Welcome to our November update. This month we consider the right to be paid whilst sleeping at a place of work, the scope of an employer’s duties when faced with a subject access request and a recent decision on a TUPE transfer involving staff who had been temporarily laid off. We also look at a number of recent cases on unfair dismissal and the scope of “public interest” in the context of a whistleblowing claim.
Finally, we consider the government’s proposals to introduce grandparents’ leave and how the current legal framework might accommodate such requests in the meantime.
Our next seminar is taking place on Tuesday 10 November and is entitled Social Media and the Workplace “Risks and Opportunities”. This informative and practical session will consider the pros and cons of social media using real life examples to help you understand how you can deal with a problem that shows no sign of going away. If you would like to reserve your place please email firstname.lastname@example.org.
This will be our last update this year, so we wish you all (a very early!!) Merry Christmas and we will be back with the next update in January 2016.
Paid whilst sleeping?
A question which has resulted in a considerable number of cases coming to the Employment Tribunal is whether an employee is working if s/he is on call or working during the night but is allowed to sleep if there is no work to do.
The question was addressed again in Shannon v Clifton House Residential . This was a rather unusual situation. Shannon had a day job, outside of the residential home. However, he was provided with accommodation at the home and in return he was required to be available from 10pm to 7am. He could sleep during this time, but was required to help out if the night staff who were working in the home required his assistance. In reality, he was rarely called on to do anything. He argued that he was working between the hours of 10pm and 7am and hence should be paid a minimum of the National Minimum Wage for those hours.
His argument was unsuccessful. This was partly because he came under an exception in the law which says that those who sleep at or near a place of work, and who are provided with suitable facilities for sleeping, will only be treated as working if they are awake for the purpose of working.
In this situation Shannon was actually living on the premises, and was rarely called on to do any work. It was deemed, therefore that this was not work.
Some caution should be taken when interpreting this ruling, because there are other cases which have not been hugely dissimilar in facts which have reached a different conclusion.
• If you have an employee who is required to work at night, and is allowed to sleep, it is possible that they might be working. Each case needs to be examined separately to determine the specific facts. Contact us for advice. Do not presume that the employee does not have to be paid, because if you are wrong you could face a large bill for unpaid wages.
Your duties when faced with a Subject Access Request
Under the Data Protection Act 1998 an employee can ask an employer for access to any personal information that is held about him/her in an organised filing system. In addition, the employee can:
• Ask whether any personal data is being processed
• Ask for a description of the personal data that is held, why it is being processed and whether it will be given to any other organisation or person
• Ask for a copy of the information comprising the data, and the details of the source of the data
An employer can charge up to £10 to supply the information, but when can the employer refuse to supply information? This has recently been addressed in a case that is not specifically about employment, but the principles do apply to employers.
In Dawson-Damer and others v Wessing LLP and others  the claimants were all members of the Dawson-Damer family. Wessing was a firm of solicitors who had a client who was a trustee of a trust fund in the Bahamas connected to the Dawson-Damer family. There was litigation in the Bahamas involving family members which related to the actions of the trustees. The family made subject access requests to Wessing, asking for a copy of all data held about them.
Wessing refused, arguing that it would take a disproportionate amount of time to work through all the files and determine what was subject to legal professional privilege (which meant it would not have to be disclosed). They also argued that some information was in manual files which were unstructured, and were not a ‘relevant filing system’ as defined in the Data Protection Act 1998.
The High Court refused to order Wessing to release the information. It agreed that the time it would take to search the information was too great, and agreed that the manual files were not a relevant filing system.
It also commented that even if the information was in a relevant filing system and could be easily identified it could not have ordered that it was revealed. The purpose of a subject access request is to allow an individual to check that the data processing does not unlawfully infringe the right to privacy. The purpose here was to find information that could be used in litigation, and this was not a proper purpose for seeking a subject access request. The ruling is being appealed.
• An employee can made a subject access request, and you can charge up to £10 for this. You need to respond within 40 days of receiving the request.
• As shown here, there are times when you can refuse to reveal information. This could be due to the complexity of gathering the particular data which is requested, or because the reason for requesting it is not allowed. If you are at all unsure contact us for advice.
Transfer after a temporary lay off
In a transfer of undertaking situation ‘an organised grouping of employees’ who are assigned to the work that transfers are those that move to the new employer. However, what happens if the employees have been temporarily laid off? Can it be argued that they are still an organised grouping?
This was argued in the case of Inex Home Improvements Ltd v Hodgkins . The employees bringing the claims of unfair dismissal had been working on the ‘Sandwell’ contract which had been subcontracted to Inex. They had been doing the work in sections, and there was a gap between one section ending and the next section being commissioned. During this gap the employees were laid off. However, the next section of work was issued to a different provider – called Localrun. The employees argued that they should transfer to Localrun, but the employer argued that there was no transfer because they were laid off and hence could not be seen as an organised grouping of employees.
The employees have been successful in their argument. The Employment Appeal Tribunal has ruled that a temporary cessation in work which occurs before the transfer does not mean that the employees are not an organised grouping.
• In a transfer situation you should presume that, if there is an organised group of employees who do the work that is transferring, the employees will transfer.
• Just because the employees have not been doing the work for a short period of time does not mean that they will not transfer.
