Disciplinary Hearings and High Court Injunctions

Thanks to Rosalie Snocken of Old Square Chambers for preparing this case summary.

Can a court intervene to restrain an employer from requiring an employee to face a charge of potential gross misconduct at a disciplinary hearing if the conduct complained of is not sufficiently serious to support such a finding?

Yes, holds the Supreme Court in West London Mental Health NHS Trust v Chhabra.

The Appellant is employed by the Respondent Trust as a consultant forensic psychiatrist.  Proceedings in this case arose when the Appellant applied for a declaration and injunctive relief from the High Court ahead of a scheduled disciplinary hearing at which the Trust’s case manager intended to present certain matters as allegations of grossmisconduct under the Trust’s disciplinary policy.

Lord Hodge JSC (giving the only judgment) held that the evidence against the Appellant taken at its highest was not capable of supporting a charge of gross misconduct.   The Court would have held that the categorisation of the Appellant’s conduct as gross misconduct was itself a sufficient ground for injunction in this case.

The Court further held, however, that an injunction should be granted also on the basis that the HR adviser involved had gone beyond his remit by suggesting extensive amendments to the investigation report, which had the effect of stiffening the criticism of the Appellant within the report.  Whilst an HR adviser could advise on questions of procedure, ensuring that all necessary matters had been addressed or achieving clarity, it was not part of his remit to guide the report’s conclusions.  The Court regarded this involvement as a breach of an implied contractual right to a fair disciplinary process.  The Court also made criticisms of other procedural aspects in concluding that an injunction should be granted.

The Court remarked that, as a general rule, it is not appropriate for the courts to intervene to remedy minor irregularities in the course of disciplinary proceedings between employer and employee.  Here however, the irregularities were serious and  any common law damages that the Appellant may obtain if she were to succeed in a claim based on those irregularities after her employment were terminated might be very limited.

Specifically on Maintaining High Professional Standards in the Modern NHS (“MHPS”), the relevant NHS disciplinary procedure, the judgment also considers the respective roles of case manager and case investigator and the discretion which the Supreme Court found a Trust has, in cases where there are both capability and conduct concerns, to proceed to a conduct hearing separately where this is appropriate in the circumstances.  

Equal Pay: First Consideration by EAT under Equality Act 2010

Thanks to Lisa Joyce of DTM Legal LLP for preparing this case summary

Does an equal pay claim have to establish either direct or indirect discrimination?

Not always, if the reasons provided by the employer for inequality of pay are not accepted by the Claimant, according to the decision in Calmac Ferries v Wallace.

The Claimants, the only two female port assistants at Largs ferry terminal brought identical equal pay claims under theEquality Act 2010. The Respondent conceded that the work of the two women was like work to that of the comparator.

The tone of the Claimants' claim suggested that they were seeking to remedy their perceived unfairness in the pay arrangements, rather than an inequality between employees on grounds of their gender. However, the Claimants' pool of two was too small to establish a systematic disadvantage to women as a group and they failed to provide a PCP.

The Respondents applied to strike out the claims, arguing that it was for the Claimants to establish a case of indirect discrimination and that on the pleaded cases they could not do so.

Despite this, on the basis that the Respondents' material factor defence was not conceded, there remained a prima facie case of discrimination which had to be answered on the facts. The application was refused.

Warning: Online ET1 not working

A programming bug appears to have arisen with the online ET1 form.

On the first main page of the form (screenshot below), the online system is insisting, wrongly, that the required information is not completed - and is not letting users progress to the next page.

It is therefore necessary to lodge ET1s by hand if facing a limitation deadline (email and fax copies are no longer permitted).  Not all tribunal hearing centres will accept an ET1 by hand - the list of tribunals which will accept hand delivery of an ET1 is on page 7 of this leaflet.  Bear in mind hard copy forms, when being posted, must be posted to the Leicester or Glasgow processing centres, not the local tribunal.  Also bear in mind that the Xmas post will cause delay - watch out for limitation problems.

