Bus Driver Unfairly Sacked After Random Drug Test Wins Substantial Damages

When it comes to workplace disciplinary proceedings, slavish following of rules is no replacement for common sense. In a case where the latter was sadly lacking, a bus driver who was sacked after failing a random drug test succeeded in unfair and wrongful dismissal claims and was awarded substantial damages.

Bus2After his saliva tested positive for cocaine, the driver was adamant that he had never taken drugs other than those prescribed to him by a GP. He explained that a great many students had been on his bus on the day of the test and that cocaine may have got into his saliva via bank note contamination.

As a diabetic, he had to test his blood sugar regularly, causing sore fingertips which he licked continuously. He commissioned independent tests and analysis of his hair follicles revealed no traces of cocaine. He was, however, dismissed for gross misconduct and that decision was upheld following two internal appeals.

After lawyers launched proceedings on his behalf, an Employment Tribunal (ET) noted his 21-year unblemished career as a bus driver. There was no suggestion that he was unreliable or that his performance was impaired by drugs. He handled cash frequently, but there was no question of money going missing. There was nothing to indicate that any safety issues had ever arisen in respect of his driving.

In refusing to take into account the hair follicle test results, the employer had acted with a closed mind in a manner that was illogical and grossly unfair. The amount of cocaine found in the saliva sample was very small and a further test should have been arranged. The issue of possible cross-contamination was never satisfactorily resolved.

In the circumstances, the ET was not satisfied that the saliva test results were accurate. Common sense had been surprisingly lacking from the disciplinary process and the driver’s dismissal fell outside the band of reasonable responses open to the employer. He was awarded a total of £37,639 in compensation.

Employers – How Reasonable Are Your Disciplinary Processes?

Workplace disciplinary proceedings are always tense and it is vital to remember that their reasonableness is likely to be examined in detail by Employment Tribunals (ETs) after the event. In a case on point, a carpenter who was sacked after being accused of describing gay people as his pet hate succeeded in unfair and wrongful dismissal claims.

The man enjoyed an unblemished disciplinary record during his 14 years working for a social housing provider. After a tenant complained that he had made homophobic comments, however, he was summarily dismissed for gross misconduct. His internal appeal was rejected but, after he contacted specialist solicitors, they launched proceedings on his behalf before an ET.

In upholding his claims, the ET noted that the tenant’s identity had been kept from him during the disciplinary process and and that neither of the managers who dealt with the matter had met her. There had been no attempt to look for inconsistencies in her complaint and the managers’ acceptance of her word over that of the carpenter was unreasonable in the circumstances.

In the light of glowing character references, including from a gay friend, the ET found it highly unlikely that he would have made the comments alleged. The tenant had a motive for embellishing her account and it was probable that she had done so. She had not sought his dismissal and sacking him fell outside the band of reasonable responses open to the employer. His treatment also amounted to a repudiatory breach of his employment contact. The amount of his compensation has yet to be assessed but is bound to be substantial.

Civil Servant Prevails in ‘Pensionable Earnings’ Test Case

If an employee goes the extra mile and works outside normal office hours, does the additional income received form part of his or her pensionable earnings? The Court of Appeal analysed that issue in boosting the redundancy compensation and pension entitlements of a civil servant who regularly toiled at weekends.

The IT specialist worked for HM Court Service (HMCS) under a contract which at first required him to work 36.25 hours a week. The contract made no provision for overtime. The pressure of work was such, however, that he agreed to work extra hours at weekends. His contract was amended to reflect that arrangement and he was paid for the additional hours worked.

After he was laid off, HMCS calculated his redundancy compensation and his future pension entitlements on the basis of the 36.25 hours originally specified in his contract. The additional pay he earned at weekends was left out of account. After lawyers launched proceedings on his behalf, however, a judge upheld their arguments that, on a true interpretation of the Principal Civil Service Pension Scheme, the pay he earned at weekends qualified as pensionable earnings.

In dismissing a challenge to that ruling brought by the Ministry of Justice and the Cabinet Office, the Court rejected arguments that only remuneration that the man received for hours precisely specified in his contract qualified as pensionable earnings. The amended contract required him to work a reasonable number of hours at weekends and imposed a reciprocal obligation on HMCS to pay him for those hours. When the man worked at weekends, he was working in accordance with his obligatory contractual working hours and was not undertaking overtime.

Public Sector Pensions – Disadvantaged Judges Triumph in ‘Ageism’ Test Case

In a test case of importance to all public sector employees, a tribunal has ruled that transitional provisions put in place to prepare the way for full adoption of a new judicial pension scheme fell foul of the ban on age discrimination.

The scheme was introduced in response to a report of the Public Services Pension Commission which recommended wholesale public sector pension reform. The scheme was considerably less valuable to its members than its predecessor had been, both in terms of benefits received and the tax treatment of such benefits.

The transitional arrangements gave full protection against such disadvantages to judges who were members of the earlier scheme prior to 1 April 2012 and who were born on or before 1 April 1957. However, judges born between that date and 1 September 1957 were only entitled to protection on a tapering basis and those born after 1 September 1960 received no protection at all.

