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Interesting Employment law cases - oxymoron?

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Dismissal - ambiguous dismissal date

In Wang v University of Keele, the EAT has confirmed that, unless a contract provides otherwise, contractual notice (whether verbal or written) begins on the day after notice is given (previously this was only established for oral notice).

Mr Wang was given three months notice of his dismissal in a letter emailed and read on 3 November. He lodged a tribunal claim for unfair dismissal on 2 May. His claim was originally dismissed as being a day out of time (the notice being calculated as running from 3 November to 2 February, so an effective date of termination of 2 February, and then a deadline of 3 months from then to bring the claim).

The EAT decided that notice ran from the day after it was served, so in this case 4 November, with dismissal taking effect on 3 February, so the claim was in time. The fact that Wang was only paid until 2 February was irrelevant. The EAT also said that if the body giving the notice makes the dismissal date ambiguous, the notice should be construed in favour of the recipient. It also observed (without recommending) that notice could be given by text, email or even instant messaging.

Dismissal - social networking

Two interesting cases regarding social networking:

The first is a reminder that, whilst breach of a clear policy is a disciplinary offence, the employer still has to act reasonably. In Stephens v Halfords plc, Mr Stephens was dismissed for gross misconduct for posting confidential information on a social network site. Mr Stephens (who was off work due to stress) had created a Facebook page called "Halfords workers against working 3 out of 4 weekends" after his employer began consulting about a proposed reorganisation during his absence. Two days later, he noticed that Halfords has a policy on social networking which warned that disciplinary action would result where statements were not in the best interests of the company or encouraged dissent. He immediately removed the Facebook page, apologised and also suggested that his stress may have affected his judgement. The employment tribunal found his dismissal unfair, given his past record and the fact that he had apologised and taken the page down as soon as he realised it was a ground for disciplinary action. He was awarded £11,350 in compensation.

However, in Gosden v Lifeline Project Ltd, an offensive email, sent between colleagues on their home computers, did justify the employee's dismissal. Mr Gosden had sent his colleague an email which contained offensive comments, accompanied by images of naked women. The email finished: "It is your duty to pass this on!" The colleague forwarded the email to another colleague. The email was sent from Mr Gosden's home computer, to the colleague's home computer.

The prison where Mr Gosden worked decided that this was a clear breach of its policies and suspended him from working there; Lifeline Project (his employer) investigated and dismissed him for actions which could damage its reputation and which breached its own internal policies. Mr Gosden lost his claim for unfair and wrongful dismissal: the tribunal felt that the employer was entitled to consider that Mr Gosden's behaviour was capable of damaging its reputation. Whilst the email was sent to and from a home computer, Mr Gosden clearly intended the email to be sent on, so it could not have been considered private.

Insurance and equality between the sexes

Are we about to see higher insurance premiums? A case in Belgium has received widespread press coverage, and a lot of scaremongering - some of which may well be justified.

The case, Association Belge des Consommateurs Test-Achats and others looks at whether insurance companies should be allowed to use gender as a factor when determining the cost of insurance premiums. The Belgian consumer group that brought the claim argued that it is unfair for individuals to pay higher premiums because of generalisations based on their sex, as this is against the principle of equal treatment.

The European Court of Justice upheld the Advocate-General's opinion and declared that premiums which factored in gender-specific differences should no longer be permitted. A transitional period will apply, and EU member states have until December 2012 to abolish premiums based on gender.

This applies most obviously with car insurance where men are generally charged more than women, given the statistical evidence that they are more likely to be involved in an accident. However, it will also impact on pensions (men may currently purchase a pension annuity (an annual pension income) more cheaply than women, as women live longer than men) and other forms of insurance such as health insurance.

Employers who insure company fleets, or who offer insurance schemes may wish to keep an eye out for future developments on this front and budget accordingly.

Equal pay

In Abdulla and others v Birmingham City Council, it was confirmed that employees could bring equal pay claims in the civil courts when they were out of time to bring a claim in the employment tribunal. The case of Ashby & others v Birmingham City Council may make it harder to do this. Mrs Ashby brought an equal pay claim in the County Court which was out of time for the employment tribunal as it related to pay differences from a number of years earlier. The High Court clarified that, when deciding whether or not to accept the case, the civil court should take into account the reason for the claimant not commencing a claim in the employment tribunal. Claimants should not automatically presume that the case must be heard in the civil courts, simply because they are out of time for an employment tribunal. The civil courts should consider whether the claimants knew or ought to have known they could bring equal pay claims in an employment tribunal, why they did not do so and whether they acted reasonably in failing to do so.

Discrimination - belief

Are strongly held views against fox hunting a "philosophical belief"?

