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A Back to School Spin on Employment Law


Summer’s over – It’s back to School

As the summer holidays draw to an end and parents across the land breathe a sigh of relief that the words "I’m bored!" can be put to rest until the October half term, we take a look at some recent cases and common problems faced by employers with a "Back to School" spin. This article looks at appearance and uniform policies in the context of religious discrimination; dismissal where alcohol is involved; the treatment of flexitime on termination; what amounts to unfavourable treatment in the context of disability discrimination; sex discrimination of male employees; and mobility clauses.

New Starters

Whether it’s a new term at school or a new job or role at work, new starters are usually given training on what is involved and what is expected in their role. So far so good. However, the danger is that existing, experienced staff are "assumed" to know about changes to policies and procedures, when in fact, they remain blissfully unaware of their existence. The recent case of Newbound v Thames Water Authority 2015 EWCA Civ 677 acts as a timely reminder to employers of the importance of ensuring that existing staff (as well as new staff) are kept abreast of any changes to policies and procedures and that documentary evidence of actual knowledge of them is maintained.

Mr Newbound was a sewage worker, having worked for the company for 34 years. He was dismissed for gross misconduct having entered into a sewage pipe to carry out an inspection without breathing apparatus, in breach of risk assessment procedures (which had recently been introduced). The sewage manager, who allowed him entry into the sewer without such equipment, was only given a written warning. He was less experienced than Mr Newbound but ultimately responsible for the actions of his staff. Mr Newbound claimed unfair dismissal.

The Employment Tribunal concluded that he had been unfairly dismissed. The case was eventually considered by the Court of Appeal who also concluded that he had been unfairly dismissed. The employer had recently introduced the new risk assessment. Therefore, Mr Newbound's experience and long service played little part when it came to knowledge of procedures. There was no reason for the difference in treatment with his manager. The employer was unable to produce any evidence to show that Mr Newbound had been trained on the new process. Previously, the use of breathing equipment had been at the discretion of the employee concerned and Mr Newbound was able to regale numerous occasions where he had been allowed to enter sewers without breathing equipment.

It is insufficient to have policies and procedures in place if the employee is not aware or trained on them. This applies, not only when the employee first starts, but throughout their employment. Referring employees to the procedure whenever there is a change is advisable but still likely to be insufficient. Requiring employees to sign a document to confirm that they have read and understood it, specifically drawing changes to their attention and training them on a regular basis will be required to ensure that the employer meets with its obligations and can successfully discipline staff who fail to pay attention to it.

Uniform/ Appearance policy

Most schools expect their pupils to wear a set uniform. The workplace, whilst often not as rigid, is able to set minimum standards of attire. Whether a uniform is required for health and safety reasons or professional dress is expected for client facing roles, a worker’s appearance can be the source of some friction. It is a well established principle that requiring male employees to wear trousers, shirt and tie, whilst women are allowed to wear other professional attire is acceptable and not discriminatory. Providing both are similarly professional, differences can be accommodated.

However, an appearance policy can be challenged however, where the difference in attire is due to religious reasons. In Eweida v British Airways, the European Court could find no reason why Mrs Eweida should be prevented from wearing a small crucifix on her uniform given it posed no health and safety issue (her role being to check in people and their luggage at the check in desks at airports) and indicated that religious differences and expressions should be accommodated, where feasible, regardless of the views of others or the Company's concern over its corporate image.

Then came the case of Azmi v Kirklees Metropolitan Council in which a Muslim bi-lingual support worker was asked to remove her niqab (veil over her face) when teaching the children to aid their understanding in how words were formed. Having objected to this and been suspended, she brought a claim for religious discrimination. She was unsuccessful as it was considered that viewing facial features and expressions was an integral part of a child’s understanding and ability to learn to communicate and thus although the requirement was indirectly discriminatory, it was justified and was a proportionate means of achieving a legitimate aim, namely effectively teaching the children.

More recently we have had the case of Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery 2015 UKEAT/0309/13/RN in which a Muslim applicant was offered an apprenticeship at a children’s nursery, but during the interview process was asked whether she would wear a shorter length garment, than the jilbab she was wearing, whilst working. The jilbab was a floor length garment and was considered by the nursery to be a tripping hazard. She did not accept the job offer and instead claimed indirect discrimination on the basis that Muslim staff would be more adversely affected by the criteria than non Muslim employees. The ET and the EAT both disagreed. In each case they concluded that there was nothing preventing her wearing an ankle length jilbab and that there had been no evidence presented that it would adversely affect Muslim women as a result. Even in the event that it did do so, they concluded that for health and safety reasons the policy was a proportionate means of reducing trip hazards for staff and children and thus was justified.

