EMPLOYMENT LAW SUMMARY OF SOME RECENT CASES

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1 TSSA Rep s Bulletin Ref: EMP/048/SEPT 2005 EMPLOYMENT LAW SUMMARY OF SOME RECENT CASES Introduction Paul Scholey, Head of Employment Rights at TSSA Solicitors, Morrish & Company, takes a look at some of the important employment law cases decided over the last 12 months Sexual Harassment Moonsar v Fiveways Express Transport Limited (2004). The Claimant s job required her to work in close proximity with her male colleagues who downloaded pornographic images onto their computers. The Claimant did not actually see any of the offensive images and did not complain to her employer about the behaviour of her male colleagues at the time. The Claimant subsequently brought a claim for sexual discrimination against her employer. Her claim was unsuccessful at the Employment Tribunal. However, the decision was overturned on appeal to the Employment Appeal Tribunal. The EAT held that the type of behaviour carried out by the Claimant s male colleagues in her presence was a clear attack on her dignity even though she had not seen any of the offensive images which had been downloaded and had not complained at the time. The EAT found that in sexual discrimination cases the act of harassment may be so obviously detrimental to the employee as a woman, either intimidating her or undermining her dignity at work, that the fact that she had not made a complaint about the 1 behaviour at the time was of little or no significance. However, this case was heard before the introduction of the new grievance and disciplinary procedures on the 1 st of October 2004, and the claimant s failure to lodge a formal grievance would have had adverse consequences had the matter arisen after that date. Moonsar is also arguably at odds with other decisions of EAT in that it fails to require a comparison between the claimant and a male comparator. Still a useful case for employee representatives. A new statutory definition of harassment will be introduced in October Holiday entitlement Commissioners for Inland Revenue v Hainsworth (2005). The Court of Appeal overturned the Employment Appeal Tribunal s controversial decision in Kigass Aero Components v Brown 2002 and held that the right to 4 weeks statutory paid holiday under the Working Time Regulations 1998 does not continue to accrue whilst an employee is off on long term sick leave. The Court of Appeal ruled that Kigass had been wrongly decided and criticised the approach which the EAT had taken in that case. It stated that the definition of worker in Regulation 2(1) of the WTR had been given too much emphasis in Kigass and that it was preferable to consider the meaning of the word leave in Regulation 13. The Court expressed the view that as the word leave connoted release from what would

2 otherwise be an obligation, it could not be used by a worker who had been absent from work on long term sick leave to say that during some arbitrarily chosen time during that period they were taking leave. The Court of Appeal also stated that the Regulations are intended to ensure minimum health and safety standards in relation to Working Time and the Claimants could not put forward any arguments to justify their entitlement to holiday pay on this basis. Parental Leave South Central Trains Ltd v Broadway (2005). The Maternity and Parental Leave etc Regulations 1999 state that parental leave may only be taken in periods constituting a week s leave or multiples of that period except where that leave is being taken in respect of a child who is entitled to a disability living allowance. In this case the Claimant informed the Respondents that he wished to take 1 day s parental leave. His request was refused but the Claimant ignored his employer s refusal and stayed away from work on that day. Upon his return to work he was disciplined for being absent from work without permission. This charge was subsequently withdrawn and the Claimant was issued with a written warning about his absence. The Claimant brought a Tribunal claim alleging that he had been subjected to a detriment for asserting his statutory right to take parental leave. The Employment Tribunal found in favour of the Claimant. The decision was overturned on appeal by the Employment Appeal Tribunal which held that under the statutory parental leave scheme employees are allowed to take parental leave only in blocks of one or more complete weeks. Continuity of employment London Probation Board v Kirkpatrick (2005). The Claimant was dismissed with pay in lieu of notice. His appeal against his dismissal was upheld and he was subsequently reinstated. However before the Claimant returned to work his employers decided that they would not in fact reinstate the Claimant as the mutual trust and confidence between employer and employee had broken down. The Claimant lodged a claim for unfair dismissal. This was lodged more than 3 months after the initial dismissal but within 3 months after he was informed that he would not be reinstated. The Claimant s employer argued that the Claimant s continuity of employment had been broken because of the gap between the initial dismissal and reinstatement, so that he did not have the required 1 year s qualifying service to bring a claim for unfair dismissal. The Employment Tribunal found in favour of the Claimant. On appeal to the Employment Appeal Tribunal, the EAT held that where an employee was dismissed and then reinstated following an internal appeal his continuity of employment was preserved. The EAT explained that the decision to reinstate the Claimant had been contractually binding but when considering the issue of continuity of employment it stated that in order for the Claimant to succeed he had to show that his absence from work following the initial dismissal was an arrangement under which he was regarded as continuing in the employment of his employer for any purpose within the meaning of Section 212 of the ERA

