It's a trap!

Employment Law Newsletter - September 2015


In this issue ...

  Easier said than done   Confidence in your companion  
  Three on fees   The termination of taxing times?  
  And three on equality   No need to make way  
  The dangerous appeal of social media   Time to travel  
  Gone too long?  

Easier said than done

Welcome back – even if the summer hasn't seen you away much or you've been back for some time, everything still has a bit of that 'new school year' feel about it. But, in case the HR professionals among you are imbued with a 'fresh start' enthusiasm that might overreach itself, here's a warning of sorts from the Employment Appeal Tribunal (EAT).

In Ramphal v Department for Transport, it has stated that the proper role for HR in disciplinary cases is to advise on law and procedure, not to recommend or prescribe the factual finding or the penalty. So if that line is crossed and a dismissal results it is likely to be unfair, even if only on procedural grounds.

Obvious, even simple, you might think. Well, perhaps on paper. But it is all too easy for HR to get dragged into pronouncing on the substance of a disciplinary matter. For example, an aspect of procedure that will often need clarification is the necessary scope or content of the investigation. In order to advise, HR generally has to see at least the key features of what has already been revealed. Often, steering a manager on what else needs to be explored will entail communicating, explicitly or by implication, a view on the strength of the evidence thus far and whether more is needed to 'be safe'. And even advice on 'the law' is not as clear cut as it might sound. Such guidance is often sought in the widest of terms – such as 'if I dismiss, will it be legal/fair?' – so that HR is drawn into giving its assessment of the merits.

These situations will not go away, especially when some managers responsible for disciplinary decisions are inclined to abdicate their responsibilities and have another with whom they can share or pass on any blame. The best advice to HR is, generally, to carry on as you have, avoiding any obvious (certainly written or visible) 'hectoring', lobbying or pushing in the direction of dismissal. In particular, if HR sits in with a manager in a disciplinary hearing, it should be circumspect as to its involvement – usually confining its functions to those of witness/note-taker, clarifier of ambiguous questions and answers and adviser on the meaning of the published rules, policy and procedure. And overtly 'retiring to consider' the decision with the responsible manager is generally unhelpful to the employer's legal position.


Three on fees

During the summer break, activity has abounded on the subject of tribunal fees. The Court of Appeal (CA) rejected Unison's appeal against the decision of the High Court (HC) that the Government had not acted unlawfully by introducing tribunal fees. The CA ruled that the mere fact of a decline, even a startling one, in the number of claims was not sufficient in itself for a ruling that the Government had exceeded its powers. Evidence of problems with affordability for real or 'hypothetical typical' individuals was necessary. Unison is seeking leave to appeal up to the Supreme Court (SC).

The CA or, if the appeal proceeds, the SC will have no influence in Scotland. Already, the Scottish Government's recently published plans for 2015/2016 include a commitment to abolish fees north of the (increasingly marked) border.

Meanwhile, July brought an announcement that, separately from the on-going review by the Ministry of Justice (MOJ) into employment tribunal fees, the House of Commons Justice Select Committee (HCJSC) is inquiring into court and tribunal fees. While this exercise is not focused exclusively on access to employment tribunals, the fees payable in that environment are sure to feature strongly. And the HCJSC's panel has certain advantages over the MOJ, being composed of MPs rather than civil servants and taking evidence from court/tribunal users and external agencies. Also, its brief is more focused than the MOJ's, one aspect of which is to explore how effectively costs have been transferred from the taxpayer to the service-user.


And three on equality

A more concentrated hat-trick has been scored by Acas. It has published three new 'best practice' guides for employers on addressing and implementing equality. Respectively, they cover the basics, preventing discrimination and dealing with discrimination.

They can be found on the Acas website by entering the 'Advice and Guidance' section, then following through in succession the tabs for 'Rights and responsibilities at work', 'Equality and discrimination' and 'The Equality Act 2010'.


