Newsletter November 2019


All political parties have now issued their election manifestos and the Labour one in particular proposes some potentially significant changes to employment rights. These include compelling large companies to give employees 10% ownership, granting everyone ‘full employment rights’ from day one on the job (it is not specified what this means but could it include the end of the two year qualifying period to claim unfair dismissal?), strengthening protection for whistle-blowers and unfair dismissal rights (although these are not explained fully) and ‘clarifying’ worker status (again without much specificity).

Depending on what we all wake up to on 13th December, I may come back to all or some of these issues in future Newsletters. In the meantime, the world of employment law continues to turn with cases regarding various different dismissal grounds as well as discrimination and sick pay issues.

Darryl Evans
T: +44 (0)7771 725341

Covert CCTV footage

I begin this month in The Grand Chamber of the European Court of Human Rights, no less. The question before it was whether the Spanish courts had failed to protect employees' privacy under Article 8(1) of the European Convention on Human Rights by upholding dismissals based on covert CCTV footage of them stealing from their employer. Overturning one of its previous decisions, it ruled that the privacy right was not infringed.

The employer did not tell the employees that the cameras were there (which it was obliged to do under Spanish data protection law) but that did not mean that the intrusion on the privacy rights under Article 8 was disproportionate. It was one factor to take into account, but so too were the employees' limited expectation of privacy on a shop floor, the limited time the monitoring took place, the low number of people allowed to see the footage, and the fact that telling staff about the cameras could have meant the thieves would not be caught.

The Chamber also confirmed that use of the footage in evidence had not violated the right to a fair hearing under Article 6. The CCTV footage had not been the only evidence relied on and its authenticity had not been disputed. (López Ribalda and others v Spain Application nos. 1874/13 and 8567/13.)

Redundancy – “deletion” of a post

In East London NHS Foundation Trust v O'Connor (UKEAT/0113/19) Mr O'Connor, a Psycho-Social Intervention ("PSI") worker, was told that, as a result of a reorganisation, his role was to be "deleted" and he was at risk of redundancy.

There are rather complicated laws regarding trial periods, the basic position being that once notice of dismissal has been given, the employer can offer the otherwise redundant employee a trial period in a suitable alternative role, and if the employee unreasonably refuses to accept the offer, then the right to a redundancy payment is forfeited.

Mr O’Connor began a trial period in an alternative role (Care Coordinator) and a dispute began as to whether this was suitable alternative employment. He raised an unsuccessful grievance and when the Trust offered him the Care Coordinator position as a permanent alternative, he declined it. So the Trust went ahead and dismissed him, but declined to make him a redundancy payment on the grounds that that a statutory trial period for the new post had ended and that he had unreasonably rejected a position which represented suitable alternative employment.

The Employment Appeal Tribunal (EAT), supporting the employment tribunal decision, found that Mr O’Connor had not been given notice of dismissal prior to starting the trial, so that trial did not amount to a statutory trial period. Telling him that the role was to be ‘deleted’ did not automatically mean notice of dismissal was given.

The case is intricate, not least because the rules on trial periods and suitable alternative employment are fiddly. However, it is worth noting that if an employer wants to confirm dismissal and trigger notice, it must do that clearly. I have had several recent cases in which there was scant evidence of notice of termination being given, with later all parties wishing they had started notice earlier because of the impact on how severance pay must be taxed under the new ‘post-employment notice pay’ rules. It is an area where attention to detail matters.

Right to work checks

Badara v Pulse Healthcare Limited (UKEAT/0210/18) is a case concerning the obligation to ensure that staff have the right to work in UK.

There are lists of the documents upon which an employer may rely, but Pulse asked the job applicant, the spouse of an EEA national resident in the UK, to evidence his continued right to work in the form of a positive ECS (Employer Checking Services) check from the Home Office. When he could not, Pulse stopped giving him work and hence payment for his services.

The EAT recognised that Home Office guidance and case law are both clear that an ECS check is not enough to rely on to determine eligibility to work. Consequently, Pulse’s actions potentially represented an unlawful deduction from wages and indirect race discrimination. The case was sent back to the tribunal to reconsider its mistaken decision.

Ongoing acts of discrimination

As with unfair dismissal claims there is a three-month cut-off date for claimants to start legal proceedings for race discrimination. What that often leads to is a claimant, who believes he/she has suffered discrimination over a sustained period, linking different events which he/she regards as discriminatory as "conduct extending over a period". The three-month time limit than runs from the last event in the series.

The problem for Mrs King in her claim (South Western Ambulance Service NHS Foundation Trust v King UKEAT/0056/19) was that the employment tribunal considered that only one event in the series was in fact discriminatory and it was not the last one. The three-month time window ran from the last event which was held (not alleged) to be discriminatory. Mrs King’s claim was therefore out of time unless the tribunal was willing to exercise discretion to extend the limit.

Carry-over of holiday for sickness absence

The European Court of Justice has held that Member States may limit carry-over of holiday in the event of a worker's sickness absence to the four-week entitlement under Article 7(1) of the Working Time Directive. A Member State is allowed to require employers to grant more holiday than that core four-week right, and the UK does indeed do that (we have a 5.6 week minimum). However, if it does so, the Member State can decide what conditions attach to those extra days and if that means that carry-over can be prohibited, even where the employee is long-term sick, that’s fine – that is not in breach of EU law. (Terveys- ja sosiaalialan neuvottelujarjesto (TSN) ry v Hyvinvointialan liitto ry and Auto- ja Kuljetusalan Tyontekijaliitto AKT ry v Satamaoperaattorit ry (Joined cases C-609/17 and C-610/17).)

