September 2018 bulletin

Welcome

The holiday season might be ending, but holiday pay remains a hot topic. In Flowers v East of England Ambulance Trust, the Employment Appeal Tribunal looked at whether voluntary overtime should be included in holiday pay. Employees should be paid their ‘normal remuneration’ when they take holiday. But is voluntary overtime ‘normal’ pay?

This case involved ambulance workers who worked different types of overtime. Sometimes they worked compulsory ‘non-guaranteed’ overtime at the end of a shift, to finish a task such as caring for a patient. They could also choose to work voluntary overtime if it was offered, but they didn’t have to. Their holiday pay was based on average earnings over the 12 weeks preceding their holiday. The employer didn’t include any overtime in their holiday pay calculations. The employees brought claims for unlawful deduction from wages.

The employment tribunal said that their holiday pay should include the non-guaranteed overtime, because it was a contractual obligation. They said voluntary overtime could be excluded because it wasn’t contractual and there was no pattern to it. It wasn’t ‘normal remuneration’.

The EAT disagreed and said both types of overtime should be included in the calculation. The important question was whether overtime payments had been made over a sufficient period on a regular or recurring basis. Whether overtime payments meet this requirement is a question for the employment tribunal to decide, based on the evidence. The case was sent back to the tribunal for this factual assessment to take place.

Unfair dismissal – appeals against dismissal

Most employees appeal against their dismissal if they think the penalty is harsh or unfair. But what happens if that appeal is successful. Does the dismissal vanish?

Mr Patel was a healthcare assistant for Folkestone Nursing Home. Mr Patel was accused of two different acts of misconduct and was dismissed for gross misconduct. He appealed. The appeal officer agreed that Mr Patel should not have been dismissed. However, the letter communicating the appeal outcome dealt with only one of the allegations of misconduct, to say that allegation had been wrongly decided by the dismissing officer. The letter also said that they would arrange Mr Patel’s return to work.

Mr Patel was unhappy that the appeal letter did not deal with the second misconduct allegation. He did not return to work and brought an unfair dismissal claim instead. The employment tribunal found that Mr Patel had been dismissed. The employment judge said that the employer’s disciplinary procedure did not set out the consequences of a successful appeal against dismissal. They also said that the letter overturning the dismissal was unclear and left out significant issues (including the second allegation of misconduct).

The Employment Appeal Tribunal disagreed. There was no need for a contractual disciplinary procedure to specify the outcome of an appeal against dismissal. Unless the contract said something different, it was obvious that a successful appeal would mean that the contract is revived. The dismissal effectively vanishes. The communication of this decision was not relevant to whether the revival had taken place. However, in this case the letter was clear that the dismissal had been revoked.

Statutory notice and continuity of employment

Normally, an employer must give notice to terminate a contract of employment. Section 97(2) of the Employment Rights Act 1996 allows an employee dismissed without notice to add their statutory notice onto their continuous employment. If an employee is dismissed without notice for gross misconduct, can they add on their statutory period of notice to extend their effective date of termination?

Ms Wileman was dismissed for gross misconduct from Lancaster & Duke two days before the two-year anniversary of her employment. The employer did not follow any sort of process and her complaints went unanswered. The employee brought a claim for unfair dismissal despite not having two years’ continuous employment. She claimed she could add on her statutory notice period to extend her termination date. The employment tribunal allowed this. She went on to win her unfair dismissal claim.

The Employment Appeal Tribunal disagreed. The tribunal had failed to consider another section of the same Act, section 86(6). This section allows an employer to dismiss without notice for conduct reasons. This would apply in gross misconduct cases. If the employer was entitled to dismiss without notice, then the employee could not add on the statutory notice to change her termination date.

The EAT sent the case back to the tribunal to decide whether the employee was guilty of gross misconduct. If she was guilty of gross misconduct, then her original termination date must stand. She would not have the necessary 2 years’ service to bring an unfair dismissal claim. If she wasn’t, then she can add on the extra week’s notice and she will have enough continuous service to bring an unfair dismissal claim. This case is a reminder to employers to take care with dismissals very close to the two-year qualifying period. Without gross misconduct, two years might well be 1 year and 51 weeks.

Philosophical belief discrimination

Can a belief that only one person holds amount to a philosophical belief? No, the Employment Appeal Tribunal has decided in Gray v Mulberry. Ms Gray refused to sign a standard contract assigning copyright in the work she produced whilst employed to Mulberry. She was scared that it would give them ownership of other written work she produced in her spare time. The contract was changed to exclude the other written work, but she still refused to sign it.

The employee claimed that her belief in ‘the statutory human or moral right to own the copyright and moral rights of her own creative works and output’ was a philosophical belief and protected under the Equality Act 2010. She said her dismissal for this belief was discriminatory.

To qualify as a philosophical belief, the belief must attain a certain level of cogency, seriousness, cogency and importance. The belief must be similar in status or cogency to a religious belief. The tribunal said the belief in this case lacked the cogency needed to qualify under the Act. The Employment Appeal Tribunal confirmed that the tribunal had not set the bar too high when making its decision.

The EAT went on to say that even if this were wrong, the employee could not succeed in any indirect discrimination claim. The relevant policy or practice needs to put people sharing the protected characteristic at a disadvantage, not just the claimant. On the evidence, the employee was the only person to hold these beliefs. She would have lost her case anyway.

