The law states that “time work” includes time when the worker is available (meaning when they are awake in order to work) at or near their place of work unless they are at home. In the three conjoined cases of Focus Care Agency Ltd, Frudd and Royal Mencap Society the Employment Appeal Tribunal (EAT) held that it could not provide a definitive answer to the question of whether workers who “sleep-in” are engaged in time work or not.
Basic facts and tribunal decisions
The three cases raised the question under section 32 of the National Minimum Wage Regulations 2015 as to whether employees who sleep-in are engaged in “time work” for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and carrying out relevant duties.
In Focus Care Agency v Roberts, the “waking night worker” had to be awake at all times to support the service user while the “sleep-in night worker” was there to help with any emergency that might arise but did not have to stay awake. The sleep-in night workers were paid an allowance of £25 per night. The tribunal held that the claimant was entitled to be paid the National Minimum Wage for the hours spent on the nightshift.
In Royal Mencap Society v Tomlinson-Blake, the claimant had to sleep at the house where she worked and listen out in case she was needed. She had to deal with any incidents requiring her intervention, respond to requests for help as well as handle any emergencies that might arise. The tribunal decided that the whole period of her sleep-in shifts constituted time work, irrespective of whether she was sleeping or not.
In Frudd v The Partington Group Ltd, the claimants lived on the premises where they worked and were only paid for emergency call outs during the night. The tribunal held that as they were at home, they were only entitled to be paid the national minimum wage when they were actually working, as per the decision in Shannon v Rampersad (weekly LELR 445); and the exception in Rule 32(1) relating to the worker being at home.
Acknowledging the importance of identifying a “clear dichotomy” between those cases where an employee is present at their employer’s premises and those where they are simply on-call, the EAT said that sadly there was no “single key” to unlock the meaning of words in the regulations. It accepted that this was particularly unfortunate in the care sector where sleep-in duties are very common and employers need certainty because of the potential criminal sanctions they could incur.
However, the EAT could not provide any. Instead it said that tribunals had to carry out a multifactorial evaluation which might include a consideration of:
- The reason for employing the worker. For instance, to comply with a regulatory requirement to have someone present
- The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer
- The degree of responsibility undertaken by the worker
- The immediacy of the requirement to provide services if an emergency arises
In essence, each case would turn on its own facts. As such, the EAT dismissed the appeal in in the case of Focus Care Agency on the basis that the tribunal’s conclusions were open to it on the facts and in law. It also dismissed the appeal in Royal Mencap on the basis that the worker was performing the role of a carer during the sleep-in shift. Finally, it allowed the appeal in Frudd on the basis that the judge had not carried out the multifactorial approach required.
Whilst there may be a “no size fits all” approach to considering whether a sleep-in shift should be treated as time work for the purposes of calculating national minimum wage entitlement, the decisions in Focus Care Agency and Royal Mencap do provide workers with greater certainty as to their entitlement to the national minimum wage. Generally speaking, if an employer has a regulatory obligation to have someone on the premises, the worker's responsibility is to remain present throughout the shift, and to keep a listening ear and exercise professional judgment to determine whether to intervene. The time spent performing that shift is likely to be treated as time-work. This means that all the hours spent performing a sleep-in shift, not just those spent awake, should be included in the worker’s national minimum wage calculation.
The Employment Appeal Tribunal has held in The Government Legal Service v Brooke, that a failure by an employer to offer a potential employee an alternative to a multiple choice test constituted indirect discrimination and discrimination because of something arising from her disability. The fact that medical evidence was inconclusive did not mean that the employee was not put at a particular disadvantage.
Candidates wishing to join the Government Legal Services (GLS) have to pass a multiple choice Situational Judgment Test (SJT), as the first stage in a “fiendishly competitive” recruitment process.
Prior to taking the online test Ms Brookes, who has Asperger’s, asked the GLS if she could answer the questions in the form of short narrative written answers. She was told that there was no alternative test format but it guaranteed her an interview if she passed the SJT and two other subsequent tests. She took the test but failed, scoring 12 points out of a possible 22, with 14 being the pass mark.
She brought claims of indirect discrimination; failure to make reasonable adjustments; and discrimination because of something arising in consequence of her disability.
The tribunal held that the GLS had applied a provision, criterion or practice - a requirement for all applicants in the trainee recruitment scheme to pass the online SJT – which put people with Asperger’s at a disadvantage as a group.
It also put Ms Brookes at a particular disadvantage. She was intelligent, resourceful and capable, had experience as a paralegal which would have given her experience of practical decision making and, according to the expert medical evidence, fitted the profile of those would likely be disadvantaged. Crucially, no other alternative explanation was provided as to why she did not perform better in the SJT.
While the PCP served a legitimate aim – testing the competency required of GLS trainees to make effective decisions - the means of achieving that aim were not proportionate as the GLS could have made adjustments for her. Accordingly, the complaint of indirect discrimination succeeded. The claim in respect of reasonable adjustments also succeeded for similar reasons. As the claim for discrimination because of something arising in consequence of a disability stood or fell with the indirect discrimination claim that succeeded as well.
The GLS appealed against the tribunal decision that Ms Brookes was put at a particular disadvantage by the SJT.
Upholding the tribunal’s decision, the EAT held that its reasoning was cogent and properly supported the conclusions it reached.
The tribunal was entitled to come to the view that the requirement to pass the test put Ms Bookes at a particular disadvantage. The fact that the medical evidence was “inconclusive” did not prevent the tribunal from finding that, together with other evidence, she had failed the test because she had Asperger Syndrome.
The tribunal had also successfully dealt with the issue of proportionality. It accepted that it would not be ideal for employers to run two different tests in parallel with one another, not least because there would be difficulties in comparing candidates' responses. In addition, it would involve a degree of subjectivity. However, these factors were outweighed by the disadvantage incurred by Ms Brookes. The GLS should therefore have made the reasonable adjustment of allowing her to answer the questions using short, narrative, written answers.
The decision illustrates the need for employers to ensure that any recruitment tests do not discriminate against those with a disability. Where there is medical evidence which is inconclusive employers should err on the side of caution.
