Thursday 30 April 2015

Territorial Jurisdiction

Thanks to Claire Scott of Burness Paull LLP for preparing this case summary
Did an internationally mobile employee based in Switzerland, who spent more of his working time in the UK than any other single place, have a sufficiently strong connection to the UK to allow him to claim unfair dismissal under the Employment Rights Act?

Not on the facts, held the EAT in Olsen v Gearbulk Services Ltd & Anor.

Mr Olsen was Danish and he lived in Switzerland. He was found to be an employee of a Bermudian company. He had chosen a contract governed by Bermudian law over a contract under English law which would have required his relocation to England. His contract specified his base as Switzerland, from where he managed around 100 employees internationally including around 20 in the UK.

While Mr Olsen spent more time in the UK office than in any other single international office, the EAT agreed with the employment tribunal that there was not a sufficiently strong connection to the UK and noted that the employment tribunal was bound to take account of the fact that Mr Olsen took care to structure his working arrangements and the amount of time he spent in Great Britain, such that he did not pay UK tax.

Employment Status - Ministers of Religion

Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary
Was a Rector, the holder of a statutory office, an employee or a worker for the purposes of protection from unfair dismissal and whistle-blowing detriment?

No, held the Court of Appeal this morning in Sharpe v The Bishop of Worcester.

The employment tribunal had found that there was no express contract between the Bishop and the Rector. And although the terms of the Claimant’s appointment were clear, there was no necessity to imply a contract, because the terms were incidents of his statutory office. That being so, the Claimant could neither be an employee for the purposes of unfair dismissal, nor a worker for the purposes of the whistleblowing provisions of the ERA. In particular, the freedom of the clergy to go about "the cure of souls" in accordance with their own consciences was inimical to the existence of an employment relationship.

The Court of Appeal found no basis on which to disturb those findings, and confirmed that section 43K(1)(a) of the ERA can apply only where there is a contract.

ECJ: Collective Consultation - Woolworths Decision

The European Court of Justice has handed down its judgment in the Woolworths and Ethel Austin cases.  The full text is not online yet, but the court's official summary is.

The ECJ held that 'establishment', in the collective redundancy legislation, refers to an individual workplace (or, more accurately, the entity to which the workers made redundant are assigned to carry out their duties), not to the employer as a whole.

So when establishing headcount to see whether an employer needs to engage in collective consultation (required when contemplating 20+ redundancies in a period of 90 days), Woolworths was right to count each store as a separate 'establishment'.  This, in turn, meant that it did not need to engage in collective consultation with staff who worked in a store with a headcount of less than 20.

The ECJ has formally referred the case back to the Court of Appeal, but the Court of Appeal's decision is now likely to be a formality - i.e. reversing the decision of the EAT in the summer of 2013 which set the employment law world afire.

For a full history, see here.

Wednesday 29 April 2015

Redundancy and Limited Term Contracts

The Supreme Court has, this morning, reversed the Court of Session's decision in University & College Union v University of Stirling.

Collective consultation obligations arise if an employer is proposing to dismiss 20+ people as redundant within a period of 30 days.  Redundancy is defined, for this purpose, as dismissal “for a reason not related to the individual concerned".  Is the expiry of a limited term contract (previously known as a 'fixed term contract') a reason related to the individual concerned?  If yes, then any employees leaving because of expiry of their contract will not count towards the 20+ headcount.  If no, then they will count.

The Supreme Court held that dismissal because of expiry of a limited term contract was a reason not related to the individual.  Even though the individual had agreed to the expiry date, the statutory test was there to exclude situations where the real reason for dismissal related to the individual rather than the needs of the business.  Here, the decision not to renew limited term contracts was because of business requirements, and thus the individuals needed to be included for headcount and consultation purposes.

Note this decision is no longer of practical relevance.  The events in this case date back to 2009.  However, under the Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013, the law changed in April 2013 so that employees whose fixed-term contracts expire will not be included within the headcount in collective redundancy consultation situations.

Friday 24 April 2015

Trade Union Recognition - Collective Bargaining

Thanks to Jamie Susskind of Littleton Chambers for preparing this case summary
In cases of compulsory trade union recognition, is there an obligation to negotiate items which are not core contractual terms 'relating to pay, hours and holiday'?

No, held the High Court in British Airline Pilots' Association v Ltd.

The Central Arbitration Committee had declared that the Claimant trade union be recognised by the Defendant airline as entitled to negotiate on behalf of its pilots in respect of their 'pay, hours and holiday' (Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, paras. 3(3); 22(2)).

The central issue was whether rostering arrangements 'the shifts, hours, and periods worked by pilots' were 'pay, hours and holidays' to be negotiated.

Supperstone J considered the statutory framework, contemporary parliamentary material, and 'business sense' in the context of the case, and held that there was no obligation to negotiate items which were (i) not 'apt for incorporation' because they were non-contractual in nature (expressing an objective or aspiration); (ii) not apt for negotiation within the statutory framework; and/or (iii) adjectival or ancillary matters not falling within the core terms relating to pay, hours and holidays.

