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Disciplinary process, Adverse Weather Conditions, Employment Law, Leeds, Yorkshire

As we count down to the New Year, let’s remind ourselves of 2015’s key judgments. They include cases on: whistleblowing, working time, annual leave during sickness absence, holiday pay, disability discrimination, redundancy consultations, recruitment, and the role of HR in disciplinary proceedings.

1. HR’s role in disciplinary proceedings

In Ramphal v Department for Transport it was held by the Employment Appeal Tribunal (EAT) that a dismissal will be unfair if the decision to dismiss an employee is improperly influenced by HR. Thus, HR should refrain from lobbying managers to reshape their view on culpability and limit their advice essentially to questions of law, and procedures and processes.

2. Right to be accompanied: a new type of claim?

It was held by the High Court in Stevens v University of Birmingham that an employer’s refusal to allow the employee’s choice of companion to attend a disciplinary investigation meeting, was a breach of mutual trust and confidence and issued a declaration to that effect.

3. Sickness absence: annual leave should be carried over for 18 months

The EAT held in Plumb v Duncan Print Group Ltd that the Working Time Directive does not require employees on sick leave to demonstrate that they are physically unable to take annual leave in order to carry over accrued unused statutory holiday to a subsequent leave year. It is sufficient that they are absent on sick leave and do not choose to take annual leave during that period. However, leave can only be carried over for 18 months from the end of the leave year. Accrued leave which goes beyond that cut-off period will lapse.

4. Whistleblowing: “public interest” given a wide definition

In Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed, the EAT considered the meaning of the words “in the public interest”, which were added into the whistleblowing legislation by the Enterprise and Regulatory Reform Act 2013, in order to exclude complaints about breaches of a worker’s own contract of employment from whistleblower protection.

The EAT found that it was Mr Nurmohamed’s reasonable belief that the disclosures were in the interest of 100 senior managers, and that this was a sufficient group of the public to amount to being a matter in the public interest. This was the case even though Mr Nurmohamed was mostly motivated by concern about his own income. 

This decision offers some comfort to prospective whistleblowers by placing a narrow interpretation on the words “in the public interest” thereby setting that hurdle at a relatively low level. It should also be remembered that as part of the ERRA 2013 amendments, the government also removed the “good faith” test from the whistleblowing. There is therefore no longer a need for a worker to establish that they were acting in good faith when making a qualifying disclosure, in order for that disclosure to be protected.

5. Holiday pay should include regular voluntary overtime

The Court of Appeal in Northern Ireland seized the opportunity in the case of Patterson v Castlereagh Borough Council to include voluntary overtime in the calculation for statutory holiday pay given the fact that voluntary overtime is much more common than compulsory or non-guaranteed overtime in everyday practice. However, little guidance was offered with respect to its application. Further guidance from future case law will be necessary in order for employers in Northern Ireland to adapt their policies in line with the new rule. 

Although decisions of the Northern Ireland Court of Appeal are not binding in England and Wales, they are of persuasive authority. 

6. ECJ restores order to UK redundancy consultation laws

The European Court of Justice (ECJ) has held in Usdaw and another v WW Realisation 1 Ltd (in liquidation) and others that, when deciding whether or not collective redundancy consultation obligations are triggered, the number of proposed redundancies should be measured in the entity to which the workers to be made redundant are assigned to carry out their duties, rather than across the whole organisation.

7. Working time includes first and last journeys of the day

In Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another the ECJ held that the time spent by workers, who do not have a fixed or habitual place of work, on travelling each day between their homes and the premises of the first and last customers designated by their employer is “working time” for the purposes of the Working Time Directive (2003/88/EC).

This decision will have a significant impact on the current trend for companies wanting to move from office-based businesses to more mobile ones 

8. Appeal decision on agency workers regulations

The EAT held in Coles v Ministry of Defence that agency workers have the right to be informed by the hirer of any relevant vacant posts with the hirer, to give that agency worker “the same opportunity as a comparable worker to find permanent employment with the hirer”.

9. Discrimination arising from disability

The EAT in Swansea University Pension & Assurance Scheme v Williams gave guidance on the meaning of “unfavourably” in section 15 of the Equality Act 2010 and held that use of the word “unfavourably” was a deliberate choice and could not be equated with the word “detriment” in establishing whether an employee had received unfavourable treatment. It was also to be distinguished from the test for “less favourable treatment” which required a comparator.

10. Tribunal fees challenge fails again

The Court of Appeal dismissed Unison’s latest challenge to the tribunal fees system in R (on the application of Unison) v Lord Chancellor (No.3) although it was said that the decline in claims is “sufficiently “startling” to merit a review of fees to prevent individuals being priced out of bringing a claim.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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