Whistleblowing: interim relief

March 7th, 2016 by James Goudie QC

In Parsons v Airplus International Ltd, UKEAT/0023/16/JO, Ms Parsons claimed that she had been dismissed for whistleblowing. She applied for interim relief under Section 128 of the Employment Rights Act 1996.  If, on the hearing of such an application, it appears to the ET that it is likely that on determining the complaint  the Tribunal will find in favour of the Claimant, the Tribunal must make an Order for interim relief.  For many years it has been understood that in applying this provision the ET must ask itself whether the Claimant has established that she has a “pretty good chance” of succeeding at the substantive hearing.  This interpretation, says Judge Shanks, is justified, because if the employee satisfies the test the ET must make an Order for interim relief and, if it does so, the employer is obliged to pay the employee pending the determination of the complaint and there is no provision for re-payment in the event that she ultimately fails on the merits. Read more »

 

Peripatetic workers

June 15th, 2015 by James Goudie QC

Spanish employers refused to count as “working time” within the meaning of the Working Time Directive the time that their employees spend each day travelling from home to their first customer and from their last customer to their home. In an Opinion delivered on 11 June 2015, in Case C-266/14, Advocate General Bot has advised that the Directive should be interpreted as meaning that the time that peripatetic workers, that is to say workers who are not assigned to a fixed or habitual place of work, spend travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes constitutes “working time”. Read more »

 

Some other substantial reason

April 16th, 2015 by James Goudie QC

In Anderson v Chesterfield High School UKEAT/0206/14/MC, Mr Anderson is currently the elected Mayor of Liverpool.  This is an executive post and regarded as full-time.  The position carries with it an annual allowance of almost £80,000.  He had previously held positions as Councillor of Liverpool City Council, the Leader of the opposition on the Council and ultimately at the time of his election as Mayor, Leader of the Council, which was in effect a full-time post with an annual allowance of approximately £50,000. Read more »

 

Access to Employment

February 5th, 2015 by James Goudie QC

What proof of linguistic knowledge should be required in order to be able to access employment in the public service?  That was the issue before the CJEU in Case C-317/14, European Commission v Kingdom of Belgium, in which Judgment was given on 5 February 2015.

All the provisions of the TFEU relating to freedom of movement for persons are intended to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union, and preclude measures which might place nationals of Member States at a disadvantage if they wish to pursue an economic activity in another Member State.  Those provisions thus preclude any measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by EU nationals of the fundamental freedoms guaranteed by the Treaty. However, Member States are entitled to lay down the conditions relating to the linguistic knowledge required by reason of the nature of the post to be filled.  Nonetheless, the right to require a certain level of knowledge of a language in view of the nature of the post must not encroach upon the free movement of workers. The requirements under measures intended to implement that right must not in any circumstances be disproportionate to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States. Read more »

 

Conduct and disability

November 20th, 2014 by James Goudie QC

Was there gross misconduct?  If there was, did it justify dismissal?  Those were issues before Judge Eady QC in Burdett v Aviva Employment Services Ltd, UKEAT/0439/13/JOJ, a case concerned with both unfair dismissal and discrimination arising from disability.  The employee had committed assaults in the workplace.  However, this was because of his disability.  He suffered from a paranoid schizophrenic illness.  The ET was judged to have been in error in finding gross misconduct.  They had failed to engage with the question of blameworthiness.  The ET was also found to have been in error in assuming that dismissal will necessarily fall within the range of reasonable responses in a gross misconduct case. Read more »

 

Fair deal

March 5th, 2014 by James Goudie QC

The Teachers’ Pensions (Amendment) Regulations 2014, SI 2014/424, amend the Teachers’ Pensions Regulations 2010, SI 2010/990, as previously amended, which govern the Teachers’ Pension Scheme (“the TPS”).  The 2014 amendments facilitate the implementation of the new Fair Deal – a non-statutory policy issued by HM Treasury in October 2013 (and provide for the third and final year of increased employee contribution rates, as recommended by Lord Hutton as part of his review into the affordability and sustainability of public sector pension schemes).   Amendments are made to existing arrangements to allow for access to the TPS for a new type of employee. 