Daniel Barnett

Age Discrimination: Statutory requirement defence

Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary If a contractual entitlement to enhanced redundancy pay is determined by reference to a statutory scheme that discriminates on grounds of age, does that give the employer a defence of statutory authority? No, holds the EAT in Heron v Sefton MBC. Ms Heron was employed from August 1995 by the Training and Enterprise Council, under terms that did not include the Civil Service Compensation Scheme. Two TUPE transfers later, having meanwhile acquired a contractual right to CSCS terms, she was made redundant by Sefton MBC. The CSCS capped the sum payable to an employee of over 60 at 6 months' pay, and Sefton implemented that cap. Ms Heron complained of age discrimination. Sefton raised a defence of statutory authority, which succeeded at first instance. But on appeal, the EAT made short work of it. Ms Heron's entitlement was contractual, not statutory: it was 'a requirement of a contract which incorporated the terms of an enactment.' The difference in Sefton's treatment of Ms Sefton and her younger colleagues was not something it was required to do under an enactment. Implicitly, the result might have been different had the CSCS applied directly to Ms Sefton's employment.

New TUPE Implementation Date

The Department for Business, Innovation and Skills has published its seventh statement of new regulation.

This states that the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2013 will come into force on 31st January 2014.  The main changes are summarised here.

Also mentioned is the extension of the right to request flexible working to all employees with 26 weeks' service, which will come into force on 6th April 2014.

Right to Be Accompanied

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Was the EAT correct to hold in Toal v GB Oils Ltd that a worker's right to be accompanied at a disciplinary or grievance hearing under section 10 Employment Relations Act 1999 is limited only by the reasonableness of the request to be accompanied, not in the choice of a companion under s10 (3)? 

Yes, holds a different division of the EAT in Roberts v GB Oils Ltd (the appeal involving the same employer). The Claimant was refused his first choice of companion at a disciplinary hearing at which he was fairly dismissed for misconduct, and failed at the employment tribunal in his claim for a breach of s10 Employment Relations Act 1999.

Upholding the Claimant's appeal, the EAT followed the earlier decision in Toal, despite reservations as its effect, and held that the statute was clear, after considering paragraph 15 of the relevant Acas Code, which pointed to a broader interpretation of 'reasonable' extending to the choice of companion.

The EAT observed however that there was a safeguard for an employer against a worker's wanton choice of an unsuitable companion, as an employment tribunal could in such a situation reduce compensation to the worker to nil.

There is uncertainty as to what the situation might be if a worker withdraws a request to be accompanied by a particular and substitutes a new request for a companion, this possibility was not raised at the employment tribunal.

The EAT remitted the matter of compensation up to the two-week's pay limit to the employment tribunal, but made no comment on the observation in Toal that quantum for a breach of this right might be in the order of forty shillings.

Agency Workers Regulations 2010

Thanks to Sian McKinley of Cloisters for preparing this case summary

Do the Agency Workers Regulations 2010 apply to agency workers placed with an end user indefinitely?

No, holds the EAT in Moran v (1) Ideal Cleaning Services Ltd; (2) Celanese Acetate Ltd.

The Claimants were employed by the first Respondent and placed with the second Respondent. They had worked for the second Respondent for between 6 and 25 years until they were made redundant. They argued that the Agency Workers Regulations 2010 applied to them so as to entitle them as agency workers to the same basic working and employment conditions as if they had been recruited by the second respondent directly.

The employment tribunal dismissed their claims and this was upheld by the EAT on the following basis:
 

• the Regulations only apply to workers supplied by a temporary work agency to work temporarily for the end user
• the concept of “temporary” in the Regulations means not permanent. A permanent contract is one which is indefinite whereas a temporary contract will be terminable upon a condition being satisfied
• the arrangements under which the Claimants worked were indefinite in duration and therefore permanent
• the Claimants therefore fell outside the scope of the Regulations.

Employment Status: Workers

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.