Apparently, they can be! An employment tribunal judge has decided that the case of Hashman v Milton Park (Dorset) Ltd t/a Orchard Park may go ahead. Mr Hashman, a lifelong animal rights campaigner, was employed as a gardener by Orchard Park. He was dismissed after six months' service and is alleging that this is because the majority shareholders in Orchard Park (who were apparently supporters and members of a local hunt) discovered his opposition to fox hunting.

Orchard Park argued that such beliefs were not covered under the legislation, but the judge disagreed and Mr Hashman's case will therefore go ahead to see if he suffered discrimination on grounds of his beliefs.

Discrimination - sexual orientation and banter

You may recall the case of Thomas Sanderson Blinds Ltd v Mr S English. Mr English, who is heterosexual, claimed discrimination on grounds of sexual orientation alleging that he was subjected to harassment owing to the fact that he lived in Brighton and went to a public school. Mr English's claim initially failed as the tribunal said that he was not protected under the previous legislation which would only cover him if he were homosexual and was subjected to this banter. However, on appeal, his claim was allowed to proceed. The case therefore was reheard by a full tribunal who dismissed the claim and has now been heard by the Employment Appeal Tribunal (EAT) who upheld that decision. It found that the claimant had himself been an active participant in name-calling and banter, described by the tribunal as "extremely offensive behaviour". There was also evidence that he had remained good friends with his alleged "tormentors".

Discrimination - sex

Failure to give a fair reference may result in a discrimination claim!

In a Northern Ireland case, Helen Wilson, a care worker, was repeatedly refused references by the Provincial Care Agency, her former employers. Mrs Wilson, who had resigned from her previous role as the agency could not give her shifts when childcare was available to her, was unable to take up a new job, which required her to provide detailed references from her most recent employer. The tribunal found that the agency delayed and prevaricated in providing a reference, despite numerous requests made by Mrs Wilson, by the company who were offering her the new job and, on Mrs Wilson's behalf, by the Citizens Advice Bureau.

It also found that the agency, who said to Mrs Wilson "You are the big girl who wanted a baby and did not want to work", was fully aware that Mrs Wilson would be unable to obtain employment without a reference. Mrs Wilson claimed unlawful sex discrimination and was awarded £6,000 for injury to her feelings and a further £3,500 damages.

And a further Northern Ireland case which is an example of the potential high level of sex discrimination awards: a female barrister taken off an enquiry was awarded £70,000. In PSNI v Creen, Ms Creen was asked to act on behalf of the PSNI in a public inquiry. She alleged she was paid a lower hourly rate than a male colleague working on the inquiry, her "billing" hours were reduced (despite having been told initially that they required a full-time commitment), and her instructions to act on behalf of the PSNI were subsequently withdrawn, while her male colleagues were retained. The PSNI settled without admitting liability, for £70,000 - £30,000 for termination of contract and/or loss of employment, including equal pay; and £40,000 for injury to feelings and for damages for negligence, negligent misrepresentation and stigma damages for breach of contract. Ms Creen was assisted in her case by the Equality Commission for Northern Ireland.

Discrimination - race and sex

It's also shocking to find behaviour such as that described below happening in workplaces these days, which is why we felt we should cover it as it gives a good idea of how bad the treatment has to be in order for an employee to gain a high level of compensation. In a case from Northern Ireland, Marzena Urnbanska-Kopowska v Mac's Quality Foods, Mrs Urnbanska-Kopowska was awarded more than £50,000 by an industrial tribunal for race and sex discrimination and unfair dismissal.

The tribunal was told that a Polish co-worker stripped to his underwear in front of her each day, pressed himself against her and had touched her under the table at the Christmas dinner. Her employer ignored her attempts to bring the sexual harassment to its attention. She was also sworn at in Polish by a manager who was from Northern Ireland and made to perform unpleasant tasks that workers from Northern Ireland did not have to do (such as cleaning the toilets and removing dead insects from the top of freezers).

The tribunal found that she suffered "feelings of violation, degradation, humiliation and contempt".

Mrs Urnbanska-Kopowska was awarded £31,049 for unfair dismissal, £20,000 for racial discrimination and sexual harassment and £1,332 in interest.

Discrimination - religion or belief

Further confirmation that a dismissal based on the way in which a person manifests his/her belief may be fair and may not be regarded as discrimination on the grounds of that belief.

In Power v Greater Manchester Police Authority, Mr Power was a trainer who was a committed spiritualist and his dismissal was partly due to his promotion of his religious beliefs at work. Mr Power believed that psychics were able to contact dead people to help with investigations. Following complaints about his behaviour and attitude being disruptive and unhelpful, an investigation discovered a CD-ROM and posters connected to Mr Power's spiritual beliefs which had been provided to other police forces before his employment with Greater Manchester began.

Mr Power was told that his dismissal was because information had come to light regarding his previous work with neighbouring forces and his current work in the psychic field which was not compatible with his employment. He was also told that had the employer had this information before he started work, he would not have been offered employment.