Regulations 3 to 7 amend the 2010 Regulations so as to implement new Fair Deal.  Access to the TPS is expanded to allow a previously excluded type of employee (one who has been out-sourced from the public sector to an independent provider delivering public services) to retain their membership of the scheme.  Individual members continue to have access to the TPS while they remain employed on the out-sourced contract, and their access will continue following any subsequent compulsory transfers, so long as it is in respect of that same public service contract.

 

 

Staff restructuring and efficiency savings

February 7th, 2014 by James Goudie QC

In  Hazel and Huggins v Manchester College [2014] EWCA Civ 72 the Court of Appeal has dismissed the College’s appeal against a majority Employment Tribunal decision that the dismissals of two lecturers at HMP Elmley in Kent, Mrs Hazel and Mrs Huggins (“H&H”) were not for an “economic technical or organisational” (ETO) reason that entailed a change in the workforce, but were because they refused to agree to new, reduced terms, and this was connected to a TUPE transfer, making their dismissals automatically unfair.  Regulation 7 of TUPE provides that where, either before or after a “relevant transfer”, any employee (of the transferor or transferee employer) is dismissed, that employee shall be treated, for unfair dismissal purposes, as unfairly dismissed if the sole or principal reason for dismissal is the transfer itself  or “a reason connected with the transfer” that is not an ETO reason “entailing changes in the workforce”.

The College is a provider of further and higher education courses and vocational skills-based training. Among other things it provides offender learning in prisons. In 2009 it successfully bid for contracts to provide services in six regions of the Prison Service. In August 2009 it took over, under TUPE, the employment contracts of about 1,500 staff, including H&H,  in addition to about 2,000 already employed in offender learning and about 3,000 in the rest of the organisation.

A few months later the College’s Board agreed to a package of proposals set out in two reports from its Principal for what were described as “staff restructuring and efficiency savings” and “contract change for Offender Learning and other related staff’. The impetus for the proposals came from a number of factors. The general economic situation facing the further education sector was challenging.  There had also been changes in the funding allocation machinery.  Moreover, there were particular problems in Offender Learning.  Hidden costs had been encountered following the bid. In addition, employees in Offender Learning were on very disparate terms and conditions of employment, as a result of the College having built up this part of the business by absorbing a large number of different entities whose staff brought their previous terms with them.  Apparently they had to deal with no fewer than 37 sets of terms. Such a state of affairs was plainly very undesirable from the point of view both of effective management and of staff relations.  There was no doubt also a risk of equal pay claims. The total costs saving which it was planned to achieve from all aspects of the package was £5million.

Against this background, the package had a number of different elements.  These includedg redundancies and other restructuring of roles, efficiency savings, and the proposed standardisation of contractual terms, including a single pay-scale for all staff in Offender Learning. The number of potential redundancies notified to the DWP was 300. As regards the changes in terms and conditions, the plan was to ask staff to sign new contracts of employment.  If they did not agree they would be dismissed and offered re-engagement on the new terms.  The various elements in the package were in practice inter-related. The College made the point in the course of the process that the introduction of the standard terms and conditions which it was offering would produce costs savings which would reduce the number of redundancies required.

The process of implementation of the proposals was complex. It required much negotiation and consultation both with the University and College Union and with individual employees. H&H were initially warned that they were at risk of redundancy or a reduction in contractual hours, but in due course it became clear that they would retain their existing jobs. Both were sent letters explaining the new terms being offered and enclosing contracts for their signature. It was explained that they were at risk of dismissal if they did not sign. The proposed salaries were 18.5% less than the current level for Mrs Hazel and 13.2% less for Mrs Huggins, though there would be a one-year period of protected pay. That was not acceptable to either of them. There was a period of further consultation, during which they in due course confirmed that they would agree to all the proposed changes except those affecting pay. Eventually they were sent notices of dismissal, but before those took effect they accepted the new terms, albeit under protest and expressly “without prejudice”. On that basis they continued to work for the College, but they were paid only at the reduced level. They then brought their proceedings in the Employment Tribunal complaining that they had been unfairly dismissed.

Underhill LJ said (para 22) that in a case where Regulation 7 of TUPE, and, more particularly “the ETO defence” is in play, three questions (the last with two sub-questions) arise: (1) What is the reason, or principal reason for the employee’s dismissal? (2) Is that reason the TUPE transfer itself, in which case the dismissal will be automatically unfair, or a reason “connected with the transfer” or neither? (3) If it is “connected with the transfer”, (i) is the reason ETO and (ii) does it “entail changes in the workforce”?

