The 12 'cases' of Christmas
Author: Antonia Blackwell
Applies to: UK wide
As winter sets in, Christmas fast approaches and the year draws to a close, we look back at 12 of the most prominent cases of 2015 and the lessons that employers can learn from them.
- The scope of European Union discrimination law was widened in the Chez Razpredelenie Bulgaria decision. The European Court of Justice (ECJ) decided that an individual could claim indirect race discrimination on the basis of association with a group having a protected characteristic, even though the individual themselves did not have that protected characteristic. Although currently in the UK, indirect discrimination claims can only be brought by individuals who share the protected characteristic, employers should be mindful of the potential challenge to this in light of the ECJ's decision.
- Ramphal v Department for Transport serves as a valuable reminder that Human Resources personnel should take care not to overstep the mark when advising on disciplinary decisions. HR's advice should be limited to matters of law and procedure, as opposed to questions of culpability, which is a matter reserved for the investigating officer.
- The EAT held in British Waterways Board v Smith that it was fair to dismiss an employee that made derogatory comments about his employer on Facebook. It did not matter that the misconduct had taken place 2 years before dismissal or that the employer had been aware of the misconduct throughout that period. The case suggests that any employer who fails to respond to an employee's earlier act of misconduct will not necessarily lose the opportunity to take action at a later date.
- A similar message was given in Williams v Leeds United Football Club, where the High Court held that the employer was entitled to summarily dismiss an employee for circulating an offensive email at work some 5 years earlier. It was irrelevant that the employer had been actively searching for a reason to summarily dismiss the employee.
- The EAT decided in the 2013 case of USDAW v Ethel Austin Ltd, that the words 'at one establishment' are to be disregarded for the purpose of deciding whether a collective redundancy situation exists. The decision was appealed this year, and the Court of Appeal referred the question to the ECJ. The ECJ confirmed that the number of dismissals in all of an employer's establishments do not have to be aggregated when determining if collective consultation is triggered. As such, the duty to collectively consult is only required when an employer proposes to dismiss 20 or more employees within 90 days or less at one establishment. The case will now return to the Court of Appeal to determine whether, on the facts, each branch of Woolworths and Ethel Austin was a separate establishment. Employers, however, can now return to the 'pre Woolworths' approach.
- Chesterton Global Limited and another v Nurmohamed considered the public interest test in relation to a whistleblowing claim in a private company. A senior manager made disclosures about manipulation of company accounts, which was negatively affecting commission received by him and around 100 other senior employees. He was subsequently dismissed and the Employment Tribunal (ET) upheld his claim of automatic unfair dismissal. Chesterton appealed on the basis that his disclosures did not satisfy the 'public interest' test for the purposes of whistle-blowing since this was not a sufficient section of the public to constitute a 'public interest'. However, the Employment Appeal Tribunal (EAT) rejected the appeal and held that the allegations were in the interests of around 100 senior managers and this was a sufficient proportion of the public. Employers should therefore be aware that complaints about individual employment contracts can still give rise to whistleblowing protection and deal with any complaints accordingly.
- In Lock v British Gas Trading Limited, the ET held that employers must take account of commission when calculating holiday pay under the Working Time Regulations 1998. The effect of the decision is that for certain types of employees, employers will need to look at the average pay, including commission, in the 12 week period prior to the employee taking their holiday and pay holiday pay accordingly. This may also affect claims involving other payments such as overtime. British Gas have, however, appealed and the appeal is currently before the EAT. Employers are advised to review their holiday pay calculations to ensure compliance with the current legal position.
- In the case of Federacion de Servicos v Tyco, a group of technicians had no office base or fixed location. It was held that the time taken to travel to their first and last appointments of the day should be classed as 'working time' because the workers were carrying out their activities or duties and were at the disposal of their employer. This should be taken into account when calculating an employee's number of working hours for the purposes of the 48 hour working week limit and rest breaks. In addition, mobile workers, dependent on the terms of their contract of employment, may be entitled to be paid for their first and last journeys to and from customer's premises.
- Metroline Travel Limited v Stoute is a useful reminder for employers that when determining whether or not an individual is disabled, it is imperative to consider the effect of the individual's condition and not just the name of the condition itself. The claimant suffered from Type 2 diabetes, largely controlled by avoiding sugary drinks. The ET held that he was disabled and the employer appealed. The EAT allowed the appeal. Avoiding sugary drinks could not be regarded as medical treatment, nor could it be regarded as having a substantial adverse effect on day-to-day activities.
- Newbound v Thames Water Utilities Limited, is an important reminder to employers for the need for consistency in disciplinary action and for taking mitigation into account. The claimant was dismissed after 34 years' service for failing to use the correct breathing apparatus during a sewer inspection. His claim of unfair dismissal was upheld by the ET and subsequently this year by the Court of Appeal who found that the dismissal fell outside the range of responses open to his employer. The employer failed to take account of evidence suggesting that for many years previously, the practice displayed by the claimant had been condoned by the employer. It had also acted unfairly by giving a colleague who was also involved in the incident a final written warning.
- Consistency was also key in the case of MBNA Limited v Jones. However in this case, the EAT said that two employees involved in an argument were not in truly parallel situations and so did not need to be treated the same (one had punched the other, while the other had just sent threatening texts).
- Finally, in Shrestha v Genesis Housing Association confirmation was given that an employer is not required to investigate every detailed aspect of defence put forward by an employee during a disciplinary process. The investigation merely has to be reasonable in the circumstances when looking at the whole scenario - a welcome message to employers.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.