Transcript How to Win in Tribunals - Impact Recruitment Services Ltd

Employment
Employment Law Update 2010
Jon Taylor
26 November 2010
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Employment
Holidays and Sickness
What issues arise?
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Can a worker reschedule a period of sickness-affected statutory holiday?
Can a worker insist on holiday being taken during a period of long-term sick
leave?
Can workers carry over untaken statutory holiday to the next leave year?
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Employment
Holidays – recap on the basic rights
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Working Time Directive (2003/88/EC) provides that member states must:
"ensure that every worker is entitled to paid annual leave of at least four weeks
in accordance with the conditions for entitlement to, and granting of, such
leave laid down by national legislation and/or practice" (Article 7(1)).
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Employment
Holidays – recap on the basic rights
Working Time Regulations 1998 – give the right to take 5.6 weeks' paid holiday in each leave
year
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The first 4 weeks' statutory holiday may only be taken in the leave year in respect of
which they are due (regulation 13(9)).
A "relevant agreement" may provide for the remaining 1.6 weeks' leave to be carried over
to the next leave year (regulation 13A(7)).
Leave may not be replaced by a payment in lieu except on termination of employment
(regulation 13A(6)).
A worker may make a holiday request by giving appropriate notice to the employer.
However, the employer can reject such a request by giving counter-notice (regulation
15(3)).
An employer can give notice to a worker specifying dates on which holiday must be taken
(regulation 15(2)).
On termination of employment, where the proportion of statutory holiday taken by the
worker that leave year is less than the proportion of the leave year that has expired, the
employer shall make a payment in lieu of the untaken holiday (regulation 14(2)).
Employment
Holidays & Sickness – the key decisions
Stringer v HM Revenue & Customs; Schultz-Hoff v Deutsche
Rentenversicherung Bund. (ECJ)
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Under the Directive, workers on sick leave must continue to accrue holiday
rights
It is for member states to decide whether workers can actually take their
statutory holiday during a period of sick leave
If workers are prevented from taking their holiday because of sickness, they
must be allowed to take it following their return to work, even if this means
carrying it over to the next leave year
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Employment
Holidays & Sickness – the key decisions
HM Revenue & Customs v Stringer (House of Lords)
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The parties agreed that the WTR expressly rule out carry over of statutory
holiday to the next leave year
WTR must be interpreted as allowing workers on long-term sick leave to take,
and be paid in respect of, their statutory holiday entitlement
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Employment
Holidays & Sickness – the key decisions
Pereda v Madrid Movilidad SA (ECJ)
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Where a worker's prearranged statutory holiday coincides with a period of
sick leave, a worker has the option to designate an alternative period for the
exercise of their holiday entitlement
Although workers may be allowed to take holiday during sick leave, if they do
not wish to do so the holiday must be granted at a different time, even if this
means carrying it over to the next leave year
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Employment
Holidays & Sickness – can a worker reschedule a period of
sickness-affected statutory holiday?
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Pereda seems to say that they can. However….
UK workers derive rights from WTR not the Directive
WTR prohibits payment in lieu or rescheduling
Is there room for interpretation? – see Shah v First West Yorkshire Limited
(ET)
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Employment
Options for employers
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Refuse to allow workers to reschedule their (sickness-affected) holiday, on
the basis that the WTR do not require them to do so
Reinstate the worker's full holiday entitlement, and even allow that holiday to
be carried over to the next leave year if necessary
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Employment
Insisting on holiday being taken during a period of sick leave
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Under Stringer (HoL) a worker can take holiday (and thus be paid for it)
during a period of sick leave
An employer can stop this by issuing a counter-notice (but there are risks)
Pereda arguably stops an employer insisting on a worker taking holiday at a
specific time
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Employment
Carrying over holiday
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Post-Stringer tribunal decisions have been inconsistent
Shah v First West Yorkshire Limited - concluded that it was possible to
interpret the WTR in accordance with the ECJ case law
Khan v Martin McColl - a tribunal held that it should only be possible to
carry forward holiday if the worker has requested holiday, and had that
request denied
Souter v Royal College of Nursing Scotland - a tribunal took the view
that regulation 13(9) prevents carry over. Regardless of whether the
Directive requires annual leave to be carried forward in a case where a
worker is sick, the effect of regulation 13(9) is that the leave may only be
take in the leave year in respect of which it is due
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Employment
TUPE – what does it do?