Discrimination and Adjustments for Candidate with Asperger's Syndrome
Discrimination: Adjustments for Candidate with Asperger's Syndrome
Was a job applicant with Asperger's Syndrome discriminated against by being required to sit a psychometric test?
Yes, held the EAT in The Government Legal Service v Brookes.
The Government Legal Service (GLS) was recruiting lawyers in what the EAT called "a fiendishly competitive recruitment process". The process included a multiple choice Situational Judgement Test (SJT).
Brookes contacted the GLS and requested adjustments on the ground of her Asperger's Syndrome. She was informed that an alternative test format was not available (although time allowances were). She completed the SJT and failed. She claimed disability discrimination.
The employment tribunal concluded that a 'provision, criterion or practice' (PCP) (being the requirement that all applicants take and pass the SJT test) put a group people such as Brookes at a particular disadvantage compared to those who did not have Asperger's Syndrome. It went on to find that the PCP put Brookes, in particular, at such a disadvantage.
Further, while the PCP served a legitimate aim, the means of achieving that aim were not proportionate to it, and, accordingly, Brookes' claim of indirect discrimination succeeded. The claim for failure to make reasonable adjustments also succeeded on similar reasoning.
The EAT agreed. The employment tribunal was entitled to conclude the PCP placed Brookes at a particular disadvantage because she has Asperger's Syndrome. Additionally, her psychiatrist had made previous recommendations (in relation to her university courses) that a multiple choice format test would not be appropriate for her.
The EAT further held the employment tribunal adopted the correct approach when carrying out a proportionality assessment, but acknowledged that whilst the GLS needed to test the core competency of ability of its candidates to make effective decisions; a psychometric test was not the only way to achieve this.
Public Sector Exit Payments
Public Sector Exit Payments (posted 31/01/17)
A statutory instrument has been made which brings s41 of the Enterprise Act 2016 into force on 1st February 2017 (ie this Wednesday).
Section 41 allows the Secretary of State to issue regulations capping public sector exit payments (which include pay in lieu or notice, redundancy and ex gratia payments) to £95,000.
Enterprise Act 2016
41 Restriction on public sector exit payments
This section has no associated Explanatory Notes
(1)Before section 154 of the Small Business, Enterprise and Employment Act 2015 (but after the italic heading preceding that section) insert—
“153A Regulations to restrict public sector exit payments
(1)Regulations may make provision to secure that the total amount of exit payments made to a person in respect of a relevant public sector exit does not exceed £95,000.
(2)Where provision is made under subsection (1) it must also secure that if, in any period of 28 consecutive days, two or more relevant public sector exits occur in respect of the same person, the total amount of exit payments made to the person in respect of those exits does not exceed the amount provided for in subsection (1).
(3)An exit payment is in respect of a relevant public sector exit if it is made—
(a)to an employee of a prescribed public sector authority in consequence of the employee leaving employment, or
(b)to a holder of a prescribed public sector office in consequence of the office-holder leaving office.
(4)An exit payment is a payment of a prescribed description.
(5)The descriptions of payment which may be prescribed include—
(a)any payment on account of dismissal by reason of redundancy (read in accordance with section 139 of the Employment Rights Act 1996);
(b)any payment on voluntary exit;
(c)any payment to reduce or eliminate an actuarial reduction to a pension on early retirement or in respect of the cost to a pension scheme of such a reduction not being made;
(d)any severance payment or other ex gratia payment;
(e)any payment in respect of an outstanding entitlement;
(f)any payment of compensation under the terms of a contract;
(g)any payment in lieu of notice;
(h)any payment in the form of shares or share options.
(6)In this section a reference to a payment made to a person includes a reference to a payment made in respect of that person to another person.
(7)For the purposes of subsection (2), a public sector exit occurs when the person leaves the employment or office in question (regardless of when any exit payment is made).
(8)Regulations may include—
(a)provision which exempts from any provision made under subsection (1) exit payments, or exit payments of a prescribed description, made in prescribed circumstances;
(b)provision which, in consequence of provision made under subsection (1), amends a relevant public sector scheme so as to make any duty or power under the scheme to make exit payments subject to any restriction imposed by regulations under subsection (1) (taking account of any relaxation of such a restriction which may be made under section 153C);
(c)provision which makes an amendment of any provision made by or under an enactment (whenever passed or made) which is necessary or expedient in consequence of any provision made by or under this section.
(9)Regulations may substitute a different amount for the amount for the time being specified in subsection (1).
(10)Nothing in this section applies in relation to payments made by authorities who wholly or mainly exercise functions which could be conferred by provision included in an Act of the Northern Ireland Assembly made without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).
(11)In this section—
- “enactment” includes an Act of the Scottish Parliament, a Measure or Act of the National Assembly for Wales and Northern Ireland legislation;
- “prescribed” means prescribed by regulations under this section;
- “relevant public sector scheme” means—
(a)a scheme under section 1 of the Superannuation Act 1972 (civil servants);
(b)a scheme under section 7 of that Act (local government workers);
(c)a scheme under section 9 of that Act (teachers);
(d)a scheme under section 10 of that Act (health service workers);
(e)a scheme under section 1 of the Public Service Pensions Act 2013 (schemes for persons in public service);
(f)a scheme under section 26 of the Fire Services Act 1947 or section 34 of the Fire and Rescue Services Act 2004 (fire and rescue workers);
(g)a scheme under section 1 of the Police Pensions Act 1976 or section 48 of the Police and Fire Reform (Scotland) Act 2012 (members of police forces);
(h)any other prescribed scheme (whether established by or under an enactment or otherwise)
153B Supplementary provision about regulations under section 153A
(1)Subject to subsection (2), the power to make regulations under section 153A is exercisable—
(a)by the Scottish Ministers, in relation to payments made by a relevant Scottish authority;
(b)by the Welsh Ministers, in relation to relevant Welsh exit payments;
(c)by the Treasury, in relation to any other payments.
(2)Where the relevant Scottish authority is the Scottish Administration (or a part of it) the power to make regulations under section 153A is exercisable by the Treasury (instead of the Scottish Ministers)—
(a)in relation to payments made to the holders of offices in the Scottish Administration which are not ministerial offices (read in accordance with section 126(8) of the Scotland Act 1998), and
(b)in relation to payments made to members of the staff of the Scottish Administration (read in accordance with section 126(7)(b) of that Act).