The dangerous appeal of social media

The fallacy of the perception that, because they operate through private accounts, the social media are somehow disengaged from the world of work has already been the subject of this newsletter (see Game Retail v Laws in the January 2015 edition). In British Waterways Board v Smith, the EAT has underlined the point. On Facebook, Smith chose to make derogatory remarks about his work and his managers and to claim that, some two years previously, he had been drinking alcohol while on standby (an act prohibited by the Board's rules). Despite his subsequent assertion that the remarks were no more than banter and the claim just false bravado, he was dismissed for gross misconduct because they had undermined the confidence that the Board or the public could have in him. The EAT considered the dismissal to be fair.

Meanwhile, in Biggin Hill Airport v Derwich, another social media scenario, the EAT has re-affirmed the potential for an internal appeal to 'cure' earlier procedural defects. Here, Derwich was accused, along with others, of victimising a colleague (who, following her promotion to acting supervisor, had 'unfriended' them on Facebook). The victimisation took the form of making obscene gestures behind her back, putting a witch image as the screensaver on her computer and using Google to search for other unpleasant or threatening images to use. Derwich's dismissal took place without her having seen statements taken after her disciplinary hearing from five colleagues. However, she had been provided with copies six days before her appeal hearing, so had sufficient time to understand the full case against her and to put her case in response there.


Confidence in your companion

In the statutory forum, the right of an employee to be accompanied at a disciplinary or grievance hearing is not constrained by any option for the employer to reject a chosen companion as unsuitable (see Toal v GB Oils in the July 2013 edition).

Now the good old 'common law' of contract is jumping on the bandwagon. In Stevens v University of Birmingham, the HC has ruled that an employer's refusal to sanction accompaniment, even in circumstances outwith those contemplated by the statutory right, can sometimes be a breach of the implied term of trust and confidence. In Stevens, the employee faced serious disciplinary charges. He was summoned to a disciplinary investigation meeting. Although this was not a 'hearing' in the statutory sense (that is, a forum at or following which a decision could be taken), the university was prepared to allow him to be accompanied by a trade union official or a colleague. Professor Stevens was not a member of a union and had no colleagues suitable for this purpose. He asked to be accompanied by his case officer at the Medical Protection Society (MPS), with whom he had been liaising about the case for some time. The university refused. Stevens declined to attend the meeting. A standoff ensued, followed by legal proceedings to argue the point.

The HC held that, in the circumstances – the gravity of the matter under investigation, the previous involvement of the MPS, the fact that the MPS had a function similar to that of a union – the university had breached the implied term. It issued a declaration to that effect, basically an invitation to the university to change its stance before the investigative meeting went ahead.


The termination of taxing times?

In the September 2014 issue, we mentioned the plan to look at simplifying the tax treatment of termination payments. That has now evolved into a consultation document issued by HMRC through the Treasury.

Some notable ideas put up for consideration are:

Removing the distinction between contractual payments (for example, those made pursuant to a PILON clause) and non-contractual ones;
Making the amount of the tax-free sum (which might start at a figure much less than the current £30,000) dependent on length of service;
Introducing a minimum service qualification of two years; and
Making some or all of damages for injury to feelings subject to taxation.

No need to make way

The Agency Workers Regulations oblige the host/client organisation to tell an agency worker in the operation of any 'permanent' vacancies in the organisation. However, according to the EAT in Coles v Ministry of Defence, once the agency worker has been so informed, there is no consequential requirement to accept an application for employment from them or to give them preference for appointment ahead of the organisation's existing permanent employees. The EAT pointed out that, beyond the subjects of working time and pay, the Regulations do not lay down a principle of 'equal treatment' or a rule against 'less favourable treatment'.


Time to travel

Given that the broadsheets, the radio airwaves and the TV screens have been publicising it, you will almost certainly already be aware of the judgment of the Court of Justice of the European Communities (CJEC) in Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL and Tyco Integrated Fire and Security Corporation Servicios SA (Tyco).

