The journey of employment law evolution is an erratic one. Some months I cannot decide which of the important legal developments I should put first in my Newsletter. For this edition I decided to cover two months of updates because so little emerged in April. Even now, there is not a great deal to report, although fortunately two cases on one of my favourite subjects – the jurisdiction of the UK employment tribunals over foreign based workers – add some heft.
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How to handle a disciplinary matter where there is a potential crime, and consequently police involvement, is not an uncommon challenge. The Court of Appeal in North West Anglia NHS Foundation Trust v Gregg (2019 EWCA Civ 387) confirms the approach conventionally recommended by lawyers.
Mr Gregg was a doctor who faced disciplinary, regulatory and police enquiries following the deaths of two of his patients. He was suspended on full pay, a police investigation began and his professional disciplinary body temporarily suspended his registration and withdrew his licence. When the Trust sought to stop his pay, he brought proceedings in the High Court.
The High Court granted an injunction preventing a disciplinary process until the end of criminal proceedings, on the grounds that undertaking such a process would breach the duty to maintain trust and confidence. The Court of Appeal overturned the injunction. The test for a breach of that implied term was set at a high level. Only if there were a real danger of injustice would an injunction be justified.
The High Court also held that suspension had to be with pay and the Court of Appeal agreed with it on that issue. That could only be justified in exceptional circumstances, such as if there had been a complete or partial admission of guilt, or if the contract of employment expressly allowed suspension without pay in this situation, neither of which applied here.
The principle confirmed by this case is that there is no need to await the outcome of criminal proceedings before taking a decision regarding an employee’s employment. However, care has to be exercised because an employee may well decide not to be particularly forthcoming in any employment investigation or disciplinary hearing in case what he says incriminates him.
However, an employer is entitled to take a view based on the information it has gathered during the investigation, and provided it goes through appropriate processes, and act reasonably throughout, will be in a position to dismiss fairly if the circumstances warrant such a decision.
In Antuzis v DJ Houghton (2019 EWHC 843) the claimant employees were required to work extremely long hours, were paid less than the statutory minimum wage, did not receive holiday pay and were frequently not paid the sums due to them. In short, they were appallingly treated.
A person who encourages another person to breach a contract can be liable for the tort of inducing that breach. Generally, this will not apply to directors of a company which commits the unlawful act. However, if the breach of contract has a statutory element, as was the case here, that may mean the directors have not complied with their duties to the company, potentially making them liable to a third party – the employees in this case - for inducement. These directors were not acting bona fides vis a vis the company - they did not honestly believe that they were complying with the statutory legal requirements. They were therefore personally liable to the employees.
The facts of this case are extreme, but directors should beware.
Ms Ravisy was a French qualified lawyer working for as a partner Simmons & Simmons in Paris. She was also French domiciled. She brought claims against the firm and another partner for discrimination and equal pay. The acts which she relied on took place in France.
The Employment Appeals Tribunal (EAT) decided that the Brussels I Recast Regulations applied so that if Simmons & Simmons (an LLP registered in England & Wales) could be sued in a UK employment tribunal, so could the individual partner.
However, the UK employment tribunal was not, it decided, the right forum in this case. The conclusion was that: "weighing in the scales of the features pointing to, respectively, England and France, ……. the balance comes down firmly on the French side". In other words, the connection with UK was not strong enough and the closer connection was with France. (Ravisy v Simmons & Simmons LLP UKEAT/0085/18.)
A second circumstance in which UK tribunal jurisdiction was denied to a claimant, this time by the Court of Appeal, was the case of Foreign and Commonwealth Office and ors v Bamieh (UKEAT/0268/16).
Ms Bamieh worked for the FCO under an English law contract and was seconded to EULEX in Kosovo, an EU ‘Rule of Law Mission’ set up to help the country reach international standards and achieve self-government following the war in the Balkans. She brought whistleblowing detriment claims against the FCO and against two fellow FCO secondees who worked alongside her in Kosovo.
The employment tribunal accepted jurisdiction to hear the claim against the FCO but not the claims against the two secondees. Among other reasons, it pointed out that although the secondees were FCO employees, they were neither domiciled in the UK nor based there for work purposes.