As to the second question, it was common ground that the dismissals were connected with the TUPE transfer.  The Court concluded that the answer to the first question was that the reason for their dismissals was that H&H had refused to agree to the new pay terms, and that the answer to the third question followed (as will generally be the case) from the first, namely that the refusal to agree to new terms and conditions was not a reason which entailed changes in the workforce, applying the Court of Appeal decision in Berriman v Delabole Slate Ltd [1985] ICR 546.

The College had argued with respect to the first question that the reason for the dismissals was the entirety of the package of proposals agreed by the College’s Board and that the package incorporated proposed redundancies that did “entail changes in the workforce”.  The Court of Appeal accepted that the proposed harmonisation of terms was “in a general sense” related to the proposal for redundancies. They were adopted as part of the same package of proposals. Both were intended to contribute to the required costs savings.  The achievement of the standardisation of terms would reduce the number of redundancies needed.

However, said Underhill LJ (para 23) “the fact that there was a relationship of this kind has no bearing on the statutory question” of what was the reason for the dismissals.  It is trite law that what matters is the factors that operate on the employer’s mind as to cause him to dismiss the employees.  The College’s need for redundancies played no part in its reason for giving H&H notices of dismissal.  Their dismissals had nothing to do with the other elements of the package or the fact that some other employees had been, or were proposed to be, made redundant.  The Employment Tribunal had adopted the correct approach and had been entitled to find as a matter of fact that in the sequence of events the principal, indeed the only, reason why H&H were dismissed was that they had refused to agree to the new terms of pay.

James Goudie QC

 

Applicable Law

September 26th, 2013 by James Goudie QC

In Case C-64/12, Schlecker v Boedeker, the CJEU considered the Rome Convention and the law applicable in an individual employment contract.  Ms Boedeker was employed by Schlecker, a German undertaking with branches in a number of Member States.  After working in Germany from 1 December 1979 until 1 January 1994, she entered into a new employment contract, under which she was appointed as Schlecker’s manager in the Netherlands.  By letter of 19 June 2006, Schlecker informed Ms Boedeker that her position as manager for the Netherlands was to be abolished, and invited her to take up, under the same contractual conditions, a post in Germany. 

Ms Boedeker lodged a complaint against her employer’s unilateral decision to change her place of work.  In that context, she brought various actions before the Courts in the Netherlands.  In one such action she claimed that Netherlands law should be declared applicable to her employment contract.  The Netherlands Court made a reference to the CJEU for a preliminary ruling. 

Article 3 of the Rome Convention provides that a contract shell be governed by the law chosen by the parties.  No choice had been made in this case. 

           Article 6 applies to individual employment contracts.  It provides (emphasis added):-

 “1.  Notwithstanding the provisions of Article 3, in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable under paragraph 2 in the absence of choice. 

 2.  Notwithstanding the provisions of Article 4, a contract of employment shall, in the absence of choice in accordance with Article 3, be governed:

by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country; or

if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated, unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country.”

Therefore the applicable law will not always be the law of the country in which the employee habitually carries out his or her work.  It will indeed not be that law if the contract is more closely connected with another Member State.  Regard must be had to all the Article 6 factors, first and foremost of which is the country in which the employee habitually carries out his or her work, in Ms Boedeker’s case the Netherlands without interruption for more than 11 years. 

The CJEU did not rule out that nonetheless German law could apply.  She worked for a German company.  The financial elements were German based.  There were other German factors.  It would be open to the national Court to find that the contract was more closely associated with Germany than with the Netherlands, notwithstanding that the law of the Netherlands might be more favourable to Ms Boedeker than the law of Germany. 

The CJEU stated that the national Court must take into account all the circumstances of the case, and that among the significant factors suggestive of a connection with a particular country, account should be taken in particular of the country in which the employee pays taxes on the income from his activity and the country in which he is covered by a social security scheme and pension, sickness insurance and invalidity schemes. 

 

Failure to comply with the ACAS Code

May 14th, 2013 by James Goudie QC

Section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, inserted by the Employment Act 2008, is concerned with the effect of failure to comply with the ACAS Code.  In Lund v St Edmund’s School the EAT, presided over by Keith J, has held that, when considering whether “it is just and equitable in all the circumstances”, pursuant to Section 207A, to make an uplift to a compensatory award for an employer’s failure to follow the Code, an Employment Tribunal should not take into account the fact the employee had contributed to his dismissal. 