(3)The power to make provision of the kind mentioned in section 153A(8)(b) (power to amend public sector schemes), so far as exercisable by the Treasury, is also exercisable concurrently by any other Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975) with the consent of the Treasury.
(4)Regulations under section 153A—
(a)if made by the Treasury, are subject to the affirmative resolution procedure;
(b)if made by the Scottish Ministers, are subject to the affirmative procedure;
(c)if made by the Welsh Ministers, may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, the National Assembly for Wales.
(5)In this section “relevant Scottish authority” means—
(a)the Scottish Parliamentary Corporate Body, or
(b)any authority which wholly or mainly exercises functions within devolved competence (within the meaning of section 54 of the Scotland Act 1998).
(6)In this section “relevant Welsh exit payments” means exit payments made to holders of the following offices—
(a)member of the National Assembly for Wales;
(b)the First Minister for Wales;
(c)Welsh Minister appointed under section 48 of the Government of Wales Act 2006;
(d)Counsel General to the Welsh Government;
(e)Deputy Welsh Minister;
(f)member of a county council or a county borough council in Wales;
(g)member of a National Park Authority in Wales;
(h)member of a Fire and Rescue Authority in Wales.
153C Power to relax restriction on public sector exit payments
(1)A Minister of the Crown may relax any restriction imposed by regulations made by the Treasury under section 153A.
Minimum Wage excuses won't work
She only sweeps the floors (posted 24/01/17)
The government has published a list of the strangest excuses given by employers for failing to pay the National Minimum Wage (NMW).
The list was published last week to coincide with a new awareness campaign to encourage workers to check their pay to ensure they are receiving at least the statutory minimum ahead of the national minimum and national living wages rising on 1 April 2017.
The list of excuses included the following:
The employee wasn’t a good worker so I didn’t think they deserved to be paid the NMW.
I thought it was ok to pay foreign workers below the NMW as they aren’t British.
The employee didn’t deserve the NMW because she only makes the teas and sweeps the floors.
I’ve got an agreement with my workers that I won’t pay them the NMW; they understand and they even signed a contract to this effect.
My workers like to think of themselves as being self-employed and the NMW doesn’t apply to people who work for themselves.
My workers are often just on standby when there are no customers in the shop; I only pay them for when they’re actually serving someone.
My employee is still learning so they aren’t entitled to the NMW.
The NMW doesn’t apply to my business.
By law, all workers must be paid at least £7.20 an hour if they are aged 25 years and over, or the National Minimum Wage rate relevant to their age if they are younger.
From 1 April 2017, the NMW rate will increase to:
£3.50 per hour for apprentices (an increase of 10p)
£4.05 per hour for 16 to 17 year olds (an increase of 5p)
£5.60 per hour for 18 to 20 year olds (an increase of 5p)
£7.05 per hour for 21 to 24 year olds (an increase of 10p)
The National Living Wage rate will increase to £7.50 per hour for those aged 25 and over.
Jo Seery of Thompsons Solicitors said, “workers have been entitled to the National Minimum Wage for more than 17 years so there is no excuse for employers to pay below the legal entitlement.
Yet according to the National Audit office, some 58,000 workers in 2015-2016 were underpaid the National Minimum Wage. This compares with just 3 out of 700 employers who were prosecuted for failing to pay the National Minimum Wage.
In response the Government has launched a 1.7 million advertisement campaign to raise awareness but it needs to take immediate action to ensure the law is properly enforced.”
Temporary incapacity duration
Temporary incapacity (posted 24/01/17)
To come within the definition of disability under EU law, the physical or mental impairment has to be “long’term”. In Daouidi v Bootes Plus SL, the Court of Justice of the European Union (CJEU) held that a worker’s temporary incapacity of uncertain duration can come within the definition of disability provided it is long term (a question of fact for the national court to decide).
Mr Daouidi started working for Bootes Plus as a part-time kitchen assistant in April 2014 on a three-month basis. In July his contract was increased to full time and extended by nine months following a favourable report from the kitchen chef.
In October Mr Daouidi slipped on the kitchen floor and dislocated his shoulder which had to be put in plaster. When the chef got in touch with him two weeks later to ask when he might be able to return to work, Mr Daouidi said he was still incapacitated. On 26 November 2014, when he was still temporarily unable to work, Mr Daouidi was dismissed ostensibly because of poor performance.
In December 2014 Mr Daouidi brought a claim in the local court for unfair dismissal and disability discrimination.
Decision of the lower court
The court agreed that the real reason for the dismissal was his temporary inability to work for an uncertain amount of time as a result of the accident that he had suffered at work.
According to Spanish law, however, dismissal on grounds of illness or of temporary disability resulting from an accident at work is not considered to be discriminatory as it is not “long term”. However, six months after the accident Mr Daouidi’s elbow was still in plaster and it was clear from his employer’s actions that they thought his incapacity had gone on too long.
The court therefore asked the CJEU to decide if the requirement under the European Directive on Equal Treatment in Employment and Occupation for the incapacity to be “long-term” could be satisfied if a worker was unable to work for an indefinite period of time, following an accident at work.
The CJEU said that for Mr Daouidi to come within the scope of the directive, he had to prove that he had a long-term physical or mental impairment which meant that he could not participate in professional life on an equal basis with other workers.
The fact that his incapacity was temporary did not mean that it could not be classified as “long term” within the meaning in the directive. However, he had to provide evidence that the incapacity was long term. Such evidence may include the fact that, at the time of the alleged discriminatory act, the worker’s short term prognosis remained uncertain or that his incapacity was likely to be significantly prolonged before he recovered.
When trying to decide whether it is long-term or not, the referring court must base its decision on all of the objective evidence in its possession, in particular on documents and certificates relating to the person’s condition, established on the basis of current medical and scientific knowledge and data.
While the CJEU held that a person who is temporarily incapacitated may fall within the definition of disability it did not clarify what is meant by “long term” and left it to the national courts to determine. In the UK, Schedule 1 Part 1 of the Equality Act 2010 provides that an impairment is long term if it has lasted or is likely to last for at least 12 months
conflict of LGBT and faith issues in Lee vs Ashers Baking co
NOTE: This is not really about employment law buit it does involve legal issues which are important and so has been posted on the site.
