Welcome to our October update. This month we look at a number of cases dealing with working time, fair disciplinary procedures, indirect discrimination and TUPE. We’ve also included some information about how our private client team can assist you in supporting any employees who are experiencing difficulties in their personal lives as a result of dementia or other mental capacity issues.
We hope to see as many of you as possible at our next Employment Law Update on Tuesday 6 October when we will be covering holiday pay, gender pay gap reporting, apprenticeships and key cases to be aware of from the last 12 months .
Travel time for mobile workers is working time
Back in July 2015 we brought your attention to the case of Federación de Servicios Privados del sindicato Comisiones Obreras . At this time we only had the opinion of the Advocate General, but we do now have the Court of Justice of the European Union’s ruling.
The case concerned employees who installed burglar alarms. At the start of each day they received their job allocations at home. They then travelled to the first job, travelled on to other jobs during the rest of the day and finally returned home. They argued that the time spent travelling to the first job, and home from the last, was working time. They have been successful in their argument.
It is important, therefore, to check the terms and conditions of any of your employees who work in a similar way. If you have any employees who are not required to attend a set place of work they will be working from when they leave home to when they return. Check the following:
- Rest periods. Employees are entitled to a rest of at least 20 minutes after working for 6 hours, and a rest of 11 hours in each 24 hour period. Check that your employees are getting the appropriate rest, when the travelling time is added in.
- Weekly hours. There is a maximum working week of 48 hours (averaged over 17 weeks), unless the employee has signed an opt out. Check that the total number of hours is not excessive, when the travelling time is added in.
- Their pay. Although the definitions of working time for the purposes of the National Minimum Wage are not affected by this ruling, it is quite possible that a claim relating to hours of work and pay could follow. Double check that you are paying the appropriate rate by adding together the hours the employees spend travelling (excluding travel between home and work) and divide their pay by the total number of hours worked. Check that it does not fall below the National Minimum Wage (see the end of this bulletin for the current rates).
Being accompanied at a disciplinary hearing
An employee has the right to be accompanied by a colleague or trade union representative at a formal disciplinary or grievance meeting. In Stevens v University of Birmingham  the University applied this rule strictly, but in doing so was found to have breached the implied term of mutual trust and confidence (ie the expectation that both the employer and the employee will treat each other reasonable and fairly) that is part of all contracts. If an employee is treated in a way that breaches this mutuality they could resign and claim constructive dismissal.
Stevens led clinical research trials. He retained an honorary contract with the NHS, under which he carried out clinical duties. He was suspended from his duties following allegations that he had breached appropriate clinical standards. In all discussions leading up to the disciplinary meeting he was represented by the Medical Protection Society (MPS). However, the University refused to allow him to be accompanied by a representative from the MPS at his disciplinary hearing since they did not fall within the scope of the statutory right. He argued that he wanted them to represent him because he was not a trade union member, did not know any colleagues well enough and it was appropriate to have the MPS present as they understood the technical issues that were being raised. He also pointed out that the NHS disciplinary procedure did allow for him to be accompanied by the MPS. Although he was being dealt with through the University disciplinary procedure he argued that the NHS procedure reflected the nature of his role more effectively.
He successfully argued that refusing him a representative from the MPS was a breach of mutual trust and confidence. The High Court noted that the purpose of the University’s disciplinary procedure was to give a minimum level of protection and to ensure fairness. Not allowing Stevens to be represented by the MPS, given the technical nature of the issues, breached mutual trust and confidence.
- If an employee does ask to be represented by someone other than a colleague or trade union representative consider whether this is a reasonable request. If there is any reason that the colleague or trade union representative could not give adequate representation consider the request.
- If an employee is disabled, and the disability would impact on their understanding of the proceedings, always allow an appropriate carer to be a representative.
- If the employee is aged under 18 years it might be appropriate to allow them to be accompanied by a parent or carer.
The importance of an impartial investigating officer
If an employee is suspected of committing an offence that could lead to disciplinary action it is important to ensure that the circumstances are investigated thoroughly. The Investigating Officer must then make a decision based on the facts, and should not be influenced unduly by others who have not been involved in the investigation.
This was shown in Ramphal v Department for Transport . Ramphal spent a lot of his time on the road and hence he was entitled to the use of a hire car. He had a company credit card to pay for fuel and other expenses. A routine audit identified a number of concerns, which were all investigated and explained. A further audit identified additional concerns and Mr Goodchild was appointed to investigate. Goodchild wrote a report after his investigations which did identify some concerns, but also made a number of positive comments about Ramphal, and stated that a good explanation had been given for some of the identified issues. He recommended a final written warning for misconduct.
The HR department received the report, and over a period of six months there was consultation between Goodchild and HR during which most of the positive comments were removed from the report. The result was a decision to dismiss Ramphal for gross misconduct.
Although the Employment Tribunal found that this was a fair dismissal, this decision has been set aside by the Employment Appeal Tribunal and the case will now be reheard. In particular, it was noted that the report from the Investigating Officer must be the product of the investigation that has taken place, and although bodies such as the HR department can advise on procedure they should not influence the outcome of the investigation.
- Ensure that you have a well explained procedure for an Investigating Officer to follow, to ensure that s/he can complete the investigation in full without the need for any interference.
