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Employment Law Bulletin September 2018


News round up

 We have several exciting events in the pipeline. Please click here to view our seminar programme and keep an eye on your inbox for invitations to these events in due course. 

In addition, we are always talking about key legal developments, topical issues and what we are up to on our twitter account (@ClarionEmpLaw), so please follow us if you want to be kept up to date between our monthly newsletters.

In the meantime, here is our usual round up of key cases and legal changes over the last few weeks.

A lesson from Ireland

Many employees can access work emails on their smartphones, and therefore many of them will work in the evenings or weekends because it is so easy to do so. If your employees are regularly checking emails outside of normal hours, is this something to worry about? A recent case that was brought in Ireland should cause us to stop and think…

In Kepak v Grainne O’Hara [2018] the employee was contracted to work 40 hours a week, but regularly worked 60 hours a week. She said that she regularly answered emails before 8am and after midnight. The case was heard under Irish legislation, but it did raise two points that are worth us pondering here in the UK.

Firstly, the tribunal said that the employer should have kept records of the hours that the employee works and, even if some of their work took place outside their normal working hours, the employer was still required to record this. This does apply in the UK, due to the Working Time Regulations 1998. If an employee has signed an opt out from the limit of 48 hours on the working week, the employer should keep records of the hours that the employee works.

Secondly, the courts questioned the responsibilities of the employer. In this case the employer said that it did not expect the employee to work the hours that she did, but the courts found that they did permit her to work excessive hours. Knowing the hours that she was working, they should have intervened so that this was not a regular feature of her job.

Are your employees regularly checking emails, or doing other work, in addition to the normal working day? If so, contact us for a chat about your responsibilities. Although this case was brought in Ireland, it is quite possible that a similar case could be brought in the UK in the near future.

This issue was further highlighted by recent research from the University of the West of England (UWE), which suggests that time spent emailing on a commute should count as work.


Ensure your rules are clear

Two employees were recently unfairly dismissed for using company vehicles for personal use, which was against company policy. However, the dismissals were held to be unfair, partly because the rules relating to personal use were not clear.

In Genus and Kelly v Fortem Solutions Ltd [2018] the employees were provided with company vans to enable them to carry out their maintenance jobs. The company policy stated that the vans should not be used for any private purposes, other than ordinary commuting. However, the employer discovered that these two employees had used the vans for personal use on a number of occasions. One had regularly visited his mother on the way home and the other had used his van for several reasons, including going to the supermarket and travelling to matches to see his son play football. They were both dismissed.

The employees confirmed that they had seen the company car policy, but said that they found it confusing and were not sure what they were and were not allowed to do. They also said that they had been told by their line manager that they could use the vans for personal purposes.

The Employment Tribunal found that the dismissals were unfair. The definitions of business and private use were not clear, and the employer had not carried out sufficient investigation into the usage of the vans. In addition, no regard had been given to the employee’s length of service and clean disciplinary record.



Be sure that a reasonable adjustment does not cause a different problem

If an employee is disabled, as defined in the Equality Act 2010, there is an obligation from the employer to make reasonable adjustments to help that employee to work and to reduce or eliminate any disadvantage that the employee suffers due to the disability. It is important to ensure that any adjustments have the positive impact that is intended.

In Frost v Retail Design Solutions (Consultancy) Limited [2018] the employee was a long term sufferer of anxiety. Her employer knew about this. She had an important client meeting to attend and suffered three sleepless nights worrying about it. She asked her line manager not to come to the meeting, as that would increase her anxiety. The employer recognised how anxious she was about the meeting and decided to restructure the part of the business where she worked and to reduce her exposure to business meetings. However, the employee was not happy with this; primarily because it reduced her opportunities for promotion. She raised grievances, but the decisions were not changed. She claimed disability discrimination.

She was successful in her claims. Removing her from client meetings reduced her opportunity to learn skills she needed to progress and, therefore, this was disability discrimination. Although, the employer may have had the best intentions, its decision to restructure the business and reduce the employee’s opportunities was flawed.



Defining a belief

One of the areas that is protected under the Equality Act 2010 is ‘religion/belief’. Religion is straightforward to define - examples include Christianity, Sikhism, Hinduism. However, there is less clarity about the definition of ‘belief’. The law says that a belief must be genuinely held, and it must be more than an opinion. It must be serious and cogent and apply to an important aspect of human life or behaviour. It must be worthy of respect in a democratic society.

