02 Jul 2015

Employment Law Bulletin: July 2015

Insights, Publications

As the school summer holidays approach, the annual juggle of all juggles looms large for many parents. Childcare over the six or more weeks of children’s time off is rarely a one-person job. And grandparents are prime sources of support.

Things could be set to change for the better for families, with indications that the government may look at Labour’s plans for introducing parental leave entitlements for working grandparents, dubbed “granny leave”. Under the proposals, parents’ 18 weeks of unpaid parental leave, or four weeks in any year, could be shared with their own parents.

David Cameron has said that he’ll consider this because of his government’s championing of the right to request flexible working. So watch this space…

Keeping shtum about alleged misconduct
The Basildon Academies v Amadi

There is no general duty on employees to tell their employer about misconduct or other past wrongdoings that they may (or may not) have been involved in. Some senior staff – directors, for example – owe fiduciary duties, and this puts them in a separate category of employees who are obliged to make these sorts of disclosures. For other members of staff, the wording of their contract tends to be the starting point when considering if there is such a duty. But what if the contact is silent or doesn’t go far enough? Can terms be implied?

Mr Amadi was a part-time tutor at the Academies. He worked at another College at the same time, where allegations of sexual assault were made against him. He was arrested, but not prosecuted, and went on to be dismissed by the Academies for not revealing (1) that he was also working at the other College; and (2) the sexual misconduct allegations.

He was held to have been unfairly dismissed, but had contributed to his dismissal by not coming clean about having the job at the other College. Had he been under a duty to reveal the misconduct allegations? No, said the Employment Appeal Tribunal (EAT). There was no express term in his contract requiring Mr Amadi to report an allegation which he didn’t believe to be true and had no reasonable ground to believe was true. So it had come down to whether or not a term could be implied. The EAT made clear that there is no implied duty on an employee to disclose an allegation, however ill-founded, of impropriety against him.

The lesson for employers? Think about the express terms in your contracts. If you are keen to encourage staff to tell you about their misconduct, you should provide for this in the contract. Make sure that terms are wide enough to cover everything you need them to, perhaps including actual and alleged misconduct relating to an employee’s employment with you and to any other job they carry out. Setting things out in black and white offers good protection.

Employment Tribunal Fees review

The government’s review of tribunal fees is underway.

Broadly speaking, it will look at the effect that the introduction of fees has had and will consider other factors that influenced trends in the number of tribunal cases brought. The review will also make recommendations for any changes to the structure and level of tribunal and Employment Appeal Tribunal fees.

This will surely be music to the ears of campaigners who have challenged the appropriateness of fees in employment cases. We’ll have to wait until the review has concluded, which should be at the end of 2015, before we have a clearer picture on what the future of paying for claims will look like.

Meanwhile, a decision is expected in the Autumn in the challenge to fees brought by Unison the union. Unison argues that tribunal fees are unlawful because they impede workers’ access to justice. They have already lost twice in the High Court, and the Court of Appeal will now decide.

Did a customer’s request stop employee transferring?
Jakowlew v (1) Saga Care and (2) Westminster Homecare

Commercial contracts often give customers or clients some power over which of your employees you assign to their account. If they’re unhappy with one of your people, they can ask you to reassign them. In this case the Employment Appeal Tribunal (EAT) looked at whether a client’s request by itself amounts to removal of the worker.

Ms Jakowlew was employed by Saga. The bulk of her work was for London Borough of Enfield, but that contract was due to be taken over by Westminster Healthcare. Before that happened, Enfield asked that Ms Jakowlew and two colleagues be removed from the contract. Saga refused. She was eventually dismissed for redundancy, but not before the service provision change had taken effect.

Ms Jakowlew claimed unfair dismissal against Saga and Westminster. The tribunal found that she was removed from the contract on Enfield’s instruction so was not in the organised grouping of employees at the relevant time. Her employment hadn’t transferred and Saga remained her employer. But the Employment Appeal Tribunal took a different view. Ms Jakowlew had not been removed from the organised grouping. Only Saga, and not the client, had the power to re-assign her and it hadn’t done so. Her employment had therefore transferred to Westminster.

