Shifting Sands of Airport Worker’s Claim Broke Golden Rule of Litigation

Airport departures board 2One of the golden rules of litigation is that issues to be resolved must be established at the outset so that all sides understand the case they have to meet. That sadly did not happen in an employment case in which an airport worker who claimed to be a victim of disability discrimination shifted his ground at a late stage.

When lodging his complaint with an Employment Tribunal (ET), the security guard stated that he was disabled due to a heart condition, atrial fibrillation. He claimed that he had been overlooked for promotion due to that disability and that his employer had failed to make reasonable adjustments in not providing him with sufficient work breaks.

At a preliminary hearing, his claim that he was disabled by reason of his heart condition was rejected. However, he succeeded in an alternative argument that he was disabled due to suffering from depression. He had not sought to amend his claim to include that allegation, but the ET permitted him to argue the point despite the employer’s objections.

In upholding the employer’s challenge to that decision, the Employment Appeal Tribunal (EAT) found that the ET was plainly wrong to treat the issue before it as being whether the man suffered from the mental impairment of depression. That argument had been sprung upon the employer very shortly before the hearing.

There had been no attempt to change the list of issues that were to be resolved and the reasonable adjustments contended for related solely to atrial fibrillation. That was the case that the employer had prepared itself to meet and the ET’s decision had thrown the proceedings into disarray. There being nothing of substance left in the proceedings, the EAT dismissed the man’s claim.

Reasonable Employers’ Views on the Gravity of Misconduct Deserve Respect

Fire DoorEmployment Tribunals (ETs) are not entitled to substitute their own view of the gravity of an employee’s misconduct for that of a reasonable employer. In one case, however, an ET fell into precisely that trap when it found that two distribution centre workers’ breaches of their employer’s fire safety policy were not serious.

In order to be certain as to exactly who was on the premises in the event of a fire, the employer required all of its staff to sign a fire sheet on arrival and departure. The more senior of the two workers had, on a daily basis and for several months, signed in and out for the other. Following a disciplinary process, gross misconduct findings were made against both men and they were summarily dismissed.

After the workers launched proceedings, an ET found that their breaches of their employer’s health and safety policy were not serious and, by a majority, upheld their unfair dismissal claims. The fire sheet could not be said to have been falsified in that there was no suggestion that the more junior worker was not in the building when his colleague signed him in, or that he was still in the building when he was signed out. There had been no furtiveness on either man’s part and their sole fault was that one of them signed the sheet when the other was not standing next to him.

In upholding the employer’s appeal against that decision, the Employment Appeal Tribunal (EAT) found that the ET had substituted its views on what was important for the purpose of the fire sheet policy and what amounted to a serious breach. The ET had repeatedly focused not on the employer’s assessment of the seriousness of the workers’ conduct but on its own opinions.

The ET had misunderstood important parts of the evidence and had also erred in finding an unreasonable inconsistency between the workers’ treatment and that of another who kept his job after signing in for a colleague on a single occasion. In the circumstances, the case was remitted to a fresh ET for rehearing.

Government Consults on Tighter Rules for NDAs

Confidentiality clauses have a right and proper place in the employment context. They can be used primarily in two ways – either as part of an employment contract, where there is a need to protect business secrets for example, or as part of a settlement agreement, in order to allow both sides in an employment dispute to move on with a clean break. However, they can be open to abuse, as recent newspaper reports have revealed.

In an attempt to crack down on the use of non-disclosure agreements (NDAs) and confidentiality clauses by employers to cover up incidents of sexual and racial harassment in the workplace, the Government has issued a consultation document on ways to tighten up the rules that apply to them.

In addition to the existing legal limitations that apply to confidentiality clauses, the proposals seek views on further limitations and how best to enforce them. These include:

  • Legislating that workplace confidentiality agreements cannot be used to prevent workers reporting harassment or discrimination to the police or prevent disclosure in any criminal proceedings;
  • Requiring that a clear, written description of a person’s rights are made available before they sign a confidentiality clause in an employment contract or a settlement agreement, so that they fully understand their rights; and
  • Extending the law to ensure workers agreeing to confidentiality agreements receive independent legal advice making clear their nature and what the limitations are.

