Peripatetic Workers and Pensions Auto-Enrolment – High Court Rules

All businesses should by now be well aware that they are, or shortly will be, required to automatically enrol their workers in an approved pension scheme. However, in a ruling which will be required reading for employers, the High Court has given important guidance on how the new rules must be applied to peripatetic employees who spend much of their working lives outside Britain.

Cruise ShipA company which employed crew on board a fleet of Bermuda-registered cruise ships argued that its seafarer employees, who spend most of their time outside British territorial waters, should be exempted from the automatic enrolment scheme. It was submitted that such employees do not work, or ordinarily work, in Britain within the meaning of Section 1(1)(a) of the Pensions Act 2008.

The seafarers lived on board the vessels during tours of duty lasting up to six months and enjoyed relatively short periods of shore leave. A Guernsey-based company handled the company’s payroll, and although many of them resided in the UK and were paid in sterling, that did not apply to all of them. However, the Pensions Regulator disagreed with the company’s interpretation of the Act.

Ruling on the dispute, the Court acknowledged that it was possible to interpret the words ‘ordinarily works’ as connoting the place where workers spend the majority of their working time. However, that would not be a reasonable or fair test to apply to peripatetic workers, including those who go on frequent business trips abroad.

The Court found that a broader interpretation, giving many such workers a right to automatic enrolment, was more likely to reflect the will of Parliament. What mattered was the location of a seafarer’s ‘base’, and that could usually be determined by identifying the country in which tours of duty began and ended.

The Court found that seafarers who work from a British base ‘ordinarily work’ in this country even if they spend most of their time outside British waters. The same applied to those who live in Britain and whose voyages habitually begin and end in this country. However, those who reside in Britain but whose tours of duty usually start and terminate elsewhere fell outside the statutory definition.

Housing Provider Prevails in Chief Executive Pension Row

In a decision of interest to pension advisers and public employers, the High Court has ruled that a social housing provider which dispensed with its chief executive’s services did so because it was dissatisfied with his performance and not for reasons of business efficiency.

The provider, an arm’s length company which was wholly owned by a local authority, made a severance payment of more than £200,000 to the 52-year-old executive on his departure. However, it refused to grant him early retirement or to pay him a full pension.

He complained to a deputy pensions ombudsman, who found that he was entitled to be paid an unreduced pension by virtue of the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2007. That was on the basis that the company had decided that he should leave his post in its own interest and on grounds of business efficiency.

In overturning that decision, the Court noted that the company’s sole shareholder, the local authority, had threatened to withdraw its funding if the executive was not replaced. The evidence was all one way that his employment was ended due to serious doubts about his personal performance. His departure was not required due to any systemic or structural change in the way the company ran its business and it could not sensibly be said that business efficiency was a primary ground for his removal.

Reasonable Adjustments for Disability – Appeal Court Guidance

Every responsible employer knows that reasonable adjustments have to be made for disabled workers. However, in a guideline decision involving a civil servant suffering from post-viral fatigue syndrome, the Court of Appeal has ruled that that duty is not without limit.

Due to her condition, which it was agreed amounted to a disability, the woman had been absent from work for a period of 62 days. The government department in which she worked had a policy for dealing with absenteeism and she was issued with a written improvement warning and told that she could face disciplinary sanctions.

She sought to persuade the department that the period of absence should not be counted against her and that the written warning should be withdrawn. She also said that the policy should be modified to enable her to have longer periods of sick leave in the future before she would face the threat of disciplinary action.

Following a grievance procedure, however, the department refused to comply with either of those requests. The woman’s disability discrimination complaint was rejected by an Employment Tribunal, and subsequently by the Employment Appeal Tribunal (EAT), on the basis that the department could not reasonably have been expected to make either of the adjustments sought.

In ruling on her challenge to the EAT’s decision, the Court of Appeal found that both tribunals had erred in finding that the duty to make reasonable adjustments was not engaged simply because the absenteeism policy applied to all the department’s employees. There was clear evidence that the terms of the policy had placed the woman at a substantial disadvantage.

Dismissing her appeal, however, the Court found that employers are entitled to say, after a pattern of illness absence, that they should not be expected to have to accommodate an employee’s absences any longer. Although the woman was in no sense culpable for her absence, the department’s refusal to make the adjustments requested was, in the circumstances, reasonable.

In sounding a warning note to employers, however, the Court noted that the right to reasonable adjustments is just one of the protections afforded to disabled workers. Those who take disproportionate decisions to dismiss employees for disability-related absences could still be held liable for discrimination or unfair dismissal.

Suspect An Employee of Disloyalty? The Law Can Move Fast to Help You!

Businesses often have no choice but to allow employees access to sensitive trade information despite the obvious risks which that entails. However, one High Court case revealed how fast the law can move to stem any leaks which may arise from disloyalty.

A company specialised in organising ‘summit’ meetings at which senior executives could meet and get to know one another. It had built up an archive of high-level contacts and confidential customer information over many years of trading which was vital to its success.

Following a senior employee’s resignation, the company suspected that he had taken that and other information with him. He had set up a business of his own, operating in a similar field, and was alleged to have sent confidential company documents to his home email address as the date of his departure approached.

The employee’s contract contained a number of confidentiality, non-compete and non-solicitation covenants which, amongst other things, forbade him from misusing company information or working for a competitor for 12 months. The company launched proceedings to enforce those provisions.

In his defence, the employee accused the company of flagrant breaches of his employment rights and argued that he had been constructively dismissed. He denied breaching the covenants, also insisting that they were in any event too broad and one-sided to be enforceable.

In granting an interim injunction against him, however, the Court found it strongly arguable that disclosure of the relevant information to a competitor would cause real damage to the company. The year-long restriction on his involvement with a competitor was also not on the face of it unreasonable.

