Employment Law Bulletin - Issue 158 - 26 November 2013

Tuesday 26 November 2013

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Employment Law News

Protest Over Union Workers Blacklist Scandal

Sixty activists have vented their anger during a protest over the scandal of blacklisted workers. The demonstrators at the Alder Hey Hospital building site in Liverpool want to highlight what they claim is the continued anti-union stance and denial of facilities for trade unionists of the site's main contractor, Laing O'Rourke. Click here to read the full story.

Stress is mounting for UK workers

According to new research, stress is taking its toll on UK employees. The research shows that one in six (16 per cent) respondents to a survey called in sick due to stress in the past year. Over 2,000 employees were polled for a study conducted by Friends Life, which showed that stress among 18 to 24 year olds is due to fears over job security (52 per cent), fear of redundancy (36 per cent), money worries (35 per cent) and work (22 per cent). Click here to read more.

Employment Case Law

EMPLOYMENT APPEAL TRIBUNAL (EAT)

USDAW v Ethel Austin LTD (in administration) EAT 0547/12

and

USDAW & Mrs B Wilson v UNITE The Union, WW Realisation 1 LTD & Secretary of State for Business, Innovation & Skills EAT 0548/12

Collective Consultations | Redundancies

This case concerned breach of the duty to consult over mass redundancies by two businesses which are now insolvent. The single issue to be decided by the EAT was whether the duty to consult was owed when 20 employees are dismissed, irrespective of where they are based or if the duty was only owed when 20 are dismissed in single establishment. That is: a site by site atomised approach versus an holistic approach.

The EAT held that a purposive construction of Trade Union and Labour Relations (Consolidation) Act 1992 s.188 was necessary so as to give effect to Directive 98/59 EC thereby requiring the court to delete the words "at one establishment" and so allowing protective awards to be made to employees whose employer dismissed 20 employees as redundant. Click here to read the full decision.

Mrs J Whittlestone v BJP Home Support LTD EAT 0128/13

National Minimum Wage

This appeal raised the question of the correct approach to determining what hours are to be paid at the minimum rate of the National Minimum Wage when averaged with other working hours; the Employment Tribunal (ET) having dismissed the claims at first instance. Upholding the appeal the EAT decided (Langstaff J, sitting alone) that the ET had failed to apply the appropriate case law; had failed to recognise that, on the evidence before it, the claimant was required to work and that this was and could only in the circumstances be "time work", such that Regulation 15(1) and 15(1A) of the National Minimum Wage Regulations 1999 were not applicable at all; and that it was irrelevant whether any activity was actually performed. Click here to read the full decision.

Norbert Dentressangle Logistics LTD v Mr Graham Hutton EAT 0011/13

Jurisdiction | Effective Date of Termination

The Employment Tribunal below accepted it was not reasonably practicable for a claimant to begin proceedings within three months of his dismissal, despite the fact he had entered into detailed email correspondence, and pursued a grievance in respect of related matters during that time, because it was prepared to accept his evidence that he simply became unable to function properly and could not bring himself to do it. It held that it was reasonable for him to delay a further six weeks beyond the initial period on the basis it accepted his evidence that he put in an application to the Employment Tribunal as soon as he felt able to do so. Although the EAT (Langstaff J sitting alone) had some reservations about the decision of the ET, it held that the reasoning of the ET was not legally flawed and could not be described as perverse. Click here to read the decision.

Mrs C Hemming v British Waterways Board EAT 0102/13

Striking-out | Postponement or stay | Costs

The claimant did not attend on day one of her eight-day race discrimination hearing. The Employment Tribunal was told by noon on the first day that she had been taken by ambulance and was in the Accident & Emergency department of a hospital. The respondent made an application to strike out the claims together with an application for their costs. No details were provided to the claimant as to the grounds upon which the applications were based. Her husband, who was present, informed the Employment Tribunal that he could not comply with their requirement that written medical corroboration of the claimant's hospitalisation be provided by 2.00pm that day. The ET acceded to the respondent's application, struck out the claims and awarded costs in the sum of £10,000.

The EAT (HHJ McMullen QC sitting with lay members) set aside the decision of the ET below; holding that the ET failed to deal with the claimant's application to postpone the full merits hearing. Further, the ET failed to send notice as required by rules 18(6) and 19 so the hearing was a nullity. Alternatively the decisions on postponement, strike out and costs were wholly wrong in principle. The claims were remitted to a fresh ET for a full hearing. Click here to read the decision.

Remploy Ltd v Campbell & Anor EAT 0550/12

Race Discrimination | Vicarious liability

This appeal to the EAT turned upon whether the Employment Tribunal erred in law in concluding that Remploy (Respondent 2 before the ET) was liable as principal for the acts of Redbridge (Respondent 1) as agent (section 32 of the Race Relations Act 1976). In allowing the appeal, the EAT (Wilkie J and lay members) rejected the submissions made on behalf of R2 that the manifestation of "purporting to act on behalf of another" has to emanate from the party who is acting. The EAT further rejected that the "purporting to act on behalf of another" issue was separate from the perception of the third party. The view of the EAT was that the question to be answered was whether the third party (the claimant) perceived that R1, in acting as it did, was purportedly doing so in the name of, or on behalf of, R2. If the answer to that question is "yes" only then does the further question arise, as to whether R2 has, by its actions, adopted R1's act.

