Welcome to our December 2014 Employment Law Newsletter, keeping you up to date with changes in employment law and informing you of recent case developments over the last month.

CASE LAW DEVELOPMENTS

Businesses should factor in overtime when calculating holiday pay
In Bear Scotland Ltd v Fulton and others the Employment Appeal Tribunal has handed down judgment in a ground-breaking decision confirming that businesses should factor in non-guaranteed overtime when calculating holiday pay.

This is an interesting case as it has widespread implications for businesses where workers undertake overtime above their contracted hours on a regular basis.

A task force is being created by the government to assess how to limit the impact on businesses. There is no current date for the publication of a report and we will continue to update you on this.

Please also refer to our recent blog by Anna Bunting on this topic at www.dbf-law.co.uk/blog/holiday-pay-to-include-overtime-anna-bunting-on-this-weeks-landmark-case/

Time limit to bring sexual harassment claims and appropriate comparators
In the case of Vernon v Azure Support Services Ltd and others the Employment Appeal Tribunal considered whether a TUPE transfer brought an end to a harassment claim that continued after the TUPE transfer. They also considered who the correct comparator would be for a woman who had been dismissed as a result of a personal relationship with another employee.

The Employment Appeal Tribunal found that the time limit to bring a claim for harassment started to run from the end of the period of harassment, not from the date of the TUPE transfer. This remained the position even though the transferee could not be liable for the acts of harassment after the employee suffering from the harassment had transferred because the employee carrying out the harassment was not transferred and remained with the transferor.

The Respondent argued that the employment tribunal had made an error in using any male employees as the comparator and that the correct comparator should be a homosexual male employee who had had a relationship with another male. The Employment Appeal Tribunal found that although a homosexual male employee could have been used as a comparator it was not the only option.

This case highlights the fact that liability for claims between transferring and non-transferring employees will pass to the transferee. It also shows that where there is an ongoing claim the TUPE transfer will not trigger the limitation period.

Union activities are not “working time”
In the case of Edwards and another v Encirc Ltd an employment tribunal considered whether time spent by employees carrying out trade union activities formed part of “working time” under the Working Time Regulations 1998.

The tribunal found that time spent carrying out trade union duties or activities did not constitute “working time” as it was not time spent at their employer’s disposal or carrying out duties for which they are employed.

It is important to note that if the recognition agreement relating to the employees union activities expressly stated that time spent as a union representative is working time then it would constitute “working time” within the Working Time Regulations 1998.

This case may bring this issue to the forefront of Trade Unions minds who may want to include such provision in collective agreements.

Unlawful Age Discrimination
In the case of Vital Perez v Ayuntamiento de Oviedo the European court of Justice (ECJ) held that a Spanish law imposing a maximum recruitment age of 30 on local police officers constituted direct discrimination in breach of the Equal Treatment Framework Directive.

The maximum recruitment age did not satisfy the test of proportionality and did not fall within an Article 4(1) exception which allows for genuine occupational requirements.

Contrast this case with that of Wolf v Stadt Frankfurt am Main where the ECJ found a maximum recruitment age limit of 30 was justified for the fire service under Article 4(1) as firefighters were found to require “exceptionally high physical capabilities”.

This case is important as it demonstrates the need to justify any upper age limit for any job requiring physical fitness.

When is there a duty to offer a suitable alternative vacancy to women on maternity leave?
In Stefton Borough Council v Wainwright the Employment Appeal Tribunal held that when a woman is away on maternity leave and her employer becomes aware that her role is redundant or potentially redundant, they must offer her a suitable alternative vacancy (if one is available) to comply with regulation 10 of the Maternity and Parental Leave Regulations 1999.

Failure to offer a suitable alternative vacancy will render the dismissal automatically unfair.

This case clearly sets out the Tribunals position on regulation 10. For further information about this case please contact our Employment Team.

Culpability for misconduct is unclear where employee is mentally ill
In Burdett v Aviva Employment Services Ltd the Employment Appeal Tribunal overturned a tribunal decision that found an employee who was a paranoid schizophrenic was fairly dismissed for gross misconduct after sexually assaulting his female colleagues after having discontinued his medication without medical advice.

Although the employee had admitted to committing the acts of sexual assault it was unclear from the reasoning of the tribunal whether they had properly considered his culpability or the effect of the employee’s schizophrenia on the issue of culpability. Gross misconduct requires culpability and the tribunal had to consider whether the decision to stop taking medication equated to wilful behaviour making him culpable for his misconduct.

The tribunal also failed to consider mitigating circumstances and failed to consider why the employee stopped taking his medication. They assumed that the dismissal fell within the band of reasonable responses as it was a case of gross misconduct but the Employment Appeal Tribunal felt that the case was not so heinous that dismissal should clearly fall within the band of reasonable responses.