The consultation closes on 29 April 2019.

Working Time Regulations 1998 – Authoritative Court of Appeal Guidance

The Court of Appeal has given important guidance on the correct interpretation of the Working Time Regulations 1998 (WTR) in ruling that a railway signalman’s rights were not breached by his employer’s failure to afford him a 20-minute uninterrupted break in every six hours he worked.

Railway Line 2The signalman provided relief cover at a number of single-manned signal boxes. He worked eight-hour shifts but had no rostered breaks and was expected to take rest periods during gaps in the timetable. He complained that the lack of contractual provision for 20-minute continuous breaks breached his rights under the WTR. His claim was initially rejected by an Employment Tribunal (ET), but that decision was subsequently reversed by the Employment Appeal Tribunal (EAT).

In ruling on the employer’s challenge to the EAT’s decision, the Court noted that the WTR provides special rules for railway workers. By Regulation 21, they are exempt from the requirement under Regulation 12 that workers be afforded at least 20 minutes of uninterrupted rest during each six-hour shift, and that they be permitted to be away from their work stations during such periods. However, by Regulation 24, railway employers are required, save in exceptional circumstances, to allow workers to take equivalent periods of compensatory rest.

In upholding the appeal, the Court noted that the word ‘equivalent’ in Regulation 24 cannot have been intended to impose on railway employers an identical obligation to that which would have applied under Regulation 12. Instead the intention must have been that the rest periods afforded to railway workers should have the same value in terms of contributing to their general wellbeing.

There was no basis for the proposition that only an uninterrupted 20-minute break can provide a benefit to railway workers equivalent to that enjoyed by other workers. There was no reason to suppose that such a continuous break would always be better, say, than two uninterrupted breaks of 15 minutes. The ET had reached the commonsense conclusion that the rest breaks afforded to the railwayman passed the equivalence test. In those circumstances, his claim was dismissed.

Hiring Agency Workers? Do You Understand Your Legal Responsibilities?

Engaging agency workers offers ease and flexibility, but employers who believe that they thereby divorce themselves from all legal responsibility are sadly mistaken. In a guideline case on point, a transport company was ordered to compensate agency workers who were paid less than their directly employed colleagues.

For a period of almost two years, the company failed to comply with its duties under the Agency Workers Regulations 2010 to afford equal pay to workers it had hired from an agency. After acknowledging its error, the company equalised the agency workers’ pay and remitted sums to the agency which covered the previous underpayments. Those sums were, however, retained by the agency and not passed on to the workers before it went into involuntary liquidation.

After complaints were lodged by two of the agency workers – who acted as lead claimants – an Employment Tribunal (ET) found that the agency and the company, as hirer, each bore 50 per cent responsibility for the breaches of the Regulations. The ET declined to order the company to pay compensation to the workers on the basis that it would not be just and equitable to do so. That ruling was, however, subsequently reversed by the Employment Appeal Tribunal.

In dismissing the company’s challenge to that decision, the Court of Appeal noted that the agency workers’ rights to equal pay were enforceable against both the agency and the company. They suffered an actionable loss on each and every occasion that they were underpaid. The agency’s failure to pay the sums due, even when put in funds to do so by the company, did not break the connection between the workers’ losses and the company’s breaches: it simply meant that they continued.

The company had chosen to use agency workers in the first place and was partly responsible for the original underpayments. The workers were also in a much weaker bargaining position than either the company or the agency. In those circumstances, they were entitled to be compensated for the underpayments on a pound-for-pound basis. The Court’s ruling rendered the company liable to pay 50 per cent of the compensation due to the workers. The amount of their awards will be assessed at a further ET hearing.

Being Harassed by a Disgruntled Ex-Employee? See a Lawyer Today!

Ex-employees who have left in acrimonious circumstances can bear grudges, and social media gives them the opportunity to make a pest of themselves. As a High Court case showed, however, specialist lawyers are more than capable of protecting clients who are on the receiving end of harassment or abuse.

