Mistreated Police Worker Due Big Compensation Payout

A civilian police worker whose claims of psychiatric disability were disbelieved by her bosses, and who was sacked on the basis of vague allegations, has won the right to substantial compensation for the mistreatment she endured.

The woman had worked in a police force’s finance department for 23 years but had a history of suffering anxiety, stress and depression. She also had a heart problem and had undergone surgery six months before her dismissal. Whilst she was on sick leave, suspicions were raised that her psychiatric problems were not genuine and she had been placed under covert surveillance by her employer.

Her claims to have suffered extreme bullying at the hands of her superiors were met by demands that she return to work. A disciplinary hearing in respect of a number of unparticularised allegations was ultimately convened and she was dismissed with immediate effect for alleged gross misconduct.

In upholding her unfair dismissal claim, an Employment Tribunal (ET) described the covert surveillance as very heavy handed. Although her employer had genuinely believed that she might be falsely claiming to be sick, her disproportionate treatment had worsened her condition. There were also a number of procedural flaws in the disciplinary process leading up to her dismissal.

The ET, however, rejected her disability discrimination claim. In upholding her challenge to that decision, the Employment Appeal Tribunal (EAT) found that the ET had erred in its interpretation of Section 15 of the Equality Act 2010. Her disability was an effective cause of the unfavourable treatment she suffered and a finding of discrimination was thus inevitable. The amount of compensation due to her in the light of the EAT’s ruling had yet to be assessed.

Whistleblowing: State of Mind Is All Important!

In whistleblowing cases, the employee’s state of mind is the decisive factor and that was certainly so in the case of a college lecturer who was dismissed after being accused of making groundless allegations against a colleague.

The lecturer faced criticism of her performance on the basis of student feedback and was said to have defended herself by accusing a colleague of giving his students advance notice of examination questions. The colleague was subsequently acquitted of malpractice and the lecturer was dismissed for gross misconduct on the basis that her allegations against him had been vexatious.

An Employment Tribunal (ET) subsequently found that it had not been the lecturer’s intention to get her colleague into trouble and that her remarks about him were made in good faith and with a view to vindicating her own position. However, in dismissing her whistleblowing claim, it found that she had no reasonable belief that he was undermining the integrity of the examination system.

Allowing her appeal against that ruling, the Employment Appeal Tribunal (EAT) found that the ET had failed to clearly address issues as to the reasonableness of the lecturer’s belief and whether the allegations she made were public interest disclosures within the meaning of the Employment Rights Act 1996.

The employer’s challenge to a finding of unfair dismissal in the lecturer’s favour was also allowed. The EAT found that the ET substituted its views for those of the college and had failed to apply the objective standard of the reasonable employer. In those circumstances, the remaining issues in the case were remitted to a freshly constituted ET for reconsideration.

Whistleblowing Solicitor Wins Compensation Fight

A whistleblowing solicitor who resigned after she was dressed down in front of colleagues and her performance inappropriately criticised has won the right to compensation after a tribunal ruled that she was constructively dismissed unfairly.

The woman had blown the whistle in respect of aspects of the financial management of the firm for which she worked and in respect of an inappropriate joke about Arab Muslims which had been internally emailed by a member of the management team.

After she raised her concerns, her performance was unfairly criticised in front of her team and others. An Employment Tribunal (ET) found that the reason for that was that she had made the protected disclosures. She later handed in her notice in a resignation letter which contained a number of complaints about her treatment.

The ET found that the disclosures were not the principal reason for her dismissal. However, in upholding her claim, it went on to rule that her overall treatment had led to a breakdown of her relationship of trust and confidence with her employers. The fact that the firm did not have up-to-date whistleblowing procedures in place also amounted to a fundamental breach of contract.

The firm challenged the ET’s decision before the Employment Appeal Tribunal (EAT) on the basis that it was insufficiently reasoned and displayed errors of law. It was submitted that the woman would have resigned in any event and that the breaches of contract found by the ET were not serious. However, in dismissing the appeal, the EAT found that the ET was entitled to reach the conclusions it did on the evidence.

Government Investigation into Tipping

The Business Secretary, Sajid Javid, has launched an investigation into abuse of tipping, as part of the Government’s initiative to make sure workers are paid fairly.

The announcement follows recent media reports that some major restaurant chains are withholding a proportion of the money left by customers for waiting staff in order to cover administrative costs.

The consultation seeks information on current practice in relation to tips, gratuities, cover and service charges and also welcomes views on the Government’s role in improving practice in this area. It will then decide if action is needed to ensure that employers do not withhold from tips anything other than credit card administration and payroll charges.

