Employment Law

Unfair dismissal

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If an employee has contributed to their dismissal, their compensation can be reduced by anything up to 100%. This is called ‘contributory fault’. A tribunal will use its discretion to decide what deduction would be fair in any given case. In Jagex v McCambridge, the Employment Appeal Tribunal looked at whether the conduct in question must be gross misconduct in order to justify a reduction for contributory fault.

The employee found some paperwork on a communal printer which revealed the pay of a senior employee. He mentioned the document to colleagues. One of the colleagues started a guessing game over lunch about how much the senior employee earned (the employee wasn’t there). This got back to management who dismissed the employee for gross misconduct for disclosing details of a confidential document. The employee brought an unfair dismissal claim and won. The tribunal said his employment contract did not state that pay information was confidential. Disclosing this information was not an act of gross misconduct and his dismissal was unfair. They also said there could be no reduction for contributory fault because revealing the senior employee’s pay was not gross misconduct. The employer appealed.

The EAT agreed that this was not gross misconduct. However, they disagreed with the tribunal’s conclusion that a reduction for contributory fault could only be made in gross misconduct cases. The tribunal should have looked at whether it was fair in this case for a reduction to be made. The case was sent back to the employment tribunal to look at the issue afresh.

This case shows that simple misconduct, not just gross misconduct, can be taken into account by an employment tribunal when considering an employee’s compensation.

Astons Solicitors
January 16th 2020

TUPE

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The worker status debate leached into the TUPE sphere towards the end of 2019. A ‘worker’ is defined by section 230(3) of the Employment Rights Act 1996 (ERA) as:

An individual who…works under:

  1. A contract of employment, or
  2. Any other contract…where the individual undertakes to do or perform personally any work…for another party who…is not…a client or customer of…the individual.

TUPE is a legal mechanism which protects employees when the business they work for transfers to a new owner. TUPE defines ’employee’ as ‘any individual who works for another person whether under a contract of service or apprenticeship or otherwise‘ but does not include the genuinely self-employed. Previously there has been no case law on whether workers are covered by TUPE. Employers have considered it unlikely and usually limited TUPE obligations to employees.

Dewhurst v Revisecatch & City Sprint may have put a cat among the pigeons then. In this case, three workers said that they fell into the definition of ’employee’ under TUPE. They brought claims for holiday pay and failure to inform and consult. At a preliminary hearing to decide whether TUPE applied to them, the employment tribunal decided that workers were ’employees’ under TUPE. They were covered by the ‘or otherwise’ part of the definition. Only the genuinely self-employed were not included. The judge said that this interpretation was necessary to preserve the employment rights of those who work within businesses when they change hands.

This is an employment tribunal decision which means that other tribunals or courts don’t have to follow it. The employers are likely to appeal though, and the appeal decision will create binding law. Most employers treat workers differently to employees in a TUPE situation. If this decision is upheld on appeal, employers will need to revisit their approach to workers when considering their obligations under TUPE. With 13 weeks’ pay at stake per ’employee’ for a failure to inform and consult, any failure could be costly. Watch out for an appeal decision towards the end of the year.

Astons Solicitors
January 14th 2020

New Employment Legislation

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In December 2019, the government set out its plans for new employment law legislation in the Queen’s Speech. Much of it will be familiar from the Good Work Plan and includes:

  • Creating a single labour market enforcement agency to protect the rights of vulnerable workers;
  • Requiring employers to pass on all tips and service charges to staff;
  • The right for workers to request a more predictable contract after 26 weeks;
  • Extending redundancy protection so that women who are pregnant or on maternity leave are protected from the point they tell their employer about their pregnancy until 6 months after they return to work;
  • Making flexible working the default position.

These changes could have a significant impact on employer practice and procedure. We will keep you informed if and when these come into law.

Astons Solicitors
January 2nd 2020

Third party harassment

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Third party harassment can happen in the workplace when someone other than the employer harasses the employee. This might include patients, customers or visitors. The Employment Appeal Tribunal has recently looked at whether an employer will be responsible for third party harassment.

In Bessong v Pennine Care, the employee was a nurse. He was assaulted and injured by a patient who shouted racist abuse at the same time. The employer called the police but didn’t mention the racial element. The employee brought various claims against the employer, including one for racial harassment based on the attack. The employment tribunal dismissed the harassment claim. They found that the Trust had failed to create a culture where racist incidents were reported, making racial harassment from patients more likely. Although this was unwanted conduct by the employer, it was not conduct related to race. The employee’s harassment claim failed.

Employer liable

The Employment Appeal Tribunal agreed. The employer’s actions (or failure to act) had to relate to race (or another protected characteristic) for the employer to be liable. In this case, the employer’s failure to take adequate steps to prevent racial harassment at work was not due to race.

A government consultation has taken place recently on whether to introduce new third-party harassment provisions into the Equality Act 2010. Calls for this change have come from the Equality and Human Rights Commission and the Women and Equalities Select Committee. We are still waiting for the outcome of this consultation so watch this space. Also look out for the employee’s appeal in this case.

Legal privilege

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Confidential advice between lawyer and client cannot be used in court proceedings unless the document is created for a fraudulent or criminal purpose. The Court of Appeal has looked at how this principle works in Curless v Shell.

The employee was a lawyer for Shell who had diabetes and sleep apnoea. He brought a discrimination grievance and was later dismissed as part of a reorganisation and redundancy process. He brought tribunal proceedings based in part on a leaked email to Shell from its lawyers which referred to the pros and cons of dismissing ‘an individual’ as part of the restructure process. The employee said the individual was him. He said the letter wasn’t privileged because it referred to hiding a discriminatory dismissal in a redundancy exercise.

Privileged email

The employment tribunal said the email was privileged. Referring to potential discrimination was not enough to disapply legal privilege. The Employment Appeal Tribunal disagreed. They said the letter referred to cloaking a discriminatory dismissal in redundancy to avoid more discrimination complaints. The Court of Appeal reversed the decision again. The kind of advice the letter contained – how and whether to include someone with an ongoing discrimination claim in a wider redundancy process – was the sort of advice given day in day out by lawyers. It was not part of a dishonest plan and could not be used as evidence in tribunal proceedings.

It is interesting in this case how the courts read the email differently. The EAT saw an attempt to cover up a discriminatory dismissal whereas the Court of Appeal saw normal everyday advice rather than any dishonest plan. This case confirms that the privilege rules will rarely be lifted. This is based on public policy that clients need to be confident about seeking legal advice in tricky circumstances without the threat of it being used against them in future.

Work email on phones

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We all find it difficult to switch off from technology. Work email being accessible on phones has blurred the lines between home and the office. Companies worried about these blurred lines are taking steps to stop employees from working outside work hours. Volkswagen has set up systems so that emails can only be sent to employees’ phones from half an hour before the working day starts and for half an hour after it ends, and never at weekends. Lidl in Belgium has also banned internal emails between 6pm and 7am to help staff switch off.

Could this method of trying to protect your employees cause them more harm than good? The University of Sussex has done research which suggests a blanket ban might help some staff to switch off but might result in other employees not achieving their goals and causing stress.

A plan to allow people to deal with email

A better plan might be to allow people to deal with email in a way which suits their personalities and allows them to feel like they are managing their workload. Some people might appreciate, or need, flexible working patterns that necessitate some work outside normal hours. The key for employers is to ensure they have a policy that sets out clear parameters for working outside normal hours. Employees need to know that it is a genuine choice, rather than a compulsion.