Bright light!

Employment Law Newsletter - May 2017


In this issue ...

  Going through the motions?   It doesn't matter what you think  
  Sleeping on and off the job   Little recognition  
  Not again!   But even less reparation  
  Choice is not always good  

Going through the motions?

If the polls are to be believed (.....), we need only to include the first of the paragraphs that follow. However, in the fond hope that something approximating to a contest will break out by Thursday 8th June (when, of course, the lucky ones amongst you will be holed up in our London Employment Law Update), here is a summary of what's on offer from the three main UK-wide political parties.

The Conservatives' proposals have been described, by them, as the "greatest expansion in workers' rights by any Conservative government in history". From that low benchmark, they promise to maintain existing rights after Brexit, to continue the work of Taylor review into employment status (see February 2017 and April 2017), and to introduce new rights. Principally, these are a right to request unpaid time off for training for all employees, a right to unpaid time off to care for sick relatives, child bereavement leave, and new support for those returning to work after family leave. They also undertake to extend discrimination protection for those suffering mental health problems, and to take further measures on the gender and ethnicity pay gaps. There are unlikely to be any changes to, clarifications of or U-turns on this package, at least before you receive this issue.

The Labour party is proposing a more fundamental reform of employment law. In particular, tribunal fees and zero hours contracts would be abolished, all existing employment rights would be available from "day one" and extended to 'workers', maternity and paternity pay periods would be increased, and statutory bereavement leave would be introduced. A new Ministry of Labour would underpin the enforcement of this extended regime. There would be new rights for unions in the workplace. The manifesto also advocates various improvements to equality law including ethnicity pay gap reporting, and an independent body to ensure compliance with pay gap reporting obligations. All existing EU law rights would be preserved following Brexit.

The Liberal Democrats, in line with their self-positioning as an alternative, more effective opposition, especially on Brexit-related issues, major on keeping the UK in the Single Market and so preserving freedom of movement within the EU. Their other proposals include abolishing tribunal fees, extending pay gap reporting to race and sexual orientation, introducing name-blind recruitment in the public sector, continuing the drive for boardroom diversity, addressing the abuse of zero hours contracts, making flexible working, paternity and shared parental leave "day one" rights, giving an additional month's leave for fathers, and extending free childcare places.

So, that's it - all the information necessary for you, sweeping aside some of the other trivial challenges facing the world, to make your choice.


Sleeping on and off the job

That the status of 'sleep-in' or 'on-call while living on-site' hours as 'time work', eligible for the national minimum wage, is not clear cut has just been illustrated by the decision in three conjoined cases, known by the lead one of Focus Care Agency v Roberts.

Here, the Employment Appeal Tribunal (EAT) decided there was no 'one size fits all' answer to the legal treatment of an obligation to be available on site. Instead, it put forward a 'multi-factorial' test to resolve the matter. According to the EAT, the four key factors or questions are:

The employer’s particular purpose in engaging the worker. This informs what the worker might be expected or required to do: for example, if the employer is subject to a regulatory or contractual requirement to have someone present during the particular period the worker is engaged to be present, that might indicate whether and the extent to which the worker is working by simply being in situ.
The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer. This may include considering the extent to which the worker is required to remain on the premises throughout the entire shift, on pain of discipline if he or she even slips away briefly to do something else.
The degree of responsibility undertaken by the worker. There is a material distinction between the limited degree of responsibility in sleeping in at the premises to call out the emergency services in case of a break-in or a fire on the one hand, and a night sleeper in a home for the disabled where a heavier personal responsibility is placed on the worker in relation to duties that might have to be performed during the night.
The immediacy of the requirement to provide services if something untoward occurs or an emergency arises. In this regard, it may be relevant to determine whether the worker is the person who decides whether to intervene and then intervenes when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening.

So, each situation turns on its particular circumstances. And there will be many variants – while sleep-ins et cetera are commonest in the care sector, wardens exist in other environments. Enter the lawyers – both to draft contracts that militate against 'time work' status and to argue the toss in the employment tribunals when that ploy is challenged.


Not again!