Is a person who is unequivocally classified in his written contract as being in business on his own account incapable of being a worker for the purposes of the Working Time Regulations 1998?

Not necessarily, held the EAT in Boss Projects LLP v Bragg.

The Claimant was engaged as a scaffolding supervisor under a chain of contracts whereby the contractor (Mears) contracted with another company (Potensis) for the provision of subcontractors. Potensis in turn contracted with the Respondent (Boss) for the provision of individuals. Payment was made down the chain to Boss, who in turn paid the Claimant.

The Claimant’s contract with Boss described the Claimant as a ‘subcontractor’ and ‘in business on his own account’. It gave absolute discretion to substitute or delegate his workload or hire assistants for which he was solely financially responsible. It permitted the undertaking of other work before, after or concurrently with work for Boss. It explicitly provided no entitlement to holiday or sick pay and rendered the Claimant liable for his own tax and national insurance.

Mr Justice Mitting (sitting alone) found contractual terms, however watertight, do not provide a complete or reliable definition of the nature of the relationship between the parties to a contract.

The EAT continued to conclude the Claimant could not have been expected to have read every page and, in the circumstances, the tribunal was right to look to substance as well as form. He concluded the substitution clause was never intended to be used by either party and observed the Claimant brought none of his own tools to the job. As such, despite express contractual provision otherwise, the Claimant was a worker.

Disability Discrimination: Knowledge of Disability

Thanks to Joanna Cowie of SA Law for preparing this case summary

Can an employer rely only on an Occupational Health Report when deciding whether an employee is disabled?

No, held the Court of Appeal in Gallop v Newport City Council.

An employer's duty to make reasonable adjustments for a disabled employee only arises where the employer knows or is reasonably expected to know that the employee is suffering from a disability and, as a result, is likely to be placed at a substantial disadvantage. 

Assessing whether an employee is disabled can be problematic, particularly in a case of mental illness.  In this case, decided under the previous Disability Discrimination Act 1995, Mr Gallop was suffering from depression brought on by work related stress.  Following the findings of an Occupational Health Report, stating that Mr Gallop's medical condition did not meet the legal definition of disability, he was dismissed by the council in 2008.  Whilst his claim for unfair dismissal was successful, his claim for disability discrimination failed both in the employment tribunal and the EAT, where it was decided that in view of the findings of the Occupational Health Report, the employer did not know that the employee was disabled. 

Overturning the decision of the EAT, the Court of Appeal stated that although an employer should correctly seek assistance and guidance from an Occupational Health Report or other medical expertise, it is for the employer to make a factual judgment as to whether or not the employee is disabled and cannot simply "rubber stamp" an external opinion.

Religious Discrimination: Sunday working

Thanks to Neil Addison of New Bailey Chambers for preparing this case summary Was an employment tribunal justified in concluding that a belief that Christians should not work on a Sunday was not a 'core' part of Christianity? No, held the Court of Appeal in Mba v London Borough of Merton. The Appellant, employed as care assistant in a children's home, was a Christian who believed that it was wrong to work on Sunday. When she was rostered to work on a Sunday, she failed to attend and was disciplined. She resigned alleging religious discrimination. In its judgment the employment tribunal had held that "the Appellants belief.....is not a core component of the Christian faith". Lord Justice Maurice Kay held that what mattered was whether Mrs Mba had a sincere belief which was held by some Christians.  Paradoxically the fact that her belief was a minority one made it easier to accommodate her. Lord Justices Elias and Vos went further. Under Article 9 of the Convention to the Equality Act it was wrong to consider whether the Appellants belief was shared. What mattered was whether it were sincere. All Judges, however, agreed that, on the facts, it was proportionate to require the Appellant to work on a Sunday and therefore her appeal was dismissed.

Holiday Pay: Advocate-General Opines Must Include Commission

Thanks to James Medhurst, Trainee Solicitor, of Slater & Gordon Lawyers for preparing this case summary

Should commission be taken into account when calculating holiday pay?