In those circumstances, a group of judges, including some members of the High Court bench, who fell within the disadvantaged group launched Employment Tribunal (ET) proceedings against the Lord Chancellor and the Secretary of State for Justice, alleging age discrimination.

In ruling on the matter, the ET noted the need to maintain public sector pensions at affordable levels and that it was for the Government to determine policy objectives and the appropriate allocation of resources. However, in upholding the judges’ complaints, it found that the Government had neither established that the differential treatment was in pursuit of a legitimate aim nor that the discriminatory means adopted were objectively justified.

The ET noted that the disadvantaged group was defined by the age of those within it and that the Government had failed to advance any rational explanation for the discriminatory treatment. The pursuit of consistency in the approach to pension reform across the public sector was not capable of justifying what was a clear derogation from the principle of non-discrimination.

In ruling on the Government’s challenge to that ruling, the Employment Appeal Tribunal (EAT) found that, in concluding that the discriminatory treatment was not in pursuit of a legitimate aim, the ET had misunderstood or misapplied the facts of the case. In dismissing the appeal, however, the EAT ruled that the extremely severe impact of the transitional provisions on judges within the disadvantaged group far outweighed the public benefit of instituting pension reform consistently across the public sector. The unequal treatment of the affected judges was thus not a proportionate means of achieving a legitimate aim.

Employers Can Always Recruit the Best Candidate? Oh No, They Can’t!

At first blush, it might appear obvious that employers are entitled to take on the best candidate for a job. However, as one case concerning a highly qualified medical practice manager showed, immigration law requires that suitable, EU-resident, candidates must be preferred to those from overseas.

The case concerned an Indian national with a first-class degree and an MBA who was recruited as the practice’s business development manager. The practice, which praised her excellent presentation, enthusiasm and great ideas, selected her from a list of 40 candidates. However, following an investigation, the UK visas and immigration section of the Home Office was not satisfied that a genuine effort had been made to recruit an EU resident instead of her and the practice was refused a licence to sponsor overseas workers entering the UK.

In ruling on the practice’s judicial review challenge to that decision, the High Court identified a number of flaws in the Home Office’s approach. The recruitment exercise had not been a charade, the post had been properly advertised, interviews had been carried out and the practice had been entitled to stipulate that the successful candidate should have an MBA qualification.

In rejecting the practice’s case, however, the Court noted that the effect of the residential labour market test applied by the Home Office is that a worker who is settled within the EU, and who is suitable for an advertised post, should be recruited in preference to a non-settled worker, even if the latter is considered to be the better candidate.

It appeared that, on receipt of 40 applications, the practice had proceeded to create a shortlist of five. There was nothing in principle objectionable about that but, having found that the overseas worker was the best, indeed the only suitable, candidate amongst the top five, the practice was not entitled to move directly to appoint her without considering the suitability of settled workers who had not been shortlisted. In those circumstances, the Home Office’s view that the practice had not made a genuine attempt to recruit from the residential labour market was not irrational.

The Government Responds to the Taylor Review of Employment Practices

In July 2017, Matthew Taylor, Chief Executive of the Royal Society for the Encouragement of Arts, Manufactures and Commerce and a former policy chief under Tony Blair, issued his report, commissioned by the Government, on how employment practices need to change in order to keep pace with modern business needs.

The Review, entitled ‘Good Work’, considered a range of issues, including the implications of new forms of work, the rise of digital platforms and the impact of new working models on employee and worker rights, responsibilities, freedoms and obligations. 

The Government has now published its response to the Review, setting out a plan of action for taking forward the recommendations, and launched four consultations on key areas covered. These are:

Former LLP Member Strikes Important Blow in Whistleblowing Case

In an important decision for limited liability partnerships, the former managing partner of a law firm who claimed that he was persecuted for whistleblowing had his hopes of winning £3.4 million in compensation boosted by the Court of Appeal.

The man had prepared a report after the firm’s board received a complaint of bullying against its senior partner. Before he could submit it, however, his resignation from his positions as managing partner and compliance officer was demanded. The board subsequently voted to remove him from those posts.

The man’s response was to give one month’s notice of his departure on the basis that the firm, a limited liability partnership, had repudiated his membership agreement. He said that the firm’s conduct towards him had rendered his continued membership intolerable. The firm, however, refused to accept that it was in repudiatory breach and informed him that he was expected to return to work. He did not do so and was ultimately expelled from the firm.

He lodged a complaint with an Employment Tribunal (ET) under the Employment Rights Act 1996, claiming that his membership had been constructively terminated and that he had been subjected to detriment as a result of making a protected disclosure. Following a preliminary hearing, the ET struck out that part of his claim that related to the termination of his membership and losses – primarily loss of earnings – that were said to have arisen from that termination.

That ruling was, however, subsequently overturned by the Employment Appeal Tribunal (EAT), enabling him to proceed with his claim in respect of post-termination losses. That was despite the man’s acceptance before the EAT that his claim that his membership of the firm had been terminated by his acceptance of an alleged repudiatory breach had been appropriately struck out.