The case concerned the former CEO of an IT company whose departure was not harmonious. Subsequent Employment Tribunal proceedings were compromised and, as part of the settlement agreement, she agreed not to publish disparaging or derogatory statements about the company or any of its officers or employees.

That, however, did not prevent her from engaging in a prolonged campaign in which she aired a number of perceived grievances directly to the company and two of its directors and to third parties. She made frequently incoherent claims of dishonest and criminal conduct on Twitter and on an investment information website.

After proceedings were brought on behalf of the company and its directors, the woman failed to respond or put in a defence to the claim. The Court was, however satisfied that she had been properly served with all the required legal documents and permitted the hearing to go ahead in her absence.

In granting summary judgment on the claim, the Court was entirely satisfied that the woman’s activities amounted to defamation, harassment, and breaches of the settlement agreement. The directors had suffered hurt and upset as a result of her campaign and feared continuing reputational damage.

An interim injunction was also issued against her, requiring her to cease her unlawful activities, and she was formally warned that breach of the order would be a contempt of court, punishable by up to two years’ imprisonment. The amount of damages that she will be required to pay the directors has yet to be assessed. There was no separate damages claim by the company.

Guidance for Tribunal Users

The Government has published guidance explaining the powers available to Employment Tribunals (ETs) – their use and their application – based on feedback from users of the service which suggested there was a lack of awareness on this issue.

Using case law examples to illustrate how ETs have used the powers at their disposal in the past, the guidance aims to provide reassurance about their purpose and limits, so that users are not dissuaded from proceeding with or responding to a claim, and to increase confidence that poor behaviour in the manner in which proceedings are conducted can have financial consequences.

Whilst the Government is committed to ensuring that people can resolve disputes within the workplace wherever possible, where this cannot be achieved it seeks to ensure that ETs have the case management powers they need to act against employment law breaches or poor conduct during proceedings in line with the following objectives:

  • ensuring that the parties are on an equal footing;
  • dealing with cases in ways which are proportionate to the complexity and importance of the issues;
  • avoiding unnecessary formality and seeking flexibility in the proceedings;
  • avoiding delay, so far as is compatible with proper consideration of the issues; and
  • saving expense.

Ex-Employee Threatening to Speak to the Press? This is What You Should Do!

Breakdowns in workplace relationships are always painful and can be particularly so when they are revealed in the press. However, as a High Court case showed, judges are always on hand to take emergency steps to ensure that current and former staff members abide by confidentiality clauses in their employment contracts.

The case concerned a professional firm whose director of business development and marketing had been dismissed on six months’ notice. His contract included a clause which forbade him from disclosing the firm’s confidential information, even after leaving its employ. On top of his contractual entitlements, he had been paid a substantial ex gratia sum by way of reminder of his obligations.

After receiving his final termination payment, the man expressed his dissatisfaction, saying that, given his age, his dismissal had effectively ended his career. He expressed an intention to speak to the press about the firm’s prevailing culture, particularly in relation to women in the workplace. He said that he would be demonstrating his impression of that culture by reference to three particular incidents.

In those circumstances, the firm made an emergency application to the Court, before proceedings had been formally issued. The Court was content to deal with the matter in the man’s absence on the basis that all reasonable steps had been taken to notify him of the application.

In granting an interim injunction against the man, the Court found it more likely than not that the firm would succeed in establishing at trial that there was a real risk that he would disclose information to the press in breach of the confidentiality clause. The firm’s grievance procedures were confidential and individual former colleagues to whom the man might refer in press interviews also had an expectation of privacy.

The Court acknowledged that there is a legitimate public interest in employers meeting their social and moral duties towards their staff. However, the existence of such an interest did not justify the indiscriminate disclosure of sensitive information which others have a legitimate interest in keeping confidential. A general desire to speak about the firm’s culture was not enough to justify such disclosures.