Whistleblowing – reasonable belief

Where a worker brings a whistle-blowing complaint he/she must establish that he/she had a reasonable belief that the disclosure made showed a legal/regulatory breach and that raising it was in the public interest.

The question in Ibrahim v HCA International Ltd (2019 EWCA Civ 2007) was whether the tribunal needed to address specifically whether the claimant subjectively believed the disclosure was in the public interest, and whether or not that belief was reasonable. To do that, did it have to hear evidence on those matters?

The answer, I am pleased to say because this was an issue in a case of mine, was yes. Mr Ibrahim’s complaint included that there were false rumours circulating that he had been involved in breaches of patient confidentiality. The tribunal initially concluded that the disclosures were not made in the public interest but because Mr Ibrahim wanted to clear his name and re-establish his reputation. Mr Ibrahim, who represented himself, was not asked as to his thinking on public interest. The fact that he had a personal motive was established and the tribunal stopped there, on the basis that his motive precluded any public interest issue.

By the time the Court of Appeal heard the appeal in this case it has given judgement in Chesterton v Nurmohamed, which confirmed that a tribunal did need to ask whether a claimant subjectively believed that the disclosure was in the public interest, and whether that belief was reasonable. The tribunal in Mr Ibrahim’s case needed to do exactly that, and had not. Just because he had personal motivation did not mean he did not reasonably see a public interest in the disclosure as well.

Motive of others in unfair dismissal

In Cadent Gas Limited v Singh (UKEAT/0024/19), Cadent appealed the finding of the employment tribunal that Mr Singh had been automatically unfairly dismissed as a result of his trade union activities.

Among the grounds of appeal were that the tribunal concluded that the decision-makers were not motivated by the Mr Singh's trade union activities (so how could that be the reason for dismissal?) and had placed reliance on the motivations of others who were not the decision makers.

The appeal failed. The EAT felt that the tribunal had shown that it thought that the decision-makers were motivated by Mr Singh's trade union activities. However, even if it had not reached that view the motivations of others – specifically Mr Singh’s manager – could be taken into account.

Generally it is the motivation of the decision-maker(s) that is key, but in some instances the views of others involved could be attributed to the employer and impact the decision. An example is where the other person finds a way to manipulate the process and its outcome even if the actual decision makers act in good faith. In this case the manager had conducted the investigation against Mr Singh differently to other investigations he had done, because of his attitude to union activities, and that impacted the outcome.

More Facebook problems

Mr Forbes was shown by one of his colleagues a Facebook image that had been posted by another colleague, Ms Stevens, of a golliwog with the caption, “Let’s see how far he can travel before Facebook takes him off”. Mr Forbes was not on Ms Stevens’ friends’ list and would not have seen the post without it having been shown to him.

Mr Forbes was understandably shocked at the image and complained to his manager that “racist images were being circulated in the workplace”. This led to a formal grievance and a final written warning for Ms Stevens (for breaching the company’s dignity at work policy).

When Mr Forbes and Ms Stevens were posted to work together on a shift, he complained to his union representative that he had to work alongside someone about whom he had successfully made a grievance, resulting in him (not her) being moved to a different location. He was upset about that – he felt victimised and discriminated against for doing a protected act (complaining about the image).

His claim failed in the employment tribunal. The posting had not been made in the course of employment (it contained no reference to the employer and was not made using its IT systems) so the company was not liable for what had happened. The EAT agreed and was happy that the employer had taken reasonable steps to prevent its employees doing discriminatory acts.

The employer escaped liability here, but this remains a fraught area. Clear policies on discrimination, harassment and the requirements for respect in the workplace, plus on responsible social media usage, supported by training, are highly recommended. (Forbes v LHR Airport Ltd UKEAT/0174/18.)

TUPE – national minimum wage records

In Mears Homecare Limited v Bradburn & others (2019/UKEAT/0170) Ms Bradburn and her colleagues, having transferred from Mears to a new employer under TUPE, served formal notices on Mears for the production of wage information, to help them determine if they had been paid in accordance with the national minimum wage. Mears failed to do so.

The EAT, reversing the tribunal’s decision, said Mears did not have to. Whilst Mears would have retained any criminal liability for failing to pay NMW, the record keeping requirement fell within TUPE so passed to the new employer.

This is a reminder for employers receiving staff under TUPE to ensure they obtain wage and other employee records from the former employer.

Confidentiality agreements in discrimination cases

The Equality and Human Rights Commission (EHRC) has issued guidance on the use of confidentiality agreements in discrimination, harassment and victimisation cases. It covers both legal obligations and suggested good practice.

This is a vexed area and arises from concerns about the ability of women to speak-up about workplace harassment in a context in which it is very standard to include in any settlement agreement wording which stops them doing so, in order that the matter remains private and confidential. Although I fully appreciate the difficulty here, I have previously written about the risk that preventing such contractual restrictions might make settlements harder to achieve, forcing wronged employees either into litigation they do not want or to abandon their rights altogether.

The EHRC guidance does not go so far as to propose prohibition, but identifies the circumstances in which a restriction would not be upheld anyway (e.g. disclosure of criminal activity) and seeks to encourage proper consideration by employers of whether a restriction is needed, so as not to use such wording as the normal default, and transparency with the employee about that usage, including allowing her to obtain legal advice, permitting sensible exceptions and not pressurising the employee into acceptance.

The government has proposed to legislate on this area, so the EHRC’s guidance may be superseded by that.

Menopause in the workplace

The Advisory, Conciliation and Arbitration Service (ACAS) published guidance to help employers manage and support the impact of menopause in the workplace. The guidance highlights common symptoms, sets out how employers and employees can work together to find solutions and explains how best to approach this subject. It also makes practical tips on making adjustments to support employees going through the menopause.

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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