The EAT allowed Ms Bamieh’s appeal but the Court of Appeal reversed that. It held that the fact that she and her fellow secondees had a common UK employer was not enough to mean the UK tribunal had jurisdiction. The common employment was little more than happenstance: they had never worked together in the UK; they were seconded to EULEX separately; and they were in Kosovo to act in the ‘sole interest of the mission’. The focus had to be on the relationship between Ms Bamieh and her co-workers. EULEX was an international mission, not a UK one, and given that the purpose of all the staff was to act in the mission’s interest, the necessary connection with British employment law had not been established.
Frudd v The Partington Group Limited (UKEAT/0240/18) concerned the vexed question of whether on-call time is working time for NMW purposes.
Mr and Mrs Frudd worked at a caravan site and were expected to be on-call from when their shifts ended (4.30pm for one of them, 8pm for the other) until 8am the following morning. They maintained that whilst on-call they were working on ‘time work’ and entitled to be paid NMW for those on-call hours. (On the facts here, the sleep-in exception which can apply in these types of cases was not relevant.)
The EAT, upholding the Employment Judge's decision, considered that between the end of their shift and 10pm they were working on time work because their responsibilities included showing round prospective customers and welcoming late arrivals. NMW was due for that period. However, they were not required to carry out that work after 10pm, unless they were called out for an emergency (for which they were paid). They were therefore not working on time work unless called out and were not entitled to be paid whilst merely on-call.
Baldeh v Churches Housing Association of Dudley and District Ltd (2019 UKEAT/0290/18) confirms that if an employer discovers that an employee is disabled, it can discriminate against him/her even if the information arrives very late in the day.
Mrs Baldeh was dismissed at the end of her probationary period after concerns about her performance and behaviour. Her appeal was rejected. It turned out that she suffered depression and was disabled.
She claimed disability discrimination but failed in the Employment Tribunal on the grounds that the Housing Association did not know and could not reasonably have been expected to know that she was disabled at the time of the dismissal. There was no evidence that her behaviour towards her colleagues (which was part of the reason for her dismissal) ‘arose in consequence of’ her disability. Other reasons explained her dismissal. In any event, the dismissal was justified under section 15(1)(b) as being a proportionate means of achieving a legitimate aim (ensuring care by the employer for vulnerable people by a professional team).
The EAT did not support these findings. First, although the Housing Association did not know about the disability at the time of dismissal, it may have acquired actual or constructive knowledge of it before her appeal was rejected. Mrs Baldeh had mentioned her mental health at the appeal hearing and the rejection of the appeal formed part of the unfavourable treatment of which she was complaining.
Secondly, there was some evidence that her depression caused the relevant behaviour. The fact that there may have been other causes as well as the behaviour arising from the depression was not an answer to the claim. Finally, the EAT decided that the tribunal had not considered the justification argument sufficiently.
So a full house of errors by the tribunal and a reminder that an employer should pay attention to any hint of a possible disability, whenever it becomes aware of the issue.
A question frequently arising in ‘Christmas party’ cases is whether the employer is responsibility for the careless or stupid behaviour of its staff who attend.
Ms Shelbourne was injured when one of her colleagues lifted her up and then proceeded to drop her on the dance floor.
There was no dispute that Cancer Research UK, the employer, was potentially ‘vicariously’ liable for the careless employee’s actions as he was an integral part of its business. But, applying the test from previous cases, (i) what functions or ‘field of activities’ had been entrusted to the employee by CRUK, and (ii) was there a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable for reasons of social justice?
The conclusion of the High Court on the second question: no. The employee was not at work when the accident happened and his ‘field of activities’ was not sufficiently connected with what happened at the party. This was a helpful outcome for employers who inevitably risk such situations when arranging staff socials. (Shelbourne v Cancer Research UK 2019 EWHC 842.)
In my February Newsletter I reported the Opinion of the Advocate General in Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (C-55/18) concerning the need to keep records of working time.
The European Court of Justice has gone along with that Opinion, to the point where, in fact, it is questionable whether the UK legal requirements in the Working Time Regulations 1998 that ‘adequate records’ be maintained actually comply with EU law. This could lead to a toughening of the UK record keeping requirements, although as with so many other ‘Brexit’ related issues, what will actually happen is very uncertain.