Rogers & Norton News

November 2013 Employment Law Bulletin

Thursday, November 14, 2013

WELCOME

Fewer tribunal claims are being brought since fees were introduced in July. There’s not great certainty yet about exact figures, but it looks as though the number of single claims (those involving one individual against their employer, as opposed to multiple claims) issued at employment tribunals in September was markedly down on the number issued before the summer. But it’s still very early days for tribunal fees. And if UNISON’s current judicial review challenge succeeds then it’s going to be the end of the road. The organisation is arguing that fees put a price on justice which is immoral and allows unscrupulous employers to ride roughshod over their workers’ rights. A decision is expected before the end of the year (although doubtless it won’t be the last word on the subject, as the case will travel up the appeal ladder). Meanwhile, the employment law world is watching and waiting.

When does a resignation take effect?

Secretary of State for Justice v Hibbert

Establishing the date on which someone stops being an employee ought to be a simple task. But as years of cases have shown, there’s plenty of scope for argument. It’s important because the date of termination starts the employment tribunal clock ticking. A claimant who misses the three-month deadline for lodging a claim can probably consider their case dead in the water. Whether or not Ms Hibbert had presented her claim in time depended on when her resignation took effect. She had hand- delivered a letter to her employer on 29 June 2012. In it, she said, “…there has been a fundamental breach of my employment contract by my employer and I have no alternative but to resign my position”. She could not be persuaded to stay, and her employer wrote telling her that she was obliged to provide four weeks’ notice. That would make her effective date of termination 27 July 2012. So which was the true termination date – 29 June, or 27 July? The earlier date would make her unfair dismissal claim out of time; the later, in time. The tribunal decided that the resignation letter contained an unambiguous resignation but, as Ms Hibbert hadn’t given a date for termination, it took effect on 27 July. The Employment Appeal Tribunal disagreed. It held that Ms Hibbert had resigned on 29 June; she as good as said “I am resigning now”. It was relevant that Ms Hibbert had written her letter after taking legal advice and it wasn’t something she’d put together in the heat of the moment. It’s worth remembering that where an employee stands by their resignation then whatever you agree with them in terms of notice won’t alter the effective date of termination. It is what it is.

Guidance on right to be accompanied

The Acas Code of Practice on Disciplinary and Grievance Procedures is to be updated following the Employment Appeal Tribunal’s (EAT) decision in Toal v GB Oils. The case was about two employees who asked to be accompanied at a grievance meeting by a particular union official. Under the current Code, there is a statutory right for workers to be accompanied at a disciplinary or grievance hearing if they reasonably request this. The EAT in the Toal case looked at what “reasonably” meant. It held that the choice of companion doesn’t have to be reasonable, as long as the chosen companion is a fellow worker or a trade union official. That’s a bit of a departure from Acas’ Code which says that “it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site”. And so the Code will soon look a little different.

Reasons for constructive dismissal

Wright v North Ayrshire Council ‘

The straw that broke the camel’s back’ is often the basis of a constructive dismissal. But does a claimant need to show that a repudiatory beach by the employer was the main reason for resigning? The Employment Appeal Tribunal (EAT) has held that it’s enough that the repudiatory breach played some part in the decision to resign. It doesn’t need to be the main reason for the resignation. Ms Wright was a care at home assistant. She raised three grievances which the tribunal found were not properly dealt with. The employer’s failing amounted to a repudiatory breach, or a series of breaches. But the tribunal went on to find that Ms Wright hadn’t resigned in response to that breach; the real reason was that she had become her husband’s carer following his stroke. The EAT held that the fact that the employer’s breach might not have been the cause of the resignation didn’t kill the claim. It was enough that it played a part. But the extent to which an employee relies on their employer’s breach is relevant to the amount of compensation they’ll receive. If they would have resigned anyway then they’d struggle to prove that they suffered a loss because of something the employer did or didn’t do.