In dismissing the firm’s challenge to the EAT’s ruling, the Court found that the man could claim compensation for post-termination losses even if he had been lawfully expelled as a member, provided that such losses were attributable to the earlier unlawful detrimental treatment. If all the facts were assumed to be true, in the man’s favour, his claim in respect of post-termination losses should not have been struck out.

Are ‘Casual’ Staff Entitled to Workers’ Rights? Tribunal Gives Guidance

Are so called ‘casual’ staff entitled to the panoply of rights afforded to ‘workers’ by the Employment Rights Act 1996? A tribunal grappled with that vital issue in a case concerning a pipe fitter who found a temporary job through a recruitment agency.

Construction siteThe man began working on a building site after answering an advertisement placed by the agency. After he complained to an Employment Tribunal (ET) that unlawful deductions had been made from his wages, an issue arose as to whether he was a worker for the agency, within the meaning of the Act.

The ET found that he did not meet the statutory definition on the basis that there was no contract between him and the agency and that the agency had not intended to enter into legal relations with him. His working arrangements had been nothing if not casual. The ET noted that he had been paid directly by the site contractor and rejected arguments that the agency’s arrangement with him was a sham.

In upholding the man’s challenge to that decision, the Employment Appeal Tribunal (EAT) found that the ET had made an error of law. On the basis of correspondence between him and the agency, there clearly was some kind of agreement between them. The agency had advertised the position and had sent the man a text confirming the location where he would work, the name of the site contractor and details as to who he could contact for payment purposes.

The context was a commercial one of an individual seeking work for which he would expect to be remunerated. The man would also have envisaged that, if he was not paid for work done, he would have some legal recourse. In those circumstances, the ET was wrong to find that there was no intention to create legal relations. The case was remitted to a differently constituted ET for consideration of whether the man was a worker for the agency, for the site contractor, or for both.

Standing up for Your Rights is One Thing, Intransigence is Another

You are entitled to stand up for your rights in your workplace but, without specialist legal advice, it is only too easy to overstep the mark into intransigence. The point could hardly have been more clearly made than by the case of a senior manager who simply refused to work unless his employer yielded to his point of view.

The man, who was paid £90,000 a year as senior vice president of a management services company, had to take almost a year off work due to a back condition. On his return to work, his employer took the view that he needed to get up to speed after such a long absence and placed him on restricted duties.

He, however, insisted that he be permitted to resume his role in full and refused to work at all unless his employer agreed to this. The employer took the view that his stance was unacceptable and, following a disciplinary process, he was summarily dismissed for gross misconduct.

After he launched proceedings, an Employment Tribunal (ET) upheld his disability discrimination claim on the limited basis that he had effectively been demoted on his return to work and that the employer had wrongly failed to give him any clear indication as to when he could resume his full duties.

The ET also found that his dismissal was procedurally unfair, in that the disciplinary hearing had been conducted with unnecessary haste and the appeal procedure was perfunctory. However, it went on to rule that his refusal to return to work on the limited basis proposed by the employer constituted gross misconduct that would have justified his dismissal had a fair procedure been adopted. The ET’s ruling was subsequently confirmed by the Employment Appeal Tribunal.

In dismissing his challenge to that decision, the Court of Appeal found that his justified belief that he should have been allowed to return to his old role immediately was not sufficient reason for him to refuse to do any work at all. He was fit to work and was receiving full pay at the time, but had refused to work unless his employer yielded to his position on an issue that was genuinely in dispute. Even though he was right on that issue, the ET was entitled to find that his refusal was unacceptable.

Railway Signalman Triumphs in Rest Breaks Dispute

Railway Line 2Since the advent of the Working Time Regulations 1998 (WTR), those who work shifts of six hours or more have been legally entitled to take a continuous 20-minute rest break. There are, however, a number of exceptions to the rule and one of them – relating to railway workers – came under analysis in a guideline case.

The case concerned a railway signalman who worked eight-hour shifts at various signal boxes. Train traffic was sporadic and, although he worked alone, he was able to take short breaks that together amounted to well over 20 minutes during each shift. He was not, however, guaranteed continuous 20-minute breaks and his employer required him to remain on call at all times and to take breaks as they naturally occurred in the course of his working day.

It was accepted that Regulation 12 of the WTR – which enshrines the right to uninterrupted rest breaks of not less than 20 minutes – did not apply to him. That was because Regulation 21(f) excludes railway workers whose activities are linked to transport timetables and to ensuring the continuity and regularity of train traffic. By Regulation 24, however, his employer was required, wherever possible, to allow him to take equivalent periods of compensatory rest. In rejecting his complaint, an Employment Tribunal found that the employer had met that obligation.

In upholding his challenge to that ruling, the Employment Appeal Tribunal noted that, so far as possible, compensatory rest must comprise a break from work of at least 20 minutes. It would be possible to afford the man such continuous breaks by laying on appropriate personnel to relieve him and, in those circumstances, the employer had breached its obligations under Regulation 24. The case was remitted to the ET to consider the question of remedies.