In deciding upon an appearance policy, regard must be had not only to the type of environment in which the individual is working but also the job role in question. Minor items of expression of religious views should be accommodated if they have no impact on a person’s ability to do their job. However, if there are genuine health and safety concerns these shall generally trump any religious attire. Consideration should then be given as to the way in which such protections can be enforced with minimal impact on the individual concerned.

Maths

Love it or hate it, maths features in every child’s curriculum. Whilst a maths A level is of benefit to those calculating holiday pay in the present climate.

However, for those who offer time off in lieu or flexi hours arrangements, the case of case of Vision Events (UK) Ltd (formerly known as Sound and Vision AV Ltd) v Paterson EATS 0015/13 provides employers with less of a maths headache. In this case the employee had accrued some flexi time. Their employment then ended. They argued that they should be paid in lieu of that time. The ET agreed and implied a term into the contract to that effect. On appeal the EAT concluded to the contrary. There was no express term in the policy stipulating that would be the case. There was nothing to imply such an outcome, neither was it necessary for business efficacy. As in many such cases the policy also allowed the employer to state when the flexi time had to be taken. Accordingly, unless there is clear evidence to the contrary, it is not necessary to pay employees for accrued flexi time, and in many cases the employer is able to indicate that such time must be taken during the notice period.

This is useful for those employers who do operate such flexible schemes or those who operate other flexi-benefits schemes as the case provides confirmation that unlike holiday pay, accrued non-cash benefits do not have to be converted into cash payments on termination.

English

The English language can be a curious beast. The devil is in the detail. The recent case of Trustees of Swansea University Pension & Assurance Scheme & Anor v Williams illustrates the point. The case involved a detailed analysis of what is meant by the term "Unfavourable" when considering the treatment of a disabled employee and whether the individual had been discriminated against as a result. The Claimant suffered from Tourette’s syndrome, depression and obsessive compulsive disorder amongst other ailments. He made various requests to reduce his hours which were granted by his employer, resulting in him working half of his original hours by the time his employment ended. Ultimately, Doctors concluded that he was unable to continue in his role. He was granted ill health retirement at 38, and it was accepted that he was disabled under the Equality Act. The pension scheme provided that it would pay out once employees reached normal retirement age, being 67, except in the case of ill health retirement. In the case of ill health retirement the employee would receive payment immediately.

The employee complained that he had been treated less favourably because of something that had arisen in connection of his disability. He argued that if he had been working full time hours then he would have received double the amount of pension to that he had received. He said that the need to reduce his hours was due to his disability and as such, his pension should have been based on full time rates. The Tribunal concluded that the employee had been treated unfavourably on the basis his pension was only half of what it would have been had he not had his hours reduced due to his disability. The EAT disagreed.

The EAT concluded that the Tribunal had overlooked the fact that to be eligible for the scheme the employee had to be disabled. Anyone else who retired early would not be entitled to their pension until they were 67. As such he was being treated more favourably.

They also indicated that the Tribunal was wrong to equate the term ‘unfavourable’ with the term ‘detriment’, which appears elsewhere in the Equality Act. Unfavourable treatment suggests creating a particular difficulty for a disabled person or putting them to a disadvantage in some way. In the existing case, the employee had received advantageous treatment. They concluded that it could not be seen as ‘unfavourable’ because it is insufficiently advantageous.

They decided that the Tribunal had adopted the wrong approach and applied a test of less favourable treatment, effectively comparing the employee’s position to that of other disabled employees whose retirement came on more suddenly and therefore at a time when they were still working full-time. This was wrong. The matter has therefore been remitted back to the Tribunal to rehear the matter.

The case is of benefit to employers who either operate policies or schemes which pay out early in the event of a disability, even if not at the full rate, and in the case of the treatment of sickness policies. If an employee is dismissed as a result of a poor sickness record, consideration must first be given to discounting some or all of the disability related absences. However, it is not a requirement that an employer continue to discount all such absences indefinitely. In removing some absences and notifying the employee of the standards expected then they can be seen to be treating the employee more favourably than other employees and in making a reasonable adjustment. However, removing all disability absences from being considered on an indefinite basis is not required if it is beyond what it is reasonable.