- Ensure that the HR department understand the limitations of their involvement when an investigation has been completed.
Extending the definition of indirect discrimination?
Indirect discrimination occurs when:
- A provision, criterion or practice is applied to all
- It is more difficult for a group with a particular protected characteristic to comply
- It is to the detriment of an individual
- It is not a proportionate means of achieving a legitimate aim
So, for example, there could be a requirement (a provision, criterion or practice) that all employees work on a Sunday. This is more difficult for Christians (the protected characteristic being religion/belief) because it is their Holy day. It is to the detriment of one individual because she is refused a job because she cannot work on a Sunday. The organisation cannot justify (it is not a proportionate means of achieving a legitimate aim) that Sunday work is essential – and hence it is indirect discrimination.
This definition presumes that the person bringing the claim has the protected characteristic, however a recent European ruling has extended the definition.
In CHEZ Razperdelenie Bulgaria AD v Komisia za zashtita ot diskiminatsias  a Bulgarian electricity supplier placed electricity meters at a height of 6 metres in one town. It did this because there was a high level of crime in the area, and placing the meters at a height where they could not be reached meant that they could not be tampered with. This town had a large Roma population, and it appeared that the placing of the meters was related to the ethnic make-up of the area.
One woman, who was not Roma, brought a claim of indirect discrimination arguing that placing the meters so high made it difficult for her to track the electricity consumption in her shop.
The Court of Justice of the European Union has agreed that the definition of indirect discrimination does cover a situation where someone is disadvantaged by a provision, criterion or practice which primarily affects one group with a particular protected characteristic – even if that individual is not part of the group with the protected characteristic.
We now wait to see if the UK legislation is amended to take account of this ruling. For now, there is nothing to do, but if you are at all unsure whether any provision, criterion or practice that you put in place might lead to a claim of indirect discrimination contact us for advice.
Long term sick employee did not transfer
In a transfer of undertaking situation the employees who are transferred to the service or part of the business which is transferring will move to the new employer. What happens if one of these employees has been absent due to long term sickness? Will that employee transfer?
In BT Managed Services Ltd v Edwards  the employee had been absent due to illness for five years, and there was no indication that he would be able to return to work. His sick pay was exhausted but he was still ‘on the books’ of one unit. That unit transferred to Ericsson.
The Employment Appeal Tribunal agreed that Edwards did not transfer. It stated that, to be assigned to the part of the business that is transferring, the employee ‘will generally require some level of participation or, in the case of temporary absence, an expectation of future participation in carrying-out the relevant activities on behalf of the client’.
The EAT did note that this was different to absence for a temporary absence due to illness or maternity leave. Here the individual does remain assigned to the part of the business because the absence is for a limited period of time.
- In a TUPE situation identify any absent employees. If they are absent for a temporary period of time (for example, they are on maternity leave, taking a career break, are on sabbatical or are absent due to an illness but are likely to recover shortly) include them in the transfer.
- If their absence seems to be more permanent contact us for advice. We will then consider whether it can be argued that they are assigned to the part of the business that is transferring or not.
Transfer took place when majority shareholder took over the work
The question of when a transfer of undertaking takes place continues to be one which results in a number of Employment Tribunal cases. A recent ruling in Ferreira da Silva e Brito and others v Estado Portugues  is of interest.
Air Atlantis was wound up with the employees being dismissed. It provided charter flights and its main shareholder (TAP) started to operate some of the routes, using Air Atlantis aircraft and other equipment. The employees who had been dismissed argued that they should have transferred and sought reinstatement and compensation.
The Court of Justice of the European Union has ruled that there was a transfer of undertaking. Crucially, the identity of the entity had been retained, shown by the fact that the activity of the business (ie the running of the charter flights) had continued. TAP had taken over the charter flight routes, aircraft leases and assets. It did not matter that they were merged into TAP’s structure and did not keep an autonomous structure. There was still a clear link between what had happened before and after the transfer and hence the employees should have transferred.
- TUPE transfers are notoriously difficult to manage, so always seek our advice to ensure that you are following the correct procedure.
- Whenever you take on work from another employer, whatever the nature of the change, question whether it could be a transfer. If you are not sure, ask us.
National Minimum Wage
A reminder that from 1 October 2015 the rates of pay are:
Age Rate per hour
21+ years £6.70
Dementia Expertise – Clarion Private Client Team
As an employer, it can be difficult to know how best to support staff who are going through difficult personal or family matters. Dementia currently affects 850,000 people in the UK and is predicted to rise to affect one in three people born in 2015. Dementia is a condition that affects people from all walks of life and has a significant impact on friends and relatives caring for those people, who may be struggling to juggle work commitments and caring responsibilities.
At Clarion Solicitors, we have a dedicated Private Client team who regularly advise people who are living with dementia, their relatives and carers about legal matters such as Lasting Powers of Attorney, trusts and wills. We can also deliver Dementia Friends Information sessions to organisations who would like to have the opportunity to learn a bit more about dementia.
In addition to our work advising on mental capacity matters, the Private Client team are also accustomed to assisting clients through the process of administering the estate of a deceased loved one. We are aware that we often see clients who are experiencing difficult personal matters and we aim to provide a sensitive and friendly service to all clients.