The Employment Appeal Tribunal also considered discrimination arising from disability. It was found that the tribunal had failed to carry out a critical evaluation of the employers balancing exercise considering the impact of discrimination on the employee against other available methods of dealing with the situation such as home-working to tackle future risk.
The tribunal was fundamentally criticised for its failure to provide clear reasoning for each of its decisions particularly in a case full of highly sensitive issues.

Reasonable adjustments – workplace free from aerosols and perfume
In Dyer v London Ambulance NHS Trust the Employment Appeal Tribunal considered whether a policy banning aerosols and perfumes in a busy control room where 999 calls where answered could constitute a reasonable adjustment for an employee who sometimes had a potentially life-threatening reaction to aerosols and perfume.

The Employment Appeal Tribunal upheld the decision of the employment tribunal and confirmed that the policy did not constitute a reasonable adjustment. It was found that there were no reasonable adjustments that the employer could make.

The Employment Appeal Tribunal found that an employer with a small workforce may be able to achieve a perfume/aerosol- free environment but that it would not be possible for an employer such as the NHS Trust.

This shows a situation where an employer cannot make any reasonable adjustment. It highlights the need for employers to assess each situation carefully and consider any practical adjustments it could possibly make before considering dismissal of an employee on capability grounds.

Tribunal relied on its own internet research
In the case of East of England Ambulance Service NHS Trust v Sanders the Employment Appeal Tribunal found that an employment tribunal was wrong to carry out its own research into an unrepresented claimant’s medical condition.

The tribunal had found research relating to the claimant’s dosage of medication and questioned her on the basis of their research. The tribunal was found to have crossed a line as it started to act as an advocate of the claimant instead of an adjudicator.

DEVELOPMENTS TO LEGISLATION

Prohibiting employment agencies and employment businesses advertising vacancies exclusively in other EEA countries
In July 2014 the government launched a consultation on its proposal to ban employment agencies and employment businesses from advertising vacancies for jobs based in Great Britain exclusively in EEA countries but not Great Britain.

The current legislation that regulates employment agencies and employment businesses does not currently regulate where job vacancies can be advertised.

The consultation closed in November 2014 and the government has decided to proceed with its proposal through the new draft Regulations called the Conduct of Employment Agencies and Businesses (Amendment) Regulations 2014 which are due to come into force by 31 December this year.

The ban will only apply to employment agencies and employment businesses that are based in Great Britain and hirers in Great Britain can opt to use agencies based in the EEA.

Proposed scheme to penalise employers who fail to pay tribunal awards
On 25th June 2014 the Small Business, Enterprise and Employment Bill 2014 was placed before the House of Commons. The employment aspects of the Bill are set out in Part 11.

The House of Commons considered whether to amend the bill to state that people should not be blacklisted for whistleblowing. It also considered whether employers should be named and shamed if they refuse to pay tribunal awards.

The government decided not to make either amendment to the bill but did decide to introduce an alternative scheme which will put a number of measures in place.

It is not yet clear how the scheme will operate.

Although the scheme may deter some employers from refusing to pay tribunal awards, it does not prevent employers who operate as a company from choosing to make the company insolvent to avoid paying the tribunal award.

There have been further debates around Part 11 of the Bill and after consultation the government decided to amend the part of the Bill that relates to public sector exit payments.

The Bill allowed for the recovery of exit fees from employees who left the public sector but were employed by another public sector within 1 year after having left. Following consultation the government proposed to amend the bill to require high earning employees earning £100,000 or more, who are made redundant and paid an exit payment, to re-pay part of that exit payment on a pro rata basis if employed by another public sector body in the same sub-sector within 12 months.

The bill was introduced into the House of Lords on 19th November 2014.

We will continue to keep you updated on its progress.

EMPLOYMENT LAW PROPOSALS

Plans revealed following review of Agency Workers Regulations 2010
The governmental review of the Agency Workers Regulations 2010 (AWR) revealed that businesses should record information about agency workers to show that they are acting in compliance with the AWR.

The AWR are not prescriptive in the records that should be kept by hirers or by recruiters which makes it difficult for temporary work agencies to collect the necessary information from the hirers and recruiters to ensure that workers receive the same basic working and employment conditions after the 12-week qualifying period has been completed.

The government has announced that it will provide additional guidance to help resolve this problem. This is important as it will help temporary work agencies to collect the information they need and ensure workers receive the rights that are owed to them but will mean an additional burden for businesses in terms of record keeping.

Contact Us
If you require any further clarification in relation to the above developments, or if you need any further assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304.