How should conflicts between the LGBT community, and the faith community, be resolved under discrimination law?
The Northern Ireland Court of Appeal has handed down its decision in the so-called 'gay cake' case, more properly known as Lee v Ashers Baking Company, deciding the question of whether religious beliefs trump the law against discrimination in the supply of goods and services on grounds of sexual orientation.
Ashers Bakery, owned by Mr & Mrs McArthur, cancelled an order taken by their shop assistant to decorate a cake with a picture of Bert & Ernie and the caption 'Support Gay Marriage'. The McArthurs are devout Christians who believe that gay marriage is sinful, and they accepted they cancelled the order because of that belief.
The Northern Ireland Court of Appeal has upheld the county court's decision. It held that the benefit from the slogan could only accrue to gay or bisexual people, and that the McArthurs would not have objected to decorating a cake saying 'Support Heterosexual Marriage'. The 'reason why' they cancelled the order was that the message related to gay marriage, and there was an exact correspondence between those of the particular sexual orientation and those whom the message supported the right to marry. Accordingly this was a case of 'associative discrimination' with the gay and bisexual community, and amounted to direct discrimination.
The Court of Appeal went on to hold that the McArthurs' own right to free speech (ie objecting to gay marriage) was not being infringed. Nobody could reasonably conclude that by icing a cake, they were expressing personal support for the slogan - just as icing witches on a Halloween cake does not indicate they support witchcraft. The McArthurs were entitled to refuse to decorate cakes involving any religious or political message, but they were not allowed to refuse to decorate cakes which carried a particular religious or political message just because it conflicted with their own views.
Stop shocking workplace discrimination of pregnant women say MPs
31 August 2016
The Women and Equalities Committee has called for UK women to have protections similar to those in Germany after a 'shocking' increase in workplace pregnancy discrimination over the past decade.
Read the summary here
Read the full report here
MPs demand urgent action, calling on the Government to publish an ambitious, detailed plan within the next two years or risk a further rise in pregnant women and mothers being forced out of their work.
Recommendations include changes to health and safety practices, preventing discriminatory redundancies and an increase in protection for casual, agency and zero-hours workers.
Committee Chair Maria Miller commented:
"The arrival of a new baby puts family finances under extreme pressure yet, despite this, thousands of expectant and new mothers have no choice but to leave their work because of concerns about the safety of their child or pregnancy discrimination. Shockingly this figure has almost doubled in the last decade, now standing at 54,000.
There are now record numbers of women in work in the UK. The economy will suffer unless employers modernise their workplace practices to ensure effective support and protection for expectant and new mums.
The Government's approach has lacked urgency and bite. It needs to set out a detailed plan outlining the specific actions it will take to tackle this unacceptable level of discrimination. This work must be underpinned by concrete targets and changes to laws and protections to increase compliance by employers to improve women's lives."
Increased protection from redundancy
Research carried out by the Department for Business, Innovation and Skills (BIS) and the Equality and Human Rights Commission (EHRC) revealed that pregnant women and mothers now face more discrimination at work than they did a decade ago. 11% of women reported being either dismissed, made compulsorily redundant when others in their workplace were not, or treated so poorly they felt they had to leave their job. The Committee's report urges the Government to change the law to give new and expectant mothers additional protection from redundancy. It recommends implementation of a system similar to that used in Germany under which such women can be made redundant only in specified circumstances.
Maria Miller commented:
"It is difficult to accept the EHRC and Government's characterisation of this as merely about enforcement and we are persuaded by the evidence that additional protections against discriminatory redundancies are needed."
Tribunals and access to justice
During their inquiry MPs heard strong evidence that women were not taking action in large enough numbers to ensure compliance from employers on existing protections. Witnesses argued that the three month time limit on pregnancy and maternity discrimination cases did not recognise the pressures on expectant mothers and the report recommends that the time limit is extended to six months. The Committee also recommends a substantial reduction in tribunal fees for discrimination cases.
Maria Miller commented:
"The Government's approach to improving compliance with pregnancy and maternity discrimination law has been confusing. It has stated that it is important to focus on enforcement and yet its main policy focus is awareness-raising and persuasion. It has voiced concern about the low numbers of women taking enforcement action against their employer, but has rejected the EHRC's recommendations to remove unfair barriers to justice and has no plans to ease the burden of enforcement on women.
We agree that it is preferable for workplace disputes to be resolved at the earliest possible stage and that tribunals should be a last resort. However we also recognise the important role that tribunals play in enabling individuals to seek redress, in holding employers to account, and as a wider deterrent."
Extending maternity-related rights to casual, agency and zero hours workers
The Committee also heard evidence that there is a clear need for new and expectant mothers who are casual, agency and zero-hours workers to be properly protected. The Committee found that women in this group are more likely to report a risk or impact to their health and welfare than other types of worker; more likely to leave their employer as a result of health and safety risks not being resolved; and less likely to feel confident about challenging discriminatory behaviour.
Maria Miller commented:
"We heard concerning evidence about the experiences of pregnant casual, agency and zero hours workers. While we understand the reason they do not have the same day one rights as employees, employers should not be able to avoid affording regular, long-term workers the same basic rights as employees because they have a different contract type."
The Committee recommends that paid time off for antenatal appointments is extended to all workers after a short qualifying period and that the Government urgently review the pregnancy and maternity-related rights available to casual, agency and zero-hours workers.
Other recommendations made by the committee include:
- Employers should be required to undertake an individual risk assessment when they are informed that a woman who works for them is pregnant, has given birth in the past six months or is breastfeeding. The Health and Safety Executive should include this requirement in its guidance to employers by the end of 2016
- New and expectant mothers who are concerned that their health and/or the health of their baby is being put at risk by their work should have an easily accessible, formal mechanism to compel their employer to deal with such risks appropriately
- Given the uncertainty about what Brexit will mean, a statement of the Government's intention to ensure that rights and protections are not eroded would provide welcome reassurance during this period of transition
- The Government should work with the main organisations providing free, good-quality, one-to-one advice to women on pregnancy and maternity discrimination to monitor the uptake of and estimated unmet need for such advice
Section 20 Equality Act
Section 20 Equality Act
Section 20 of the Equality Act states that employers have a duty to make reasonable adjustments if a disabled person is placed at a substantial disadvantage compared with an able bodied comparator. In Griffiths v Secretary of State for Work and Pensions the Court of Appeal held that if an employee’s disability means they are more likely to be absent from work than able-bodied colleagues, the duty is likely to be engaged.
