Employment Law Briefing June 2019

JUNE CASELAW UPDATE

Garamukanwa v United Kingdom: No breach of Article 8 European Convention on Human Rights (“ECHR”) when employer dismissed employee based on material found on the employee’s phone (WhatsApp messages) by the police (06.06.19)

Mr Garamukanwa was employed by the Solent NHS Trust as a clinical manager. There had been complaints against him that he had subjected two female colleagues to a campaign of stalking and harassment. Because of the sustained campaign of stalking and harassment, a criminal investigation was launched and photographs of a collegue’s home address and details of the bogus email accounts were found in Mr Garamukanwa’s possession. Despite all criminal charges being dropped the Trust believed it had enough evidence and he was dismissed for gross misconduct. He had failed to object in the course of the disciplinary procedure to the use of his “private material.” He brought claims for unfair dismissal and a breach of his rights to privacy asserting he had a reasonable expectation that the private material would remain private and Article 8 of ECHR was accordingly engaged.

The ET concluded that in relation to all of the material provided to the Trust by the police following the criminal investigation that he had no reasonable expectation of privacy in that material.

After being refused permission to appeal to the Court of Appeal, Mr Garamukanwa brought proceedings. The European Court of Human Rights has held that an employer who relied on material found on an employee’s phone by police to dismiss the employee for gross misconduct did not breach his right to privacy under the ECHR. The court also concluded that Article 8of ECHR could apply in a case such as this where an employer had relied on materials or communications of a private nature to justify a dismissal; however in this case, Mr Garamukanwa could not reasonably have expected that any of the material or communications in question would remain private. He had not sought to challenge the use of this during the disciplinary hearing.

TSN v Hyvinvointialan liitto ry and another case: A Member State can limit carry over of holidays (07.06.19)

The Advocate General gave an opinion that the EU Charter of Fundamental Rights, read together with the Working Time Directive, did not preclude a national law which limited carry over of holiday in the event of sickness to the four weeks' leave under the Directive. This supports the widely held view here following EAT’s decision in Sood Enterprises Ltd v Healy namely that the Directive does not require carry over of the additional 1.6 weeks leave where a worker has been unable to take holiday because of sickness.

Workers on long term sick leave are entitled to carry forward four weeks statutory holiday derived from the Working Time Directive and any accrued leave the worker has been unable to take due to sick leave is paid on termination. The EAT has previously held that the additional 1.6 weeks of leave entitlement need not be carried over. Trade Unions have argued that all (any) holiday entitlement should be carried over.

This opinion confirms that provided 4 weeks’ pay leave is not impacted, member states can set their own rules on carry over.

Kostal UK Ltd v Dunkley and Others: Employers can approach staff directly to agree temporary changes where negotiations have broken down with trade unions (13.06.19)

In 2015, Kostal UK limited entered into a recognition agreement with Unite. This agreement included a provision that the company would seek to agree the position with Unite before making any changes to the terms and conditions of its staff. In the same year as the agreement was entered, the company entered into formal pay negotiations with Unite. The union rejected the offer. In response, the company told the union it would write to its staff and ask them individually to agree its proposals because otherwise it would run out of time to pay the bonus. It accordingly wrote to each employee and asked them to agree the new terms and conditions by 18 December 2015 and 91% of the workforce accepted the new terms.

In January 2016, the company wrote to the remaining 9% and explained why they needed to make the changes and that if they didn't accept the new terms, they may lose their jobs.

Unite argued that the steps taken by the company were in breach of section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 as offers were made directly to the employees with the sole or main purpose of undermining the collective bargaining in place.

Both the ET and the EAT agreed that the offers contained in the letters written to the employees included inducements and awarded each of the union members fixed awards.

Kostal appealed on the basis it never intended to induce. The Court of Appeal found that whilst the company had taken steps to write to its staff and circumvent collective bargaining, it had not acted unlawfully as the changes were temporary. The Court of Appeal said that the point of section 145B is to prevent employers looking to move away from collective bargaining permanently. In this case they found that Kostal was looking only to resolve a single issue and that it would return to the collective table once the pay deal was sorted out. 

Chief Constable of Police Service NI v Agnew: Long terms back pay for Holiday Pay (17 June 2019)

Over 3000 police officers and civilian employees brought claims for underpayment of holiday pay stretching back, in some cases, going back to November 1998. During the relevant period, they were paid holiday pay at a basic rate, excluding overtime and various allowances. The claimants argued that their holiday pay should be their normal pay and take into account overtime.

The Court of Appeal sitting in Belfast has upheld that police officers and civilian staff are owed substantial back pay in respect of underpaid holiday pay. It was found that a gap of three months between holidays did not amount to a break in a series of deductions. This decision is estimated to cost the police force £40 million. This decision is not binding on the EAT in Great Britain but could be persuasive.

In England, Scotland and Wales, claims for back pay holiday pay have been limited to two years back-pay since the Deduction from Wages (Limitation) Regulations 2014. While the legality of this was challenged by the ECJ in King v Sash Window, the case settled. Therefore, the two year back stop still remains in the UK.

Flowers v East of England Ambulance Trust: NHS Holiday Pay should include overtime (18.06.19)

The Claimants were employed by the Trust and brought a claim in the Employment Tribunal (ET) alleging unlawful deductions from their holiday pay. In this case, the Claimants said that two types of overtime should be included: non-guaranteed overtime and voluntary overtime when calculating holiday pay. Contractual claims and claims under the Working Time Directive were brought.

The ET said that non-guaranteed overtime should be included in holiday pay but voluntary payment should not.