The employment tribunal had firstly to consider whether Mr Power's beliefs could amount to a religion or belief (and therefore give him protection against discrimination) and it decided that they could (the EAT also agreed with this decision). They then had to consider whether Mr Power had been discriminated against because of his beliefs.

The tribunal and the EAT both decided that there had been no discrimination: Mr Powers had not been dismissed because of what he believed, but because he expressed these beliefs in a manner which was unacceptable to his employer. This ruling is consistent with previous cases such as the registrar who refused to perform civil partnership ceremonies (Ladele v London Borough of Islington) and the marriage counsellor who refused to counsel same-sex couples (Macfarlane v Relate).

Discrimination - age - compulsory retirement

As we grapple with the forthcoming abolition of the statutory retirement age, here is a further case which would seem to indicate that the ECJ is relatively happy with compulsory retirement ages - although it may be that our employment tribunals are not so relaxed!

In Rosenbladt v Oellerking Gebaudereinigungsges mBh, the ECJ decided that a compulsory retirement age of 65 was discriminatory on grounds of age, but was justified given the following conditions:

the contract (ie the retirement age) had been collectively negotiated with a union and the purpose of the collective agreement was to facilitate employment for young people, plan recruitment and allow good management of a firm's personnel. These, the Court said, were all legitimate aims and compulsory retirement was an appropriate and necessary means of achieving those aims.
the employee would receive a pension on retirement so had replacement income (in this case, a state pension but presumably an occupational pension would count)
compulsory retirement had been in widespread use in the relevant country for a long time without having had any effect on the levels of employment.

There have been very few cases on retirement to date - the Clarkson, Wright and Jakes case is the other main one - but the general feeling is that tribunals in England and Wales will not be so relaxed, especially given the Government's views about the need for employees to work longer. Arguments like those in the above case, such as as balancing work for younger generations, may not be so effective for us.

Discrimination - age - redundancy pay

A Danish case that throws the previous guidance on this into more doubt!

In Andersen v Region Syddanmark, a Danish law gives severance pay on termination to long-serving employees, unless they are eligible for a pension from a pension scheme to which their employer had contributed. The ECJ said this was direct age discrimination, and then asked whether it was justified.

They found that it wasn't, because it applied irrespective of whether the worker wanted to retire or not.

This case may affect UK employers who have enhanced redundancy pay schemes that provide for a reduced entitlement where the pay reduces, the closer the employee is to pension age. The Employment Appeal Tribunal had previously ruled (in Kraft Foods UK Ltd v Hastie) that it may be possible to justify a cap on redundancy pay but any future assumption that workers of pension age will not want to remain in the workforce may be tested, especially once the default retirement age is abolished.

Discrimination - harassment

You can often rely on solicitors to provide the interesting cases!

Nixon v Ross Coates Solicitors and another demonstrates the risks of gossip following the office Christmas party.

On reading the (lengthy and detailed!) tribunal report, this firm would seem to enjoy a particularly lively social life. At the Christmas party, it was revealed that "a good deal was drunk by everybody". At the end of the party a group decided to go to a room booked in one of the employee's names. Ms Nixon left this room with a male colleague, other than the one with whom she was having a relationship at the time (he was asleep on the bed!) On her return to work after the Christmas break, she advised her employer that she was pregnant and the firm's HR manager immediately began gossiping about the baby's paternity.

Ms Nixon raised a formal grievance, requesting to work at the firm's other office, where she would not be alongside the HR manager, Debbie O'Hara. Her request was refused. Ms Nixon refused to go back to work in the same office as the HR manager. She therefore resigned and claimed unfair dismissal, sex discrimination, discrimination on the grounds of pregnancy, and harassment.

The tribunal dismissed her claims for discrimination and harassment, but upheld her claim for constructive unfair dismissal, albeit with a 90% reduction because of her contributory conduct.

Ms Nixon appealed. The EAT found the HR manager's actions amounted to harassment on the grounds of pregnancy. The gossip was connected to pregnancy; the conduct was unwanted, and it caused Ms Nixon embarrassment and upset. The firm was vicariously liable. Its failure to relocate her was also related to her sex or pregnancy and, therefore, was discriminatory. The EAT also rejected the reduction in compensation and sent this back to the same tribunal for reconsideration.

Dismissal - absence due to caring responsibilities

A female employee at the Royal Mail, Alison Balch, took seven periods of absence during her six-month probationary period to care for her five-year old asthmatic son. She was dismissed and brought an unfair dismissal claim on the grounds that it is automatically unfair to dismiss someone for asserting the statutory right to a reasonable amount of unpaid time off to deal with emergency situations involving a dependant.