Frustration of disabled employee’s contract

Warner v Armfield Retail and Leisure

There may come a point in a difficult workplace situation where an employer is left wondering just how the employment relationship can continue. In Warner v Armfield the Employment Appeal Tribunal (EAT) held that a disabled worker’s employment contract may be ‘frustrated’ (automatically brought to an end because it’s impossible to continue), but only after an employer has fulfilled any duty to make reasonable adjustments. Mr Warner was a site manager of a business that refurbished pubs and shops. He needed to be mobile and to perform carpentry. After suffering a stroke he was eventually dismissed and claimed unfair dismissal and disability discrimination. The EAT didn’t agree with the argument that once the duty to make reasonable adjustments had arisen the employment contract could not be frustrated. It could be, the EAT said, but it’s important to first check that the employer has made all reasonable adjustments. If there are no more reasonable adjustments to make, the contract may be frustrated. This case clarifies that frustration can apply to employment contracts, just as it does to commercial contracts. But the decision won’t really make a monumental difference to the way in which employers handle tricky scenarios involving disabled employees. The key will still be fully complying with the duty to make reasonable adjustments and, if the end of the line is reached, carrying out a managed dismissal under a full and fair process. Arguing frustration could be a bold step to take (although it may be an option) and in many ways, it remains at odds with the protection afforded to disabled employees. Remember, too, that while frustration won’t give rise to an unfair dismissal claim (because the employee hasn’t been dismissed) an employer may still face discrimination claims.

Non-contractual work and TUPE

Lorne Stewart v Hyde

Can work which is regularly provided but isn’t contractually guaranteed transfer under TUPE? Yes, said the Employment Appeal Tribunal (EAT). The claimants worked for Carillion, which repaired and installed central heating and boilers for Cornwall County Council. That work was governed by a framework agreement. Alongside it, the Council could offer Carillion more work if it chose to. There was no obligation for the work to be offered or accepted, although the reality was that Carillion (Mr Hyde and his colleague) did it all. When Lorne Stewart took over the contract, it argued that the two workers didn’t transfer because they weren’t part of the organised grouping of employees devoted to the routine work. The EAT held it was irrelevant that there was no contractual obligation in place in respect of the additional work. What was the true picture? Mr Hyde and his colleague undertook the work that was, or was intended to be, carried out by Lorne Stewart. Accordingly, they transferred under TUPE. While this case doesn’t take TUPE in a new direction, it’s a useful reminder that written contracts (or their absence) isn’t the be all and end all.

Discrimination to stop PHI

Whitham v Capita Insurance Services An employee whose permanent health insurance benefits stopped when he turned 55 was discriminated against on grounds of age, a tribunal has held. Mr Whitham was on long-term sick leave. He was receiving PHI benefits which were due to come to an end once he reached 55. Another more favourable scheme had been made available to staff which offered PHI benefits up to the age of 65, but Mr Whitham had been denied the opportunity of joining it because he was off work ill at the time he’d needed to have applied. (The insurance company provider would not indemnify Capita in respect of payments made to employees who were not “actively at work”.) The tribunal held that there was direct age discrimination. Capita had argued that its actions were a proportionate means of achieving a legitimate aim – that aim being to include as many of its employees as possible in its PHI schemes. The tribunal decided that that didn’t stack up; PHI membership was selective and by stopping Mr Whitham’s cover, the company had reduced the number of employees within the scheme. There was also indirect age discrimination because the “actively at work” criterion was a provision, criterion or practice which put older employees at a particular disadvantage, and it couldn’t be justified. Being a tribunal decision, as opposed to one from the Employment Appeal Tribunal or Court of Appeal, this case doesn’t carry masses of weight. But it highlights a difficult situation for employers who may be stuck between a PHI provider which sets certain criteria in return for indemnity, and employees who deserve equal rights in the workplace. Remember that age discrimination laws may trump commercial considerations.

And Finally… WANTED: HR advisor APPLY TO: Lord Grantham

For those of us with an interest in employment law, what should be easy Sunday-night viewing can be a little itch-inducing. Forget that Downton Abbey was set way back when. Forget that it’s not real. It’s impossible to ignore its web of workplace complications. Anna’s undisclosed rape by a visitor’s valet. Molesley’s job offer withdrawn before accepted. Edna – the maid – told to pack her bags after claiming to be pregnant by His Lordship’s son-in-law. Every week brings something new. And whether that’s fodder for an improbable HR case study, or just a glimpse into life before employment rights, there’s a compulsion to tune in.