The definition of belief was tested in the case of Gray v Mulberry [2018]. The employee refused to sign a standard employment contract because it contained a clause assigning all copyright for her work to her employer. She feared that this would mean that they had the copyright for a play and novel she was writing (even though the contract was amended to reflect that the clause did not cover these). Eventually she was dismissed.

She argued that this was indirect discrimination on the grounds of her beliefs. She claimed that her belief in the ‘sanctity of copyright law’ was a belief covered by the Equality Act 2010. However, the Employment Appeal Tribunal did not agree. It found that the belief did not have sufficient clarity to be a belief as defined in the Equality Act 2010. It also noted that, to be successful in her claim of indirect discrimination, she needed to show that there was a group who had been disadvantaged. This was only a belief that she held individually, therefore there was no group disadvantage and this meant that her claim of indirect discrimination could not have succeeded anyway.



A successful appeal reinstates a contract

If an employee appeals against their dismissal and is then reinstated can they proceed with a claim for unfair dismissal? Presumably not as they are no longer dismissed. This was addressed in the case of Patel v Folkestone Nursing Home [2018].

The employee was dismissed due to sleeping at work and falsifying records. An appeal took place and it was found that he had only been asleep during his rest breaks. It was decided, therefore, that the appeal was successful. The employer failed to properly deal with the other allegation (about falsifying records).

Despite this appeal outcome, the employee did not return to work and claimed unfair dismissal. The employer argued that the appeal had reinstated the contract and therefore he had not been dismissed.

The Court of Appeal agreed that a successful appeal reinstates a contract, and therefore the employee had not been unfairly dismissed. However, it also found that the original allegations had not been addressed clearly and the employee did not know whether he was still accused of falsifying records. It was possible, therefore, that the employee had been constructively dismissed due to a breach of mutual trust and confidence.



Forcing a pay cut could be a breach of contract

There might be occasions when it is necessary to make a change to an employee’s contract of employment. However, there is a need to act reasonably when doing this and to have regard to the response of the employee.

In Decker v Extra Personnel Logistics Ltd [2018] the employee was a recruiter of HGV and lorry drivers, working in a recruitment agency. He originally worked 40 hours a week, but this was reduced to 32 hours. Due to a reduction in business the employer then sought to reduce his hours to 16 per week, which meant a cut in pay of £205 per week.

The employee said that this was not acceptable due to the financial implications, and asked for a compromise of working 24 hours a week, with a slight increase in the daily rate of pay. He thought that the employer had accepted this suggestion, but some time later found that it had not been accepted and the employer was going ahead with the 16 hours a week proposal. He resigned and claimed constructive dismissal.

He was successful in his claims. The employer had acted unreasonably in forcing the change, and had not recognised the concerns he raised as being a grievance. It had not followed the Acas Code of Practice: Disciplinary and Grievance Procedures in reviewing the grievance situation.



A fair procedure could mean postponing a disciplinary hearing

If an employee is facing a disciplinary hearing and their representative cannot attend, it is usually reasonable to postpone the hearing.

In Talon Engineering Ltd v Smith [2018] the employee was accused of gross misconduct, on the basis that some of her emails contained “unacceptable expressions”. Her disciplinary hearing was delayed because she was unwell and then had a period of annual leave. A new date was set, but her chosen representative was unable to attend for 2 weeks. The employer was not prepared to wait any longer and went ahead with the hearing. The employee refused to attend without her representative and she was dismissed in her absence. An appeal was held, but this was only to review the decision not the procedure.

She successfully claimed unfair dismissal. It was unreasonable to proceed without waiting for the representative to be available.



Q&A - Charlotte O'Connor, Associate

1. What’s your favourite thing about working at Clarion?
The team spirit. The firm works really hard to arrange things to bring everyone together.

2. What’s the best way to start the day?
Eggs Benedict.

3. Where is your ideal holiday destination?
Somewhere warm with lots of wildlife. At the moment, possibly Sri Lanka or somewhere similar.

4. What did you want to be growing up?
A vet, I have a huge love of animals.

5. What’s your all-time favourite film?
Difficult one, probably Pulp Fiction.

6. What makes you laugh?
Someone with a dry sense of humour.

7. How do you like to spend a weekend?
Either walking somewhere scenic with my dogs or binge-watching a good tv series.

8. What’s the best piece of advice anyone has given you?
Perseverance is the hard work you do after you get tired of doing the hard work you already did.