If you thought you'd never hear of Bear Scotland v Fulton, the authority for including overtime earnings in the calculation of holiday pay (see various issues, all the way back to the Special Edition in November 2014), think again! The EAT has just sat again in the case, this time to confirm (thankfully for employers) that a break of more than three months between successive underpayments of holiday pay does operate to bar a worker's recovering the underpayment(s) falling before then. Confirming what we thought was already established (30 months' ago, in the EAT's initial decision), that should be it now...


It doesn't matter what you think

If a disclosure satisfies the test for being 'protected' and is the main reason for an employee's subsequent dismissal, automatic unfairness cannot be avoided by reason of the employer's belief that the disclosure was not protected.

So held the Court of Appeal (CA) in Beatt v Croydon Health Services NHS Trust, where a cardiologist, believing that the suspension of his most trusted nurse had contributed to the death of one of his patients, made various disclosures to support his belief that patient safety had been and was compromised by a shortage of specialist staff. The Trust took the view that the disclosures were not protected, being motivated by personal interest and, therefore, either in bad faith or not in the public interest (the relevant statutory test for protected disclosures changed across the period covered by the cardiologist's various disclosures). Following disciplinary proceedings, it dismissed him for misconduct.

The CA ruled that the test for protected disclosures was objective, so, given that an employment tribunal considered Beatt's disclosures protected, the Trust's analysis was irrelevant and he had been unfairly dismissed for whistleblowing.


Little recognition

In Lidl v CAC, the supermarket company asked the CA to overrule an award of trade union recognition by the Central Arbitration Committee (CAC) for workers in one of its warehouses. Lidl argued that, as the workforce there comprised only 1.2% of its employees nationally, the award went against one of the key aspects of the statutory recognition scheme, 'the desirability of avoiding small fragmented bargaining units within an undertaking'.

The attempt failed. The CA said that the statutory concern with fragmentation was directed against multi-union recognition and plural bargaining arrangements for different sections of a workforce that did broadly the same type of work. That was not the case here, so the 'fragmentation defence' could not be used simply because the recognition award, covering just one workplace and a small proportion of employees, left all other staff without recognition.


But even less reparation

With the pre-election talk about employment law, you could be forgiven for thinking that statutory rights are always of some consequence. Not so.

In Gnahoua v Abellio London, an employment tribunal was recently called upon to consider the right to be accompanied at disciplinary (and grievance) hearings. Applying the EAT's ruling in Toal v GB Oils (see July 2013), it ruled that the employer's refusal to accommodate the employee's chosen companion because of concerns about the latter's integrity (linked to the fabrication of evidence in previous, unrelated tribunal proceedings brought against the employer) breached the employee's right to choose whomsoever he wanted. However, as the resultant disciplinary hearing was handled well and the employee did not suffer loss and was not prejudiced by the employer's refusal, the tribunal awarded compensation of ........ £2. Hope he didn't spend it all at once!


Choice is not always good

Psychometric testing for recruitment, as well as for succession planning and promotion, can be very effective (we provide it for a number of clients). But its detailed application must be considered carefully and adapted as appropriate, as illustrated by the EAT's recent ruling in The Government Legal Service v Brookes.

Here, applicants for a state legal post were required to take and pass a multiple choice, 'situational judgement test' (SJT). Brookes has Asperger's Syndrome and so asked for the test to be adapted to allow her to give short narrative answers instead. The Government Legal Service refused, offering only additional time for her to complete the SJT. She failed it and, consequently, did not secure employment. Her claim for a failure to make reasonable adjustments succeeded, as did one for indirect disability discrimination - the requirement to do the SJT put her and other sufferers from Asperger's at a particular disadvantage and was not a proportionate means of achieving the legitimate aim of appointing high quality recruits.

To avoid unpleasant surprises with otherwise sensible and productive recruitment tests, be alert to job applicants' indications of cognitive disability and then consult the professionals (that is, occupational psychologists) on the appropriate measures to take.


Just a quick reminder that Collinson Grant does a lot more than advise clients in all sorts of organisations about the complexities, constraints and opportunities presented by employment law. Our consultants also provide support regularly on: employee relations, reward, restructuring, recruitment, leadership and HR strategy. And we have well-honed skills in operations: managing and reducing costs, organisational design, process improvement, procurement and managerial controls. Do ask if you would like to know more.


If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Peter Howarth 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.