The Royal Mail had failed to follow its own procedures which included a performance review after three months' service; the line manager had written a performance review which mentioned concerns about her attendance, but this was not shown to her until her six-month assessment. The fact that she was given no formal warning that her attendance was unsatisfactory was held against the employer.

She won her unfair dismissal claim and was awarded £8,700.

Note that this case could now also be brought as a discrimination claim under the Equality Act, due to her association with a disabled person - in which case the compensation could be unlimited and could include an award for injury to feelings.

Dismissal - date of termination

The previously reported case of Gisda Cyf v Barratt has now gone to the Supreme Court which upheld the Court of Appeal's (and the EAT's) decisions that, for the purposes of unfair dismissal claims, the effective date of termination of employment of an employee who is dismissed by letter is when the dismissal letter is read by the employee, not when it is sent or when it arrives in the post.

The Supreme Court unanimously agreed with the earlier decisions: "Where a decision to dismiss is communicated by a letter sent to the employee at home, and the employee has neither gone away deliberately to avoid receiving the letter nor avoided opening and reading it, the effective date of termination is when the letter is read by the employee, not when it arrives in the post".

ACAS settlements are binding once verbally accepted

In Allma Construction v Bonner, the claimant left a message that he/she accepted the offer to settle. This was passed on to the respondent and the EAT said this was enough to constitute having "taken action" for the purposes of section 203 of the Employment Rights Act 1996. The verbal acceptance by the claimant is binding, the COT3 is only evidence of what has been agreed.

The EAT confirmed that the message was enough to amount to a binding settlement, even where:

the ACAS officer had not actually spoken to both parties
the ACAS officer did not personally believe that settlement had been concluded
some of the terms ordinarily found in COT3 agreements had not been discussed and
no COT3 was signed because the claimant changed his mind the next day.

Employment status

Two cases:

Ministers of religion: the question of whether ministers of religion are employees has been a vexed one for many years. In Moore v Methodist Church, the Employment Appeals Tribunal decided that, in view of the decision of the House of Lords in Percy v Board of National Mission of the Church in Scotland, a minister of the Methodist Church may be an employee, notwithstanding the conclusion of the Court of Appeal in Methodist Church v Parfitt on substantially the same facts!

Mutuality of obligation: another EAT case, Knight v BCCP, which confirmed that there can be no employment relationship if there is no mutual obligation to provide and undertake work. Mr Knight was a taxi driver, who worked under the taxi firm's control to some extent and only received wages when he actually worked. He claimed statutory notice pay. As there was no obligation on him to accept work or on the taxi firm to offer him work, the original tribunal classified him as a "worker" but not as an "employee" - and therefore not eligible to receive statutory notice pay. This decision was upheld by the EAT.

Equal pay: claims may be allowed in the civil courts

Equal pay claims brought in the employment tribunal must be lodged within a 6 month time limit; that time limit does not apply in the civil courts.

In Abdulla v Birmingham City Council, 174 former employees are claiming that their failure to receive equal pay when compared to various predominantly male groups of staff is a breach of their contracts of employment. Birmingham City Council argued that the civil courts do not have or should not exercise jurisdiction in cases involving equal pay and the equality clause, however, the QC hearing the argument has held that the High Court does have jurisdiction, and that the normal 6 year limitation period for breach of contract claims will apply.

Working time and rest breaks

The case of Hughes v The Corps of Commissionaires Management Ltd concerns rest breaks for a security guard, who worked 12 hour shifts with no one else to relieve him - so no guarantee that his 20 minute rest break would be interrupted. This case got as far as the EAT, who confirmed that, whilst the primary entitlement under the Working Time Regulations is to an uninterrupted break, the Regulations (21(b)) do recognise that there are special cases like this, and allow the alternative of compensatory rest under reg 24(a). This should be as 'near in character, quality and value' to a break where the employee knows he will not be interrupted, but the EAT said that a break in which the worker is technically on call but not in fact called out will suffice.

The EAT was not sympathetic to Mr Hughes' claim for compensation since compensatory rest breaks had been allowed during working time, and, if interrupted, he was allowed to restart his break.

Resignation - can it be retracted?

In normal circumstances (other than clear "heat of the moment" resignations), it is safe to assume that a resignation, once served, cannot be retracted without the employer's agreement.

However, in this case, (Hinsley v Chief Constable of West Mercia Constabulary), a police officer, Sarah Jane Hinsley, was suffering from undiagnosed depression when she resigned, stating that she could no longer cope with the demands of the job. Two weeks later, after visiting her GP and being prescribed anti-depressants, she changed her mind. Her employer refused to let her resume her job.

The original tribunal found in favour of West Mercia Police, but the Employment Appeal Tribunal ruled that Miss Hinsley had been discriminated against on the grounds of disability. It said that West Mercia had failed to make a reasonable adjustment for her disability when she asked to be reinstated.