The Employment Appeal Tribunal (“EAT”) disagreed and said both should be included.

The Court of Appeal agreed with the EAT. The employees had a contractual right for holiday pay to include overtime. Under the Working Time Directive voluntary overtime should be included in holiday pay calculations where the overtime is regular enough to be considered part of normal pay. The fact that the overtime is voluntary is irrelevant.

McKenzie v The Chancellor of University of Cambridge: Employer’s refusal to reengage employee (20.06.19)

Ms Mckenzie was a law lecturer. She was unfairly dismissed and sought reengagement. The ET ordered reengagement. The University refused to reengage her and paid her compensation instead. Ms Mckenzie brought a claim in the High Court asking the High Court to force the University to reengage her.  

The matter went to the Court of Appeal which said that an employee has no right to force an employer to reengage. Furthermore, unfair dismissal claims must be exclusively dealt with in the Employment Tribunal. If an order for reengagement is made (or reinstatement) and the employer refuses the remedy is an additional award of between 26 and 52 weeks pay. The University had already paid this, so the employee was entitled to no further remedy.

Note: the additional award replaces the normal compensation for unfair dismissal, so the employee does not benefit from double recovery.

Chief Constable of Norfolk v Coffey: “Perceived Discrimination” is discriminatory (21.06.2019)

Ms Coffey was a serving police officer and requested a transfer from Wiltshire to Norfolk Constabulary. At the medical it was found she had some hearing loss with tinnitus. The impairment meant she fell just short of National Recruitment Standards; the accompanying guidance made clear that the assessment was not binding and candidates should be looked at individually and assessed in terms of ability based on activities of an operational constable. An assessment was recommended. Norfolk Constabulary refused and rejected her application to transfer. The Constabulary was concerned that the impairment would cause difficulties, that she might not be a fully operational officer and might have to be placed on restricted duties. It was concerned she might be unable to undertake the full range of duties in the future and her condition was a progressive condition. This would not be convenient as the Constabulary needed a fully operational force and there were financial constraints. Had the Constabulary carried out the recommended assessment and she had passed; she would not have had to be placed on restrictive duties.

When she had joined a similar impairment was found but she had passed a practical functionality test and worked successfully.

The ET held there was direct discrimination contrary to the Equality Act. She had been treated lass favourably because of her perceived actual or potential disability.

The Court of Appeal has confirmed that the Equality Act does include direct discrimination because of a perceived disability. There was direct discrimination as the misperception flowed from a stereotypical assumption about the effects of the disability. The Constabulary had perceived her to have a “progressive condition” which is treated as a disability under the Equality Act.

This is the first case at appeal level to uphold a claim of perceived disability discrimination.

Dray Simpson v Cantor Fitzgerald Europe: Whistleblowing (21.06.19)

Mr Simpson was the managing director of the emerging markets desk. He was dismissed because his colleagues could not work with him, he was consistently late and had a poor attitude and therefore on the grounds of lack of trust and confidence. He brought a claim for whistleblowing raising 4 disclosures. This had increased to 37 by the time of the trial.

The ET dismissed the claim finding none of the alleged disclosures were protected and that the reason or principal reason for his dismissal was that he made protected disclosures. Mr Simpson appealed. 

The EAT had to consider a range of commonly disputed points of law concerning “whistle blowing”:

Aggregation of individual disclosures: Where an individual seeks to rely on different communications and that once aggregated, they could amount to a protected disclosure, the EAT made clear that it was important for each disclosure to be identified by date and content and to be separately identified. An individual could not rely on “an entire course of conduct”.

Information and not an allegation: The protected disclosure had to contain sufficient information as to qualify under the statute and be information. Mere allegations without any factual basis will not be sufficient.

Reasonable belief in the disclosure: The individual has to have reasonable belief that the prescribed behaviour was occurring.

The qualifying protected disclosure must be in the public interest: in this case there were no factors suggesting that Mr. Simpson had been concerned with public interest. Steps taken in self interest will not count.

Causation: There was one individual involved in making the decision and therefore there is no question that he was manipulated in any way in making the decision.

First Greater Western Limited & Linley v Waiyego: Injury for feelings award can be reduced for contributory fault

Mrs Waiyego had been on sick leave for a prolonged period of time and pursued several claims. The ET found in her favour on 2 of the claims the first of which was a failure by her employer to make reasonable adjustments and, the second one was in relation to unfavourable treatment because of something arising from a disability, namely that She had not been consulted on the restructure of her team well she was absent on sick leave when the rest of the team had been consulted. The ET awarded her compensation for loss of earnings, the sum of £28600 for injury to feelings in relation to both claims (£19800 plus interest for her first claim and £8800 for the second claim) and psychiatric injury.

Both parties appealed the results to the EAT.

First Great Western limited argued that the award for entries are feeling should have been reduced because she had been partially to blame for the delay in organising cognitive behavioural therapy By failing to provide details of her previous CBT therapist which delayed matters and made a material contribution to the harm she suffered. They also argued there was a double recovery as she had been awarded both injury to feelings and psychiatric injury.

The EAT concluded that it would be very rare situation in which an award for injury to feelings will be reduced because of contributory negligence.

The EAT help that while section 1(1) at the Law Reform (Contributory Negligence) Act 1945 can apply in some discrimination claims under the Equality Act 2010, such cases will rarely if ever arise because of the difficulty in identifying or attributing fault to a victim of discrimination. The ET also said that it may be more appropriate to treat them as examples of failure to mitigate loss.

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