Thompsons were instructed by Ms Griffiths’ union, the PCS, to act on her behalf.
The DWP operated an Attendance Management Policy which stated that formal action would be taken against any employee who was absent from work for more than eight days in any 12-month rolling period, although this “consideration point” could be extended as a reasonable adjustment for disabled employees. After being off sick for 62 days because of her disability, Ms Griffiths was given a formal written improvement warning when she returned to work, in line with the policy.
She lodged a grievance asking her employer to disregard the 62 days (which meant also withdrawing the written warning) and that the consideration point should be increased in future to 20 days in any rolling 12-month period to accommodate the fact that she was likely to have a higher level of sickness absence than non-disabled workers and to reduce her risk of being dismissed for a reason related to her disability. Her grievance was dismissed, as was her appeal.
Ms Griffiths lodged a tribunal claim alleging that her employer's failure to make the adjustments constituted a breach of Section 20.
Tribunal and EAT decisions
Relying on the decision in Royal Bank of Scotland v Ashton, a majority of the tribunal held that the duty to make adjustments did not arise because the sickness policy applied equally to everyone which meant that the disabled could not be placed at a substantial disadvantage in comparison to non disabled colleagues.
In any event, it held that the adjustments were not reasonable, not least because they would amount to a perpetual extension of sickness absence and it would put the DWP in the “invidious” position of having to decide how far the sickness absence consideration points should be extended. The EAT agreed.
Decision of Court of Appeal
The Court of Appeal agreed with the tribunal that the adjustments proposed were not steps which the DWP could reasonably be expected to take.
However it rejected the assertion that courts should be indifferent to the reason for the absence. As the Court of Appeal pointed out, the fact that both employees were treated equally and might both be subject to the same disadvantage when absent for the same amount of time did not eliminate the disadvantage if the policy affected the disabled person more than the able bodied person.
As the whole point of section 20 was to require employers to take whatever steps that might be reasonable in order to remove the disadvantage, the fact that the able-bodied might also be disadvantaged by the rule was irrelevant.
It is now clear that if a disabled person has disability-related absences which trigger the application of an absence policy, the duty to make reasonable adjustments will normally be engaged. It will be for tribunals to decide on the facts of each specific case in terms of what adjustments are reasonable. However claimants should also bring claims of discrimination arising from disability under section 15 of the Act. In the absence management context, the strongest claims under this section will be those where an employer has contributed to or caused the disability by something they have or have not done.
However, trade unions should note that although the duty to make reasonable adjustments applies in absence management cases, they are still very difficult to win. Although a disabled employee may suffer disadvantage the steps required to avoid it are not likely to be adjustments which a reasonable employer could be expected to make. Instead, it is more likely to be reasonable to extend the consideration point in cases where a disabled employee is likely to be off sick occasionally.
Case Law on Dismissing Employee for Having Second Job While Claiming Sick Pay - Ruled Unfair
For futher information click the link.
Summary of judgement.
“In finding her dismissal unfair, the EAT pointed out that Imperial's original decision to dismiss for fraud had been legally and factually wrong. There is nothing to stop an employee claiming sick pay while medically unfit for one job, and carrying on working for another job for which she is still fit. P was not working for Ealing when she would otherwise have been working for Imperial. Dismissal was outside the band of reasonable responses and was therefore unfair.”
Download HR Bulletin Travelling Times
"Working Time"- landmark case
Time spent travelling to work – and back home again is not ‘working time’ that needs to be counted under the Working Time Regulations. But we now have an important qualification to add where the employee has no fixed place of work and the first journey of the day is to visit a customer or site specified by the employer .
Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another
(unreported, Case C 266/14 10 September 2015, ECJ)
This Spanish case involved technicians who, following the closure of regional offices, were assigned to a central office in Madrid and travelled to particular provinces in Spain installing and maintaining security systems. As a result of the decision to close the regional offices the technicians no longer attended an office at the start and end of each day but travelled directly to and from customers’ premises. Issues arose about what counted as working time.
The employer said that the first journey of the day (from home to the first appointment) and the last journey of the day (from the last a appointment to home) were not working time.
The technicians brought a claim against the employer saying that the time spent travelling at the beginning and end of the day by a worker constituted ‘working time’ and was not a ‘rest period’.
The European Court of Justice (ECJ) followed the Advocate General’s opinion and decided that workers who are not assigned a fixed place of work may count the time spent travelling from their home to their first appointment and the time spent travelling home from their last appointment as working time for the purposes of the Working Time Directive.
The Directive does not provide an intermediate category between ‘working time' and ‘rest’ and the court felt that the following three criteria for determining 'working time’ were met:
- Being at the workplace.
- Being at the disposal of the employer.
- Carrying out the activity or duties.
The time spent travelling to and from the workers' homes during the first and last journeys of the day was therefore working time rather than simply a rest break because the workers cannot use that time freely to pursue their own interests.
Implications for employers
- Although this decision relates to a Spanish case it concerns the EU Working Time Directive.
- The Working Time Regulations 1998 implement the same Directive in the UK.
- The Working Time Regulations 1998 do not deal with travel to and from places of work or between places of work.
- Following this case time spent travelling to and from home to certain jobs during the first and last journeys of the day may be working time, but only for certain workers with no habitual place of work.
- Non–statutory guidance (available on Gov.uk) suggests that normal travel to and from work and travelling outside normal working hours is not working time.
- Time spent travelling by workers who have to travel as part of their job, for example travelling sales representatives, should be considered as working time.
- Employers should note that just because time counts as working time for the purposes of assessing the number of hours worked, this does not necessarily mean that time should be paid.