Dismissal - may be fair even without prior warnings

In most cases, a tribunal would expect to see disciplinary warnings prior to a dismissal, unless the case is one of gross misconduct. In Weston Recovery Services v Fisher, the tribunal did not find gross misconduct but decided that, in accordance with Section 98(4) of the Employment Rights Act 1996), it was reasonable, in all the circumstances of the case, to treat the misconduct as a sufficient reason for dismissal.

Mr Fisher had returned a company mini bus which he had been allowed to take on holiday to France in an unsafe condition. Following an investigation and a disciplinary hearing, he was summarily dismissed for gross misconduct. His appeal was unsuccessful. The tribunal decided that Mr Fisher's actions did not amount to gross misconduct, but they were serious misconduct, as they placed customers' welfare at risk. It therefore said that dismissal was within the range of reasonable responses open to the employer.

As it was not gross misconduct, the tribunal awarded Mr Fisher an amount equal to four weeks' pay as compensation for the notice he had not received because he was dismissed summarily. The EAT upheld the award of compensation in lieu of notice.

Dismissal - redundancy and bumping

'Bumping' (moving a more senior, redundant employee into a more junior role to avoid the more senior person's dismissal on grounds of redundancy) is not generally popular with employers and is often - wrongly - overlooked.

The case of Bonnassera v Fulcrum reminds us of the need to fully consider the selection pool at the outset and to consider whether 'bumping' would be appropriate - the onus is on the employer to raise the issue of bumping (if relevant) during the consultation process.

In this case, the claimant was the HR Manager. Some time after her appointment, an HR Executive was recruited to support her. Fulcrum then decided that they no longer needed the role of HR Manager, and dismissed Mrs Bonnassera on grounds of redundancy. The tribunal found that, since Mrs Bonnassera had previous done all of the tasks of the HR Executive role, and since the latter had covered the HR Manager's role during sickness absence, the pool for selection should have included both employees.

The EAT upheld the decision of unfair dismissal, but disagreed with the tribunal's reasoning - it said that factors such as the difference in remuneration between the two roles, the relative length of service between the two employees and the relative qualifications should be considered when determining the pool. But Fulcrum should have found out during the consultation process whether Mrs Bonnassera would wish to consider the more junior role at the reduced salary.

Breach of contract - damages

In Lonmar Global Risks v West and others, the High Court pointed out that simply demonstrating a breach of contract will not result in damages - the claimant must show that he/she has suffered actual losses as a direct result of the breach.

A number of employees left Global Risks to join a competitor. Global Risks tried to claim approximately £2.5 million in damages for their breaches of contract and breaches of fiduciary duty, and also brought claims against the employees and their new employer for allegedly inducing breaches of contract and conspiracy.

The High Court found that, whilst one of the senior employees involved had breached his contract by soliciting clients while still employed by Global Risks, the breach did not cause Global Risks any loss. The court also decided that the same employee was not under a fiduciary duty (normally applied to directors) to his former firm. So he was not obliged to warn Global Risks that some of its clients were considering moving to a competitor nor to persuade these clients or his colleagues to remain with Global Risks.

So - whilst there may have been a breach of contract, the claimant has to show actual loss to be awarded damages.

TUPE - consultation and temporary cessation

Two TUPE cases - the first concerning consultation, and the second the temporary cessation of activities.

We have reported on the case of Todd v Care Concern previously, this concerns the employer's failure to elect representatives and consult staff prior to a TUPE transfer where no measures relating to the transfer were envisaged. This has now gone to the EAT who held that an award of 13 weeks' pay should NOT be the starting point for failure to inform and consult where the employer has done "something" to comply with the statutory obligations. The 13 week award should only be the starting point if there has been a complete failure to engage in the information/consultation process. However, it also reconfirmed that the obligation to inform applies even where the transferor does not envisage any 'measures' will be taken.

In the second case, Wood v London Colney Parish Council, the employer, a Social Club, employed Mr Wood as a bar steward. He was dismissed after the Club handed back its lease on the bar to a third party (and then surrendered its premises licence). The third party took over the bar, subsequently got its own licence, and ran the bar with its own staff. The EAT decided that this was a transfer which fell under TUPE - the economic entity, the bar, was only temporarily out of action and did not cease to exist.

TUPE - requirement to consult, even where no changes are planned

Another case which found that, even though no changes were proposed following a TUPE transfer, formal consultation must still take place in good time.

In Cable Realisations v GMB Northern, the union argued that information about the proposed transfer was provided too late to properly consult. (The transfer was announced to staff on 29 June, but details were only given to the union on 15 August, for a transfer which took place on 3 September, a few days after the annual shut down for summer on 20-31 August.) The letter to the unions had made it clear that there were no planned changes to the structure.

