Employment Judge Fell into Substitution Trap

Decisions about what action to take in response to workplace misconduct are a matter for employers and employment judges are not entitled to substitute their own views on factual matters for those of the primary decision-maker. In one unfair dismissal case, a re-hearing was ordered after a judge repeatedly did just that.

A crane operator was summarily dismissed after his machine was badly damaged. He claimed that there had been a single incident in which the crane collided with a buffer at low speed. However, following a disciplinary hearing, his employer found that there had been a second, much more serious, collision and that he had withheld the truth about that incident. An Employment Tribunal judge later upheld his unfair dismissal claim. During the hearing, the judge several times expressed a strong and concluded view that there had been only one collision.

In allowing the employer’s appeal, the Employment Appeal Tribunal (EAT) found that the judge had fallen into the trap of substituting his own views for those of the employer. As a result, he had failed to focus on whether dismissal lay within the range of responses open to a reasonable employer. In those circumstances, the case was sent back for rehearing by a different employment judge.

Employed by a Sprawling Multinational? Are You As Secure as You Think?

Those who work for large multinational companies often enjoy security, benefits and a breadth of opportunity envied by others. However, as a High Court case illustrated, complex corporate structures which span the world can lead to real difficulties in obtaining compensation in the event of a dispute.

Twenty-seven former employees of an international banking group claimed that they had wrongly been denied bonus payments following the 2008 financial crisis. They launched proceedings against seven of the bank’s subsidiaries, claiming more than $100 million in compensation for alleged breach of contract.

The workers were employed by two of the companies, one of them based in France and the other in America. On the face of the contracts which governed their bonus entitlements, the American company bore primary liability to make the payments and was thus the correct target of the litigation. However, it argued that the enormous losses suffered by the group during the crisis had left a negative balance on the workers’ bonus accounts and that nothing was payable.

The workers’ lawyers were concerned that the American company might not be in a position to satisfy a judgment if they won their case on the merits. They suspected that large sums of money had been transferred from the American company to other subsidiaries and, for that reason, decided to sue multiple defendants.

Following a preliminary hearing, the Court found that the American company had not transferred all, or substantially all, of its assets to two other members of the group. In those circumstances there was no serious issue to be tried as between the workers and those two subsidiaries, which were effectively removed from the proceedings. Another subsidiary had also wrongly been brought into the firing line and the claim against it was dismissed.

No Unlawful Discrimination without Detriment, Tribunal Rules

In a ground-breaking decision, the Employment Appeal Tribunal (EAT) has ruled that a finding of discrimination under the Equality Act 2010 can only be made where a worker has suffered an actual detriment by reason of less favourable treatment on the grounds of a protected characteristic.

A security guard of Indian ethnic origin was sent home and investigated following an allegation that he smelt of alcohol at work. He later fabricated a false accusation that his white supervisor had used racially abusive language towards him.

An Employment Tribunal (ET) found that, despite the falsity of the complaint, the employer’s failure to investigate the matter constituted less favourable treatment on grounds of the worker’s race. He was refused compensation, on the basis that he had suffered no injury to his feelings, but the ET nevertheless declared that his employer had directly discriminated against him on grounds of his race.

In allowing the employer’s appeal and overturning the declaration, the EAT ruled that a finding of discrimination under the Act required proof of both less favourable treatment and substantive detriment. The failure to investigate the entirely fabricated complaint had not caused the worker any sense of grievance or injustice.

When is a Whistleblowing Disclosure ‘in the Public Interest’?

In order to qualify as a workplace whistleblower, protected by law, you have to show that the disclosures you make are ‘in the public interest’. The meaning of that phrase has been a constant source of debate; however, a tribunal decision has emphasised that a liberal approach should be taken to its interpretation.

A driver who worked for a large trucking company had made a number of complaints against his employer which he asserted were protected disclosures within the meaning of the Employment Rights Act 1996. One of them took the form of a letter in which he and two colleagues claimed that the distribution of overtime between drivers was being dealt with unfairly and in breach of contract.

Following a preliminary hearing, an Employment Tribunal (ET) struck out that part of his claim on the basis that the disclosure concerned only the particular terms of his and the other two complainants’ contracts and could thus not be viewed as having been made in the wider public interest.

In challenging that decision, the driver’s legal team pointed out that the disclosure was relevant to the working conditions of not only the complainants but also to those of a number of other drivers who worked at the same depot and whose incomes were said to have been affected by the unfair treatment.

In upholding the driver’s appeal, the Employment Appeal Tribunal found that the ET’s approach to the public interest issue had been too narrow. It could not be said that the driver’s claim in respect of the particular disclosure had no reasonable prospect of success. The claim in question was remitted to the same ET for determination along with the driver’s other claims.

Live-In Care Home Worker Must Be Awake to be Working

The Employment Appeal Tribunal (EAT) has ruled that a night worker who lived in at the residential care home where he was employed was not entitled to be paid the National Minimum Wage (NMW) for hours when he was on call but asleep.

The care home assistant lived in a flat on site and was required to be on call between 10:00pm until 7:00am daily. He was permitted to sleep during those hours and, in practice, his services were rarely called upon. He also held down a day job as a driver and was paid only £90 a week for his work at the home.

He was dismissed after the home changed hands and an Employment Tribunal (ET) later upheld his unfair dismissal claim. He had also sought almost £240,000 on the basis that he had not received the NMW or holiday pay over an extended period, but those complaints were rejected.

In dismissing his challenge to the latter decisions, the EAT noted that he was entitled to spend the entirety of his shifts at home and was permitted to sleep throughout. In those circumstances, only time which he had spent awake for the purpose of working counted as salaried hours within the meaning of the National Minimum Wage Regulations 1999.