The consultation closes on 10 November 2015.

Mobile Employees Win Landmark Working Time Debate

Car DashboardIn a groundbreaking decision which will benefit hundreds of thousands of employees who have no fixed place of work and travel directly between their homes and customers’ premises, the European Court of Justice (ECJ) has ruled that time spent on the road is working time which must be taken into account when calculating entitlement to rest periods.

The case concerned a Spanish security equipment company which managed a web of operatives across the country from its central office in Madrid. Employees, who used company-owned vehicles, were despatched from their homes to customers’ premises by mobile phone as the need arose. In some instances, workers travelled long distances and for several hours to serve clients.

In those circumstances, an issue arose as to whether time they spent driving between their homes and their first and last customers each day was working time within the meaning of Directive 2003/88/EEC. That question was referred to the ECJ for a preliminary opinion by the Spanish High Court and was considered of such importance that the UK government intervened in the case, laying particular stress on the potential cost implications for employers.

The company argued that the workers were entitled to choose their own routes and travel itineraries and were thus not at its disposal whilst travelling between home and customers’ premises. It treated hours spent on the road as rest periods which did not count towards the nine-hour maximum working day envisaged by the Directive. Employees’ time at work was calculated on the basis of the time of their arrival at the premises of their first daily client and their departure from the last.

In ruling on the issue, the ECJ found that, where workers do not have a fixed or habitual place of work, time spent travelling between their homes and the premises of clients designated by their employer is working time. Travelling was an integral part of the employees’ duties and they could not be expected to bear the entire burden of the company’s strategy of dispensing with regional offices.

The company’s interpretation of the Directive, if correct, would distort and jeopardise the objective of promoting the health and safety of workers by ensuring that they enjoy minimum rest periods and that at least 12 hours elapses between the end of one working day and the start of the next. That conclusion could not be called into question by the UK government’s concern that employers would be placed under a greater financial and administrative burden. Remaining issues in the underlying litigation would now be resolved by the Spanish court in the light of the ECJ’s ruling.

Rugby World Cup 2015 – Are You Ready?

The Rugby World Cup 2015 commences on Friday, 18 September 2015, with a match between England and Fiji, with the final due to be played at Twickenham on 31 October 2015.

Employers who have not already done so should ensure they have policies in place to deal with any issues that could arise and that employees fully understand them. Whilst you are under no obligation to make adjustments to cater for employees who wish to watch or attend the matches, if you are able to offer some degree of flexibility during such events, it is an opportunity to improve employee motivation and morale – but be sure to take a fair and consistent approach.

Matches are scheduled to take place on weekday afternoons and evenings as well as at weekends, so rugby fans who work shifts or who work outside normal office hours will be affected as well as those who work from nine to five. A full list of the fixtures can be found here.

Make sure staff fully understand your policy regarding last-minute requests for annual leave and that you communicate what disciplinary action will be taken in the event of unauthorised absences or if employees attend work but are incapacitated because of too little sleep or too much alcohol. It is always a good idea to hold back-to-work interviews when employees are off sick as not only does this help employers identify any action that can be taken to improve an employee’s working conditions but it can also deter malingerers.

If you are considering adopting flexible working arrangements for the duration of the competition, these should not discriminate against staff who support teams other than England. Nor should any arrangements made have an adverse effect on workers who have no interest in rugby.

As matches will also be available online, it is important that employees are fully aware of your Internet policy. If you are considering relaxing your usual rules during the competition, make sure you have the necessary bandwidth to do so without this affecting system performance. There may also be an increase in the use of social networking sites, so make sure your policy is clear as to what is and what is not acceptable use of the Internet. If you are monitoring Internet usage, you are required by law to make this clear to all employees.

Also, staff should be aware that any racist conduct or comments will not be tolerated.

Further information on the Rugby World Cup can be found here.

Guidance from the Advisory, Conciliation and Arbitration Service on dealing with major sporting events can be found here.

For individual advice tailored to the needs of your business, contact us.

Long-Term Sick Leave and TUPE – Tribunal Gives Guidance

Workers whose contracts are shifted from one employer to another are protected by law against the consequences of commercial deals over which they have no control. However, the complications involved in such transfers were highlighted by the case of a telecommunications worker who had been on sick leave for five years.

The man worked as part of a close-knit team within a telecommunications company (company A) whose sole purpose was to service an outsource contract. The team, which had its own internal management structure, was acknowledged to be an organised grouping within the meaning of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

Although the man had been permanently unfit for work since 2008, he had remained on the team’s books and had continued to be paid by company A. The outsource contract was transferred to another telecommunications company (company B) in 2013 and it was accepted that that amounted to a service provision change and that the team’s employment contracts had transferred to company B.