So an instruction from a client, however legitimate, does not change an employee’s status in this way unless the employer acts upon it. By not acting, the employer may risk a breach of contract claim by the client, but the level of that risk would depend on the loss suffered as a result of the non-compliance.

Working while travelling
Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco

What counts as ‘working time’? It’s a question that will continue to be asked as working patterns evolve.

There has now been word from Europe that employers should take account of peripatetic workers’ first and last journeys of the day. It’s yet to be confirmed, but it seems that when these sorts of workers travel to and from a customer or client, those journeys from home to the premises and from the premises to home count. They fulfill the requirements of ‘working time’. That’s because the workers are at the employer’s disposal, carrying out their duties, during that initial travelling time.

Note that time spent travelling between clients (rather than the first and last journey of the day, involving travel from/to home) has always been regarded as working time.

Jilbab as trip hazard
Begum v Pedagogy Auras UK

Ms Begum turned down the offer of a trainee nursery assistant apprenticeship, after being asked if she could wear a shorter jilbab to work. The garment she had on that day of her interview was considered to be a trip hazard.

It was a part of Ms Begum’s religious belief that she should wear a garment covering her from neck to ankle, and she brought a discrimination claim.

The tribunal found against her; a decision upheld on appeal. The employer had not instructed her that she could not wear a jilbab of the appropriate length but even if it had, the provision, criterion or practice (PCP) applied to all staff of all religions. There was no indirect discrimination. Even if the PCP did put Muslim women at a disadvantage, it would be justified as a proportionate means of achieving a legitimate aim: the protection of the health and safety of staff and children.

Triggering the duty to consult
E Ivor Hughes Educational Foundation v Morris

This case was about a private school that was forced to close because of declining pupil numbers. Here’s how the timeline looked:

February – Confirmed at a meeting that the school would have to close at the end of the summer term if numbers didn’t pick up by April.

April – Teachers were given notice of redundancy.

July – Terminations took effect.

The problem was that the school hadn’t consulted over the decision to close. It seems there was a lack of awareness about this legal obligation. The law says that where you are proposing to dismiss as redundant 20 or more people at one establishment within a 90-day period, you must collectively consult. If you don’t, you could face a protective award bill of 90 days’ pay per employee.

That is what the employees here were awarded, after the tribunal found that it would not have been impracticable to consult. The tribunal also held that the duty to consult arose in February and not when the teachers were given their redundancy notices.

The Employment Appeal Tribunal (EAT) upheld that decision. It was in February that the decision was taken to close the school, and the only thing that would stop that would be a rise in pupil numbers. And it was right to make a 90 days’ protective award. The employer’s argument that it was excused from consulting because it didn’t want the closure issue to diminish confidence in the school didn’t get a favourable reaction in the EAT.

The case raises the difficult task employers have in pinpointing when they are actually “proposing to dismiss”. It may not always be obvious. In this case, the decision in February to close the school unless numbers increased was either a fixed, clear (provisional) intention to close the school, or it was a strategic decision on changes compelling the employer to contemplate or plan for collective redundancies. Either way, the duty to consult was triggered then.

And finally….
McElroy v Cambridgeshire Community Services NHS Trust

It’s not unknown for employees to come to work accompanied by a faint whiff of alcohol. But is it misconduct?

An employment tribunal has held that an employer was unreasonable in dismissing the employee for smelling of alcohol when there was no evidence of it having had any effect on their ability to do their job. Here, the Trust’s disciplinary policy listed being unfit for duty because of the effect of alcohol as a type of gross misconduct.

Surprisingly, the tribunal held that not everyone who turns up at work emitting alcoholic fumes will perform worse than they otherwise would. It will come down to the specifics, including their state, their role and health and safety concerns. And of course your policies will dictate the action you should take, so it’s worth making sure that they set out very clearly what’s not acceptable.