It's a trap!

Employment Law Newsletter - May 2015


In this issue ...

  And the dust settles   A footnote on Woolies  
  Bear soon to be Locked out?   No need to keep things in suspense  
  No sympathy votes   Your faith matters  
  Working for the greater good   Keeping it tight  

And the dust settles

Well, that was that... After all the debate, fuss and bother about Parliamentary majorities and protracted negotiations about coalitions, the identity of the new government was clear before breakfast time on Friday 8th May. So, any difficulties engendered by doubts about which party or parties would dominate the employment legislative agenda for the next five years, or even about the importance of pledges on employment law in the widely expected haggling over Parliamentary support, have evaporated. It is the Conservative proposals that will hold sway, under the stewardship of Sajid Javid (Secretary of State for Business, Innovation and Skills), Priti Patel (Employment Minister) and Nick Boles (Minister of State, with responsibility for employment and trade union law).

With the arguable exception of the changes on industrial action ballots, it doesn't look as if Mr Boles and his bosses will have a particularly demanding job here. We have mentioned most of the detailed or concrete plans in the February 2015 and March 2015 issues. The major omission is that for 'volunteering leave' – employers of more than 250 people will apparently be required to give them each up to three days off with pay each year to do voluntary work.


Bear soon to be Locked out?

Our earlier coverage of Bear Scotland v Fulton and its implications extended over a Special Edition and three issues in late 2014 and early 2015. The first of these made clear that a critical part of the ruling of the Employment Appeal Tribunal (EAT) - in essence, the gateway to the other parts - was that the existing wording of the Working Time Regulations (WTR) could be judicially adapted or rewritten to give immediate - and retroactive - effect to the interpretations of the European Court of Justice (ECJ) under the Working Time Directive that holiday pay should be calculated by reference to 'normal remuneration', not just basic pay.

Now, that principle is going to be subject to challenge. The employers in Lock v British Gas (see the April 2015 edition) are going to appeal to the eat against the tribunal's decision that the wtr could be interpreted or judicially reworked to cover commission. while one ground of appeal is specific to commission itself, the other is a challenge to the key Bear idea that the wtr's existing wording permits of this tinkering to achieve the desired result.

Of course, this aspect of the Lock appeal might reveal a divergence of opinion within judges of the EAT which might prompt an appeal to the Court of Appeal (CA) for clarification. But, even if Lock adopts the same stance as Bear on this point, the employers in Lock might then seek to take it up to the CA for further consideration. But, for employers wanting certainty about their liabilities, that's all an unhelpfully long way away – the signs are that the EAT is unlikely to deal with the Lock appeal itself for another six months.


No sympathy votes

Hardly seismic, but low-grade good news for employers nevertheless – an employment tribunal has no discretion to accept a claim from an individual who, not being in an exempted category or situation, has failed to comply with the early conciliation requirements. So says the EAT in Cranwell v Cullen, where a claim was rejected despite there being evidence of serious sexual harassment, the individual's having taken out an injunction against her employer and the possibility that she had misunderstood what conciliation was about.

Also, in Sterling v United Learning Trust, the EAT has ruled that an employment tribunal is entitled to send back a claim with the wrong early conciliation number featured, even if that means that any re-submitted claim could be out of time.

Finally, while we're on the topic of regulating tribunal claims or controlling the inclination of people to make them regardless of merit or veracity, the EAT had another contribution to make in Chadburn v Doncaster & Bassetlaw NHS Trust. Here, the claimant had fabricated significant aspects of a claim of racial harassment and discrimination. An award of costs against her in her employer's favour was justified, even though she did not currently have the means to pay. The fact that she might do at some time in the future was enough.


Working for the greater good

The WTR provide for a rest period of 11 hours between working days. In Edwards v Encirc, two employees, one a trade union representative, the other a health and safety representative, could not fit in the requisite 11 hours between the ends of meetings they had to attend and the starts of their next shifts. Was such attendance at meetings in an official capacity 'working time' so as to require their employer to give them a later shift start or remove them from the shift altogether? The EAT said yes, because they were required to be at a specific location and were working for the employer's benefit in a broad sense (employee relations, health and safety).


A footnote on Woolies

We covered the recent, welcome European Union interpretation of 'establishment' (in the context of an employer's obligation to engage in 'collective' consultation on redundancies) in our February 2015 issue and then the Employment law newsflash last month. The ruling in the Woolworth/Ethel Austin case has now been bolstered by a similar one in Lyttle v Bluebird, which was referred to the ECJ by an industrial tribunal in Northern Ireland (the applicable domestic legislation there being nominally different from, but substantively the same as, that in the rest of the UK). An interesting addendum in Lyttle was the ECJ's observation that to treat 'establishment' as irrelevant or meaning an employer's entire undertaking would be illogical (in that a single employee based at a remote location would be covered) and impractical and, further, would impose an unduly burdensome cost on employers in some cases.

So, as we indicated in the Newsflash, everything is now set for the CA in Woolworth/Ethel Austin and the tribunal in Lyttle to adopt the ECJ's position and rubber stamp the status quo.


No need to keep things in suspense

This is not the first time this point has been made, but it is always worth reinforcement. According to a single, but clear, sentence in the EAT's judgment in Jinadu v Docklands Buses, a dismissal is not rendered unfair simply because the employer failed to suspend disciplinary proceedings when the employee raised a grievance about some of the managers who were involved in instigating them. Being such a cursory statement, it does not reveal its reasoning or basis. But its brevity is reassuring in that it indicates the point is so obvious that it does not need detailed explanation or justification.

Of course, that position should never be translated into one that says 'disregard or trivialise the grievance of an employee subject to the disciplinary process'. But, in most cases, a grievance can be accommodated within the disciplinary and/or any subsequent appeal discussions and hearings (where it is about the allegation or process in itself) or, alternatively (where it has no bearing on the disciplinary matter) dealt with quite separately.


Your faith matters

It has been clear for some time that, in unfair dismissal claims, the ability of tribunals to assess the validity of an earlier stage warning issued to the claimant and relied upon by the employer is limited (see Davies v Sandwell Council in our March 2013 edition). However, an acknowledged exception to that principle is where the warning was given 'in bad faith'.

Of course, the question then becomes – if such bad faith is suggested or argued by a claimant, how ready should the tribunal be to go back in time and make the effort to hear evidence on and examine the circumstances? According to the CA in Way v Spectrum Property Care, the answer seems to be 'quite ready', at least where the claimant has put some meat on the bones of the assertion, rather than just said the warning 'wasn't fair'. This was the case with the final warning on Mr Way's record, because, even though he did not appeal against it at the time, he now said the manager who issued it was dishonest and had disciplined him to cover up his own responsibility for the offence which he had sanctioned.

So, what tribunals must now do in some cases should also be done by managers considering the legitimacy of dismissal (at first instance or on appeal) when a seemingly plausible defence of bad faith is put up by an employee.


Keeping it tight

The statutory trade union recognition scheme limits the scope of recognition to the subjects of 'pay, hours and holidays'. All very concise and sensible in principle, but the potential problem (in fact, it is surprising that it has taken 15 years to be raised in litigation) is what those words mean, jointly or severally. That question was central in BALPA v

The pilots' union, BALPA, argued that the airline's rostering arrangements necessarily came within the scope of statutory recognition as they determined when 'hours' would be worked, the 'pay' to be received (because of different shift premia and bonuses) and when 'holidays' could be taken. The High Court disagreed, ruling that BALPA did not have the right to negotiate on rostering. Its main reason was that the rostering system was not a core term relating to pay, hours or holidays but an ancillary or adjectival matter.


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.