Caselaw Update

An employee who pulls a sickie or exaggerates the effects of an injury could be dismissed for gross misconduct

In Metroline West v Ajaj, Mr Ajaj was employed as a bus driver. He slipped at work and reported he had suffered an injury. He was seen by Occupational Health who advised that he was not fit to undertake his driving duties. His employer had concerns about the genuineness of the nature and extent of his injuries. They arranged for convert surveillance. This showed him being able to undertake tasks that he said he could not. He was suspended. The surveillance report was sent to Occupational Health who agreed that the report was inconsistent with what he had claimed. Following disciplinary proceedings, he was dismissed for gross misconduct for misrepresenting his position and falsely claiming sick pay.

The EAT affirmed that an employee who is found to have exaggerated effects of an injury caused by a slip at work or who makes up the effects of an injury or illness to take fraudulent sick leave is fundamentally breaching the implied term of trust and confidence and can be dismissed for misconduct. The employer has to have reasonable grounds for its belief in the misconduct alleged having conducted a reasonable investigation.

EAT also stressed that employee who “pulls a sickie” is being dishonest with the employer and this can be a fundamental breach of the trust and confidence which goes to the heart of the employer/employee relationship.

Employee sent home for not wearing heels

A temp turned up to work at PWC in flat shoes was sent home on her first day when she refused to wear high heels and questioned how wearing flats would prevent her doing her job and whether male members of staff were also required to wear heels.

She was sent home without pay after refusing to go out and buy a pair of heels between 2 and 4 inches.

It appears the PWC do not have referenced dress code.

As the law stands, employers can dismiss staff who fail to live up to reasonable dress code demands as long as they have been given enough time and notice. Different codes can be set up for men and women as long as the requirement of smartness is at an equivalent level for both men and women.

Commission must be included in holiday pay

In the case of British Gas Trading v Lock, the EAT has held that commission payments should be included in the calculation of holiday pay. The key question in this appeal by British Gas was whether the previous Employment Tribunal was right to insert wording into the Working Time Regulations which required commission to be included and holiday pay calculations.

Mr Lock worked as a sales consultant with British Gas and brought a claim for outstanding holiday pay on the basis it did not reflect what he would have earned in commissions. Each month on top of his basic pay, he was paid monthly commission which fluctuated based on his sales. His commission made up over 60% of his total remuneration and therefore a significant part of his remuneration.

British Gas has lodged an appeal to the Court of appeal.

This is an important case for employers with far reaching consequences.

Provisions in a staff handbook incorporated into Contracts of Employment

In the case of Department for Transport v Sparks and others, the Department for Transport which comprised of several separate agencies had different staff handbooks for the different agencies. It wished to standardise the attendance management policy and therefore varied the handbooks to standardise this policy. The seven claimants who worked in the separate agencies of the Department of Transport applied to the High Court for a declaration that the Department for Transport had breached their contracts of employment by unilaterally imposing this change in the contractual staff handbook. The High Court found that it had been clearly intended that the attendance management procedure was to be incorporated into the employment contracts.

The legal position as it stands is that contractual terms can be amended in accordance with the terms of the contract or with the agreement of all parties. Non-contractual policies do not require the agreement of the parties but it is good practice to provide some notice notice of such changes before implementing them.

The Department of Transport appealed to the Court of Appeal. The Court of Appeal said that whether or not terms had been incorporated into a contract of employment would turn on the particular terms and documents in each case and that caselaw also provides a useful guidance.

Is therefore important for employers to give very careful consideration as to whether or not they want any terms of the staff handbook to be incorporated. If they are incorporated they will become contractual and the employees consent will be required to make any changes to them.

In this case, the Court of Appeal found that there was a distinct flavour of contractual interpretation on the way in which the handbook was introduced by the employment documents. The handbook expressly stated that all of the provisions which applied to the particular employee and were apt for incorporation should be incorporated into the individual’s contract of employment

None of the topics covered above constitute legal advice. Formal legal advice should be taken before acting on any of the matters set out above. Please get in touch with Hardeep Kular for more information.