History

Historical behaviours are important when it comes down to whether a term can be implied into a contract of employment to effectively provide the employee with greater benefits or advantages. Employees often attempt to argue that a payment or provision is implied into their contracts if it has regularly occurred in the past. This may be the granting of an annual bonus, the granting of holidays over the Christmas period, the fact that bank holidays have always been granted as a days holiday or that an employee will automatically receive an increase in pay each year. The matter can become even more complicated where the employees in question have been TUPE’d across from another employer, as those employees transfer on the same terms and conditions of employment as before. It therefore becomes important to determine whether the provision in question forms part of their terms and conditions or whether it in fact is a discretionary benefit that the new employer is not obliged to maintain.

This was precisely the point that the Court of Appeal were asked to consider in the case of CSC Computer Sciences Ltd v McAlinden 2013 EWCA Civ 1435. The company acquired a number of employees via a TUPE transfer. For 7 years thereafter they increased pay in line with the retail price index or above due to the mistaken belief that they were required to do so. They indicated to the employees that they understood it to be a contractual term. However, when they realised they had had no need to treat it as such, they stopped applying it. The employees brought claims arguing that by virtue of their actions they had made it a contractual term (even though they had been mistakenly paying it) and thus were bound by it. The Court of Appeal agreed. When deciding whether a term can be implied into a contract it is necessary to look at the employer’s communications from an objective point of view, not a subjective one. Therefore, if it appears to an ordinary outsider that the term was consistently applied and the employer deemed it to be a contractual entitlement, the employer will be bound by it, even if it was based on a mistaken belief.

One question often asked is how many times does the event have to occur for it to be seen to amount to custom and practice? Unfortunately, there is no easy answer – it depends on all of the facts of the case. In Allen and others v TRW Systems Ltd 2013 EWCA Civ 1388 the employees argued that they were entitled to receive an enhanced redundancy payment on the basis that the employer had paid payments on such a basis on 3 previous occasions but had failed to do so on the closure of their workplace. Reference was made to the considerations to be taken into account when determining whether it could be implied into the contract or not from a previous case. The determining factors included:

  • whether the policy was drawn to the attention of employees;
  • whether it was followed without exception for a substantial period;
  • the number of occasions on which it was followed;
  • whether payments were made automatically;
  • whether the nature of communication of the policy supported the inference that the employers intended to be contractually bound;
  • whether the policy was adopted by agreement;
  • whether employees had a reasonable expectation that the enhanced payment would be made;
  • whether terms were incorporated in a written agreement;
  • whether the terms were consistently applied.

In the present case, the Court of Appeal concluded that the Tribunal had not taken into account the above considerations when determining whether the employee handbook, setting out the redundancy policy, could be deemed to be contractual. The matter was therefore sent back to a new Tribunal to consider the point.

What is evident from the above is that many factors will need to be taken into account when determining whether custom and practice implies contractual terms. Tribunals will look at what was said, what assurances were given, what the employees' understanding was and how often such actions have taken place when making that decision. Employers should therefore be very careful in their communications with staff and in the event of a TUPE transfer, carefully consider which terms are contractual and which are not at the outset in order to avoid taking on additional, costly liabilities they did not need to.

Geography

The use of mobility clauses within employment contracts is commonplace, particularly in respect of senior individuals. Whilst they still need to be exercised reasonably, they can enable an employer to move employees between office locations rather than have to make them redundant. This can also be useful even in the event of a TUPE transfer as see in Centinsoy and others v London United Busways Ltd UK EAT/0042/14

In this case four bus drivers employed by Centre West on the number 10 bus route were transferred (along with the bus route) to London United Busways (LUB). As a result of the change in employer, they were required to relocate to the new employer's premises three and a half miles away.

Their contracts contained mobility clauses that provided that they could be moved to any Centre West's work locations.

The change in location effectively added 30 minutes to 1 hour onto their working day. Two of the employees resigned on the day of the transfer and two shortly afterwards. They claimed constructive dismissal, arguing the change in location was a repudiatory breach of contract. In the alternative they argued the change in location was a substantial change, to their material detriment, such that they could resign and claim constructive dismissal under Reg 4(9) TUPE.