On the facts, the employer had not breached the statutory scheme.

Thursday 23 April 2015

Dismissals following Bad Faith Warnings

Thanks to Rosa Dickinson of St Philips Chambers for preparing this case summary
Can a warning given in bad faith be relied on for the purpose of determining whether there is sufficient reason to dismiss an employee?

No, held the Court of Appeal in Way v Spectrum Property Care Limited.

The Claimant received a final written warning which he alleged was given in bad faith. This warning was taken into account by the Respondent in its decision to dismiss the Claimant for unrelated misconduct. The employment tribunal had refused to hear evidence as to whether the warning was given in bad faith, and dismissed the claim for unfair dismissal.

The Court of Appeal found that an employer who took into account a warning given in bad faith would not be acting reasonably. The case was remitted the hearing to a fresh tribunal to consider whether the warning was given in bad faith, and the fairness of the dismissal in light of that.

Friday 17 April 2015

Criminal Record Requests by Employers

In theory, if employers want to know whether job applicants have a criminal record, they should use the Disclosure and Barring Service (formerly known as the Criminal Records Bureau), which does not disclose any spent convictions.  Employers have been known to circumvent this protection by insisting that applicants make a Data Protection Subject Access Record to get hold of their full criminal record (including spent convictions).

From last month, such a practice became unlawful.  The newly in force section 56 of the Data Protection Act 1998 makes it a criminal offence to require job applicants (or existing employees) to produce a copy of their criminal record through a subject access request.

This follows changes last year significantly shortening rehabilitation periods under the Rehabilitation of Offenders Act 1974.

Thursday 16 April 2015

SOSR Dismissals

Thanks to Neil Addison of New Bailey Chambers for preparing this case summary
Was the fact that a financial arrangement might be regarded as a misuse of public funds 'some other substantial other reason' justifying dismissal?

Yes, held the EAT in Anderton v Chesterfield High School.

The Claimant had been employed at the school by Sefton Council whilst at the same time being an elected councillor in neighbouring Liverpool and had been permitted the usual paid leave to perform councillor duties. In 2011 Chesterfield School became an independent Academy and in 2012 the Claimant was elected as full time Mayor of Liverpool following which he was dismissed by the school.

The employment tribunal agreed the dismissal was unfair but made a 100% Polkey deduction on the basis that the facts amounted to 'some other substantial reason' justifying dismissal and Judge Serota agreed.

An arrangement for a school to pay an elected official of a neighbouring local authority without him having to provide any services for the school might lead to significant criticism if the arrangement became public. The school was reasonably entitled to regard any such arrangement as inequitable and unsustainable and it could be regarded by members of the public as a misapplication of public monies.

Other local authorities looking at elected Mayors will no doubt take note.

Wednesday 15 April 2015

Whom are you voting for?

What are the various political parties saying about employment tribunal fees in their election manifestos?

Conservative: no change (manifesto, p21 left column)

Labour: abolish the employment tribunal fees system (query: is that the same as abolishing employment tribunal fees?) and (manifesto, p24 penultimate paragraph)

LibDem: review fees to ensure they are not a barrier to justice (manifesto, p46 top bullet point)

Greens: reduce employment tribunal fees to make them accessible to workers (manifesto, p46 halfway down)

UKIP: silent (manifesto - employment section at p41)

If you want to read about the other employment-law related positions of the various political parties, have a look at the Hard Labour guide to employment law election pledges.

Friday 10 April 2015

Deposit Orders and Costs

Thanks to James Medhurst of Employment Law Advocates for preparing this case summary
Should full costs be awarded automatically be awarded if a claim is lost following the payment of a deposit?

No, held the EAT in Oni v Unison.

The Claimant lost all of her claims for substantially the reasons given in a deposit order which had earlier been made against her. In accordance with Rule 39(5) of the Employment Tribunal Rules, it followed that the deposit would be paid to the Respondent and there was a presumption that her conduct in persisting with the claims had been unreasonable. The employment tribunal found that this presumption had not been rebutted and it also considered the Claimant's means. It awarded the Respondent the whole of its costs, to be assessed by the county court.

However, it failed to exercise its discretion and failed to consider all of the circumstances before reaching its decision about costs. The EAT held that this failure to exercise discretion was an error of law and remitted the decision on costs to a fresh tribunal.

Thursday 9 April 2015

Whistleblowing: EAT says 'reasonable belief in public interest' is low threshold

Thanks to Ed McFarlane of Deminos HR for preparing this case summary
Can a disclosure be made in the 'reasonable belief it is in the public interest' if it relates to a contractual dispute affecting a group of staff, and not the wider public?

Yes, held the EAT in Chestertons v Nurmohamed.

The whistleblower, a director in the Chestertons' estate agency's Mayfair office, made a protected disclosure by complaining that it was overstating costs for its London office, thus driving down the bonuses for him and 100 senior managers.

