Employment tribunal and court judgments | December 2021

Firefighter's standby time which could be used for other professional activities was not working time under the Working Time Directive

In MG v Dublin City Council, a part-time firefighter was required to be on standby for 24 hours a day, seven days a week, ready to respond to emergency duties in no less than 10 minutes.

He submitted that the time he spent on standby should be considered working time under the Working Time Directive. He believed that the requirement for him to always be on standby prevented him from taking part in family time and social activities as well as dedicate time to his activities as a taxi driver. Dublin City Council argued that because the Claimant was a retained firefighter he was not required to remain in a particular place when on standby, and so his standby time should not be considered working time.

The ECJ held that the standby time would not be classified as working time on the basis that the limitations imposed on the firefighter did not significantly affect his ability to manage his own time during the period. This provides a contrast to the recent decision in XR v Dopravni podnik hl m Prahy (C-107/19) EU; C:2021:772 explored in October's bulletin. However, it is clear from both that a key consideration for the court is whether the constraints limited the firefighter's ability to manage his free time. The distinction therefore lies in the fact that the Claimant in this case was not obliged to participate in all of the emergency calls, and he was also free to carry out other professional activity during his standby time.

Paranoid delusions were not likely to recur for purposes of establishing disability

In Sullivan v Bury Street Capital Ltd [2021] EWCA Civ 1694, it was held that an employee who suffered from paranoid delusions was not disabled because whilst they had a substantial adverse effect, they were not long term or likely to recur.

The Claimant was a Sales Executive and began suffering from delusions in 2013 following the breakdown of his relationship. They caused him to have difficulty sleeping which then impacted his attendance and behaviour at work. Matters began to improve and this was confirmed by a doctor and psychologist. However, between 2014 and 2017 the Claimant's performance review repeatedly mentioned his timekeeping and attitude at work and he was later dismissed as a result.

The tribunal dismissed his claim that he was disabled, on that the basis that the delusions only lasted from around May 2013 to September 2013 and had only recommenced a few months before his dismissal. Whilst the tribunal recognised there was a substantial adverse effect when the delusions occurred, there was no substantial adverse effect during the intervening period. 

Protection from detriment when participating in strike action

In Ryanair Dac v Mr B Morais and 28 Others, a group of pilots participated in a strike called by a recognised trade union and suffered a detriment when Ryanair withdrew concessionary travel benefits for the pilots. The pilots brought claims against unlawful detriment under s.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992) and against detriment in relation to a "prohibited list" under regulation 9 of the Blacklisting Regulations.

TULRCA (1992) contains certain protections for employees who participate in industrial action or any other trade union activities. The actual taking part in industrial action has not been held to be one of the activities protected under sections 146 and 152 which means that although employees are protected from being dismissed for such action, there is no ban on being subjected to a detriment.

However, the recent decision in Mercer v Alternative Future Group Ltd (as discussed in our June bulletin) held that protection from detriment for participating in industrial action should be read into section 146 of the TULRCA 1992 act so it is comparable with Article 11 (freedom of assembly and association) of the European Convention of Human Rights (ECHR).

In this case the tribunal once again "read down" the compatibility of s.146 with the ECHR and conceded that the pilots were taking part in trade union activities for the purpose of s.146 TULRCA 1992 and the Blacklisting Regulations and that they were protected from detriment. Ryanair appealed but this was dismissed by the EAT.

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