Employees were originally based in regional offices, which the employer removed. Instead the employees were required to attend customers from home.

The question that the CJEC was asked was whether the time spent travelling between an employee's home and the premises of their first and last customer was 'working time' as defined by the European Working Time Directive (WTD).

In the UK the WTD has been implemented by the Working Time Regulations 1998 (WTR). The WTD defines 'working time' and 'rest periods'. Working time is 'any period during which the worker is working, at the employer's disposal and carrying out activities or duties, in accordance with national laws and/or practice'. Rest period is 'any period that is not working time'. So, by implication, the employee must be either working or resting.

The CJEC found that one consequence of these definitions is that employees who are travelling, on behalf of their employer, to a customer must be considered to be working (in this instance travelling to a customer to install and maintain security systems). So, the CJEC decided that the journey from home to the first appointment and the journey from last appointment to home should be considered working time.

Before the CJEC reached its decision the Spanish and UK governments counselled against a finding that travelling time was working time as there would be significant costs to employers. But the CJEC said the purpose of the WTD is to safeguard employees. The WTD does not set pay and remuneration and it is for the employer to determine what to pay for time spent travelling.

Implications for employers

CJEC judgments are not binding on private employers, but tribunals are required to interpret the WTR in a way that is compatible with the WTD and will need to be cognisant of this case.

The judgment was based on the facts of this case, which involved employees, who had been based from regional offices, starting work from home when the regional offices were closed. These specifics are relevant.

For example employees who have always begun work from home (by travelling to a customer or client) choose where to live. And suppose such an employee moves further away from the geographical patch they service. How can that extra travel time (incurred because of the employee's choice) be working time?

But employers still need to understand whether this affects them. If you currently measure working time from arrival at that first appointment to leaving the last appointment, there is a possibility (subject to the point made above) that the CJEC judgment in Tyco means you must change.

You will only be affected if, adding travel between home and first and last appointment to working time means:

an employee is working over 48 hours per week (averaged over 17 weeks), without agreeing to opt out of the 48 hour working week
an employee, who receives an annual salary, earns less than the National Minimum Wage (NMW) or, from April 2016, less than the National Living Wage (NLW)
an hourly paid employee could argue an entitlement to pay for the time spent travelling to the first customer and from the last customer. But, as pointed out by the CJEC, it is for the company to set the pay for travelling time. So, provided that you are complying with NMW (and the later NLW), it is up to you to set the remuneration for the travelling time, if it appears to be an issue
an employee does not have a daily rest period of 11 uninterrupted hours
an employee does not have a weekly rest period of 24 uninterrupted hours (or, at the employer's choice, 48 hours' per fortnight)
an employee does not have a 20-minute break when a day's working time is more than six hours.


It would be premature to make any changes at the moment, unless challenged by an employee. However, internally, you should assess whether including this additional working time could lead you to breach any of these rules and what you could do to rectify it.


Gone too long?

The problem of working out which employees are 'assigned' to the function being transferred under TUPE will never go away. Life isn't perfect and comprised of neat, self-contained silos.

However, in BT Managed Services v Edwards, the EAT drew a line in the sand, albeit a distant one, on the issue of those who are absent. At the time his unit was transferred, Mr Edwards had been absent sick for more than five years. He had exhausted an entitlement to PHI and was in receipt of discretionary sick pay. The EAT concluded he was not assigned and so did not transfer under TUPE because he did not participate at any level in the unit's activities and there was no reasonable expectation of participation in the future.

Now, you might think this was a case of long-term absence that could be applied in many more instances and allow you to be relaxed about absentees identified in pre-transfer due diligence. Be careful. The EAT contrasted the Edwards situation, one involving permanent incapacity, with 'temporary' cases involving maternity leave and long-term absence, where, it said, there could still be assignment of the employee to the transferring function. So, now you know - there's long-term absence and then there's long-term absence...


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.