The Tribunal did not uphold their claims. They concluded that the change in location placed them under no greater burden than if Centre West had required them to move to one of their locations, that LUB couldn't transfer them to another Centre West location but had transferred them to a location substantially equivalent, that an additional 30 minute commute wasn't substantial and their jobs had been preserved.

On appeal, the EAT agreed but pointed out that each case must be decided on its facts as to whether the change in working conditions was substantial and thus whether the breach of contract was substantial.

Given TUPE has been amended to specifically include a change in location as a potential economic, technical or organisational reason, this also now helps to strengthen an employer's position in establishing that a change in location will not amount to an automatic unfair dismissal situation, although a major relocation making it more difficult or expensive for the employee to transfer may still go to issues of reasonableness and whether the detriment is material.

Chemistry

Many remember fondly their chemistry lessons with stories of explosions and other lethal concoctions being made. In the workplace, the mix of alcohol and the working environment is one such chemical reaction that rarely ends well. However, employers should heed the warnings illustrated in the case of McElroy v Cambridgeshire Community Services NHS Trust ET/3400622/14 in which an employee who was dismissed for smelling of alcohol at work was able to successfully claim that she had been unfairly dismissed.

Whilst only a Tribunal decision, it serves as a very important reminder of the need to ensure that your disciplinary policies cover off the issue of alcohol related issues and whether it is considered to be a gross misconduct offence to consume or smell of alcohol at work and to advise the employee of such. In the above case, the NHS Trust dismissed a healthcare assistant for coming to work smelling of alcohol. The employee had not been told that this would be a disciplinary issue and although they had been offered an occupational health appointment, which they had refused to attend, they had not been informed that a failure to attend could be treated as a further disciplinary issue. The judge held that a reasonable employer would not have treated the smelling of alcohol at work as gross misconduct or conduct justifying dismissal in the absence of either evidence of an adverse effect on the employee's ability to do his job, or in the absence of a previous warning given under the employer's disciplinary policy not to do so.

An employer's policy on alcohol therefore should be very clear, not only in relation to drinking at work, or in lunch breaks but also turning up for work either intoxicated or still smelling of alcohol, particularly in jobs where health and safety could be an issue.

Biology

The birds and the bees always made for a lively class. The situation is no different in the workplace. However, the repercussions, should relationships turn sour can have unwelcome consequences for the business. In the case of CJD v Royal Bank Of Scotland 2014 IRLR 25, two colleagues had been co-habiting when an allegation of physical violence was made. The male employee was arrested, charged with assault and breach of the peace. He was later convicted only of the latter. Due to the difficult working relationship, RBS commenced disciplinary action against the male employee. In his defence he accepted that he had pushed his female co-habitee but only in self-defence after she had assaulted him. RBS accepted his version of events but dismissed him anyway for misconduct.

The male employee brought a claim for direct sex discrimination. He argued that his employer had made their decision based on a stereotypical assumption that in any physical dispute, the man was the aggressor and female the victim. The Tribunal agreed with him. On appeal the EAT overturned the decision on the basis that the employer had not just looked at this assault but also his conviction for breach of the peace. The Court of Session agreed with the EAT. It was necessary to look at the facts and see if an inference could be drawn that his dismissal was on discriminatory grounds. Thereafter it was for the employer to prove that the real reason was not discriminatory. In the current case, the Tribunal had based their decision on hypothetical reasons and the case was sent back to the Tribunal to reconsider.

It is easy to make assumptions in cases involving aggression that the man is the aggressor and the woman the victim. In this case, the employer had additional evidence that the employee had been convicted of a breach of the peace. However, in many cases it is not always so clean cut. What is clear is that if the matter is brought into the workplace, employers have the right to deal with it and providing their reasoning is based on a reasonable investigation and a decision based on a range of reasonable responses, it makes no difference whether the person concerned actually committed the offence or not as to whether it is appropriate to dismiss them.

Summary

As employees return from their summer holidays ready for the Autumn term ahead, now is an ideal opportunity to ensure your employees are up to date with changes made to procedures and your managers know how to deal with complaints and concerns properly and work with HR, rather than against them. If you have any managers who wouldn't be out of place on the naughty step, consider sending them to one of ourEmployment Law Training Days. They will learn through case studies why HR require them to conduct proceedings in a certain way and the repercussions of not doing so. They will be the star of the class by the time we have finished with them!

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.


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