- Those workers who have no fixed work place and a large territory may clock up more working time by their travelling to and from work.
- Employers may consider scheduling early and late appointments at sites close to workers’ homes.
- This decision may have an impact on employers that use peripatetic workers, such as the care sector and these employers should carefully review working practices to ensure overall working time and rest breaks are adequate and do not breach the working time legislation.
- More employers may use clauses to opt out of the Working Time Directive 48-hour working week as opt-outs are still permitted in the UK.
Updated legal guidance over sleep-ins and the National Minimum Wage
LG/SS/15/2015 Updated legal guidance over sleep-ins and the National Minimum Wage
27th August 2015
Last year a key legal judgement established that sleep-ins carried out by workers should be included in calculations for the National Minimum Wage. This means that members, and potential members, who do ‘sleep-ins’ and are low paid may be entitled to a pay rise and potentially back pay.
UNISON is aware that the introduction of the NMW Regulations 2015 led some employers to think that this meant that they now did not have to pay for sleep-ins (reversing the Whittlestone EAT judgment), however this is not the case. This briefing sets out the legal approach for negotiators and organisers when working with employers who are not paying their employees for “sleep-ins” and are therefore in breach of the NMW legislation.
Sleep-ins and the National Minimum Wage
The Whittlestone EAT judgement has established that “sleep-ins” are covered by the National Minimum Wage (NMW) regulations. So even if a worker is allowed to sleep at work, if they are required to stay at their workplace, then all their hours are covered by NMW regulations.
This means if any worker is paid - on average – less than the NMW over their pay reference period
, they will be entitled to a pay rise to ensure NMW compliance. They may also be able to pursue a claim for back pay. However, because working patterns vary enormously between individuals; this will need to be considered on a case-by-case basis.
UNISON is aware that the introduction of the NMW Regulations 2015 led some employers to think that this meant that they now did not have to pay for sleep-ins (reversing the Whittlestone EAT judgment), however this is not the case. This briefing sets out the legal approach for negotiators and organisers when working with employers that are not paying their employees for “sleep-ins” and are therefore in breach of the NMW legislation.
The legal approach
The new NMW Regulations 2015 are consolidating regulations and therefore the legal position from the Whittlestone EAT judgement remains unchanged and “sleep-ins” continue to be covered by the NMW.
Each case will need to be looked at on an individual basis, however the starting point is to look at the nature of the work being undertaken by the member. Does the worker have an obligation to be physically present at their workplace? For example, what would happen if they left - would the worker be disciplined?. If they would be disciplined or they are otherwise prevented from leaving then case law suggests that the time spent at work, whether awake or asleep, is subject to NMW compliance. This is because being present is work in itself.
It may be that the worker is able to sleep (as Ms. Whittlestone was able to) for most of the night but the relevant issue is that the worker could not simply be absent for one night or part of a night and that her physical presence is required.
The sections which appear to be causing concern for employers (reg. 27 (2) and reg. 32(2)) only come into play where it can be shown that the worker is available for work (but not actually working) and qualify the situations in which payment must be made (i.e. when the worker is woken and carries out duties).
These would be circumstances where the individual was genuinely “on-call”. For example if a worker was required to sleep on the premises, but could come and go as they pleased (they are under no obligation to be physically present), this would be categorised as “on-call”. Our experience suggests that this would be an unlikely scenario in the care sector. It is more likely to be relevant in the service industry where people may live above a pub for example.
UNISON’s position is that someone who is required to be present (awake or asleep), and who is not permitted to leave the premises during their shift or sleep in is working rather than available for work so the qualifications in reg. 27(2) and reg. 32(2) do not apply.
The law is a useful tool in pushing employers to change current arrangements, and potentially for back pay claims. We will support individual members’ legal cases where they are assessed as having reasonable chances of success. It should be noted that no-win no-fee lawyers may see this as an opportunity to pursue claims. Unlike many no win no fee lawyers UNISON never deducts fees from compensation in successful claims.
Where there may be an individual case, a case form must be completed and evidence attached including copies of pay slips and rotas. All legal cases should be referred to UNISON Legal Services. The contacts for this, and further legal guidance on this issue, are:
Kate Ewing (for England / Wales / N. Ireland) firstname.lastname@example.org
TUPE case law update - worker groups
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) state that immediately before a service provision change (SPC) takes place, there has to be an organised grouping of employees dedicated to carrying out the activities concerned. In Jakowlew v Saga Care and Westminster Homecare Ltd, the Employment Appeal Tribunal (EAT) held that a third party cannot decide what grouping of workers a particular worker is assigned to.
Ms Jakowlew worked as a care manager for Saga mainly for a contract with the London Borough of Enfield. On 14 June 2013, Enfield expressed concern to Saga about an incident that had taken place in February when Ms Jakowlew was suspended on full pay, along with three colleagues, and wanted to know why they had not been disciplined.
On 19 June, Enfield used its right under Clause 10.5 of the contract to instruct Saga to remove the three employees from the contract. Saga objected on the basis that the notice given by the authority was both “unreasonable and vexatious”. In the meantime, Saga held a disciplinary hearing and gave Ms Jakowlew a written warning. Saga’s contract with Enfield ended on 30 June 2013 and transferred to Westminster Homecare on 1 July 2013.
Ms Jakowlew was initially told that her employment would TUPE-transfer over to Westminster, but Saga and Westminster decided at the end of July 2013 that she was still Saga’s employee. Ms Jakowlew was dismissed by Saga by reason of redundancy in September 2013. She claimed unfair dismissal against both Saga and Westminster.
Regulation 3(1)(b) of TUPE states that immediately before a service provision change when activities cease to be carried out by a contractor on a client’s behalf and are carried on instead by another contractor, there has to be an organised grouping of employees ”which has as its principal purpose the carrying out of the activities concerned on behalf of the client”.
The tribunal accepted that there had been an SPC with the result that TUPE applied. However, it also found that immediately before the transfer Ms Jakowlew had been removed from the service as a result of the letter from Enfield Council dated 19 June 2013.