The claim was remitted to the same Employment Tribunal for it to determine the questions of implied authority and/or ratification on a proper legal basis, once it has heard any further evidence and received further argument. Click here to download the full judgment.

Robinson v Bowskill & Ors (p/a Fairhill Medical Practice) EAT 0313/12

Jurisdictional Points | effective date of termination

The claimant appealed the judgment of the ET dismissing her claims for unfair dismissal and disability discrimination on the grounds that the claims had been lodged outside the three-month limitation period and it was not just and equitable to extend time. The ET found that the claimant was summarily dismissed on 6 July 2011 and that that information was sent to the claimant's solicitor by e-mail the same day. The solicitor gave the claimant this information on the next day and advised her to appeal. A letter to the claimant confirming the dismissal was not seen by her (the claimant) until 8 July 2011. The Employment Judge (EJ) held that the effective date of termination was 7 July 2011. The EAT (HHJ Burke QC) upheld this finding. However, the EAT further held that the EJ had erred in law in not taking into account the principle in Virdi ([2007] IRLR 24) that the sins of the claimant's solicitor in this context, are not to be visited on the claimant. As the delay was attributable to the solicitor, the EAT substituted a finding that time should be extended. Click here to read the full judgment.

G4S Secure Solutions ltd v Mr C Alphonso EAT/0051/13

Zero hours contracts | whether employee

The claimant was employed by this major security company or its predecessor on 1 April 2002 and, in due course, he was deployed on a sensitive contract at the Foreign and Commonwealth Office in central London. On 13 October 2011 he approached his manager to request a change from permanent employee to a zero hour contract. This was done as of the 14 November. One of the issues that arose to be determined was whether the claimant was an employee. In remitting the case for further factual exploration as to the issue of the existence of a contract, HHJ McMullen QC said this:

"The problem in this case may be unique, involving clear renunciation of a contract of employment and willingness to have a zero-hours contract. Given the close attention which is currently being given to zero-hours contracts, including a Coalition Government review of the matter, a better explanation needs to be given of it. First, it is a contract - that is conceded in this case - so there is an overarching relationship governed by contract between the claimant and the respondent. Incidents of it are that work can be offered and taken up ... The claimant continues to have the benefit of his screening under SIA rules, at least for a period of time while that goes on. ... But something needs to be done to terminate that relationship. There is no evidence of a retainer being paid as was suggested in Clark, nor of there being an obligation to offer a reasonable amount of work, as there was in Carmichael. The finding on the claimant's account was that the respondent was not obliged to offer him work if there was none available. That begs the question: What if there was work available? It is circular to say that work must be offered when there is none available. The point is, if there is work available, would it be offered to him."

Click here to download the full judgment.

Mrs N Halawi v WDFG UK Ltd T/A World Duty Free & Caroline South Associates EAT0166/13

Contract of employment | whether established

The claimant worked in a World Duty Free outlet at an airport, selling Shiseido cosmetic products airside. Her security clearance to do so was withdrawn by R1, and she claimed that she had thereby been unfairly dismissed and discriminated against. To claim this she had to show that she was an employee or worker. The Employment Tribunal found she was neither a worker nor an employee because she provided her services through a limited company (which she had incorporated for the purpose) and, her relationship with that company needed to be, but never was, established in evidence. The details of this limited company were provided to R2 whose role was in effect that of an agent supplying workers to a third party (Shiseido) to work in retail space controlled by R1. There was thus no contract between C and either R1 or R2. The ET found that the arrangements were such that C was not required to work personally at her job, but could get another person to substitute for her: a power which was not merely theoretical, since she had in fact exercised it. The EAT held that the claimant could not have had a contract of employment with either R1 or R2, since she had a contract with neither; nor could she be a "worker" since that too required a contract, under which she agreed to work personally. Click here to read the full decision.

Employment Law Notices and Events

TUPE: The New Regulations
Tuesday 28 November, 18:30 - 20:00
1.5 CPD Hours
The Royal College of Surgeons, 35-43 Lincoln's Inn Fields, London, WC2A 3PE
For more information, click here.

"What's New in Employment Law?"
Tuesday 3 December 2013
4.5 CPD Hours
The Royal College of Obstetricians and Gynaecologists, 27 Sussex Place, Regent's Park, London, NW1 4RG.
Hosted by the Employment Lawyers Association (ELA), speakers at this one-day course include Paul Harrison, Baker & McKenzie LLP, Thomas Kibling, Matrix Chambers, Ijeoma Omambala, Old Square Chambers, Fiona Morrison, Allen & Overy, Amy Rogers, 11KBW, Anne Pritam and Stephenson Harwood.
For further information, click here.

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