Employment Bulletin 

DALLIMORE HelenTo help you keep quickly up to date with employment law, we summarise the key developments arising from cases, guidance, legislation and consultations for this month.

If you would like to discuss any of the points raised, please get in touch with Helen Dallimore, Senior Associate, or with your usual contact in the Foot Anstey employment team.

In the courts...recent case updates

Mencap win appeal on 'sleep in' shifts in relation to the National Minimum Wage Regulations

The Court of Appeal has rejected a previous Employment Appeal Tribunal (EAT) decision and confirmed that workers who carry out sleep in shifts should only be paid for the time when they are awake and working. Whilst the decision may be appealed to the Supreme Court in the meantime it will be good news for those businesses that rely on "sleep in" workers, particular those in the care sector. James Collings considers the decision and the impact of it here.

A sufficient period of voluntary overtime should be taken into account when calculating holiday pay

The Employment Appeal Tribunal (EAT) has recently confirmed in Flowers v East of England Ambulance Trust that voluntary overtime should be included in holiday pay calculations, but only if it is for a 'sufficient' period of time. In this case, various ambulance crew members had clauses in their contracts relating to 'non-guaranteed' overtime (which was mandatory) and 'voluntary' overtime (which was not) and they argued at the Tribunal that the voluntary overtime they had worked should also count towards their 'normal' remuneration.

On appeal to the EAT, Mr Justice Soole followed Dudley Metropolitan Borough Council v Willetts, holding that voluntary overtime was part of normal remuneration if it was paid over a 'sufficient period of time'. No further guidance was given on what would be considered sufficient, as this was held to be simply a matter of fact for each Tribunal. 

A successful internal appeal can mean that an employee was never dismissed

The Court of Appeal has held, in Patel v Folkestone Nursing Home Ltd, that an employee who was told that an initial decision to dismiss him had been revoked after an internal appeal had not in fact been dismissed. Consequently, the Employment Tribunal was wrong to consider that it could hear the employee's claims of wrongful and unfair dismissal.

The Claimant was a healthcare assistant who was summarily dismissed for sleeping on duty and falsifying records. However, as he was on unpaid leave while he was asleep, the decision to dismiss him was revoked. Despite this, the allegation of falsifying records was not addressed and the Claimant refused to return to work, later bringing wrongful and unfair dismissal claims. The Court of Appeal ultimately found (as a matter of fact) that no dismissal had taken place and, therefore, the claims could not be heard. However interestingly, they did confirm that the employee was entitled to argue that the failure to address the serious allegation, and the manner in which the employer had dealt with the appeal, amounted to a fundamental breach of the implied duty of trust and confidence.

EAT rules that employees who are dismissed for gross misconduct cannot use statutory notice to qualify for unfair dismissal

In the case of Lancaster & Duke v Wileman, an employer appealed against an employee's attempt to add one weeks' statutory notice period to her length of service in order to reach the two year qualifying period for an unfair dismissal claim.

The employer sought to argue that on a full reading of the relevant legislation (Section 86(1) of the Employment Rights Act (ERA) 1996), it allowed a dismissal without statutory notice if the reason for the dismissal was gross misconduct. The EAT agreed, stating that the legislation preserved the right to terminate without notice and this included the one week notice period provided by statute. However, as the Claimant did not bring a wrongful dismissal claim, the Tribunal could not make a determination on whether the employee had committed gross misconduct. The case was therefore remitted for further findings later this year.

Another worker status case finds that couriers are workers entitled to legal rights

In Leyland v Hermes Parcelnet Ltd, another in a long line of recent worker status cases, the Leeds Employment Tribunal have unsurprisingly followed the recent Supreme Court decision in Pimlico Plumbers, finding that the couriers were workers (rather than independent contractors) as they were under an obligation to personally perform the services. For more information on the Pimlico Plumbers ruling, please see our previous article.

In delivering their judgment, the Tribunal again emphasised the importance of assessing the level of control exerted over the couriers. For example, although they could appoint a substitute of their choice to complete jobs assigned to them, Hermes retained the right to veto any substitution. This 'dependent work relationship' meant that the couriers had little autonomy and were therefore deemed to be 'workers' under the Working Time Regulation 1998.

Discrimination arising from disability cannot be objectively justified where a Tribunal fails to consider part-time working as an alternative to dismissal

The EAT has recently ruled that, when deciding whether the dismissal of an employee on long term sick leave could be objectively justified, part-time working should have been be considered as a possible alternative to dismissal (Ali v Torrosian and others (t/a Bedford Hill Family Practice)).
In making this finding, the EAT asserted that part-time working in the circumstances of the case was a more proportionate means of achieving the employer's legitimate aim, as opposed to dismissal.

The Tribunal that had originally ruled in favour of the employer had taken into account the possibility of part-time working in relation to the employee's unfair dismissal claim, but had erroneously failed to consider it in relation to the claim for discrimination arising from disability.