The tribunal held that the confusion between Saga and Westminster as to whether Ms Jakowlew had transferred was irrelevant because on 1 July 2013 she was not assigned to the organised grouping which carried out the Enfield Council contract and therefore did not transfer. As such, Ms Jakowlew remained Saga’s employee.
The EAT upheld Ms Jakowlew’s appeal and explained that the key question was whether, immediately before the transfer, she would have been required by Saga to work in the organised grouping of employees, if she had not been excused from attendance. Interestingly, the EAT held that her suspension was another excusal from attendance, like holiday, study leave and sickness absence. There was no reason why suspending an employee on full pay pending disciplinary proceedings should result in being removed from the organised grouping to which the employee belonged.
Although Enfield had a right under the service contract to instruct Saga to remove an employee by virtue of clause 10.5, it was still for Saga (as the employer) to decide what grouping of workers was assigned to the service. As Saga did not act on the instruction by Enfield (and in fact disputed its correctness), the EAT decided that Ms Jakowlew remained assigned to the contract with Enfield and TUPE-transferred over to Westminster.
The novel point in this case was that the employer failed to act on the instruction of the client to remove the employee from the service. By itself, the instruction was not sufficient to remove the suspended employee from being assigned and TUPE-transferred, as she was to be treated in the same way as anyone else legitimately excused from attendance.
Case law - annual leave and sickness
Generally annual leave cannot be carried over to the next holiday year unless there is an agreement to do so or the employee is on sick leave. In Plumb v Duncan Print Group Ltd, the Employment Appeal Tribunal (EAT) held that workers who are off sick do not have to show that they were unable or unwilling to take the leave because of their medical condition, and that it can be taken up to 18 months after the leave year in which it accrued.
Thompsons was instructed by Mr Plumb’s union, Unite the Union, to act on his behalf.
After suffering an accident at work in April 2010, Mr Plumb remained on sick leave until he was dismissed in February 2014. He did not ask to take any holiday until 2013, when his employer paid him for that leave year.
On termination, he asked his employer to pay him in lieu of annual leave for the 2010, 2011 and 2012 leave years but the company refused.
The tribunal noted that the guiding case was the decision of the Court of Appeal in NHS Leeds v Larner (weekly LELR 285) when it held that people on sick leave can carry over their leave with pay, but only if they were either “unable or unwilling” to request leave as a result of their medical condition. This, said the tribunal, was a question of fact, not law.
In this case, the issue in question was whether Mr Plumb was “unable” to take the leave. The tribunal decided he was able to do so, not least because he regularly worked weekends during the time he was off sick and also because he went on a week’s holiday in 2012. Further the question of his “willingness” to take annual leave was irrelevant.
Mr Plumb appealed, arguing that the law did not require him to show that he was physically unable to take holiday because of his medical condition.
The EAT disagreed with the tribunal, holding that the correct legal situation is as follows:
- If the employee is not allowed to take annual leave during a period of sick leave that coincides with a holiday year, they are entitled to take it in a subsequent leave year
- If the employee is allowed to take annual leave while on sick leave, they can either take the holiday during the period of sick leave or at a later date
- The Court in Larner did not require employees on sick leave to show that they were unwilling or physically unable to take annual leave because of their medical condition.
As Mr Plumb did not request any annual leave whilst he was on sick leave from 2010 to 2012, the only inference that could be drawn was that he did not want to take his annual leave during those years. He remained entitled to the leave, therefore, and was allowed to carry it over until a later date.
The EAT then addressed the question of whether there was a time limit on the period in which annual leave can be carried over. Although Regulation 13(9) of the Working Time Regulations states that annual leave must be taken “in the leave year in respect of which it is due”, it has been interpreted to include an exception for people on sick leave who are unable or unwilling to take annual leave during the leave year.
However, this exception only has to be read into the regulation to the extent necessary to give effect to the Working Time Directive. As the UK does not set a limit for annual leave entitlement in sickness absence cases, the EAT held that it could be guided by the relevant International Labour Organisation convention which indicates that the carry over period should be limited to 18 months from the end of the leave year in which is accrued.
In the present case, therefore, Mr Plumb was entitled to compensation for the leave year 1 February 2012 to 31 January 2013. He was also awarded repayment of his EAT fees.
Widespread pregnancy discrimination
The government and the Equality and Human Rights Commission last week published a report showing that one in nine new mothers lose their job every year as a result of their pregnancy.
This is despite the fact that most employers said that it was in their interests to support pregnant women and those on maternity leave. They also agreed that statutory rights relating to pregnancy and maternity are reasonable and easy to implement.
However, the reality for women at work is that:
- Around one in nine mothers (11 per cent) reported that they were dismissed, made compulsorily redundant when others in their workplace were not, or treated so poorly they felt they had to leave their job. If scaled up to the general population this could affect as many as 54,000 mothers a year.
- One in five mothers said they had experienced harassment or negative comments related to pregnancy or flexible working from their employer and/or colleagues. If scaled up to the general population this could mean as many as 100,000 mothers a year.
- 10 per cent of mothers said their employer discouraged them from attending antenatal appointments. If scaled up to the general population this could mean as many as 53,000 mothers a year.
The TUC has published guidance on how employers can improve the experiences of pregnant women and new mothers. “The Pregnancy Test: Ending Discrimination at Work for New Mothers” makes the five following recommendations:
- Employment tribunal fees should be abolished so women can afford to take their employers to court if they feel they’ve been treated unfairly.
- Employers should publish return-to-work rates to see how many new mums go back to their jobs and how many are still in post a year on. They should also carry out exit interviews with any women who feel unable to go back to work, and act on the findings.
- The government should introduce better paid leave to allow dads to play a greater role in the care of their children and mothers a greater chance to progress at work.
- Flexible working must become more widespread, and men should have as much chance to work in this way as women.
- Employers who are taken to a tribunal over a pregnancy or maternity-related complaint should be forced to act to improve their employment practices when they are found to have discriminated against a female employee.
Iain Birrell of Thompsons Solicitors commented “The BIS research shows that most employers are behaving in a supportive and law-abiding way when it comes to pregnant staff. This is very much to be welcomed. However, this should not lead us into complacency as there remain fundamental issues for a large number of women and their families, as well as thorny socio-economic issues for the UK as a whole.”
