Newsletter February 2019


It has been another relatively quiet month, so I offer up a general selection of cases, none of which is really stand-out, but I hope you find them interesting and instructive nonetheless.

Darryl Evans
T: +44 (0)7771 725341

Keeping working time records

The question for the European Court of Justice (ECJ) in Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (C-55/18) is whether employers must keep records of actual hours worked to fulfil their obligations under the EU Working Time Directive.

The opinion of Advocate General Pitruzzella, which guides the final Court decision, is that they should. Even though the Directive does not explicitly require records to be kept, the A-G said that, without records, the requirements of the Directive cannot be met.

The CCOO (a trade union) brought the action in Spain because Deutsche Bank used an absences calendar which only permitted the recording of absences for full working days (annual leave, sick leave etc.). Actual hours worked on a particular day were not recorded.

The effect of this in UK is likely to be limited. The Working Time Regulations 1998 do require ‘adequate records’ to be kept, although they are not explicit as to what ‘adequate’ means, so it is possible that the records relied on by some UK employers will fall short of EU requirements. That said, records need not be kept in the case of employees who have signed the 48-hour week opt-out as so many have. Query, also, whether this is an area where the administrative requirements of these laws will be relaxed after the UK has left the EU.

Confidentiality vs public interest

I sounded of in a previous edition about so-called ‘gagging clauses’. Linklaters LLP v Mellish (2019 EWHC 177) is a case in which the public interest of allowing disclosure and the commercial need for confidentiality met head on. Confidentiality won.

Mr Mellish, a director of Linklaters, was dismissed on six months' notice with an ex gratia payment. His contract contained an express confidentiality obligation. Soon after he left he told the firm that he intended to share his impressions of the firm’s "current culture" and its '"ongoing struggle" with women in the workplace. He referenced three particular examples. He said that he would be giving interviews, although he did not say who those would be with.

Linklaters obtained an interim injunction to stop publication to protect the identities of the staff members concerned, including the people who had complained. The High Court accepted that interference with Mr Mellish’s freedom of expression was justified and held that it was likely that Linklaters would establish at a full trial that publication should not be allowed. The information was within the contractual duty of confidence and it was not in the public domain. The interests of the third parties also bolstered Linklaters’ argument. There may be a legitimate public interest in firms performing their moral and social duties to staff, but that did not override the legitimate interest in maintaining confidentiality. Mr Mellish was also ordered to disclose the identities of anyone to whom he may have already disclosed the information.

Religion or belief discrimination

Ms De Groen, a teacher at an ultra-orthodox Jewish nursery, was dismissed for cohabiting with her partner and refusing to lie about it. (The nursery, concerned mainly about the message her circumstances would send to parents, invited her to tell them she had moved out, even if she in fact had not, but she would not do that.)

The Employment Appeals Tribunal (EAT) held that she could not successfully claim direct discrimination on grounds of religion or belief because the actions of her employer (or individuals within an employer) was driven by their own religion or belief, not hers. The discriminator's motive is immaterial. As there would be no difference in treatment between how Ms De Groen and anyone else would be treated, the claimant’s own beliefs were not the reason for her dismissal

The EAT did suggest that there could be unlawful discrimination where a claimant and respondent are of the same religion, but the claimant is treated less favourably because of their lack of belief on a point that the respondent considers to be a tenet of that religion. Thus the fact that both the teacher and the decision-makers were Jewish did not prevent a claim of direct religion or belief discrimination if the situation arose from a different interpretation of the principles of Judaism. However, in this case the tribunal's findings of fact could not support that argument. The dismissal was not driven by a difference of view and therefore Ms De Groen’s "lack" of belief, but only by the beliefs of the employer.

In fact, it was not all bad news for Ms De Groen. The EAT did confirm that she suffered sex discrimination and harassment at the hands of her employer, in that the treatment she suffered was because she was a woman. (Gan Menachem Hendon Limited v De Groen UKEAT/0059/18.)

Can asserting a future breach of a statutory right be grounds for automatically unfair dismissal claim?

Section 104(1) of the Employment Rights Act 1996 provides that an employee will be automatically unfairly dismissed if the reason (or the principal reason) for the dismissal is that the employee:

  • brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or
  • alleged that the employer had infringed a right of his which is a relevant statutory right.

It is immaterial whether the employee has the right, or whether the right has been infringed. However, the claim to the right and that it has been infringed must be made in good faith.