The employment tribunal found that the disclosure was made with a reasonable belief that it was 'in the public interest', and the Employment Appeal Tribunal upheld the decision.

The EAT stated that an individual contractual dispute would not normally satisfy the public interest test (following the reversal ofParkins v Sodexho by the Enterprise and Regulatory Reform Act 2013) but a disclosure relating to a relatively small group of people may do so; what is sufficient is necessarily fact-sensitive.

The purpose of the statute is to encourage responsible whistleblowing, and the public interest test can be satisfied even where the basis of the disclosure is wrong and/or there was no public interest in the disclosure, provided that the worker's belief that the disclosure was made in the public interest was objectively reasonable. The 'public interest' requirement did no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal n

Tuesday 7 April 2015

Stress at Work - Foreseeability of Injury

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary
Was an employer liable for psychiatric illness caused by occupational stress?

Not on the facts of Easton v B&Q plc, held the High Court.

The Claimant was a manager of a supermarket. He was very successful. However, he became ill through occupational stress and alleged this was due to the negligence and/or breach of statutory duty on the part of B&Q. A significant plank of Mr Easton's case was the lack of risk assessment by the employer in relation to stress.

Mr Easton was away from work with depression for about five months and received medication and therapy. When he returned it was on a phased basis at a store nearer his home address which was less busy than the store he previously managed. In the end though, this did not work out and he was recertified as unfit for work due to depression, and launched a claim.

The trial Judge relied upon the leading authority of Hatton v Sutherland [2002] ICR 613 on claims by employees for damages in respect of psychiatric injury caused by stress in the workplace. The question in this case was whether the injury was reasonably foreseeable by the employer.

There is an excellent summary of the principles in Hatton at paragraph 50 of the decision. According to the trial Judge an employer has no general obligation to make searching or intrusive enquiries and may take at face value what an employee tells him. In particular, an employee who returns to work after a period of sickness without qualification is usually implying that he believes himself to be fit to return to the work he was doing before. The foreseeability threshold in stress claims is therefore high.

On the facts of the case Mr Easton's claim failed at the first hurdle 'foreseeability' in respect of his first breakdown. This was because of his long managerial career in charge of large retail outlets with no psychiatric history. As to the relapse suffered by Mr Easton, B&Q clearly now knew he had suffered a psychiatric illness. But the fact he was still taking medication was not determinative as to how his employment should have been handled. There are many people holding down demanding jobs who still require medication. On the facts, given the high standard of proof required, the relapse was also not foreseeable by the employer.

There remained the issue of the lack of a general risk assessment. But B&Q had a document about managing stress, inviting individuals to identify and notify the employer of any symptoms concerned. The trial Judge was of the opinion that Mr Easton had made insufficient efforts to do this and therefore concluded that, on the facts of the particular case, a wider risk assessment would have had no effect on the outcome.

Thursday 2 April 2015

London (Central) Employment Tribunal temporarily closed

I have been asked by Regional Employment Judge Potter to pass this message to users of the London (Central) employment tribunal:-

Following a power failure on Wednesday 1st April, the Employment Tribunal at Victory House in Kingsway will be temporarily closed on Thursday 2nd April and Tuesday 7th April.  All hearings scheduled for those dates have been cancelled and will be rescheduled in due course.

Staff are working closely with National Power UK to resolve the issue and the Tribunal will resume normal business as soon as possible.

If you are a member of the public and were intending to attend a hearing at Victory House on the days affected please call 020 3206 0667 between 9.30am and 5pm on Thursday 2 April and Tuesday 7th April.  Please also call this number to enquire about the current situation for hearings listed beyond these dates.

Wednesday 1 April 2015

Labour pledges to abolish employment tribunal fee system... or does it?

The Labour party has, this morning, published its Work Manifesto, A Better Plan for Britain's Workplaces.

It pledges to abolish the "employment tribunal fee system" (p6 final paragraph).

But hang on...  is that abolishing fees entirely, or just the current system (and replacing it with another)?  It's not entirely clear.  At page 12, it says: "We will ask Acas to oversee a process led by the CBI and the TUC to ensure reforms to the system."  So it looks like the latter, and is a bit wishy-washy anyway.  Because we all know how often the CBI and TUC agree on things...

Bits and Bobs

1. Craig Gordon of HR Bullets has produced an excellent summary of the employment law changes which parliament passed just before it dissolved. More info...

2. Unison has received permission to appeal both of the High Court's decisions refusing to quash the government's introduction of employment tribunal fees. The appeals are expected to be heard in June 2015. More info... 

3. My very good friend and co-author of the Law Society Handbook on Employment Law, Henry Scrope, has written a new e-book: 'The Law of Unintended Consequences'. Available on Kindle, it's a fascinating read about what happens when the legislature gets it wrong. More info..

4. Finally, if you haven't got to grips with Shared Parental Leave, look no further. You can get a recording of my recent seminar, together with a bonus CD containing the answers to over 40 questions that people sent in. More info (£)...