The union won its case for failure to consult. The award was reduced to take into account that there were no measures, but the employees were all awarded three weeks' pay in compensation. The EAT also made it clear that the information and consultation process only commences after the formal letter has been sent - any earlier informal briefings do not count

WTR and annual leave

Three more cases concerning the Working Time Regulations - introduced in 1998, but still making case law!

Firstly, can employers schedule leave at a time when an employee would not otherwise be required to work?

The Scottish Court of Session says "yes".

In Russell and others v Transocean International Resources Ltd and others, the employees worked on offshore installations. They were rostered to work two or three weeks offshore on a platform or rig, followed by two or three weeks onshore. During onshore time (50% of the year) they were off duty, although occasionally had to undertake work-related activities such as training courses, appraisals and medical assessments.

The employees argued that they could not be required to take leave during periods when they were not generally required to work anyway, and that their leave should occur when they were on duty on the offshore installations. The original employment tribunal upheld their claim, but the Employment Appeal Tribunal (EAT) and then the Court of Session decided that the employers had not contravened the WTR by treating the onshore time as annual leave.

Whilst this case concerned workers on oil rigs, the thinking applies to teachers and any other employees who are required to take holiday during shut down periods. The Court noted '[t]here is nothing in the WTD to suggest that employers may not arrange matters so that annual leave is taken during the school holidays or such similar industrial equivalent.'

So - whilst leave cannot come out of a "rest period" as strictly defined in the Working Time Regulations 1998, it does not have to come out of working time.

This judgement is a Scottish one, and therefore not binding on courts or tribunals in England and Wales, but will have some influence, given the seniority of the Court.

Secondly, a Northern Irish case regarding rest breaks and interruptions.

The Northern Ireland Court of Appeal (NICA) has ruled that rest breaks can be interrupted and are not "on call" time.

In Martin v Southern Health & Social Care Trust, the Court had to consider whether the claimant was 'on call' during her rest breaks and, therefore, working and entitled to payment for these.

The Working Time Regulations give workers the right to uninterrupted, unpaid rest breaks (20 minutes for a shift of six hours or more, 11 hours uninterrupted break between shifts, and two days off per fortnight). However, in certain circumstances an employer may give 'compensatory rest' if a worker has been required to work during a rest break.

This case concerned a nurse who claimed payment for her breaks. Whilst she had been given compensatory rest for breaks which had been interrupted, she claimed there could be no guarantee she would not be disturbed. She argued that her breaks were therefore 'on call' time and were working time, so she should be paid for them. (The European Court of Justice has held that all time "on-call" counts as working time if workers are required to be in the workplace, even if they are asleep.)

The NICA overturned the original tribunal's decision that Martin was 'on call'. It decided that she was not 'on call', and the rest breaks should be unpaid because the compensatory rest provisions applied. The arrangements between the employer and workers had been specifically negotiated with the unions to make sure the regulations were implemented properly.

Although decisions of the NICA are not binding on employment tribunals in England, Wales and Scotland, they also may influence future arguments!

Finally, opt out agreements

If a worker refuses to work more than 48 hours on average per week, may he be moved, against his will, to another job which involves fewer hours?

An ECJ decision this time! And unsurprisingly perhaps the answer is "no". The ECJ confirmed that it is a breach of the Working Time Directive to transfer compulsorily a worker to another job because the worker has asked to comply with the weekly working time rules, even though the worker suffers no detriment as a result of the transfer.

Mr Fuss is a fireman. He asked to limit his average working week to 48 hours (he was rostered to work an average of 54 hours per week) and his employer decided instead to transfer him from fire fighting duties to an office role in the fire service control room. Mr. Fuss appealed against the transfer and his employer argued that he had suffered no detriment.

The ECJ said the Directive specifically requires that 'Member States shall take the measures necessary to ensure that the average working time for each seven-day period, including overtime, does not exceed 48 hours'. So a transfer to another role on the grounds that someone has requested compliance with the maximum average weekly working time is unfair.

Resignation - can it be retracted?

In normal circumstances (other than clear "heat of the moment" resignations), it is safe to assume that a resignation, once served, cannot be retracted without the employer's agreement.

Dismissal - may be fair even without prior warnings

Dismissal - redundancy and bumping

Breach of contract - damages

So - whilst there may have been a breach of contract, the claimant has to show actual loss to be awarded damages.

TUPE - requirement to consult, even where no changes are planned

Another case which found that, even though no changes were proposed following a TUPE transfer, formal consultation must still take place in good time.