The interim order would be kept under review pending the trial of the action, and its terms, which referred to 11 specific categories of information, were designed to ensure the minimum necessary interference with the man’s human right to freedom of expression. He was also ordered to disclose to the firm the identity of journalists, media organisations or others to whom he had spoken with a view to publication and the nature of any information he had imparted to them.

Revised Code of Practice on Preventing Illegal Working

Following changes introduced by the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018, the Home Office has issued a revised ‘Code of practice on preventing illegal working: Civil penalty scheme for employers’. This sets out the document checks prescribed by the Home Office that an employer should make to ensure someone has the right to work, or continue working, in the UK and the factors to be considered when determining the amount of the civil penalty payable for a breach of the Immigration, Asylum and Nationality Act 2006.

The revised code of practice takes into account the introduction of the online ‘Employer Checking Service’ whereby, from 28 January 2019, employers have had the option to conduct an online right to work check, which will establish a statutory excuse against a civil penalty in the event that the employee is found to be working illegally. However, not all employees or potential employees will have an immigration status that can be checked at this stage, in which case a manual check must be completed. Follow-up checks for those whose right to work is time limited can also be carried out online or manually.

The code of practice applies when calculating the penalty amount in respect of any employment which commenced on or after 29 February 2008 where the breach of Section 15 of the Act occurred on or after 28 January 2019, or when determining liability where an initial check on a potential employee, or a repeat check on an existing employee, is required on or after 28 January 2019 in order to establish or retain a statutory excuse.

Employers are reminded that an employer who is found to have knowingly employed a person who is not allowed to work in the UK, or is considered to have had reasonable cause to believe that the employee was disqualified from employment because of their immigration status, can face criminal prosecution under Section 21 of the Act and, if convicted, up to five years’ imprisonment and/or an unlimited fine.

30,000 Supermarket Workers Score Lynchpin Victory in Equal Pay Dispute

Women and men who do comparable jobs for the same employer have for decades been entitled to equal pay – but the basis on which such comparisons can be made has been a perennial subject of legal debate. The Court of Appeal gave authoritative guidance on the issue in a case concerning about 30,000 supermarket workers.

Car SupermarketThe retail workers, mainly women, argued that their roles could be validly compared with those performed by mainly male workers employed in the supermarket chain’s distribution depots. The chain, however, argued that its distribution and retail sectors were fundamentally different, having evolved separately over time. The physical environment of its depots was very different from that of its stores and the two categories of workers had profoundly different functions and skill sets.

Lawyers representing the non-unionised retail workers argued that the terms and conditions of their unionised distribution colleagues were superior to theirs, although their work was of equal value. Following a preliminary hearing, an Employment Tribunal (ET) found that the retail workers were entitled to compare themselves with their distribution colleagues for the purposes of the Equality Act 2010. That decision was subsequently confirmed by the Employment Appeal Tribunal.

In dismissing the chain’s challenge to that outcome, the Court disagreed with aspects of the ET’s reasoning, but found that it had reached the correct result. In posing the question whether there were common terms and conditions generally as between the retail and distribution workers, it had conducted wholly the wrong exercise. The issue for the ET to decide was whether broadly common terms applied to retail and distribution workers, regardless of where they worked. Given that no retail workers were in fact employed in depots, or distribution workers in stores, that question was necessarily hypothetical.

Detailed argument and evidence going to minute comparisons between the terms which applied to the two sets of workers were thus irrelevant and the preliminary issue could have been resolved on the straightforward basis that the chain’s terms for retail and distribution workers both applied wherever they worked. The Court noted that it would be no credit to the law if the kind of elaborate and confusing exercise the ET had been encouraged to undertake was required in order to establish whether the statutory comparison could be made.

The retail workers’ claims were primarily brought under the Equality Act but, if they prove well-founded, some of them will be entitled to arrears of pay going back to before the Act came into force. Such claims would be assessed under the Equal Pay Act 1970. Issues as to whether their work is of equal value to that of their distribution colleagues and, if so, the extent of any differential between their respective pay and terms of employment, remain to be resolved by an ET.