Working Time - Travel Time to First Job of the Day

Thanks to Paul Smith of Broadway House Chambers for preparing this case summary

In the case of mobile workers, is the time spent travelling from home to customers' premises to be regarded as 'working time' for the purposes of the Working Time Directive?

Yes, held the Court of Justice of the European Union in Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL.

Tyco employs technicians who install and maintain security equipment at customers' premises in Spain. The technicians are provided with a vehicle and they travel from their own homes to the locations they are instructed to install the equipment, sometimes of distances exceeding 100km. They are in contact with their employer by mobile phone and are not generally required to travel to an office or a central location save for the weekly purpose of collecting tools and materials.

For the purposes of the Working Time Directive and the relevant Spanish legislation, Tyco argued that the technicians' travelling time was a "rest period" rather than working time because they were not carrying out any installations or maintenance during those periods. The CJEU disagreed, stating that such an argument "would distort that concept and jeopardise the objective of protecting the safety and health of workers" and that it was working time.

Tyco also argued that because the technicians' have the individual autonomy to make decisions as to their itinerary and which route(s) to take during their travelling time, these factors put them outside the boundaries of the Directive. Once again, the CJEU disagreed and made reference to the fact that the travelling time can neither be shortened nor used freely by the technicians for their own interests. Accordingly, the technicians were "at the disposal" of Tyco and thus their travelling time is covered by the Directive.

Proper Limits to HR's Role in Disciplinary Situations

Thanks to Sarah Fitzpatrick of Collingwood Legal for preparing this case summary

Can a dismissing or investigating officer seek guidance or advice from human resources?

Yes, held the EAT in Ramphal v Department for Transport, relying on the Supreme Court decision in West London Mental Health NHS Trust v Chhabra, but such advice should be limited to questions of law and procedure and not stray into areas of culpability.

The central issue was whether the Employment Judge had properly considered an inference that the HR department had inappropriately lobbied the dismissing officer as to the culpability of the Claimant and the appropriate sanction to impose.

HHJ Serota found that there was evidence to support "an inference of improper influence and the Employment Judge should have given clear and cogent reasons for accepting there was no such influence" (para 54). Accordingly the appeal was allowed and the case was remitted to the original employment tribunal for a rehearing.

Useful guidance is given at at para 56, "an employee facing disciplinary charges and a dismissal procedure is entitled to assume that the decision will be taken by the appropriate officer, without having been lobbied by other parties as to the findings he should make as to culpability.....and also given notice of representations made by others to the Dismissing Officer that go beyond legal advice, and advice on matter of process and procedure."

Law Society calls for Employment Tribunal Reforms

The Law Society has published a discussion document, Making Employment Tribunals Work For All.

The main proposals are:-

· all employment law disputes should be dealt with in a single jurisdiction consisting of four levels.
· claims should be dealt with flexibly, depending on their intricacy and the financial stakes involved.
· simple cases, such as handling unpaid wages claims should be dealt with on a paper basis in Level 1.
· more complex cases, such as multi-strand discrimination cases or restrictive covenants, should be heard by an experienced judge in Level 4.
 

Presenting a Tribunal Claim

Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary

Was it open to an employment tribunal to find that it had not been reasonably practicable to present a complaint within 3 months where there had been a previous abortive (but timely) claim dealing with the same subject-matter?

Yes, held the EAT in Software Box Ltd v Gannon. 

Mrs Gannon, who suffered from alcohol dependency, anxiety and depression, presented an ET1 complaining of unfair dismissal together with an application for remission of fees. A series of administrative bungles at the employment tribunal meant she didn't learn that she had been refused remission until after the date for payment had passed, and her ET1 had been rejected. As soon as she did learn, she borrowed the fee and presented a further ET1 out of time.

Counsel for the Respondent argued that it wasn't open to the employment tribunal to find that it hadn't been reasonably practicable for Mrs Gannon to present her complaint in time because she had previously done exactly that.

Langstaff P wasn't having any of that. The question was whether it had been practicable for Mrs Gannon to present the particular claim - i.e. her second claim - in time. The Employment Judge hadn't considered that question properly, so the case was remitted.

The President also noted that Mrs Gannon could have applied, and could still apply, to extend time for payment of the fee.

TUPE: Long-term sick employee not 'assigned'

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

Can an employee who is permanently off work sick be assigned to an organised grouping of employees in the event of a TUPE transfer?

No, held the EAT in BT Managed Services Ltd v Edwards.

The Claimant, a field operations engineer, had been off work for over 5 years with no indication of him ever returning. He had received PHI benefits, until that was exhausted, then discretionary sick pay. He remained 'on the books' of a particular unit. When that unit transferred from BT Managed Services to Ericsson, an employment tribunal held that Mr Edwards did not transfer as he was not assigned to the grouping of transferred employees.

Dismissing the appeal, the EAT held that to be assigned to an organised grouping, an absent employee "will generally require some level of participation or, in the case of temporary absence, an expectation of future participation in carrying-out the relevant activities on behalf of the client" and contrasted permanent inability with long-term sick or maternity leave, where the absence might be regarded as temporary. An administrative connection with a transferring grouping (e.g. for pastoral purposes) would not suffice for a transfer:

"Mere administrative connection to that grouping is insufficient to constitute an employee as being assigned to the grouping in the absence of some participation in the grouping's economic activity."

Scotland to Abolish Employment Tribunal Fees

In 'A Stronger Scotland: The Government's Programme for Scotland 2015-16', the Scottish Government has announced it intends to abolish employment tribunal fees.

At page 3 of the document (p6 of the pdf file), the Government states "...we will abolish fees for employment tribunals - ensuring that employees have a fair opportunity to have their case heard."

