that they were under no obligation to attend work although they were in reality expected to attend work and provide the services personally. • In reality they had always worked as if they were employees. • The court had to decide what took precedence, the written word or the reality. There was talk of sham contracts.

  24. Answer question ten • 10. This was a difficult case. On the one had there was contractual documentation agreed by the parties which made clear they were self-employed. • On the other hand they clearly worked to all respects as if they were employees. • They argued the written documentation was a sham. • The court was reluctant to go down the road of the “sham” argument which tended to suggest illegality or something unlawful. • They held that it was not necessary to prove a “sham” in the sense of being misleading. • Everyone expected them to work personally – what is important therefore is the true intention of the parties not what is written. • Significant implications for contract law.

  25. Question eleven • 11. In Preece v JD Wetherspoons Plc an employee was dismissed for gross misconduct when she posted inappropriate comments about customers on Facebook. • She was a pub manager and whilst still at work posted comments on Facebook about abusive customers identifying them by name. • Her privacy settings meant that a wide range of people including the very customers could see her page. • One made a complaint and she was dismissed for gross misconduct. • She admitted that she was aware of the company’s internet and email policy and knew she had breached it. • Was dismissal fair?

  26. Answer question 11 11. Held to be a fair dismissal. The policy was clear and well known. She knew that what she did breached the policy. Even though this was on her own Facebook, she knew it had wide circulation. Clearly it is important to have such policies. In this case she breached the policy whilst at work but employers need to ensure the policy is broad enough to cover inappropriate comments whenever made.

  27. Question twelve • 12. Hashman v Milton Park (Dorset) Ltd t/a Orchard Park - an animal activist was opposed to fox-hunting and hare-coursing. He argued that his treatment at work was for this reason and argued that it was a protected philosophical belief within the meaning of the regulations. • Maistry v BBC – an employee working for the BBC World service argued that the BBC’s influence overseas and his belief in the higher purpose of public service broadcasting and impact on culture and social cohesion was a philosophical belief.

  28. Answer question twelve • 12. The tribunal held that a belief in animal rights could amount to a philosophical belief. If his treatment at work was due to this belief, there was discrimination. • A tribunal has held that a belief in the “higher purpose” of public service broadcasting, to promote cultural interchange and social cohesion, is a protected philosophical belief. • Mr Maistry’s belief was held to be more than a sincere commitment to what is the BBC’s mission statement. He referred to various publications regarding the purpose of public service broadcasting which provides a “public space” in which everyone is free to enter and within which they can encounter culture, education and debate.

  29. Question thirteen • 13. In Farrell v South Yorkshire Police Authority the employee was a principal intelligence analyst. He had to produce an annual strategic risk assessment for the police authority’s area. This was to analyse threats to life and community harm. • His assessment was that the threat of terrorism was internal not external. His report described protecting vulnerable people and tackling crime as irrelevant. He included headings named “the truth about 7/7” and the “truth about 9/11”. He referred to the new world order and outlined his beliefs that 9/11 and 7/7 were false flag operations authorised by the respective national governments to give them material to persuade the people to support foreign wars. • When he refused to do his job as required he was dismissed. He claimed he was dismissed for having a philosophical belief. Did he succeed?

  30. Answer question thirteen • 13. The court held that he genuinely held these views. His views were held to relate to a weighty and substantial aspect of human life and behaviour. There was nothing incompatible with human dignity in his beliefs although they contain shocking statements about the motivation of certain people. • Of more difficulty was the test of whether the beliefs attained a level of “cogency, seriousness, cohesion and importance”. This involved a level of scrutiny of his beliefs. On examination the evidence was contradicted by far more evidence and his testimony was incoherent. Inconsistencies in his beliefs became apparent. • He believed that the Twin Towers collapsed due to bomb being detonated inside the building. Taking all this into account the tribunal held that there was failure to meet any minimum standard of cogency or coherence therefore there was no protection under the belief regulations.

  31. Question fourteen • 14. In Cherfi v G4S Security Services Ltd, Mr Cherfi who is a Muslim, worked as a security guard. He had been allowed to leave work to attend Friday prayers at a local mosque. • Under a new contract his employer was obliged to ensure a certain quota of employees on site at any time. If he was to leave on a Friday, this was not possible. • The employer tried to find a solution, including different shift pattern, he refused, took time off via holidays, sickness etc. • This was unsustainable and he was told this was unacceptable. • He made a religious discrimination claim. Did he succeed?

  32. Answer question fourteen • 14. The EAT held that the employer had discriminated but that it was objectively justified. • The employer had no choice in requiring a certain quota of employees each day and there would be commercial ramifications if they did not comply. • He had been offered an alternative shift pattern, there would be no loss of pay, and there was a prayer room on site. • There was therefore a legitimate aim – ie the commercial consequences and this was a proportionate means of achieving that aim.