• Transfers the contracts of employment of all those employed
immediately prior to the relevant transfer in the undertaking being
transferred from the transferor to the transferee
• Provides enhanced dismissal protection for employees
• Imposes obligations on transferors and transferees to inform and
consult employees about the transfer
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Employment
TUPE
A “relevant transfer” occurs either where there is:
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A transfer of an undertaking, business or part of an undertaking or business
situated immediately before the transfer in the United Kingdom to another
person where there is a transfer of an economic entity which retains its
identity, or
A Service Provision Change (SPC)
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Employment
TUPE - an SPC occurs where
Activities cease to be carried out by a person ("a client") on his own behalf and
are carried out instead by another person on the client's behalf ("a contractor");
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Activities cease to be carried out by a contractor on a client's behalf (whether
or not those activities had previously been carried out by the client on his own
behalf) and are carried out instead by another person ("a subsequent
contractor") on the client's behalf; or
Activities cease to be carried out by a contractor or a subsequent contractor on
a client's behalf (whether or not those activities had previously been carried
out by the client on his own behalf) and are carried out instead by the client on
his own behalf
Where certain conditions are satisfied
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Employment
TUPE - SPC conditions
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There must be an organised grouping of employees situated in Great Britain
immediately before the change whose principal purpose is carrying on the
relevant activities on behalf of the client
Immediately before the change, the client intends that the activities will be
carried out by the contractor (or subsequent contractor) other than in
connection with a single specific event or a task of short-term duration
The activities do not consist wholly or mainly of the supply of goods for the
client's use
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Employment
TUPE – some current issues
What happens when a client/customer moves its business from one supplier to
another?
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Hunt v Storm Communications – H was an employee of PR agency. She
spent 70%of her time working on for one client. She had not been employed
specifically to service that client’s work and had done work for other clients.
Did H transfer?
Ward Hadaway Solicitors v Love - L spent all his time working on files for
one particular client of WH. The client moved its instructions in relation to new
work to C but allowed WH to continue to complete work in progress. Did L
transfer?
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Employment
TUPE – some current issues
When is a service provision change not a service provision change?
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OCS Group v Jones – OCS contract provided for the provision of a full
service canteen providing hot and cold food and beverages. The MIS contract
required the provision of pre-prepared sandwiches at dry kiosks. Was there a
service provision change?
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Employment
TUPE – who actually transfers?
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Albron Catering – R and other employees were employed within the
Heineken International Group (HIG). R and all other employees were
employed by HNB which was the central employer for the group. R and 70
others were assigned to HN which provided catering activities across HIG’s
various sites. The catering activities were outsourced to Albron on 1 March
2005. Albron and HN took the view that there was no transfer because R and
the others were not employed by HN
Was there a transfer?
What are the implications of this decision?
