We’re back after our summer break, fully-rested and ready to grapple with more employment law issues.
We have updates for you on several hardy employment law perennials – including Tribunal fees, misconduct and social media and agency workers’ rights. And no round-up would be complete without a Working Time Regulations case, and we are as ever happy to oblige…
Tribunal fees to stay
The biggest single change to the employment law system since the 1970s has been the introduction of employment tribunal fees. Since the fees were introduced the trade union, UNISON, has been seeking to challenge the legality of the fee regime in the hope of persuading the courts to strike it down. However, their latest claim has now been rejected by the Court of Appeal.
UNISON based its argument on two points. The first was that the fees made it too difficult for individuals to bring claims guaranteed to them under EU law and therefore breached what is known as the ‘principle of effectiveness’. The Court of Appeal held that the evidence of this was insufficient. It accepted that the fees had deterred many people from bringing claims but held that this was not enough. There was no evidence put forward of particular individuals who did not qualify for remission under the fee system but were nevertheless unable to pay the fees – rather than simply being unwilling to do so.
UNISON had also argued that the fee system was discriminatory, but this argument was rejected, too. The argument focused on the difference between ‘Type A’ claims which attract a lower fee and tend to be less complicated cases involving, for example, deductions from wages and ‘Type B’ claims where the fees are higher and which include more complicated cases such as discrimination. While it was true that women were more likely to take out Type B claims – they make up the overwhelming majority of sex discrimination claims – the Court accepted that this difference was justified by the fact that Type B claims were more complicated and more time consuming, making a higher fee appropriate.
This is unlikely to be the end of the matter. There is a widespread view that the fee system is having a bigger impact on the number of claims being brought than was ever anticipated and the Government is currently conducting an internal review into the effect that fees are having. While tribunals are unlikely to return to the “good” old days when bringing a claim was free, there may well be some future adjustment in the level of fees charged or the circumstances in which the need to pay the fee will be waived. We shall see.
The Right to be Accompanied
Employees are entitled to be accompanied at disciplinary and grievance hearings by a fellow employee or a trade union official. The choice of the representative is a matter for the employee, and so is the task of finding someone willing to take on the role. The employer must permit the employee to be accompanied by the chosen representative, but if the employee cannot find an appropriate person then that is generally not the employer’s problem.
However in Stevens v University of Birmingham an employee – a doctor employed in an academic role – was not a member of a trade union and did not have colleagues suitable to assist him in the very complicated allegations that he was facing. He was however being assisted by a representative from the Medical Protection Society. The employer refused to permit this representative to accompany him to a meeting, and the doctor obtained a declaration from the High Court that this amounted to a breach of the implied term of mutual trust and confidence in his employment contract. While the Medical Protection Society was not a trade union, it did fulfil a similar function and in the circumstances it was patently unfair of the university not to permit the chosen representative to attend.
This case does not mean that the courts are widening the category of persons who can act as a companion in disciplinary and grievance hearings. However it does suggest that in highly complicated cases involving serious allegations made against a senior professional, the employer might need to do more than simply comply with the standard minimum rule.
Misconduct and social media
All but the most saintly of employees have at some stage made derogatory comments about colleagues, or moaned about having to go to work in the morning. In the past, there were rarely consequences, but in a world of social media, comments made in anger or without thinking can form part of a person’s digital footprint with the potential to be read by others years after they would otherwise have been forgotten.
A stark example is British Waterways Board v Smith. Mr Smith was dismissed from his job because of comments he made on his Facebook page. Not only were they highly abusive about his employers in general and his managers in particular, but on two occasions they boasted that he had been drinking when on stand-by. Since in his role he could be called out to deal with an emergency, drinking while on stand-by was gross misconduct and the employer took the view that that they could no longer have confidence in him as an employee.
The Employment Appeal Tribunal (EAT) held that his dismissal was fair despite the fact that the comments about drinking while on standby had been made some two years previously and there had never been any suggestion that his conduct had put the employer or the public at risk. Mr Smith said that the comments were merely “banter” [note – this explanation never works in the Tribunals] and the comments about drink were part of a running joke with his colleagues. He had thought that his Facebook page was private and was disturbed to find that his settings had been switched to public without his knowledge. He claimed that the allegations were only brought forward because he himself had made allegations of bullying and harassment at work.
The EAT held, however, that the employer had been entitled to take his comments at face value and to regard the need for there to be no drinking on stand-by as fundamentally important. These sort of cases are inevitably very fact sensitive, and it would be rash to take this case as a green-light to go trawling through the ancient online history of a troublesome employee in order to drum up reasons to dismiss, but it does demonstrate a surprisingly pro-employer stance from the courts.
Agency workers – the right to be told of vacancies
One of the provisions of the Agency Workers Regulations – regulation 13 – requires a hirer to inform an agency worker of any vacancies that they may have, to give that agency worker ‘the same opportunity’ as current employees to find permanent work with the hirer.
This is a rather oddly phrased provision – partly because it closely follows the Eurospeak wording of the EU Agency Workers Directive and raises more questions than it answers. Does it simply require the employer to tell the agency worker about a vacancy, or does it require the employer to give the agency worker an equal chance to apply for the role? In other words, can the employer say ‘we have this vacancy, but since you are just an agency worker, we will not give it to you’?
