Rogers & Norton News

Employment Bulletin February 2015

Thursday, February 5, 2015

Welcome
  
“Think I just hit a cyclist. But Im [sic] late for work so had to drive off lol.” 
  
Newspapers reported that the author of that tweet was sacked by his employer last month. That’s despite his claim that there was no truth in what he’d written and that it was just a bad joke. 
  
Whatever the facts and the rights and wrongs, the story is a reminder of the ever-changing challenges facing organisations all over the world, keen to not be tainted by association. And this worldwide context is important because any single social media comment has the potential to go global at the touch of a button or two. 
  
One thing is certain in all of this. A well-worded, well-communicated social media policy is fundamental. Even if it doesn’t eliminate employees’ misuse of the likes of Twitter and Facebook, it will stand you in better stead if   you’re forced to defend their dismissal.

 

Out of time at   tribunal but claim goes on   Nayif v High   Commission of Brunei Darussalam 

Claimants have a three-month time limit to notify Acas that they want to bring a discrimination claim in the employment tribunal. Some employers will watch the clock tick down and, once those three months have passed, feel pretty safe in the knowledge that they are not going to face a claim.    

But there is one important fact to bear in mind: the tribunal is not the only forum for employment-related claims. Some cases can be brought in the county court or high court where longer limitation periods apply. That is what has happened in Mr Nayif’s situation. It led to an interesting decision about his right to pursue a claim on the same facts as one which had already been dismissed by a tribunal.    

Mr Nayif alleged that he had been bullied and harassed at work and he had suffered mental ill-health as a result. The tribunal dismissed his race   discrimination claim because it had been brought well outside the three-month time limit. He went on to issue a personal injury claim in the High Court.

The facts of that claim were the same, but this time he alleged negligence and breach of contract.     Could the claim proceed? It was argued that the issues had already been dealt   with by the tribunal – his claim had been dismissed – and so couldn’t be heard again.    

The Court of Appeal held that the tribunal hadn’t decided the issues in the   case, only whether or not the claim could be brought. A claim being dismissed by the tribunal for being brought too late can be distinguished from a claim   that has been withdrawn or settled. In this case, Mr Nayif could bring his   claim in the High Court.    

The question of a dismissed tribunal claim being followed up by a claim in   the courts is an interesting one, and one which will come down to whether or   not the tribunal had decided issues in the case. But it’s the general and   overarching potential for claimants to reshape their legal claim to benefit   from different rules in the county and high courts that also needs to be   highlighted. Remember that much longer limitation periods apply in these courts.   It means employers need to be alert to the possibility of time-barred   tribunal claims being alive and kicking in one form or another elsewhere.

 

Fit for Work?
  
By May this year, we   should have a fully-functioning Fit for Work (FFW) service which aims to give   clarity on employees’ ability to do their jobs. 
  
Offering free occupational health assessment and return to work plans, FFW will be available to employers and employees as well as GPs, and it looks set to be a useful resource in the case of employees who have been on sick leave for four weeks or more. There will be two elements: a website and telephone line advice service; and a referral service. And it is intended to   complement, rather than replace, employers’ existing occupational health services.   
  

You can access the latest employers’ guidance here.

 

‘Virtual’ employee   retains UK rights
Lodge v (1) Dignity   & Choice in Dying and (2) Compassion in Dying
  
Ms Lodge worked as Head of Finance for the two employers (jointly) in London.   It was agreed that, for family reasons, she could move to Australia and continue to work remotely for her employer via the virtual private network.   That arrangement worked for four years until Ms Lodge resigned following the rejection of her grievance.
 
She brought an unfair dismissal and a detriment claim under UK employment law.  The tribunal held that she had no right to do so.

The Employment Appeal Tribunal (EAT) disagreed, holding that she hadn’t lost her UK rights. It was relevant that her grievance had been brought under the terms of the company’s handbook and had been handled in London. She had continued to work solely for her employer and, although she had ceased to be a physical employee in London, she continued to be a virtual employee from Australia. There was a sufficiently strong link between her employment and the UK.
  
The case is an important reminder that overseas employees may retain the same rights as those based in the UK. Each will turn on its facts, but it’s safe to say that the question of a UK connection is crucial to deciding whether or not there is a right to bring a claim in this country. If an employee is working solely for you, and not for a subsidiary or another business overseas, and you are based in the UK then the chances are there is.