To read the government report, go to: https://www.gov.uk/government/publications/pregnancy-and-maternity-discrimination-and-disadvantage-in-the-workplace
To read the TUC report, go to: https://www.tuc.org.uk/sites/default/files/pregnancytestreport.pdf
The Working Time Regulations state that working time is any time when the worker is working, at their employer’s disposal and carrying out their activities or duties. In Edwards and Morgan v Encirc Ltd, the Employment Appeal Tribunal (EAT) held that “being at the employer’s disposal” was not the same as being under the control and direction of the employer, nor was it restricted solely to carrying out their contractual duties.
Both Mr Edwards and Mr Morgan were employed in the production of glass containers. Mr Edwards was an employee health and safety rep and was scheduled to work three 12-hour night shifts between 7pm and 7am on Tuesday, Wednesday and Thursday. This was in the same week that he attended a health and safety meeting from 1pm until 4pm outside work hours on the Wednesday which finished at 4pm. He was paid for those hours and excused the Tuesday night shift and allowed to start his Wednesday shift at 10pm rather than 7pm. However, that only left six hours between the end of the meeting and the start of his shift.
Mr Morgan was a shop steward and was scheduled to work four 12-hour night shifts from Friday to Monday. He attended a trade union meeting on Friday which finished at 4pm. He too was allowed to start his Friday night shift later than normal. However this only gave a break of nine hours from the end of the meeting until the start of the shift.
The men argued that, under the Working Time Regulations (WTR), they were denied their right to 11 consecutive hours’ rest in any 24-hour period. The company argued that the men were not working when they attended the union meetings and therefore there was no breach of the rest provisions under the WTR.
Regulation 2(1)(a) of the WTR states that working time means “any period during which [the worker] is working, at his employer’s disposal and carrying out his activities or duties.”
The tribunal held that although the men were “working” for the purposes of regulation 2(1)(a), the other two elements of the test were not satisfied, so it could not amount to working time as all three elements of the definition had to be met. They were not at their employer’s “disposal” because they were at a meeting representing employees and as such were not under the control and direction of the employer. Neither were they carrying out the activities or duties for the purpose for which they were employed i.e. the production of glass containers, while they were attending the meeting.
The EAT allowed the appeal, holding that the tribunal had adopted an unduly restrictive approach by linking the term “disposal” to particular duties that the employees carried out and by ignoring the underlying purpose of the regulations which is to protect the health and safety of workers.
In terms of the WTR, it found that “being at the employer’s disposal” was not the same as being under the control and direction of the employer. Nor was it restricted solely to carrying out their contractual duties. It could include activities which stemmed from the employment relationship, gave a benefit to the employer in a broad sense and which were done with the employer’s knowledge.
The case was remitted back to the tribunal to determine if the time spent at union meetings was working time.
Although the EAT did not make a specific finding that the time spent at the health and safety meeting or union meeting amounted to working time the broad approach adopted by the EAT means that employers would be best to treat union meetings as working time.
Carrying over Holiday Pay when Sick
Does an employee on sick leave have to show he was unable by reason of illness to take holiday for it to be carried forward and is the right to carry forward unlimited?
No and no, held the EAT in Plumb v Duncan Print Group Limited.
Mr Plumb, a printer, took four years' sick leave following an accident. Upon dismissal he sought payment for 60 days' accrued holiday for 2010, 2011 and 2012. The employment tribunal dismissed the claim because he was unable to show that his medical condition was the reason he did not take his leave.
On appeal the EAT overturned the finding. Article 7 of the Directive does not require a sick employee to take annual leave during the leave year or to show he was unable by reason of sickness to take the leave: he may be unable or unwilling to take it, as per the decision of the Court of Appeal in Larner and is entitled to take it at a later date. Regulation 13(9) of the Working Time Regulations 1998 must be interpreted to give effect to the Directive. Note that this case concerned only the four weeks' leave granted by Regulation 13 and not any additional leave under Regulation 13A. In Sood Enterprises v Healy the EAT held that the additional leave is not eligible for carry forward.
On timing the EAT ruled that such leave cannot be carried forward indefinitely and that it may be limited to 18 months' carry forward from the end of the leave year. The EAT held that it is clear from the wording of the Directive and the case law of the CJEU that national law is not required to allow carry forward without limit and that Regulation 13(9) should be read as permitting a worker to take annual leave within 18 months of the end of the leave year in which it accrued. In KHS AG v Schulte the CJEU held that carry forward may expire no earlier than 18 months and held that a shorter period might also be appropriate (in that case 15 months). Note that the issue of the time period for carry forward did not arise before the Court of Appeal in Larner.
The EAT held that Mr Plumb was entitled to payment in lieu of annual leave for 2012 but not for 2010 and 2011. Permission to appeal to the Court of Appeal was granted to both parties.
Collective Redundancy Consultation - when obligation arises
Can the obligation to consult over collective redundancies be triggered when an employer makes a provisional decision to close a workplace?
Yes, held the EAT, in E Ivor Hughes Educational Foundation v Morris, dismissing a school's appeal against a protective award of 90 days pay per employee in respect of a failure to consult over the closure of a school.
The school decided in February 2013 that it would have to close at year's end if pupil numbers had not increased by April. Ultimately, the school decided to close in April 2013 and there was never any collective consultation over the decision, in breach of Section 188 of TULR(C)A 1992.
The EAT considered an unresolved question from United States of America v Nolan on the different tests as to what triggers the duty to consult, whether it is an employer proposing a strategic decision that will foreseeably or inevitably lead to redundancies, or when that decision has been made and redundancies are a consequence.
The EAT noted that the decision (February 2013) to close the School, unless numbers increased 'was either a fixed, clear albeit provisional intention to close the School or amounted to a strategic decision on changes compelling the employer to contemplate or plan for collective redundancies. On either analysis, the duty to consult arose on that date'. The EAT did not find it necessary to decide which test applied.
The EAT also rejected a ground of appeal that special circumstances excused a failure to consult because of the need to keep the closure plans secret for fear of confidence in the school being lost. That an employer which had not thought about consultation might, with hindsight, give consideration to the practicalities of consultation is not a special circumstance excusing the duty to consult.