3 Religion & Belief Williams-Drabble v Pathway Care Solutions Ltd and Another (2005). On her application form for a job as a residential social worker, the Claimant had stated that she was a practising Christian. At her interview she had made it clear that she would not be able to work on Sunday as she regularly attended the Sunday Service at her Church. However, she did agree to work a Saturday sleep over at the Home once every 3 weeks. This would finish at am on Sunday which would allow her to attend the evening Church Service. The Claimant s rota was subsequently changed and she was required to work from 3 pm on Sunday until 10 am on Monday. This meant that she would no longer be able to attend the Church Service. The Respondents advised her that the change to her rota would be permanent and that if this was unacceptable to her she would have to resign. The Claimant brought a claim alleging that she had been discriminated against on the grounds of religion or belief. The Tribunal considered the definitions of direct and indirect discrimination in the Employment Equality (Religion or Belief) Regulations Regulation 3(1)(a) states that direct discrimination occurs when a person is treated less favourably because of their religion or belief. Regulation 3(1)(b) states that indirect discrimination occurs where an employer applies a provision, criterion or practice equally but so that people of a particular religion or belief are put at a disadvantage. It was held that the Claimant had failed to prove that she had been directly discriminated against. However, by imposing a permanent change in her rota which required her to work on Sunday, her employers had applied a provision, criterion or practice which although it 3 was applied equally to all the staff, put practising Christians at a particular disadvantage. On this basis the Tribunal found that the Respondents had indirectly discriminated against the Claimant. TUPE consultation Howard v Millrise Ltd t/a Colourflow (In Liquidation) and Another (2005). Prior to the transfer of an undertaking an employer is required to provide information to and consult with appropriate representatives of those of its employees who may be affected by the transfer in accordance with Regulation 10(2) of the Transfer of Undertakings (Protection of Employment) Regulations Appropriate representatives may either be representatives of a recognised Trades Union or employee representatives who have been elected by the affected employees. If the employer invites affected employees to elect representatives and they fail to do so within a reasonable time the employer is obliged to provide the information set out in Regulation 10(2) to each affected employee individually. If an employer is held to have breached Regulation 10 the Tribunal has power to award compensation to the affected employees. In this case the Claimant was given 1 month s notice of dismissal on the 15 th April His employers went into liquidation on the 30 th April and the undertaking was transferred as a going concern. The Claimant s employment was terminated on the 14 th May He commenced proceedings for unfair dismissal and for breach of Regulation 10 in that he had not been provided with the relevant information. The Claimant was successful in his claim for unfair dismissal but the Employment Tribunal rejected his