An issue thus arose as to whether the man’s employment had shifted along with other members of the team notwithstanding his long-term inability to work. An Employment Tribunal answered that question in the negative, with the result that he continued to be employed by company A.

In dismissing company A’s challenge to that decision, the Employment Appeal Tribunal found that, as the man had made no contribution to the economic activity of the team for an extended period, he had not been assigned to that grouping at the time of the transfer. His continued administrative connection to the team was insufficient to amount to an assignment within the meaning of TUPE.

Music Teacher Strikes Blow for Fixed-Term Contract Workers

A music teacher who ended up on a zero hours contract after his employment was transferred from a local authority to the private sector has scored a legal victory of importance to all fixed-term contract workers.

The teacher had worked for the council for more than a decade under a series of contracts which expired annually at the start of the school summer holidays. He had no guarantee of work from year to year but had an expectation that his contract would be renewed. His last contract ended on 31 July 2013 and the council’s music service was transferred to a private company on 1 September that year. He was engaged by the company on a zero hours contract.

He launched Employment Tribunal (ET) proceedings against the council and the company, claiming unfair dismissal and arrears of holiday pay. He argued that he had been dismissed by the company and re-engaged on different terms. That claim depended on whether he was employed by the council at the date of the transfer notwithstanding the prior expiry of his contract.

In ruling in his favour on that issue, the ET found that his continuity of employment with the council was preserved by operation of Section 212(2) of the Employment Rights Act 1996. Following the transfer, he was thus entitled to be employed by the company on the same terms and conditions as before.

The ET also found that the transfer could not be viewed as a single, instantaneous, transaction. It had been planned for some time and it had been envisaged that the teacher and others in the same position would continue to work for the company on annual contracts.

In dismissing the company’s challenge to the ET’s ruling, the Employment Appeal Tribunal could detect no error of law in its findings.

Judges Urge Thorough Review of Employment Tribunal Charging Regime

The number of cases coming before employment tribunals has dramatically declined since the introduction of a controversial charging regime. However, the Court of Appeal has urged the Lord Chancellor to carry out a thorough review of a system which many believe is stifling access to justice.

The regime was introduced in 2013 and, whilst those on the lowest incomes do not have to pay, charges have since been levied against others who wish to pursue complaints against their employers. Access to the tribunal system was formerly free and the charges, which amount to thousands of pounds in some cases, have led to a reduction of around 80 per cent in the number of complaints dealt with by tribunals.

Trade union Unison twice mounted unsuccessful judicial review challenges to the regime and, in dismissing its appeal against those decisions, the Court rejected arguments that the charges were discriminatory and made it impossible, or far too difficult, for those who have suffered wrongs to obtain proper redress.

However, the Court noted that a full and careful review of the regime was needed in order to ascertain the cause of the ‘startling’ decline in the number of tribunal cases. The Lord Chancellor had announced a review in June 2015 and the Court observed that the level of fees would have to be revisited if there were grounds for concluding that sections of the working population were realistically unable to afford them.

Employees Beware! Facebook Abuse Can Cost You Your Job!

Canal BridgeAnyone tempted to vent their spleen against their employer on the Internet should take careful note of a case in which a canal worker was sacked after using a string of offensive expletives to describe his supervisors on Facebook.

The man was unaware that his Facebook account had been hacked and his ‘private’ setting switched to ‘public’. However, his description in explicit terms of his bosses as ‘nasty, horrible human beings’ – and his declaration, ‘I hate my work’ – were visible to millions of Internet surfers.

He had an unblemished eight-year work record and said that he was only ‘indulging in banter’ and did not intend to offend anyone. He pointed out that Facebook posts are often exaggerated and embellish the truth. He argued that his sacking was too harsh and that it was ‘convenient’ that he had been dismissed when he had outstanding bullying and harassment grievances against his supervisors.

However, his employer argued that it had been exposed to public condemnation and that he had breached his position of trust. It was also alleged that the Facebook posts indicated that he had, on one occasion, been drinking alcohol whilst on standby to deal with emergency situations.

His unfair dismissal claim initially succeeded before an Employment Tribunal (ET). However, in upholding the employer’s challenge to that decision, the Employment Appeal Tribunal found that his dismissal was within the range of reasonable responses. The ET had fallen into the trap of substituting its own views on the gravity of his misconduct for those of his employer. In those circumstances, there was only one possible answer to the issue – that his dismissal was fair.