Caste discrimination

The government has decided not to include ‘caste’ as a protected characteristic in the Equality Act 2010. Does this mean that caste discrimination goes unprotected?

In 2016, the disturbing case of Tirkey v Chandok brought this issue into the public eye. An Indian woman’s mistreatment at the hands of her employers was likened to modern slavery. Her treatment was due to her low hereditary caste. She brought her case under the existing provisions of the Equality Act. The Employment Appeal Tribunal held that ‘ethnic origin’ had a wide definition. It could include characteristics determined by descent, such as caste.

In 2017 a government consultation began to look at how best to protect against caste discrimination. The report was produced in July 2018. Caste will not become a protected characteristic. There would be difficulties in defining ‘caste’. Drafted too narrowly it would not protect those who need it most. Drafted too broadly it might provide unintended protection to people whose treatment may relate to social class (between people of the same caste), rather than caste. Instead, the law will develop on a case by case basis.

There are relatively few cases of caste discrimination that come before the courts. The government felt that people can bring a caste discrimination claim under the existing provisions of the Equality Act. Caste discrimination should not go unprotected, but the feeling is that the existing legal provisions are adequate.

National minimum wage and ‘sleeping in’

Are care workers who ‘sleep in’ at work entitled to the national minimum wage for the whole of their shift? In Mencap v Tomlinson-Blake, care workers had to spend the night at or near their place of work. They were expected to sleep for most of that period. They might be woken if their assistance was needed. Were they entitled to the minimum wage even when they were sleeping?

The Employment Appeal Tribunal said that a ‘multifactorial’ test should be applied. Courts would look at things such as the contract between employer and employee, the nature of the tasks required and the degree of responsibility the employee had.

The Court of Appeal disagreed. It relied on regulation 32 of the National Minimum Wage Regulations. Regulation 32 says that the minimum wage only needs to be paid during hours when the employee is awake for the purposes of working. This is the case even if sleeping arrangements are provided.

This is a good decision for employers but caution is required. In care worker cases, the workers are expected to sleep, even though they may be disturbed. This was an important part of the judge’s reasoning. There are other cases where this will not be the case. For example, a night watchman may be allowed to sleep at times but is expected to perform significant duties throughout the shift. They might be entitled to the minimum wage of the whole of their shift. Each case will be decided on its facts. This case is helpful for employers though, especially those in the care sector where budgets are tight.

Discrimination arising from disability and part time working

If an employee is treated unfavourably because of something arising out of their disability, the employer must objectively justify it.

Dr Ali was a GP who worked for the Bedford Family Practice. He went off sick after a heart attack. His ongoing condition was considered a disability under the Equality Act. Doctors confirmed that Dr Ali was unlikely to be able to work full time but said he could work part time. He was dismissed for capability reasons.

He brought unfair dismissal and discrimination arising from disability claims. The tribunal said he had been unfairly dismissed because the Practice had not considered a return to work part time. However, it rejected his discrimination claim. The tribunal said his dismissal was unfavourable treatment but could be objectively justified by the Practice’s legitimate aim of providing the best possible care to patients. Dr Ali appealed.

The Employment Appeal Tribunal agreed with Dr Ali. The Practice had considered how Dr Ali’s absence impacted patient care, operational and financial costs. However, they didn’t consider whether part time working might be a better way of achieving its legitimate aim. The EAT sent the case back to the employment tribunal to consider the part time working issue afresh. The tribunal will decide whether the employer’s decision to dismiss was still proportionate. This is a reminder to employers to consider all possible reasonable adjustments for disabled workers, including part time working. Failing to do so can affect the fairness of dismissals and result in discrimination claims.

And finally…

It’s been a long, hot summer and it may not be over yet. The Met Office predicts that the warm weather may extend into Autumn, with some meteorologists suggesting 30 degree heat may hit some parts of the UK in early September. Some jobs entail working in hot conditions every day, but many of us just aren’t used to it. Our offices are not set up to deal with high temperatures as they are on the continent.

There isn’t a maximum office temperature in law. The advice from the Health and Safety Executive is that workplace temperatures need to be reasonable. What is reasonable depends on the type of workplace and the work being done. It is reasonable for a kitchen where a chef works to be hotter than an office where an administrator sits.

ACAS has issued guidance on working in hot temperatures. There are common sense ways to address the heat and keep employees happy. If you have air conditioning, turn it on. Use blinds to block out sunlight and fans to keep the air moving. If your workers are outside, they should wear appropriate clothing and sunscreen. All workers should be advised to drink lots of water to keep hydrated. Vulnerable workers such as pregnant women may need extra breaks or their own fans or air cooling units. Employers may also choose to relax dress codes to make employees more comfortable.

As always, a little goes a long way. Going out and getting your staff an ice-cold drink or buying a round of ice creams can take the edge off a hot afternoon in the office and buy a little bit of goodwill into the bargain.

www.acas.org.uk/index.aspx?articleid=5349

About David Parry

David graduated with a Law with French degree from Leicester and Strasbourg Universities. He qualified as a solicitor in 1989 and has specialised in employment law ever since, first at Cole & Cole (now Morgan Cole) then at Mallam Lewis & Taylor who merged with Darbys in 1999. David became a partner in 1995. Until 2013, David was the Head of the Employment Team at Darbys that became one of the best-regarded in Oxford and the Thames Valley. Contact David now

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