Yes, according to the opinion of Advocate-General Bot in the CJEU in ZJR Lock v British Gas.

The worker was a salesman whose pay consisted of two elements, basic pay and commission. His commission was based on sales achieved, and fluctuated from month to month. He was on annual leave for two weeks over Christmas 2011 and he was not able to make any sales during this period. When calculating his holiday pay, his employer took only his basic pay into account.

Applying Williams v British Airways, A-G Bot recommended the court find that, as commission is intrinsically linked to the performance of the tasks the worker is required to carry out under his contract of employment, it must necessarily be taken into account in calculating holiday pay. He also recommended that it should be left for national courts to decide on the mechanism for determining the appropriate amount of commission to include.

A-G Bot made his ruling having expressly considered the decision of the Court of Appeal in Evans v Malley Organisation, in which it was held that commission does not need to be taken into account when calculating holiday pay. If the Advocate-General's opinion is followed by the CJEU, which it normally is, it would appear that Evans should no longer be followed.

Unfair Dismissal: Ill-Health Absence

Thanks to Bonike Erinle of Farrar’s Building for preparing this case summary

What is the critical question to be decided in dismissals on grounds of ill-health?

"Whether any reasonable employer would have waited longer before dismissing the employee", says the Court of Session in BS v Dundee City Council.

The Court of Session stated that in a case where an employee has been absent from work for some time owing to sickness, the following issues would need to be specifically addressed:

1. Whether the employer could be expected to wait any longer and, if so, for how much longer. Relevant factors could include whether the employee has exhausted her sick pay, whether the employer was able to call on temporary staff, and the size of the organisation.
2. Whether the employee had been consulted with, whether her views had been taken into account, and whether such views had been properly balanced against the medical professional's opinion.
3. Whether reasonable steps had been taken to discover the employee's medical condition and likely prognosis. It would not be necessary for the employer to pursue detailed medical examination as the decision to dismiss is not a medical question but a question to be answered in the light of the available medical advice.

The Court also pointed out that length of service is not automatically relevant. The important question is whether the length of service, and the manner in which the service was rendered during that period, yields inferences that indicate that the employee is likely to return to work as soon as she can.

Shared Parental Leave

Thanks to Lucy Boyle of 12 King’s Bench Walk Chambers for preparing this case summary

The Government has published its response to theConsultation on the administration of Shared Parental Leave and Pay. The policy is being introduced under Part 6 of the Children and Families Bill, which is currently going through the House of Lords. The Government intends to implement the scheme by 2015.
 
Shared parental leave will allow eligible mothers and their partners to be absent from work to care for a child for a maximum of 52 weeks. Eligible couples could also take up to 39 weeks of shared parental pay. A couple will be able to take the leave together so that the mother will not necessarily return to work after compulsory maternity leave. Alternatively, the mother could return to work and allow her partner to take the balance of leave, or the couple could take the leave in turns.
 
Employees will have to give notice to their employers of their intention to opt into the shared parental system. In doing so, employees will have to provide a non-binding indication of their expected pattern of leave. Additionally, employees will have to provide eight weeks of notice of their intention to take any period of leave. This will include a two week discussion period with their employer. A maximum of three notifications of a period of leave or variations of a period of leave will apply.
 
The Government has also proposed the following:

• A notice to end maternity leave in order to start shared parental leave will be binding when given prior to birth. A mother will have six weeks from birth to revoke this binding notice;
• There will be a cut-off point of 52 weeks from birth for couples to take shared parental leave;
• Each person in a couple will have up to 20 ‘Keeping in Touch Days’ while on shared parental leave; and
• The right to return to the same job will be maintained for employees returning from any period of leave (including maternity leave, paternity leave, adoption leave and shared parental leave) which totals 26 weeks or less in aggregate, even if the leave is taken in discontinuous blocks.

 
Draft regulations detailing how the system will work are to be published before the Bill receives Royal Assent.