Indirect Discrimination - Expansion in Scope?

The ECJ has handed down an important decision, dealing with indirect discrimination, in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia.

The ECJ holds that individuals can claim indirect discrimination even if they fall outside the class affected by the provision, criterion or practice.

Sound a bit dry and boring? Well, it's not, as this blog from Lewis Silkin shows. Read it.
 

Tribunal Fees - Unison loses Court of Appeal case

Thanks to Laurie Anstis of Boyes Turner for allowing me to reproduce his summary of this decision from worklifelaw.co.uk

The Court of Appeal has dismissed Unison's appeals against its judicial review applications challenging the legality of tribunal fees.

Whilst “troubled” by the sharp decline in employment tribunal claims, Underhill LJ held that:

“the case based on the overall decline in claims cannot succeed by itself. It needs to be accompanied by evidence of the actual affordability of the fees in the financial circumstances of (typical) individuals. Only evidence of this character will enable the Court to reach a reliable conclusion that that the fees payable under the Order will indeed be realistically unaffordable in some cases.”

Whilst accepting that evidence in respect of notional, rather than actual, Claimants could be relevant, Underhill LJ held that the provision in the remission regime allowing for consideration of “exceptional circumstances” meant that it could not be said that the fee system in general was so unaffordable as to mean that there was no effective remedy under European Union law.

He went on to dismiss arguments based on indirect discrimination and the public sector equality duty.

The judicial review application has failed in the Court of Appeal, but Underhill LJ noted the government’s commitment to a review of the fees regime, and observed:

“The decline in the number of claims in the Tribunals following the introduction of the Fees Order is sufficiently startling to merit a very full and careful analysis of its causes; and if there are good grounds for concluding that part of it is accounted for by Claimants being realistically unable to afford to bring proceedings the level of fees and/or the remission criteria will need to be revisited.”

Unison have said that they will seek permission to appeal to the Supreme Court.

Newcastle Employment Tribunal

Newcastle Employment Tribunal is moving from Quayside to:

Kings Court
Earl Grey Way
Royal Quays
North Shields
Tyne and Wear
NE29 6AR

During the move, the tribunal will have no access to emails or telephones. The move takes place from noon tomorrow (27 August), and normal business resumes on Tuesday 1 September.

Choice of Companion at Disciplinary Hearing

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

Was the denial of choice of representative for disciplinary investigation beyond statutory or contractual entitlement a breach of the implied term of trust and confidence?

Yes, on the facts, held the High Court in Stevens v University of Birmingham.

The Claimant academic at the Defendant University was the subject of allegations regarding his role as Chief Investigator to clinical trials of patients suffering with diabetes. He was later invited to a disciplinary investigation.  His employment contract entitled him to the statutory minimum choice of representation (trade union representative or colleague).

However, he was not a member of a union, nor did he have colleagues employed by the University suitable to accompany him. He had, however, from the date of the allegations been assisted via the Medical Protection Society ('MPS') by a representative, Dr Palmer.

The court held that the University was breaching the implied term of trust and confidence by failing to permit Dr Palmer to represent him due to (a) the objective perception of inequality of arms in the circumstances, (b) the seriousness of the allegations, (c) that the MPS served a similar function to a union and (d) the Claimant had been permitted the assistance of Dr Palmer to that point.  The court went on to grant a declaration to that effect.

Social Media Dismissal: EAT declines to lay down guidance

Thanks to James English of Hempsons solicitors for preparing this case summary

Was it unfair to dismiss an employee for comments made on Facebook which he claimed were untrue?

No, held the EAT in British Waterways Board v Smith in a cautionary tale for all social media users.

The Claimant had made derogatory comments on Facebook about his managers and work, and a claim that two years earlier he had been drinking whilst on standby. During a standby period, workers were not permitted to consume alcohol. Whilst the Claimant denied that he had in fact been drinking, and claimed that the comments were banter, he was summarily dismissed on the grounds of gross misconduct as his comments had undermined the confidence his employer or the public could have in him.

Despite finding that the employer had carried out a reasonable investigation and had a genuine belief based on reasonable grounds that the Claimant had made the comments, the employment tribunal found that the dismissal was unfair as the employer had failed to consider the Claimant's mitigation, including the point that some claims made on Facebook are exaggerated or not true.

The EAT overturned that decision and held that the dismissal was fair. The EAT said that such cases fall to be determined according to the ordinary principles of law, agreeing with Game Retail Ltd v Laws. Having found that the procedure was fair, the employment tribunal must have concluded that the Claimant's mitigation was taken into account (which the EAT thought it had), and the employment tribunal had substituted their view for that of the employer.

Civil Restraint Orders

Thanks to Neil Addison of New Bailey Chambers for preparing this case summary

Can the High Court make a Civil Restraint Order (CRO) to prevent further claims being brought in the employment tribunal?

Yes, held the High Court in Nursing & MIdwifery Council v Harrold.

The Defendant was a former Nurse, who, after being struck off the Nursing Register had brought a series of unsuccessful employment tribunal claims against the NMC and the NHS. The Claimant applied for a CRO to prevent any more claims being brought. The Defendant argued that under Civil Procedure Rule 3.11 a CRO could only apply to claims in the County and High Court, not employment tribunal claims.

The Judge decided that the power to make a CRO did not derive from CPR 3.11 but was part of the inherent jurisdiction of the High Court. This allowed the High Court to make orders to assist the administration of justice by inferior courts including the employment tribunal where the employment tribunal did not itself have the necessary power. Vexatious claims needed to be prevented in the employment tribunal just as much as in the Civil Courts, and since the employment tribunal did not have the power to make a CRO itself, the High Court could make one for it.