Recruitment: discriminatory adverts and blacklisting

Two interesting recruitment cases - firstly J Berry v Recruitment Revolution and Ors. This confirms that cases from serial claimants who bring cases of alleged discrimination relating to job advertisements in which the claimant has no genuine interest should be struck out, and the claimant be liable to face orders for costs. John Berry brought over 60 claims within the last three years! He would look for job adverts calling for a 'recent school leaver', 'recent graduate' or similar, bring an age discrimination claim and - in the vast majority of cases - receive a settlement of a few thousand pounds from employers who wished to avoid litigation. The EAT dismissed four appeals by Mr Berry and emphasised that 'the purpose of the Regulations is not to provide a source of income for persons who complain of arguably discriminatory advertisements which they have in fact no wish or intention to fill, and that those who try to exploit the Regulations for financial gain in such circumstances are liable to find themselves facing a liability for costs'.

The second case is Willis v CB&I, and concerns blacklisting. Mr Willis is a construction worker who applied to work as a steel erector on a major engineering project He is also a member of Unite and claimed that he was blacklisted due to his trade union activities. CB&I had used a list of 3,000 construction workers and their union history supplied by The Consulting Association (TCA). Blacklisting was prohibited from April this year, but Willis (who was refused employment prior to this in 2007) successfully brought his claim under the Trade Union and Labour Relations Act, and was awarded £18,375 in damages.

Sick pay - injuries sustained whilst playing football

Some employers place restrictions on their company sick pay schemes, and do not pay company sick pay in respect of injuries sustained whilst undertaking extreme sports, or other similar activities outside of work. This is of course entirely lawful - as the employer is free to determine the rules of a non-statutory benefit. However, in Aber Roof Truss Ltd v Revenue & Customs, the employer tried to withhold statutory sick pay (SSP) from Mr Adams, an employee with a long history of absences caused mainly by football injuries. Mr Adams had been warned by his employer that no more SSP would be paid for absences due to football injuries. When he was next absent, for two weeks, his employer refused to pay SSP on the grounds that it felt his incapacity was self-inflicted. Mr Adams appealed against the decision.

The tribunal decided that Mr Adams met all of the qualifying conditions for SSP (he was unfit for work due to incapacity or illness, his employment was liable for NICs, and his average earnings exceeded the NICs lower earnings limit). There is no statutory basis for excluding 'self-inflicted' injuries. He was therefore entitled to SSP and his employer should make the payment.

Discrimination - age - can cost justify discrimination?

A case which will be of interest to a lot of employers, especially given the forthcoming removal of the default retirement age.

In Woodcock v Cumbria Primary Care Trust, Mr Woodcock was Chief Executive of the Trust. Following a reorganisation, he was not reappointed as Chief Executive and was due to be served formal notice of redundancy on 6 June 2007. His employer noted that he had a notice period of 12 months and, if he were still employed on 17 June 2008, he would be aged 50 and therefore could take early retirement on hugely enhanced terms. This would increase the cost of his redundancy (by between £500,000 and £1,000,000), due to his pension entitlement. The Trust therefore decided to give Mr Woodcock his notice in advance of the meeting on 6 June, to ensure that his termination date would be no later than his 50th birthday. It wrote to him on 23 May 2007, 2 weeks before the expected meeting, informing him that he would be dismissed unless the Trust could find him suitable alternative employment.

Mr Woodcock brought a claim of age discrimination. The Employment Appeal Tribunal upheld the original tribunal's finding that the Trust was justified in bringing forward his dismissal, partly on the grounds of the increased costs. The EAT said that it was 'hard to see the principled basis for a rule that such considerations (costs) can never by themselves constitute sufficient justification or why they need the admixture of some other element in order to be justified'.

Discrimination - harassment

Harassment and bullying are normally judged by the recipient, but the nature of the working environment and the language and behaviour common to that environment should be taken into account.

In Dowson v Chief Constable of Northumbria Police, the judge described the unit in which Detective Inspector Dowson and his five colleagues worked as a 'stressful working environment in which case-hardened officers were dealing with career-hardened criminals'. It was alleged that the newly appointed head of the unit, Detective Chief Inspector Pallas, sometimes swore at members of the team; sometimes instructed them to act in unlawful ways; blamed them for his own failings; subjected them to vulgar abuse in front of subordinates; and made criticisms of them to other people. The employees' grievances against his behaviour were not upheld, so they brought claims under the Protection from Harassment Act 1997, citing 30 allegations of harassment.

The High Court judge said that the conduct must be objectively judged to be 'oppressive and unacceptable', and that this may depend on the social or working context in which it occurs. There is a difference between unattractive and unreasonable conduct, and conduct which could lead to criminal liability.

Given the circumstances in which the alleged harassment had taken place, the judge ruled that none of the 30 allegations of harassment satisfied the criteria, and the claim was dismissed. The judge also advised that the initial use of a less formal approach, such as mediation, to resolve the issue may have worked, rather than the use of the formal grievance procedure.

Dismissal - redundancy selection

The case of County Print v Page (also referred to as Pinewood Repro Ltd v Page) confirms that an employee selected for redundancy should be given an explanation for his scoring and a meaningful chance to comment on his scores and challenge them.