Mr Lund was a school teacher.  He was dismissed on the basis that the School had lost confidence in him, he had alienated his colleagues and there had been an irreparable breakdown in the employment relationship.  The ET concluded that his dismissal was for “some other substantial reason” and was procedurally and substantively unfair.  His basic and compensatory awards were reduced, however, by 65 per cent for contributory fault. 

The EAT held that there was no reason why a provision which was supposed to penalise employers for failing to comply with a relevant code should be disapplied in a case in which the employee had not contributed to that non-compliance.  Mr Lund had done nothing to contribute to the School’s failure to act in accordance with the ACAS Code. It was not open to the tribunal to deny him an uplift on his award on the basis that he had contributed substantially to his dismissal.  The fact that he had contributed substantially to his dismissal had already resulted in his basic and compensatory awards being reduced by 65 per cent.  To deny him an uplift on what remained of his compensatory award amounted to him being penalised twice and was an example of impermissible double-counting.

Moreover, the fact that Mr Lund was dismissed, not for a reason related to his conduct, but for “some other substantial reason” of such a kind as to justify his dismissal did not mean that Mr Lund’s claim did not concern a matter to which the ACAS Code related.  His claim concerned the conduct on his part which led his employer to consider whether he should be dismissed, even if it was not his conduct, but the effect of his conduct on others, which was the ultimate reason for his dismissal.

The EAT said that the ACAS Code was intended to apply when an employee faced a complaint which might lead to disciplinary action, or where an employee raised a grievance.  The ET had fallen into error by focusing on the outcome of the disciplinary process and not whether it had, or should have, been invoked.  It was true that by finding that the reason for the dismissal was “some other substantial reason” the ET was saying that he had been dismissed for a non-disciplinary reason; but that did not mean that the Code had not applied to the process which resulted in that outcome.  If the School had not invoked the disciplinary procedure, the ET should have asked whether the disciplinary procedure ought to have been invoked. It should have been obvious to the School that once Mr Lund’s conduct had been called into question and it might lead to his dismissal, the disciplinary procedure should have been invoked, even if the School ultimately decided that he was to be dismissed for what the ET found to be a non-disciplinary reason.  That was what distinguished the case from Ezsias v North Glamorgan NHS Trust [2011] IRLR 550.  In Ezsias the Trust never contemplated dismissing Mr Ezsias for the conduct on his part which had caused the breakdown in the working relationships between him and his colleagues.  In Mr Lund’s case, that was clearly in the contemplation of the School, even if it ultimately decided to dismiss him for a reason which the ET found did not relate to his conduct.

 

NHS reorganisation

February 11th, 2013 by James Goudie QC

Sandford and Parkin v Newcastle Upon Tyne Hospitals NHS Foundation Trust, UKEAT/0324/12/DM were unfair dismissal claims. The issue was the reasonableness of the dismissals.  The dismissals were for “some other substantial reason”. They arose in this way: new, less favourable terms and conditions of employment having been offered to, and refused by, the claimants, their contracts of employment were terminated, on notice, and offers were made to them of re-engagement.  The ET held that the dismissals were fair. The EAT dismissed the claimants’ appeals. 

The background was the Agenda for Change process in the NHS.  The Trust decided to re-band the posts of 22 employees, including the two claimants, who were to be reduced one level in the pay structure.  All were offered two years pay protection if they accepted the proposed change.  20 employees did so. The two claimants refused.

The EAT accepted the submissions of Counsel, Holly Stout, for the Trust, including that the ET took into account 3 relevant factors in reaching its conclusion that dismissal for some other substantial reason, namely that the Trust had shown a good reason for undertaking the reorganisation leading to the re-banding and that both claimants were dismissed for refusing to accept the new terms and conditions, fell within the band of reasonable responses, being (1) that 91% of the affected employees had accepted the new terms, (2) that the Trust had reasonably explored all alternatives to dismissal before dismissing the claimants, and (3) that there was a lack of opposition by the Trade Unions to the proposed changes. 

The legal principles were clear and well established by the authorities. The ET had not misdirected themselves in law.  On the contrary, they had applied the law correctly to the facts as found and reached a permissible properly reasoned conclusion that the dismissals were fair.