• TUPE is notoriously difficult. Always seek our advice if you are engaged in a TUPE situation.
Dismissal of a trade union representative was fair
If an employee is dismissed because of their trade union activities this will be automatically unfair. There is no qualifying service required to bring a claim of unfair dismissal, and there is no debate about reasonableness. If the dismissal is because of trade union membership it cannot be justified. There is also a minimum basic award which is currently £5,807.
However, this does not mean that a trade union representative cannot be dismissed if they have done something that amounts to gross misconduct, as was shown in the recent case of Azam v Ofqual .
Azam was a trade union representative, and was dismissed for sendin confidential information to branch members. She claimed automatically unfair dismissal, arguing that the real reason for the dismissal was her trade union activities and not because she had sent out the confidential information. Her claim was unsuccessful. She had definitely sent out the information, and it was definitely seen as gross misconduct to do so. The employer was able to show that the real reason for the dismissal was not her trade union activity.
• Do not think that you cannot dismiss a trade union representative. If they have done something which amounts to gross misconduct the dismissal could potentially be fair.
• However, if you are contemplating the dismissal of a trade union representative be certain that the reason is not related to the trade union activities at all.
• Remember that a trade union representative can ask a trade union official to be their representative at a disciplinary hearing.
Dismissal for refusing to work
When an employee is returning to work following a lengthy sickness absence it is likely that a phased return will be recommended by medical advisers. To what extent can an employee argue with the proposed return plan? This question was addressed in the case of Rochford v WNS Global Services (UK) Ltd and others .
Following surgery for a back condition it was recommended that the employee return to work on a phased basis. The employer suggested that the employee carried out a limited part of his role, but the employee refused, arguing that this amounted to a demotion.
Despite warnings that he could be dismissed if he continued to refuse to work he would not agree to do any work within the limited scope of his original role, and was dismissed for gross misconduct. He claimed unfair dismissal and disability discrimination.
The Employment Appeal Tribunal agreed that the reason for dismissal was conduct and not disability. Although there were procedural errors in the dismissal the decision to dismiss was reasonable. The employee had unreasonably refused to do any work, despite receiving full pay.
• If an employee is returning to work after a lengthy period of sickness absence, take medical advice about what the employee can and cannot do.
• If the employee does not agree with your proposal for the nature of the return, discuss this. Unless there is a good reason for any refusal to carry out certain duties, you can insist that the employee does the work that you have identified.
• Ideally, try to reach an agreement with the employee about a way of working which suits you both.
Dismissal due to pressure from a third party
If you are providing services to a third party and that organisation decides that they no longer want your employee on their site what can you do? A recent case has shown that a dismissal in this situation can be fair.
In Masini v Compass Group UK & Ireland Ltd  Masini was supplied by Compass Group to act as manager for a café on a business park. The client was not happy when sales dropped and insisted that Compass Group change its management. Compass asked them to give Masini longer to make improvements, but the client refused. Compass looked for alternative jobs for Masini but she refused them all because of the travel time or the perceived drop in status. As there were no other options she was dismissed.
This was found to be a fair dismissal for ‘some other substantial reason’. Although there was certainly some injustice for the employee there was nothing else that the employer could have done in this situation.
• If a client insists that you dismiss an employee then consider whether you agree with the client’s assessment of your employee. If you do not then you really should try to put forward an argument in support of your employee.
• If this is not possible, and the alternative is that you will lose the client, you must consider whether there is any other work that your employee could reasonably do.
• If there is no alternative work it could be reasonable to dismiss. However, never rush to dismiss, and if you are at all unsure please contact us for specific advice.
Defining a protected disclosure (“whistleblowing” claim)
For a disclosure to be protected (which means that an employee must not suffer any detriment or dismissed for making it) it must be made in the public interest. The definition of ‘public interest’ was addressed in the case of Underwood v Wincanton plc .
Underwood and a number of other colleagues complained about the way in which overtime was being allocated. The complaint was addressed, but Underwood was dismissed. He argued that he had been dismissed for making a protected disclosure. However, his employer argued that it was not a protected disclosure because the issue of overtime allocation only affected a small group of employees, and hence it was not in the public interest.
The Employment Appeal Tribunal ruled that it was a protected disclosure. As it affected a group of employees it could be argued that it was in the public interest.
• If there is a contractual dispute relating to a group of employees it is likely that it will be seen as a protected disclosure.
• Never dismiss an employee for making a protected disclosure.
The topic of Shared Grandparental Leave has recently hit the headlines. This is a proposal that has been put forward by the government, in response to the growing number of grandparents who are helping out with childcare.
However, the proposal to extend Shared Parental Leave to include grandparents will not take effect until 2018, and it will only affect working grandparents. At present there are no details about how this will work, it will be open for consultation in the first half of 2016.
In the meantime, it is important to remember that grandparents can make a request for flexible working, in the same way as all employees, if they have at least 26 weeks’ continuous service and have not made a similar request in the last 12 months. Of course, any request that is made is usually a permanent change to the contract of employment, but you could agree with an employee that a change is for a specific period of time if that is suitable for both of you. Agreeing to some level of flexibility could be useful for both you and the employee, as it keeps the employee’s skills in your organisation whilst allowing them to meet their family responsibilities.