The injunction would not sterilise his professional skills or prevent him from making use of his expertise as a manager and salesman in a non-competing field. In the circumstances, the balance of convenience fell in the company’s favour and it was appropriate to make an order holding him to the terms of his contract.

Bank Worker’s Hopes Boosted in Race Discrimination Case

A black computer consultant and business data analyst, whose employment with a high street bank was summarily terminated when he was less than three months into his contract, has won a fresh chance to prove that he was a victim of race discrimination.

The bank insisted that the man’s dismissal had nothing to do with his race and was due to his poor performance. An Employment Tribunal (ET) rejected his claim on the basis that it preferred the evidence of his line manager as to the events in question and the motives for his dismissal.

In allowing his appeal, however, the Employment Appeal Tribunal found that the ET’s reasons were insufficient to enable him to understand why he had lost his claim. It was not enough for the ET to baldly state that it preferred one witness’s evidence over another’s without also stating why that was the case. In those circumstances, it was impossible to be satisfied that the case had been tried fairly and the matter was sent back to a fresh ET for re-hearing.

Let Down By An Untrustworthy Employee? You Are Not Powerless!

It is a sad truth that employees cannot always be trusted not to give in to temptation – however, if the worst happens, the law is there to help. In one case which illustrated the point, the High Court came to the aid of a company which suspected a senior staff member of receiving bribes, commissions and secret profits totalling about £1 million.

The man had been employed as a procurement manager by the company, a major player in the house building industry, for more than a decade. It was alleged that he had misappropriated and misused confidential information and taken kickbacks from subcontractors who were anxious to do business with the company.

Following investigations, the company had indentified large sums of money flowing through the man’s bank accounts and that of a company of which he was the sole director. He was said to have paid over £450,000 to his wife and parents and to have used a private email account to further his nefarious activities. It was noted that the man appeared to be living a lifestyle far beyond that which his salary would permit and that some of the relevant funds had been received from a firm which had been awarded substantial contracts by the company.

The man and his company denied any wrongdoing. However, after an emergency hearing at which only the company was represented, an asset freezing order was issued against them. Following a further hearing, at which lawyers for all parties appeared, the Court extended that order in somewhat modified form.

The Court found that there was a real risk of further dissipation of the relevant funds and that it was just and convenient to continue the order. The man and his company were also directed to disclose certain documents in order to ascertain the extent of the alleged wrongdoing.

The Annual Christmas Party

The firm’s annual Christmas party gives employers the opportunity to thank members of staff for their contribution over the past year and is a chance for everyone to relax and enjoy the holiday season. However, it is easy to forget that an employer owes its employees certain obligations, even outside work, when the employer has organised the event and that employees’ conduct should comply with normal standards and should not breach workplace equal treatment and anti-harassment policies.

In a recent TUC poll, 11 per cent of workers who have attended a work Christmas party admitted embarrassing themselves in front of their boss.

In order to prevent what should be a happy occasion from leading to recriminations or worse, an employer should take certain basic steps. Here are some of the more important ones: 

  • Carry out a risk assessment – this should include the venue and, in particular, the possible risks associated with serving alcohol. Making sure employees can get home safely is important, so consider hiring transport or providing taxis if necessary. Ensure soft drinks are provided as an alternative to alcoholic drinks;
  • Ensure that, if employees’ partners are invited, there is no discrimination with regard to who is included. Ensure also that reasonable adjustments are made to allow any disabled employee or partner to attend;
  • Where possible, make sure that the arrangements accommodate the requirements of employees of different religions;
  • Ensure that employees understand the difference between ‘banter’ and behaviour that could be considered to infringe the dignity of any person present…and if such behaviour occurs, act quickly to prevent a re-occurrence. Take prompt action if a complaint is received;
  • Make sure that employees who are expected to attend work the day after the function understand that absence through over-indulgence is likely to be regarded as a disciplinary rather than a medical matter; and
  • Make sure employees are aware that any illegal acts will not be tolerated.

The biggest problems that are likely to arise are that inappropriate behaviour may occur, especially if alcohol flows too freely, and that there may be conduct which members of a particular religious persuasion find objectionable.

Your firm’s contract of employment will probably deal with most or all of these issues. However, it is sensible to have a separate policy on what is expected of employees at workplace social events and to remind employees of its contents in advance of any function.

For advice on all matters to do with employee behaviour issues and contracts of employment, contact us.

Victimisation Claim Survives Absence of ACAS Certificate

The law is always focused on encouraging voluntary dispute resolution and that is certainly so in employment cases where workers must consult with the Advisory,Conciliation and Arbitration Service (Acas) before lodging complaints with Employment Tribunals. However, in one guideline case, a failure to do so was not fatal to a woman’s amendment of her claim.

The woman worked for a technology company for about two years before she resigned whilst on maternity leave. She presented a claim to an Employment Tribunal (ET), saying that she had been discriminated against by reason of her pregnancy. In accordance with the Employment Tribunals Act 1996, she had notified Acas of that claim and had been issued with an early conciliation (EC) certificate.

She subsequently sought to amend her claim to include a complaint of victimisation. An EC certificate was not obtained in respect of that claim and the company argued that she should thus be barred from pursuing it further. That argument did not persuade the ET, which permitted the amendment.

In dismissing the company’s challenge to that decision, the Employment Appeal Tribunal noted that, whilst it is necessary to obtain an EC certificate prior to commencing ET proceedings, doing so is not a prerequisite for an amendment application. Although the victimisation claim was new, it was related to an existing matter already before the ET and the woman did not have to go through the entirely technical exercise of consulting Acas for a second time. The ruling enabled the woman to proceed with the entirety of her claim.