The ET was entitled to conclude that he had not worked throughout each night shift, but only on those rare occasions when he was called upon to assist the care worker on duty. His claim in respect of holiday pay also failed on the basis that he had been aware of his right to paid leave and had not been unable or unwilling to take it due to reasons beyond his control. In those circumstances, he was not entitled to carry forward holiday pay falling due prior to the holiday year in which he was dismissed.

ACAS Publishes Revised Guidance on Peripatetic Workers

VanFollowing the decision of the Court of Justice of the European Union in FederaciÓn de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and Another that time spent travelling to and from a customer’s premises at the beginning and end of the day by a worker who is not assigned to a fixed place of work constitutes working time as defined by the EU Working Time Directive (which is implemented into UK law by the Working Time Regulations 1998), the Advisory, Conciliation and Arbitration Service has updated its guidance for peripatetic workers. Key points are:

  • A health and safety risk assessment for these workers should be undertaken, taking into account the fact that they will be working away from the normal work base, or will have no base, and also the type of work that will be carried out;
  • Time on-call can be classed as working time in certain circumstances; and
  • Time spent travelling from home to the first and last customer can count as working time.

The revised guidance can be found here.

Government Names Latest National Minimum Wage Offenders

restaurantThe Government has published details of more than 100 employers identified by HM Revenue and Customs as having failed to pay their staff the National Minimum Wage (NMW).

The ‘naming and shaming’ scheme came into effect in 2011 and was revised in October 2013. Details of HMRC’s policy for enforcing payment of the NMW, prosecutions and naming employers who fail to comply with the law can be found here.

Between them, the companies named owed workers more than £387,000 in arrears, and span sectors including hairdressing, retail, education, catering and social care.

The current NMW rates are:

  • adult rate (21 years old and over) – £6.70 per hour
  • 18- to 20-year olds – £5.30 per hour
  • 16- to 17-year olds – £3.87 per hour
  • apprentice rate – £3.30 per hour

The apprentice rate applies to apprentices aged 16 to 18 years and those aged 19 years and over who are in their first year. All other apprentices are entitled to the National Minimum Wage rate for their age.

US Government Defeated in Collective Redundancies Test Case

All employers have a duty to consult staff representatives before making collective redundancies – and a landmark Supreme Court decision has established that that applies even to foreign governments who operate bases on British soil.

The United States of America (USA) took a strategic decision to close a water craft repair centre on the Hampshire coast. Those who worked at the centre lost their jobs without being given any say in the matter. One of them launched Employment Tribunal (ET) proceedings on the basis that worker representatives had not been consulted prior to the collective redundancies, as required by the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

The USA did not rely on state immunity in order to defeat the claim, although it was common ground that it could have done so. In the event, the ET upheld the woman’s claim and she was awarded one month’s pay. That decision was subsequently upheld by the Employment Appeal Tribunal. The Court of Appeal sought clarification from the Court of Justice of the European Union (CJEU) as to precisely when the duty to consult is triggered . However, whilst TULRCA does not exclude workers employed by public administrative bodies or by establishments governed by public law, the EU Collective Redundancies Directive expressly provides for them to be excluded from its scope. The Court therefore declined to rule on the matter as it did not have jurisdiction to do so. 

In pursuing its case, the USA argued that TULRCA should be interpreted in such a way as to accord due respect to its authority as a foreign state to make strategic decisions which are non-commercial in nature. The decision to close the centre had been taken at a very high level in Washington and the interpretation thus far favoured did not accord with principles of international law.

However, the Supreme Court found that the wording of the legislation was clear and that there was no reason to read into it a tailored exemption for a foreign power operating a base within the UK. Arguments that the UK had breached international law by seeking to exercise legislative power outside its own territory were also rejected.

The USA’s argument that the outcome of the case represented discrimination on grounds of nationality, in breach of EU law, also fell on fallow ground. The Court gave the example of the freedom of British universities to charge unrestricted tuition fees to non-EU citizens.

Workers at the centre were not represented by a trade union. However, by virtue of TULRCA, as subsequently amended in order to conform with EU law, claims for compensation were not restricted to circumstances where employees enjoyed union representation recognised by their employer. The USA’s arguments that such extended protection fell outside the powers conferred by section 2 of the European Communities Act 1972 were also rejected by a majority.

The case will now return to the Court of Appeal for consideration of whether the USA complied with its redundancy consultation obligations under TULRCA.

TUPE – Laid-Off Workers Can Still Be an ‘Organised Grouping’

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) provide vital protection to workers affected by commercial decisions over which they have no control. However, as one case involving a group of construction workers illustrated, their interpretation has been a constant source of legal difficulty.

The workers were together employed by company A to service a single contract but had been temporarily laid off when that work dried up. Company A later fell out with its client and the contract was transferred to company B. An issue thus arose as to whether the workers continued to work for company A or whether their employment had transferred to company B by operation of TUPE.

In ruling on that crucial preliminary issue, an Employment Tribunal (ET) decided that the transfer of the contract amounted to a service provision change. However, the workers were not an ‘organised grouping’ within the meaning of TUPE, in that they were not actually working at the time of the change. Due to their temporary lay-off, the activity in which they had been together engaged had ceased. In those circumstances, their employment with company A had continued.

In overturning that decision, however, the Employment Appeal Tribunal (EAT) noted that the workers had been specifically told that their lay-off was temporary. Such a temporary absence from, or cessation of, work did not in itself deprive the workers of their status as an organised grouping of employees. The matter was returned to the same ET for reconsideration in the light of the EAT’s ruling.