Those with factual control in collective redundancy situations will be obliged to consult those affected

Advocate General (AG) Sharpston, in her opinion in Bichat v Aviation Passage Service Berlin ('APSB'), has confirmed that under the Collective Redundancies Directive, an 'undertaking which controls that employer" includes both legal and factual control. Consequently, the Directive obliges either the employer or 'the undertaking' with such control to consult with those who are due to be made redundant. In this case, APSB claimed that another Company, which was not strictly a group company under German law, was responsible for the consultation as they had the majority vote to initiate the redundancies. AG Sharpston agreed, stating that the factual control over APSB satisfied the Directive requirement. While this opinion is not binding on courts, it is followed more often than not. This means that entities which exert any form of control over Companies wishing to make collective redundancies should consider whether they could be obliged to consult those affected.

The inclusion of an acquittal on an enhanced criminal records certificate does not breach the right to private life

In R (on the application of AR) v Chief Constable of Greater Manchester Police  and anor, the Supreme Court (SC) has dismissed an appeal from a prospective teacher who argued that a rape charge acquittal should not have been included on an enhanced criminal records certificate (ECRC). The teacher argued that as the acquittal proved his innocence, its inclusion amounted to an unjustified breach of his right to a private life under Article 8 of the European Convention on Human Rights (ECHR).

In unanimously dismissing the appeal, the SC confirmed that the Chief Constable was entitled to conclude that the acquittal did not prove the teacher's innocence; rather it only proved that reasonable doubt could not be established. The SC therefore found that it was reasonable for the Chief Constable to consider that the allegations may have had some substance. As a result, including the acquittal on the ECRC was deemed 'no more than was necessary to meet the pressing social need to protect children and vulnerable adults'.

New Guidance

CBI policy update: official 'employer toolkit' to support EU staff

Last week the Home Office launched an official ‘employer toolkit’ online aimed at helping HR teams support their EU staff, which we are happy to share with our clients and contacts as a useful resource. Foot Anstey are members of the CBI and are work closely with them on a number of initiatives at a local level. For more details please click here.

New guide published by Government around Right to Work checks

The Government has published new guidance around Right to Work checks which are often a cause for confusion for employers. There have been a number of changes to the guide including steps that employers should take if carrying out right to work checks, clarification on appropriate steps for employers and clarification of the grace period where TUPE applies. Restrictions around the employment of Croatian nationals have also been removed from 1 July 2018 bringing them in line with other EU citizens.

The guide further contains a number of illustrations and case studies to ensure further clarity to the process and clearly sets out those documents that are acceptable. Although the new guidance should be adopted from 29 June 2018, the old version will remain applicable if the employment of an illegal worker occurred between 16 August 2017 and 29 June 2018.


Holiday pay and minimum wage claims settled by Deliveroo

In another case of worker status, 50 delivery riders working for food delivery company Deliveroo, have reached a settlement with respect to their claims of incorrect holiday pay and failures to receive the minimum wage. Deliveroo have not admitted liability and exact details of the settlement are confidential however, it is thought to be an overall six figure sum.

The settlement will not impact on the separate case that has been brought by the Independent Workers Union of Great Britain which challenges the self-employed status that has been given to riders by Deliveroo. Deliveroo are only one of a number of gig economy firms that are facing legal challenges over the status of its allegedly self-employed contractors. For example, those working for Addison Lee, the cycle courier company, recently won their legal battle for worker rights in the EAT. Please see our previous article for more discussion on this.

Gender pay gap reporting and recent BBC reduction

The BBC has made the headlines in the last month with respect to its gender pay divide, an issue that it has now apologised for. In particular, Carrie Gray, the former China editor, has received back pay from the BBC as a consequence of it paying her male counterparts at least 50% more. As a consequence of her resignation, two investigations into the transparency of pay were launched by the BBC in May 2018.

Since then, the BBC has revealed that it has reduced both its median and mean pay gap 1.7% and 2.3% respectively. However, independent statistician, Nigel Marriott, has calculated that around 17% of employers may have incorrectly reported their figures. These errors may include claiming that the gender pay gap is over 100% or the incorrect use of positives and negatives. He further states the confusion may have arisen because of a non-statistical audience or as a consequence of the choice of language in the guidance issued by the Government.

Increase employee ownership to improve UK productivity

Following on from the findings of the Ownership Effect Inquiry, the Employee Ownership Association has called upon the Government to deliver a more productive and inclusive economy.

In particular, they are calling for increased employee ownership and the creation of a national strategy for business ownership. The Inquiry is in addition to a report published by the New Economic Foundation which proposed alternative measures to include a "John Lewis law" where companies would pay a percentage of profits into a fund which was controlled by the employees.

Cost of staff benefits for employers is more than ever

On the basis of statistics produced by HMRC, it is understand that the overall cost on benefits has increased by £200 million since 2015/16 although, despite the increase, the number of individuals receiving the benefits is decreasing. The most popular benefits include private medical/dental insurance, fuel and company cars.Upcoming changes to salary sacrifice schemes have meant that some experts are concerned as to comment that the amount spent on benefits is likely to reduce in the near future.


Tags: Employment and Pensions2018