The question arose in the case of Coles v Ministry of Defence and the answer given by the EAT was that regulation 13 only gives a right to information about a vacancy, it does not give any right to be considered for that vacancy – much less to be considered on an equal basis with existing employees. In that case, an agency worker’s role was given to a permanent employee who was being redeployed after her original role became redundant. The EAT held that while the agency worker was entitled to be told that there was a vacancy for permanent employment, the employer was entitled to give preference to the existing employee. The EAT did not think that this made regulation 13 meaningless – being given information about vacancies was a useful right – but it did not amount to a right to equal treatment in recruitment. Not entirely meaningless, then, but not that useful for the agency worker, either.
Carrying forward annual leave
The labyrinthine law on holiday and holiday pay doesn’t get any simpler. We have known for some time that an employee who is on sick leave must not lose out on the 4 weeks’ annual leave guaranteed by the Working Time Regulations – and that, if necessary, entitlement to that leave must be allowed to carry over into the following holiday year. What has not been so clear is how long this situation can continue. What if the employee is off for two years, or even three? Leaving aside the need to address the employer’s absence management procedures(!) would an employee in those circumstance be able to keep building up his or her holiday entitlement?
It seems not. In Plumb v Duncan Print Group an employee was on sick leave for four years following an accident. When he was eventually dismissed he claimed that he was entitled to be paid for three years’ worth of holiday entitlement. The tribunal rejected his claim because he had failed to demonstrate that he was actually unable to take his leave while off sick. On appeal however, the EAT pointed out that this was not the test. An employee who is off sick is entitled to take his or her leave at a later date – the question was how much later?
The EAT looked at case law from the European Court of Justice which had held that an 18 month period of carry over was sufficient. Accordingly, the EAT held that an employee was only entitled to carry holiday over for a period of 18 months after the end of the leave year in which it accrued. If the leave was not taken within that period, then the entitlement would be lost.
Both sides were, however, given permission to appeal to the Court of Appeal – this is unlikely to be the last that we hear on this issue.
Indirect discrimination – Bulgarian electricity meters
It may not seem obvious that a case about the placement of Bulgarian electricity meters could have an impact on UK employment law, but the decision of the European Court of Justice in the catchily titled CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia (I wonder how much that is worth in scrabble) may prove to be important. An electricity company was taken to court for placing its electricity meters in certain areas of a city at a height that made it difficult to read the meter directly – but also difficult to tamper with. That was held to be a potential example of indirect race discrimination because the meters were only placed in this way in areas where the majority of the population was of Roma origin.
The significance of the case is that the legal challenge was brought by a local resident who was not herself of Roma origin, but the European court of justice held that that did not matter. If the practice was indirectly discriminatory then anyone who was disadvantaged by it was entitled to bring a claim.
The implication in the employment context is that if an employer has a policy of refusing part-time work requests then that can lead to claims of indirect discrimination not just from women but from men also. This would be a major departure for the UK and would involve re-writing part of the Equality Act 2010, not to mention not really making any sense when you consider how indirect discrimination works. It is too early to say just what the UK courts will make of this decision, but be prepared for the issue to be raised by some enterprising Claimant Counsel soon.
Preventing vexatious claims
Being taken to an employment tribunal is a costly and time-consuming business. The process is made even more frustrating when the claim is completely without merit. In some, very rare, cases employers are subjected to repeated claims from the same employee (or, more likely, a former employee) in a campaign of litigation that can drag on for years. While individual cases can be struck out by the tribunal if they have no reasonable prospect of success, the tribunal cannot simply disregard further claims brought by the same individual. In extreme cases an application can be made to the Attorney General to have the person declared a vexatious litigant, preventing him or her from bringing further claims, but it seems that there is now an easier way.
In Nursing & Midwifery Council v Harrold the Council is seeking what is called a Civil Restraint Order (CRO) against Ms Harrold who has brought a number of claims of discrimination and victimisation against the Council and her former employer in the employment tribunal. A CRO is an Order made by the High Court, which imposes restrictions on the individual’s ability to bring further proceedings or make further applications. What is significant here is that the Court held that it was entitled to make an Order which covered future employment tribunal claims also. Employers who feel that they are being harassed by a vexatious litigant may therefore be able to obtain a court order preventing the individual from bringing further employment tribunal claims.
Anyone employing drivers will have a rule in place forbidding the use of a mobile phone while driving. A bus driver in Ireland, however, seemed to think that there would be no problem with using an iPad – because it wasn’t a phone! He was seen by other road users driving his empty bus at 60 miles an hour down the motorway, using his elbows to steer while he switched his iPad on to listen to the radio – and then steering with one hand while holding the iPad up to his ear. He appealed against his dismissal but the Employment Appeals Tribunal in Ireland upheld the decision to dismiss. The fact that he didn’t realise that the ban on the use of phones also extended to other electronic equipment such as iPads did not alter the fact that he had been seen driving in an unsafe manner.