  33. Question fifteen • 15. In Nixon v Ross Coates Solicitors – Ms Nixon was seen at a Christmas party kissing another employee and spending the night in his room • She also had a relationship with another employee • She told her employer she was pregnant • Staff gossiped about the paternity of her baby • She raised a grievance and asked to be moved • The firm refused and also refused to pay for her absence during this period • She claimed pregnancy discrimination. Did she succeed?

  34. Answer question fifteen • 15. The EAT upheld her pregnancy discrimination claim • The gossip was pregnancy-related, it was distressing, it amounted to gender-harassment • It awarded no reduction due to contribution – the contribution had to have caused the dismissal – here the contribution was a view about her personal life

  35. Question sixteen • 16. In Clarke v Credit Resource Solutions, the employee had an hour’s pay deduced from his wages and was dismissed after he arrived late for work because he had to make emergency childcare arrangements. • He refused to sign a late form authorising the deduction from pay and was subsequently invited to a disciplinary hearing. • He was told to sign the late form and give a written apology to the company in return for a final written warning. Failure to do so would result in dismissal. • He was subsequently dismissed. What did he claim?

  36. Answer question sixteen • 16. The tribunal found that he had a right to emergency time off and that it was reasonable in the circumstances. • He was subjected to a detriment for exercising a statutory right. • He was dismissed for refusing to sign a late form and it was unfair. • The policy on lateness whilst normally acceptable should have been tailored to deal with issues such as statutory time off.

  37. Question seventeen • 17. In Gilbert & others v Barnsley three employees worked term time contracts for 44 weeks but were paid over 52 weeks (including holidays). • They were made redundant. Their redundancy pay was based on 1/52 of annual salary. • They argued that it should be 1/44 based on weeks actually worked. This would have led to higher pay. • The rules require that a week’s pay must be calculated in accordance with s.221-229 of the Employment Rights Act 1996. • Different provisions apply depending on whether or not the employee has normal working hours. • Accepted that there were normal working hours • Who was right in the calculation the employer or the employees?

  38. Answer question seventeen • 17. The employer argued that pay did not vary with the work done as they were paid the same throughout the year whether working or not or whether on holiday or not • A week’s pay should therefore be what they were paid each week of the year ie 1/52 • The employees argued that their normal working hours did vary as there were weeks when they did not work. • Even though they were paid throughout the year it could only be apportioned to the weeks actually worked • In such cases it is necessary to average pay in the 12 weeks prior to the calculation date ignoring weeks when there is no pay • This would mean 1/44 • The EAT agreed but thought that the legislation had not been drafted to cover such situations • Paying over 12 months was for administrative convenience so pay did vary with the work done

  39. Question eighteen • 18. In NHS Leeds v Larner, the employee was absent for the whole of a holiday year and had not taken or arranged to take any holidays. • She was dismissed on the grounds of capability but was not given any payment for untaken holidays. • The employer argued that her right to holidays expired at the end of the holiday year ie “use them or lose them”. They argued that she had made no request to take holidays during the year. • Was she entitled to holidays?

  40. Answer question eighteen • 18. The EAT disagreed. She was unable to take her holidays due to sickness and was entitled to take them at a later date. As she was dismissed this meant in monetary form. • There was no requirement on an employee to request holidays. It would be different had the employee been at work and had failed to request or use the holidays. • This will be affected by the Government’s proposals on carry forward of holidays but may be affected by the recent decision of the Advocate General which does not appear to rule out restrictions on the right of carry over.

  41. Question nineteen • 19. In Puri v Bradford Teaching Hospitals a doctor was dismissed for rudeness and found hard to find other work. Was he entitled to legal representation at his disciplinary meeting? • In Gentry v Dartford and Gravesham NHS Trust Dr Gentry was disciplined and eventually dismissed for poor performance. Her solicitors asked to be present at her appeal hearing arguing that her career was at stake. This was refused. Did she have a claim?

  42. Answer question nineteen • 19. In Puri the court held that he could find other work even though the NHS was a major employer. There was no need for his dismissal to comply with Article 6 of the Convention on Human Rights. This was upheld on appeal. • In Gentry the court took the view that legal representation might have led to a different finding given the major impact on her career of losing work in the NHS. In so doing they followed the case of R(on the application of G ) v Governors of X school. However this case has now been overruled and there will be few cases where Article 6 applies and the right to legal representation in internal disciplinary proceedings.

  43. Question twenty • 20. In Davies v Sandwell Metropolitan Borough Council the court had to look at the fairness of a dismissal which involved an earlier warning (had there been no final warning there would not have been a dismissal). The employee failed to appeal against the final warning. The court therefore accepted that it was valid even though they had doubts about it. What did the appeal court decide?

  44. Answer question twenty • 20. In general courts do not delve in any depth into the fairness of an earlier warning unless it is brought into the proceedings by one of the parties. The court may then have reason to believe that the earlier warning was not given in good faith or for a wrong motive. • This may then affect the fairness of the dismissal. • In the present case the earlier court had placed too much emphasis on the employee’s failure to appeal which was irrelevant. If there were doubts about the final warning and the tribunal held that it was a nullity, it would affect any subsequent dismissal.

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