You have to hand an award to the employee in Spaceman v ISS Mediclean Ltd (t/a ISS Facility Service Healthcare) (UKEAT/0142/18) for his ingenious attempt to get himself within this rule, which was his only potential route to an unfair dismissal finding and remedy, as he had not accrued the two years of service to make an ordinary unfair dismissal claim.

Mr Spaceman was dismissed by ISS for gross misconduct. During the disciplinary proceedings he alleged that ISS had predetermined to dismiss him. When he took his claim to the employment tribunal, he argued that that allegation constituted the assertion of a statutory right – specifically, the right not to be unfairly dismissed. He then said that the making of the allegation had become the reason for his dismissal (rather than the alleged predetermined view).

Too clever for the tribunal, which struck out this claim on the basis that it had no reasonable prospect of success. The EAT agreed. Section 104(1) requires an allegation by the employee that there has been an infringement of a statutory right. An allegation that there may be a breach in the future is not sufficient.

Mr Spaceman was a bit unlucky because he lost on the specific wording of the statute (whistleblowing law, for example, covers situations in which breaches are likely to occur, but may not have yet happened). Nice try though.

Right of agency workers to be paid equalised rates

The Court of Appeal has ruled that regulation 5(1) of the Agency Workers Regulations 2010 confers a substantive right on workers to be paid equalised pay rates and to benefit from other equalised terms compared with direct recruits. It is not simply a right to be issued with a document containing compliant terms and conditions of employment

Consequently, it was just and equitable for a hirer (London Underground (LU)) to pay compensation to the extent it was found responsible for a failure to pay agency workers equalised pay. The fact that LU had already paid over the arrears of pay to agency, which had since become insolvent and not paid it over to the workers did not save LU. LU was liable for the full arrears.

This is a powerful reminder to hirers of agency staff of the importance of establishing at the earliest stage whether the Regulations apply to any agency workers, as the hirer will not necessarily escape liability for an assertion by the agency that they do not apply if the hirer is also at fault in any way. (London Underground v Amissah 2019 EWCA Civ 125.)

TUPE – dismissal on day of transfer

In Hare Wines Ltd v Kaur and anor (2019 EWCA Civ 216), the Court of Appeal has held that an employee dismissed on the day of a TUPE transfer on the pretext of difficulties in her working relationship with a colleague was automatically unfair.

Ms Kaur had a strained working relationship with a colleague. The business in which they both worked was transferred to a new company, Hare Wines, of which the colleague would, in due course, become a director. TUPE applied to the transfer. However, on the day of the transfer Ms Kaur was dismissed, according to the dismissal letter owing to the transferor company ceasing to trade due to unforeseen circumstances.

An employment tribunal judge found that anticipated difficulties between Ms Kaur and her colleague meant that the transferee did not wish her employment to transfer. This meant that the sole or principal reason for the dismissal was the transfer and so the dismissal was automatically unfair. The EAT and the Court of Appeal agreed. The fact that the dismissal was on the day of the transfer, while not conclusive, was strong evidence in her favour, as was the fact that the poor relationship had endured for some time.

What is 'long term' for the purposes of determining disability?

Mrs Nissa was a Science Teacher, working for Waverly Education Foundation. From December 2015 she suffered from symptoms of fibromyalgia. She resigned with effect from 31 August 2016 and claimed for disability discrimination, alleging that her impairment met the definition of a disability because it caused her to suffer a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. The Foundation disputed this.

The tribunal noted that that a medical diagnosis of fibromyalgia was not made until 12 August 2016, and was subject to a caveat in October that her symptoms might slowly improve now she was no longer in employment. On that basis it could not be said to have been ‘likely’ that the effects would be long-term.

The EAT considered that the tribunal’s approach was wrong. It had focussed on the diagnosis, including the October assessment, rather than positioning itself at the time of dismissal and then projecting forward to determine whether the impairment was long-term or not. It should have asked itself whether, at the time of the dismissal, a long-term impact ‘could well happen’ rather than being ‘likely’). Consequently, it should not have relied on the benefit of hindsight provided by the October report.

The case was sent back to a fresh tribunal for reconsideration. (Waverly Education Foundation Limited and another v Nissa UKEAT/0135/19.)

The information and any commentary contained in this newsletter are for general information purposes only and do not constitute legal or any other type of professional advice. Darryl Evans and Evans Employment Law Limited do not accept any and, to the extent permitted by law, exclude all, liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this newsletter. If you have a particular query or issue you are strongly advised to obtain specific, personal advice and not to rely on the information or comments in this newsletter.

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