Employment tribunal and court judgments | October 2021

Firefighters 'standby time' is working time, says ECJ

In the case of XR v Dopravni podnik hl m Prahy (C-107/19) EU; C:2021:772, the ECJ found that standby time, when a worker could be called back to work at two minutes' notice, should be classified as working time under the Working Time Directive.

The Claimant claimed that his breaks counted as working time. He was allowed two 30-minute breaks per 12 hour shifts. However, when he was to remain on standby he was required to stay in the canteen around 200 meters from his workstation in the event of an emergency. His employer would only count the rest break as working time if he has been interrupted by an emergency call-out.

The ECJ found that a rest break during which a worker could be called back to work on just two minutes notice should be classified as working time. Great emphasis was placed on the fact that the Claimant could not plan anything during these breaks as he would have to be 'permanently alert' to a possible interruption.

Although ECJ judgements are no longer binding in the UK, our courts may have regard to such decision if a similar question arises. Employers should therefore reflect on their obligations under the UK's Working Time Regulation. However, it is worth noting that in the UK workers in the police, emergency services and armed forced are not entitled to a fixed rest break.

EAT confirms test for protected whistleblowing disclosures

Making the distinction between whether a disclosure is protected under the laws on whistleblowing, and what is a personal grievance or allegation, can be challenging.

This recent case is a reminder of what approach the tribunals take in assessing if a qualifying disclosure has been made. In Martin v the London Borough of Southwark, teacher Mr Martin argued that he and his fellow teachers had been subjected to a detriment after  working long hours. He raised this concern via email with his employer on multiple occasions, where he sought explanations or considerations of his queries. He alleged that these emails were protected disclosures under whistleblowing laws. The tribunal dismissed his claims, but the EAT found the tribunal had erred and not adopted a structured approach to its analysis.

The EAT re-iterated the 5-stage test to determine if there has been a protected disclosure:

1. There must be a disclosure of information.
2. The worker must believe the disclosure is made in the public interest.
3. That belief (at point 2) must be reasonably held.
4. The worker must believe that the disclosure  tended to show a breach of a legal obligation e.g. a criminal offence has been committed or a legal obligation breached.
5. That belief (at point 4) must be reasonably held.

The appeal was successful, and the case was sent back to be dealt with by a different tribunal. This case shows the importance of taking a precise and structured approach in instances of whistleblowing. In particular, the tribunal was found to be wrong to focus on Mr Martin's motive for making the disclosure (he was unhappy with his long hours). The EAT stressed a person can still reasonably believe that a disclosure is made in the public interest, even if a disclosure is also made to advance their personal interests. Given there is no cap on compensation or qualifying service needed to bring whistleblowing claims, employers should have this test at the forefront of their mind when handling issues. 

Underperforming Sales Director unfairly dismissed after submitting £60,000 expense claim

In Porchetti v Brush Electrical Machine Ltd, Mr Porchetti was in the process of negotiating a settlement agreement of £660,000 for him to exit the company after years of underperformance, in particular that he was 'not particularly effective at dealing with matters promptly' and failure to respond to key clients.

During the initial discussion, Mr Porchetti said he had unpaid expenses where he kept receipts in a shoebox. Some of these dated back 4 years and the company had a policy that expenses will be paid if they were produced within 14 days from the date of return. Following these discussions, he returned both his company car and laptop which were in a damaged state. He then submitted an unfiled expense amounting to £60,000 which lead to the breakdown in talks. The company refused to pay the expenses and believed the relationship was now irreparable and so Mr Porchetti was dismissed.

The Employment Tribunal held that the employer was right to dismiss Mr Porchetti but states that his dismissal was unfair because it was carried out quickly and lacked proper procedure. However, the Tribunal reduced his basic and compensatory award to nothing, on the basis that was judged to have contributed to his sacking.