Mr Page was concerned about his score on flexibility. His employer failed to justify his mark (or to justify a refusal to remark). Criteria such as "flexibility" are of course difficult ones to substantiate unless there is concrete evidence to support a scoring (such as refusal to work overtime or never volunteering for this, refusal to adjust hours, refusal to take on additional duties when reasonable required).

This case also confirms that an employer who seeks to rely on a "Polkey" argument (that the employee would have been dismissed in any event) must have evidence rather than a percentage chance of dismissal.

Employment status - fixed-share partners and agency workers

Confirmation from the EAT that a fixed-share partner is not an employee.

In Tiffin v Lester Aldridge LLP, Mr Tiffin was a fixed-share partner. There was a big different between Mr Tiffin and the equity partners in terms of earnings, the profits received, financial contribution, involvement in the management of the LLP, and voting rights. However, the EAT pointed out that there is nothing that sets a limit which must be met in order to be a partner (eg a minimum number of shares or certain minimum types of rights to vote or to participate in management decisions). Nor are there any minimum earnings, profit share or level of contribution.

Mr Tiffin had the right to vote and management duties and also was entitled to a residue of the firm if it was wound up. There was therefore enough evidence for the ET to arrive at its conclusion and the EAT said that it had not erred in deciding that Mr Tiffin was a partner and not an employee.

And the Court of Appeal has looked at agency workers, and decided that just because a worker is integrated into the organisation does not necessarily mean that he/she is not an agency worker. In Tilson v Alston, the Court of Appeal found that there was no contract between the hirer and the worker and said that:

the need to apply to a line manager before taking annual leave is not sufficient to justify an implied contract
there is no need to imply a contract between the agency worker and end user where there has been a breach of a clause of the contract between the agency and a third party providing services to the end user that relates to the agency worker
where the parties would have acted in exactly the same way if there had been no contract, that is fatal to the implication of a contract.

Annual leave and continuity of employment

An EAT decision regarding continuity of employment.

In Hussain v Acorn Independent College Ltd, Mr Hussain had a fixed-term contract to cover for an absent teacher from 25 April 2008 to 8 July 2008. The latter then resigned and during the summer holidays Mr Hussain was offered permanent employment from 5 September 2008. He was dismissed on 12 June 2009 and brought an unfair dismissal claim.

Did he have a year's service or not?

Sections 210 to 219 of the Employment Rights Act 1996 set out the rules on continuous employment. Any week during which an employment contract is in force counts towards continuous employment. A gap of at least a week breaks the continuity unless the employee:

cannot work due to sickness or injury
is absent due to a temporary cessation of work or
is absent in circumstances that are treated as not breaking continuity.

This case involves the 'temporary cessation of work' exception. The employment judge allowed Mr Hussain to bring his claim. He said that his continuity of employment was not broken by the summer holidays, and made the following points:

there is no requirement in the legislation that there be an expectation of further work when the first contract ends
the two contracts do not have to be the same type
in education (also in the case of agricultural and seasonal work) there are periods when employees are not required to be at work
the first contract had ended as a result of the cessation of work, and the same work resumed at the beginning of the new term
the interval was short and temporary.

Learning Resources

We enjoyed these reads and view them as key learning resources and a worthwhile investment for individuals and businesses alike.

How to Win Friends and Influence People

This 1930's classic has sold in excess of 60 million copies. It was one of the first books of its kind to address the noble art of dealing with people. The book is very practical and it could be reasonably argued that in this book Dale Carnegie was writing about what Daniel Goleman later popularized as emotional intelligence some six decades later.

We have included the link to Amazon for the audio version which will prove convenient for regular commuters.

Emotional Intelligence - Working with EQ

Daniel Goleman's seminal work on why people with emotional intelligence (EQ) do better in life than the traditional measure of Intellect (IQ). This is a very thorough scientific backed book that is surprisingly easy to read. This has some concrete examples of how emotional intelligence can be developed and improved and why it is so important that we start to think differently on the skills we are looking for when recruiting. If you have an interest in the area of study, why don't you treat yourself or your colleagues to our Bar-On EQ-i personality test (check out our EQ-You page)?

We have included the link to Amazon for the audio version which will prove convenient for regular commuters.

The 7 Habits of Highly Effective People

This great book from Stephen R Covey is another catalyst for great rapport building. The book centres around character ethics and is about how people move from a state of independence to interdependence and how they can make a habit of being much more personally effective with others. Built around what Covey calls natural laws, it is doubtful that you will learn anything that you don't already know but this book delivers in clear crisp messages.

We have included the link to Amazon which also includes a link to the audio version which will prove convenient for regular commuters.

Our learning library

How to Win Friends and Influence People

Emotional Intelligence - Working with EQ

The 7 Habits of Highly Effective People

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