Welcome to our February 2015 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
In the case of Doran v Department for Work and Pensions UKEAT/0017/14 Miss Doran was an employee of the department of work and pensions when she had taken stress induced sick leave from work.
During her absence from work Miss Doran provided her employer with a medical certificate asking them to consider part-time hours at some point in the future. She later provided her employer with a medical certificate saying she was unfit to work. She then met with her manager to discuss the situation. Suggestions were made at the meeting between Miss Doran and her Manager about her return to work. Miss Doran said she would go away and speak to her GP and then contact her employer.
After approximately three months Miss Doran had not entered into any further discussions with her employer and they dismissed her.
Miss Doran made a number of claims to the employment tribunal one of which was that her employer had failed to make reasonable adjustments. Her claim was rejected by the employment tribunal on the basis that the employers duty to make reasonable adjustments had not been triggered as she had not provided a date for her return to work or any suggestion that she would return to work at any set time.
The employment appeal tribunal upheld this decision. Miss Doran had not suggested that she would return to work and her medical certificates stated that she was not fit to work.
This provides helpful clarification on the position as it shows that the employee has to be fit to come back to work for the duty to make reasonable adjustments to arise.
Workplace Closure Redundancy
In the case of EXOL Lubricants Ltd v Birch and another UKEAT/0219/14 EXOL Lubricants employed two lorry drivers. The main depot was in Wednesbury but over time the two employees had been allowed to park their Lorries at a secure site in Manchester close to where they both lived at the cost of EXOL. They were then paid travelling time for their travel to the main depot each day.
EXOL decided to end the arrangement as the cost was too high. EXOL later dismissed the employees on a redundancy basis stating that the closure of their secure parking facility in Manchester amounted to a workplace closure and as the employees had refused to relocate their parking facilities they had to be made redundant.
The employment tribunal found that there was no redundancy situation and there had been no fair reason for the employee’s dismissal. The employment appeal tribunal supported the decision of the employment tribunal in finding that there had been no redundancy situation as there was no lessening of the employers need for the drivers and the employees’ place of work had always been the main depot.
Australian remote worker protected from unfair dismissal
In the case of Lodge v Dignity & Choice in Dying and another UKEAT/0252/14 Mrs Lodge was an employee of a British company initially working for the company in London. Her contract of employment was governed by the laws of England and Wales. Some months after she started working for the company she moved to Australia were she worked remotely for the company.
Years later Mrs Lodge resigned and brought claims for constructive unfair dismissal and whistleblowing in the employment tribunal.
The employment tribunal held that they did not have jurisdiction to hear Mrs Lodge’s claim because she could not fall into the category of “expatriate employee” having moved to Australia of her own volition. Mrs Lodge appealed the decision.
The employment appeal tribunal upheld her appeal. It was found that as all of the work Mrs Lodge carried out whilst in Australia was for the benefit of her employer she fell into the “expatriate employee” category and could be protected by the Employment Rights Act 1996.
It is common for employees to work remotely from different countries and it is important to note that employees may retain their employment rights even though they are not based in England and Wales.
Comparators for part-time workers
In accordance with the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations, part-time workers can challenge less favourable treatment based on their employment status as part-time workers as long as that treatment cannot be objectively justified. To show the less favourable treatment the part-time worker needs to identify an appropriate full-time worker to act as their comparator.
In the case of Moultrie and others v Ministry of Justice UKEAT/0239/14 Moultrie and others were fee paid medical members for Tribunals (FPMMs). They felt that they were engaged in broadly similar work as the full-time Regional Medical Members who also worked for the Tribunals (RMMs). The FPMMs did not have access to the pension scheme whilst the RMMs did have access.
The employment tribunal held that the FPMMs and the RMMs were not engaged in the same or broadly similar work. The employment appeal tribunal upheld the decision of the employment judge finding that they were right to find that although 85% of the work the FPMMs and the RMMs carried out was the same, the remaining 15% of the work that the RMMs did and the FPMMs did not do was of such high importance that they could not find that the two groups carried out the same or broadly similar work.
Compensation award for victimisation
In the case of DAS v Ayrshire & Arran Health Board UKEATS/0021/14 Dr Das had formerly worked for the Ayrshire & Arran Health Board as a specialist and had brought numerous grievances to his employer during that time. When he later applied for a new job with the Health Board he was turned down before interview and the vacancy was withdrawn. Dr Das subsequently brought a claim in the employment tribunal.
Although the Health Board claimed the refusal to offer the job was due to reorganisation, the employment tribunal found that the real reason was because they were worried Dr Das might bring a claim. The Employment Tribunal concluded that Dr Das had been victimised under the Equality Act 2010, that he only had a 10% chance of being offered the position, that he would suffer financial loss for five years and they awarded £5,000 for injury to his feelings.
Dr Das appealed the compensation calculation and the Board appealed against the award for injury to feelings. The employment appeal tribunal rejected both appeals. They found that Dr Das only had a 10% chance of being appointed and the employment tribunal were right to reduce his compensation for financial loss by 90%, they found that although Dr Das would not retire for a further 10 years the tribunal was correct in limiting his loss to five years and that the £5,000 for injury to feelings was a little high but not so high that it warranted reconsideration.