4 second claim. Upon appeal to the EAT it was held that where no appropriate representatives are already in place an employer is obliged to invite employees who may be affected by a transfer of the undertaking to elect employee representatives for the purposes of information and consultation. The Claimant was successful in his claim for breach of Regulation 10. Date of termination of employment Palfrey v Transco Plc (2005). The Claimant was informed that his employment was to be terminated and that his notice period would expire on the 19 th May However the Claimant was given the option of requesting an earlier termination date. It was subsequently agreed with his employer that his employment would be terminated on the 31 st March The Claimant subsequently brought a claim for unfair dismissal against his employer. The claim was brought more than 3 months after the 31 st March 2003 but less than 3 months after the 19 th May The Employment Tribunal held that the effective date of termination in this case had been the 31 st March 2003 as this is the date that had been agreed between the parties. The Claimant s claim for unfair dismissal had therefore been brought out of time. The decision was upheld by the Employment Appeal Tribunal which stated that the effective date of termination was the leaving date as agreed by the employer and employee rather than the termination date contained in the original notice of dismissal. It held that in this case the original notice had been impliedly withdrawn when the parties agreed a new termination date and therefore the employee s unfair dismissal claim 4 should have been presented within 3 months of the agreed date. Surveillance and privacy Mc Gowan v Scottish Water (2004). The Claimant s employer suspected that the Claimant had been falsifying time sheets. They employed a firm of private investigators to film the Claimant outside his home. The Claimant lived in a tied house close to the plant. At a subsequent disciplinary hearing videos of the Claimant were used as evidence against him. The Claimant was dismissed and he brought a claim for unfair dismissal against his employers in that his right to respect for his private and family life under Article 8(1) of the European Convention on Human Rights had been breached. The Human Rights Act 1998 makes it unlawful for public sector employers to breach the European convention on human rights. It was held that the Claimant s rights under Article 8(1) had not been breached because the surveillance had been carried out on a public road to which any member of the public had access and therefore anyone could have observed what the investigators observed. Upon appeal to the EAT it was held that covert surveillance whereby the movements of all of the inhabitants of a home are monitored raised a strong presumption that the right to respect for one s private life had been infringed. However, the EAT held that as the aim of the surveillance was to establish the number of times the Claimant left his house to go to the process plant and to determine whether or not he was in fact falsifying his time sheet, the surveillance had not been undertaken for whimsical reasons. The Respondents had a legitimate interest to protect and the surveillance which they had undertaken was not disproportionate to

5 achieving this aim. It was held that the Claimant had not been unfairly dismissed. The right to privacy under Article 8(1) of the convention had not been breached and therefore the Claimant could not argue that there had been an infringement of his convention rights such as to render the dismissal process unfair. Consultation Protective Awards Smith and Another v Cherry Lewis Ltd (In Receivership) (2005). The Respondent Company went into receivership and on the 11 th December 2003 around half of the workforce was dismissed as redundant. The remaining employees were dismissed the following week and the Company ceased to operate. At least 45 employees were dismissed in total. No consultation had taken place with regard to the redundancies. Section 188 of the Trades Union and Labour Relations (Consolidation) Act 1992 provides that where an employer proposes to make more than 20 employees redundant at one establishment within 90 days they are obliged to consult with appropriate representatives of the employees who may be affected. If the employer breaches this Regulation a protective award may be made against him in favour of the affected employees. The Employment Tribunal found that the Respondents had breached their duties under Section 188 of TULR(C)A. In reaching its decision the Employment Tribunal had relied upon the previous case of Susie Radin v GMB in which the Court of Appeal had explained that the purpose of a protective award was to penalise the employer for failing to comply with its obligations and not to compensate the affected employees. On this basis the Tribunal concluded that as the Respondents were insolvent, the 5 Company would not be affected if a protective award were made. The Tribunal therefore held that it would not be just and equitable to make a protective award in this case. The case was appealed to the EAT which held that the Tribunal had been wrong to find that the imposition of a financial penalty upon the Respondents was not an effective sanction. Furthermore, they stated that the Tribunal had failed to take into consideration the seriousness of the Respondent s breach. The EAT found that it was not for the Tribunal to assess the adequacy or effectiveness of a sanction and went on to say that if the Tribunal s approach were correct the impact of the legislation would be considerably undermined. They recognised that insolvency arises in a large number of cases involving collective redundancies and that the Tribunal s approach would lead to the removal of protection for a substantial number of employees. The EAT held that the Tribunal should have made a protective award. ACKNOWLEDGEMENT Case summaries reproduced with kind permission of Paul Scholey, Partner, Head of Employment Rights, Morrish & Company Solicitors, Oxford House, Oxford Row, Leeds LS1 3BE. (