Employment Law Bulletin – Issue 119 – 7 February 2012

Tuesday 7 February 2012

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Employment news

Consultations update
The BIS consultations on TUPE and collective redundancy have now closed. The MOJ consultation on charging fees in the ET and EAT is open until 6 March 2012. Click here for the consultation paper.

Blacklist case: ET verdict
In a case at London Central ET, concerning blacklisting (i.e. the covert provision of information about a worker to an employer's database), construction businesses Schal International Management Ltd and Carillion (JM) Ltd admitted having provided false information about a worker Dave Smith. Mr Smith's claims failed however as neither of the companies had been his employer. Click here to read more (Source: Mirror).

Tax officers involved in strike action
HM Revenue and Customs was obliged to withdraw proposed penalty fines for tax payers filing their tax returns on 30 January or 1 or 2 February 2012 following strikes by 15,000 HMRC employees. Click here to read more. (Source: Press Association).

Olympics pay dispute?
The RMT trade union has rejected a proposed offer of £500 per worker for London Underground staff involved in extra duties during the 2012 Olympics. Click here to read more (Source: BBC News).

Employment Case Law

Court of Appeal

Contractual interpretation

Deakin & Ors v Kuehne & Nagel Drinks Logistics Ltd [2012] EWCA Civ 22
Employers may not make unauthorised deductions from their workers' pay (section 13, Employment Rights Act 1996). Whether or not there was such a deduction depends upon whether the worker was paid less than they were entitled to be paid, and that turns on the proper construction of their employment contract. In a case concerning a group of drivers, whose terms and conditions were governed by a collective agreement which was incorporated into their individual contracts, the Court of Appeal considered contractual terms which appeared to require workers to take 45 minutes breaks, and deducted this time from their salary, even when they were actually asked to take breaks of just 30 minutes. A complicating factor was that under the Road Transport (Working Time) Regulations 2005, on which the agreement appeared to be modelled, the entitlement to a 45 minute break only arose when the working day extended beyond 9 hours, although the workers' ordinary day was in fact only 9 hours. The Court of Appeal held that under a natural reading of the contract, the employers had read it correctly and were entitled to only pay for 8 hours 15 minutes' work, even where workers were only given a 30 minute break. For the full judgment, click here.

Vicarious Liability

Weddall v Barchester Healthcare Ltd [2012] EWCA Civ 25
As a matter of common law, an employer may be liable for the torts of his employees committed in the course of their employment with him. This principle of vicarious liability applies where there is a connection between what the employee was employed to do and the tort he has committed. The Court of Appeal heard two joined cases concerning assaults by co-workers. In the first, a worker was away from the workplace, and was drunk, when he was invited to volunteer for a night shift. On receipt of the request, he rode into the workplace and attacked a fellow worker. There was found to be no connection between the assault and the duties he was employed to do. In the second case, a worker was loading a factory oven inefficiently causing energy to dissipate. A manager approached him, to assist him in loading the oven. The worker immediately responded, attacking the manager. The court found that the risk of an over-robust reaction to an instruction is a risk created by employment, and therefore that the employer should be liable for the attack. For the full judgment, click here.

Employment Appeal Tribunal

Working time

Arriva London South Ltd v Nicolaou [2011] EAT 0293/11
Section 45A of the Employment Rights Act protects a worker from victimisation by his employer in relation to his rights under the Working Time Regulations. In a case concerning whether a worker who had declined to opt-out of the 48 hour working week but wanted to be considered for overtime working, had suffered a detriment, where overtime was withdrawn, the EAT focussed on the reason for the treatment, which was to apply a policy which was objectively reasonable. Although "reasonableness" is no defence to a section 45A claim, it is relevant to determining what the true reason was for the treatment. The reason for the treatment was that the company wanted to apply a policy which robustly distinguished between those entitled to overtime working and those not entitled. Accordingly, the employer's appeal succeeded and the claim was dismissed. For the full judgment, click here.

Range of reasonable responses

Arriva Trains West v Conant [2011] EAT 0043/11
Where an employee is dismissed, the fairness or otherwise of the dismissal depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee (section 98(4) Employment Rights Act 1996). Because the statute refers to the alternatives of "reasonably or unreasonably", the fairness of the dismissal is ascertained according to the objective standards of the hypothetical reasonable employer (Post Office v Foley [2000] IRLR 827). In a case involving three joined appeals, each turning on the fairness of the dismissal, the EAT observed that the limited scrutiny function reserved to the ET under the range of reasonable responses test applies equally to the appeal courts. In circumstances where the original Tribunal had stated and applied the law correctly in finding that a dismissal was unfair, the EAT did not find that the Tribunal had substituted its own views for those of the employer. For the full judgment, click here.

Suitable alternative employment

Readman v Devon Primary Care Trust [2011] EAT 0116/11
Section 141 of the Employment Rights Act 1996 entitles an employer to offer employment to an employee threatened with redundancy. Sub-section (3) provides that the offer may differ from the previous contract if it is suitable employment in relation to the employee. Sub-section (2) provides that, where subsection (3) is satisfied, the employee is not entitled to a redundancy payment if he unreasonably refuses the offer. In a case concerning a community nurse who had worked outside a hospital setting for more than 20 years, and was offered a post as a hospital Matron, and the Tribunal held that this was suitable employment for her, the EAT had to consider whether this finding of suitability bound the Tribunal to also find that the nurse had unreasonably refused this offer of employment. The EAT directed itself that an employee can refuse an offer of employment which a Tribunal concludes was a suitable offer of employment, for reasons which relate to the employee's perception of what the offer amounts to, and still act reasonably. On the invitation of the parties, the EAT considered the evidence before the ET and determined that the reason the Claimant had refused the offer was that she did not want to return to hospital work; accordingly her claim succeeded. For the full judgment, click here.

Notices & coming events

Pension Rights and Age Discrimination (Wednesday 8 February 2012)
NUT Hamilton House, London

The Institute of Employment Rights is hosting a half-day seminar at NUT Hamilton House, London. More details on the IER website.

Employment Rights Adjudication (Tuesday 21 February 2012)
Susan Corby and Paul Latreille will address the Industrial Law Society's evening meeting on The Role of Lay members in Employment Rights Adjudication. More details from the ILS website.


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