This case is an interesting look into how the employment tribunal calculates compensation. Please do not hesitate to contact a member of our employment team if you would like to discuss the case in greater detail.
Freedom of Expression breached on employee termination
In the case of Rubins v Latvia  ECHR 2 Mr Rubins was employed by a state owned Latvian University as a professor and head of department. The University announced plans to merge Mr Rubins department with another department, the merge would extinguish Mr Rubin’s position as head of department. Mr Rubins was told to agree the necessary changes to his employment contract otherwise his employment would be terminated. Mr Rubins set out his concerns to the University via email and suggested alternative solutions advising the University that if they did not accept his proposals he would make his views public.
His proposals were rejected and he made his concerns public. His conduct was investigated and his employment with the University was terminated and the decision to terminate was upheld by the courts in Latvia.
Mr Rubin turned to the European Court of Human Rights who found by a majority that the University’s conduct amounted to an unjustified interference with Mr Rubin’s right to a freedom of expression.
High Court Decision Industrial Action
In the case of Westminster Kingsway College v University and College Union  EWHC 4409 (QB) the University College Union were subject to an interim injunction granted by the High Court to stop an industrial action.
The industrial action related to a ballot which was 11 months prior and was considered not to be continuing. The court found that the industrial action did not actually relate to the dispute that the ballot related to and that the authority of the ballot had expired by this point.
High Court find email correspondence forms settlement agreement
In the case of Bieber and other v Teathers Ltd (in liquidation)  EWHC 4205 the High Court found that emails exchange between the claimant’s and defendant’s solicitors constituted a binding settlement.
The case emphasises the need to take care when negotiating settlement and ensure parties explicitly state if they want their negotiations to be subject to contract.
DEVELOPMENTS TO LEGISLATION
National Minimum Wage Regulations
The government have indicated that the National Minimum Wage (Consolidation) Regulations, which will try to incorporate the current National Minimum Wage Regulations 1999 and its amending regulations, received support and is expected to come into force on 6th April 2015.
The draft National Minimum Wage Regulations 2015 are also progressing and have been laid before Parliament. They are expected to come into force on 6th April 2015.
Amendments to ‘worker’ definition
The government has decided that the definition of worker should be extended to include additional groups.
A draft Protected Disclosures (Extension of Meaning of Worker) Order 2015 is before Parliament to amend the definition of worker so that it will encompass student nurses and midwives under section 43K Employment Rights Act 1996.
We will continue to keep you updated.
Small Business, Enterprise and Employment Bill
Further to our January Newsletter, the Bill has now completed the committee stage where several amendments were debated but not inserted into the Bill.
The Bill has now been re-published.
Employment Tribunal Postponements
HM Courts and Tribunal Services have found that over a 2 year period 67,750 tribunal hearings were postponed. In an attempt to reduce this number the government are amending the Employment Tribunal rules. The proposed amendments are:
– maximum of two postponements can be granted to a party in a case, other than in exceptional circumstances;
– applications to postpone a hearing must be received a minimum of seven days before the hearing, other than in exceptional circumstances; and
– if the tribunal allows a party to postpone a hearing less than seven days before the date of the hearing they must consider costs or preparation time orders against the successful party.
The Department of Business, Innovation and Skills started a consultation on 16th January 2015 which is due to close on 12th March 2015 proposing two amendments to the Rules. The amendments set out two circumstances where the rules will not apply:
– if the postponement is agreed by both parties and the tribunal believes that it will assist settlement; and
– if the tribunal thinks that a postponement is required due to the actions or omissions of a third party or the tribunal.
We will keep you updated as to the progress of this matter.
IN OTHER NEWS
A draft revised Code of Practice on Disciplinary and Grievance Procedures was published by ACAS on 16th January 2015 that sets out worker’s rights to be accompanied.
The Code needs Parliamentary approval. We will continue to keep you updated.
BIS Report on Working Time Regulations
The Department of Business, Innovation and Skills published its report on how the working time regulations have impacted the labour market in the UK.
Some findings are that people in management positions and male employees work longer hours and one third of workplaces have at least one employee who has opted out of the limit on weekly working time.
For more information please refer to the Report: ‘the impact of the working time regulations on the UK labour market: A review of evidence – BIS analysis paper number 5’ which can be found by following the link below.
BIS Survey on shared parental leave
The Department of Business, Innovation and Skills published the results of their survey the public attitude toward Shared Parental Leave.
Some interesting results are as follows:
– 53% of people who responded to the survey thought parental leave should be shared equally between both parents; and
– 38% of the men that responded were worried that they would suffer a detriment financially whilst 32% thought it would affect their career and 17% thought it would be hard to get back into work.
Fit for Work Service
In February 2011 the Director for Health and Work Dame Carol Black reviewed sickness absence in the UK. A report was published in November 2011 and eventually turned into the Fit For Work (FFW) Service which launched its website and telephone advice line in December 2014.
The Department of Work and Pensions has now published guidance notes for GPs, employers and employees to assist in its use.
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.