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Employment
Unfair Dismissal
Some statistics (ET statistics 2009/10)
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57,400 unfair dismissal claims (up from 52,711 in 08/09)
57,400 UD claims out of 236,000 claims in total
24% were withdrawn and 44% were settled via ACAS
Only 10% were successful at hearing
Number represented by trade union has dropped by more than half since 2007
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Employment
Unfair Dismissal
Some statistics (ET statistics 2008/9)
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Average award of compensation was £9,120
Only in 2% cases was the award over £50,000
Just over 400 costs orders out of 227,000 cases disposed of
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Employment
Unfair Dismissal - Taking into account previous incidents for
which no warning given
London Borough of Brent v Fuller [2010]
• F was a member of administrative staff at Vernon House School which catered
for children with social and emotional problems. In May 2007 a physically
disruptive pupil was being restrained by staff when F verbally intervened. No
action was taken against F although the Head told her that she should not
interfere in such matters. In October 2007 a similar incident occurred and,
again F, interfered, refused to remove herself from the scene despite repeated
requests from the Head and alleged that the child was being restrained in a
“sexual manner”
• F was dismissed for gross misconduct and in its decision on appeal, the appeal
panel referred to the May 2007 incident
• The ET found that the May 2007 incident had been “rolled up” into the October
incident making the latter more serious than it otherwise have been and had it
not been for that, F would not have been dismissed
Employment
London Borough of Brent v Fuller [2010]
The EAT said
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The May incident was relevant to the October incident… She was dismissed for
the October incident and the background to it was the May incident
In short, it was the management case that the unacceptable behaviour in
October was something the Claimant was aware of as a result of the May
incident
All matters relating to the background of a dismissal are relevant
This was not a disciplinary warning, but an instruction to the Claimant that she
should not interfere where a child is being restrained
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Employment
Unfair Dismissal - Failure to take into account medical
explanation for misconduct
City of Edinburgh Council v Dickson [2010]
D suffered from type 1 diabetes. D was seen viewing images of a "seriously
pornographic" nature on a computer in the school where he worked. D explained
that, although he had no recollection of the incident, his out-of-character behaviour
must have resulted from a hypoglycaemic episode. At the time of the incident his
diabetes was poorly controlled due to a mis-prescription of the wrong strength of
insulin. Before the hearing CEC’s HR adviser asked his wife whether that could be
an explanation. She said it could not. This was reported back to the dismissing
manager who relied on it in dismissing D despite the fact that CEC’s OHP had said
that his behaviour could be explained by a hypoglycaemic episode.
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Employment
City of Edinburgh Council v Dickson [2010]
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CEC had failed to satisfy the 3 elements of the Burchell test
CEC did not have reasonable grounds for that belief because it had simply
refused to "engage with" Mr Dickson's defence
CEC had also carried out an inadequate investigation, choosing to take into
account an uninformed opinion from a third party (that hypoglycaemia could not
explain Mr Dickson's behaviour) rather than properly investigating the possible
consequences of Mr Dickson's condition with qualified doctors
ET entitled to conclude that a fair investigation would probably have held that
Mr Dickson was not responsible for his actions on the occasion in question
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Employment
The more serious the consequences for the employee, the fuller the
investigation need to be.
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Salford Royal NHS Foundation Trust v Roldan [2010]
R, a nurse from the Philippines, was alleged to have abused a patient in a
number of ways. A manager interviewed R and Denton (who claimed to have
witnessed the events). The manager made lengthy notes of the interview with
R, but none of the interview with D. The disciplinary panel found R's evidence
unconvincing and preferred that of D. They dismissed R. The matter was
reported to the police and R was prosecuted but acquitted. She also lost her
right to remain in the UK
As the manager and the disciplinary panel believed D had no reason to lie, they
had not in any way sought to question the reliability of her evidence. Some
elements of that evidence needed further enquiry. The tribunal found the
dismissal unfair. The ET held that SR should have made further enquiries into
D's evidence, and should have questioned other employees about R's
interactions with the patient in question
Employment
Salford Royal NHS Foundation Trust v Roldan [2010]
The ET decision was upheld by the Court of Appeal
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When assessing the reasonableness of an investigation, tribunals should take
into account the gravity of the consequences on the employee
Where these are serious, the investigator must be "even-handed" in looking for
evidence in the accused's favour as well as evidence against them
An employer faced with a conflict of evidence does not always have to decide
that it "believes" one person and not another. It could decide that the difference
is merely one of perception, and that both parties are telling the truth as they
see it. Alternatively, it could decide that the conflict cannot be resolved, in which
case the accused employee must have the benefit of the doubt
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Employment
Employment Law Update 2010
Jon Taylor
26 November 2010
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