It's a trap!

Employment Law Newsletter - January 2016


In this issue ...

  Here we are again   Finding the right mark  
  More than zero protection   You can't move the goalposts on the quiet  
  A(nother) spanner in the works?   Getting personal  
  Speak in English!   Not so different  
  Accept the highest offer?  

Here we are again

Welcome to 2016. If you have lifted your head to peer through the winter rain and gloom, you may have noticed or remembered that there are a couple of potentially important changes coming down the tracks.

Of course, the National Living Wage kicks in in April Рmore of that another time. Perhaps less noticed is the new requirement for a commercial organisation with an annual global turnover of more than £36 million whose next financial year-end falls after 30th March to produce a statement on steps taken to ensure 'modern slavery and trafficking' is not taking place in the business or its supply chain. Detailed information can be found at

Right, now we have your attention, let's get on to what's been happening since early December.


More than zero protection

On 11th January, Regulations took effect to give some real meaning to the banning of 'exclusivity clauses' in zero-hours working arrangements. It is now automatically unfair to dismiss a zero-hours employee, and unlawful to subject a zero-hours worker to any detriment, because they are in breach of a clause prohibiting them from working for another employer. No qualifying service is required for the unfair dismissal claim.


A(nother) spanner in the works?

In our May 2015 issue, we reported that Lock v British Gas, in which an employment tribunal ruled on the inclusion of commission payments in the calculation of holiday pay, was going on appeal to the Employment Appeal Tribunal (EAT). One ground of challenge is on the tribunal's willingness, following the EAT's ruling in Bear Scotland v Fulton (which we treated to death in issues from November 2014 to February 2015), to read words into the UK's Working Time Regulations to ensure compatibility with the European Court of Justice's interpretation of the European Union's Working Time Directive.

The EAT has heard arguments in Lock. The judgment is still awaited. Meanwhile, in The Advocate General for Scotland v Barton, a case that does not concern the working time laws or holiday pay, Scotland's Court of Session, equivalent to the Court of Appeal, has considered the scope of the 'reading into legislation' principle. It held that the principle has limits and should not be used by a court where it would be amending the expressed will of Parliament so that the court becomes a legislator.

How, if at all, this will, or can, affect the Lock appeal is unclear, especially as the Barton ruling appears not to have been issued until after the parties' submissions were prepared and presented to the EAT in Lock. So, is it on and up to the Court of Appeal (CA) and the Supreme Court? Is anybody out there still holding back on re-working holiday pay or has everyone got bored and moved on?


Speak in English!

In Kelly v Covance Laboratories, the EAT dismissed claims of direct racial discrimination and harassment by a Russian-born employee of an animal testing laboratory which insisted that, in line with its policy, she speak only in English at work. But the decision was based on specific facts – the employer's security concern with animal rights infiltrators, overlain by the employee's inclination to leave her work station and speak on her mobile phone. In these circumstances, a person of any nationality or ethnicity (including a native English-speaker) would have been treated in the same way if they chose to use another language.

So, although there will be many situations where an understanding of English is vital and where communication with colleagues must be in English, a blanket ban on ever speaking another language at work will often be unlawful.


Finding the right mark

In Griffiths v Secretary of State for Work & Pensions, the CA has confirmed that it is not necessary for an employer to disregard disability-related absences when deciding whether to apply sanctions under a disciplinary procedure or absence-management policy. However, overruling the EAT, it went on to say that the operation of such regimes is subject to the duty to make reasonable adjustments in relation to disability.

So, it is prudent to make provision for some flexibility where a disability is the likely cause of absence. Of course, frustratingly, this position means that each and every situation will raise its own question of what, if any, adjustment is reasonable or appropriate. There are no easy solutions to, or on, that problem. But a good start for an employer is to be able to show that, in reaching a decision on the treatment of disability-related absence, it was aware of the circumstances and asked itself 'the question' about making allowances.

The CA also recorded its regret that absence policies and measures are framed in the language of sanction, connoting culpability of the employee.


You can't move the goalposts on the quiet

Here's a reminder from the EAT in John-Charles v NHS Business Services. If, between hearing and deciding on sanction, you learn of something new that might be material to your decision, put it to the employee before you proceed farther. In this case, the new factor which the disciplining (soon to be the dismissing) manager discovered was the imposition of a first warning against the employee for an earlier offence. That was taken into account in the subsequent decision to dismiss. The EAT held that, even if there was no dispute about the validity of the warning, the employee should still have been made aware of the manager's inclination to take it into account and given the chance to argue about its relevance or significance before a sanction was applied following the later offence.


Getting personal

You may well have already come across the decision of the European Court of Human Rights (ECHR) in Barbulescu v Romania, as it has attracted quite a bit of publicity.

Barbulescu was dismissed for breach of contract when, in the course of normal work activities, his employer discovered that he was using his work-based Yahoo messenger account to send private messages to his fiancé and brother. He argued that, in subsequently adjudicating on the fairness of his dismissal, the Romanian court should disregard all evidence regarding personal communications as there had been a violation to his Article 8 right to respect for private life and correspondence.

The ECHR disagreed, recognising the need for employers to establish that job-related tasks are being undertaken during working hours. While this seems to stop well short of establishing a full-blown 'snoopers' charter' (nothing in Barbulescu removes existing European Convention or UK safeguards on monitoring), the ruling nevertheless gives employers comfort in confirming that action can be taken against employees who transgress clearly-communicated policies and contractual rules about private use of e-mail, internet or social media.


Not so different

The EAT case of Donkor v RBS concerned the quite common type of age discrimination claim about an employer's having made decisions on redundancy according to a regime of severance costs which increase dramatically at a certain age. Donkor was refused voluntary redundancy because, being over 50, he would be entitled to early retirement benefits under the pension scheme, which were expensive for RBS to fund. The two comparators in his discrimination claim were under-50. The difference in Donkor's redundancy entitlements was not itself a 'relevant circumstance' under the Equality Act so as to make this comparison impermissible. So, his claim could proceed, with the burden passing to RBS to show that its action was objectively justified.


Accept the highest offer?

In Cooper Contracting v Lindsey, the EAT refused to allow an employer's appeal that compensation for its unfair dismissal should be reduced because the claimant ex-employee had chosen to set up his own business and, therefore, had foregone better paid opportunities which, the employer maintained, were 'out there'.

As well as ruling that the simple failure to go for the best-remunerated opportunity will not necessarily mean that the ex-employee has behaved unreasonably, the EAT also emphasised that the burden of showing that there has been a failure to mitigate lies with the 'wrongdoing' employer and that, if no evidence of such failure is put forward (as in Lindsey itself), an employment tribunal does not even have to take a view on the subject.


If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Jo Hale on 0161 703 5600

Although care has been taken in the preparation of this Newsletter, Collinson Grant cannot accept responsibility for errors, omissions or advice given. Readers should note that only Acts of Parliament and Statutory Instruments have the force of law and only the courts can authoritatively interpret the law.