Acas Code revised
  
It may not strike   you as momentous, but a change to the Acas Code could well change the way you handle workers’ requests to be accompanied at disciplinary and grievance   hearings. 
 
It’s in response to Toal v GB Oils in which the Employment Appeal Tribunal held that, in relation to disciplinaries and grievances, where a worker “reasonably requests to be accompanied at the hearing”, there is now no reasonableness requirement relating to the identity of their companion. In other words, a worker doesn’t need to be reasonable in choosing the person   they’d like to attend the meeting with them – they can choose someone who will shout, stamp and scream, or who the employer might not want to attend  for some other reason. 
  
The Toal case found that workers have the right to be accompanied by any companion from one of the categories in section 10 of the Employment Relations Act 1999 (trade union officials, certified union reps and fellow workers). That, it seems, is now the only requirement.

Appeal decision effective   when made
Salmon v Castlebeck   Care and Danshell Healthcare
  
Ms Salmon was dismissed before a TUPE transfer. The HR Director of the incoming employer heard her appeal and decided, post-transfer, that the   dismissal was unsafe. However, she didn’t tell anyone about this or decide to reinstate Mrs Salmon. Instead she instructed an HR consultancy to negotiate a settlement – but that didn’t happen.
 
Could Ms Salmon bring a claim against the new employer? The tribunal held that she could not; the transferee was never her employer.
  
Ms Salmon appealed, arguing that because her appeal against dismissal had been successful, that had the effect of instantly reviving her contract. It meant that she had been employed immediately before the transfer and her employment transferred to the transferee (so she could claim against that company).
  
The Employment Appeal Tribunal agreed. The employment contract had been revived. There was no need for an express decision as to reinstatement to be taken, or for the appeal decision to be communicated. Once an appeal against dismissal has been upheld, and unless the employment contract says otherwise,  employment is automatically revived.
  
The point about a contract being automatically revived is an interesting one.   There is a distinction to be drawn between Ms Salmon’s scenario, where the crucial element was the decision to uphold her appeal against dismissal, and a situation involving a dismissal decision itself. A decision to dismiss must be communicated in order to take effect. But that’s not the case when it comes to appeal decisions.  Something to be aware of, and which could have a significant bearing on a person’s employment status.

Place of work   redundancy   EXOL Lubricants v   Birch

The claimants were delivery drivers. They lived near in Manchester but their depot was in Wednesbury. EXOL arranged secure parking for their HGVs in Stockport near their homes because of the cost to the employees of commuting.   This became a term of their contract, which also said that their place of work was the depot in Wednesbury.

Time spent travelling between Stockport and Wednesbury was treated as part of their working day.     EXOL gave notice to terminate the secure parking arrangement when it decided it was no longer affordable. The employees were unable to agree a compromise with EXOL and were dismissed.

EXOL argued that these were fair redundancy dismissals, claiming that Stockport was the employees’ place of work and its requirement for lorry-driving there had diminished. The employer had ceased to carry on business in the place in which the employees were employed.  The tribunal found for the claimants. It held that their place of work was   the depot and not the place where they parked their HGVs.    

The Employment Appeal Tribunal (EAT) agreed. Wednesbury was the correct place of work. The claimants had a close connection with the depot. That is where they had to take their lorries every day; it was where their instructions came from and to where they reported. There was no redundancy at the depot and so their dismissals were unfair.     This case raises important points about the meaning of “place of work” in cases involving mobile workers including delivery drivers.

In deciding where their place of work is, the first port of call is the contract, then the  connection held between the employee and their depot or head office.  Another option in this case would have been for the employer to justify the dismissals by reason of “some other substantial reason”, based on the employer and employees having been unable to agree a new arrangement.

The EAT commented that, had that route been taken in this case, other considerations   may have applied.

And finally… 

There’s absence and there’s long-term absence.  But we would be surprised if a client asked for advice on dismissing an employee who hadn’t been in work for more than 20 years.    

It’s been reported that a civil servant in India took leave in 1990 and didn’t return to work, despite his employer directing him to.  He was found guilty of wilful absence from duty but it took another 22 years to dismiss him – such is the stringency of employment laws in India. 

There are murmurings of provisions having been introduced to make it easier to hire and fire, so things may be looking up for employers there. But their situation puts that of UK employers into perspective. Our employment laws may be testing at times, but we love them really.