Employment law quizEmployment law quiz20112011

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Question oneQuestion one

1. In 1. In T L Russell and others v T L Russell and others v Transocean International Transocean International Resources LtdResources Ltd offshore oil workers offshore oil workers worked two weeks off and two weeks worked two weeks off and two weeks on. The employer argued that this on. The employer argued that this included holidays. The employees included holidays. The employees argued that they were entitled to argued that they were entitled to holidays on top of this and should be holidays on top of this and should be allowed to take the holidays from allowed to take the holidays from weeks when they would otherwise weeks when they would otherwise work. Who was right?work. Who was right?

Answer question oneAnswer question one

1. The court decided that they were 1. The court decided that they were entitled to holidays on top of their entitled to holidays on top of their normal time off. However the normal time off. However the entitlement could be satisfied by them entitlement could be satisfied by them taking the holidays on weeks when they taking the holidays on weeks when they were not at work ie their breaks. Overall were not at work ie their breaks. Overall they had many more breaks than the they had many more breaks than the law required. Had the court decided law required. Had the court decided otherwise other professions such as otherwise other professions such as teachers would have been entitled to teachers would have been entitled to holidays during the school term.holidays during the school term.

Question twoQuestion two 2. In 2. In Lisboa v RealpubsLisboa v Realpubs a “gay pub” was taken a “gay pub” was taken

over and made into a gastro pub and wanted to over and made into a gastro pub and wanted to attract a wider clientele. An employee was asked attract a wider clientele. An employee was asked to display a sign saying “this is not a gay pub” and to display a sign saying “this is not a gay pub” and was asked to seat customers not looking overtly was asked to seat customers not looking overtly gay in prominent positions near the window.gay in prominent positions near the window.

The pub wanted gay customers but also a wider The pub wanted gay customers but also a wider clientele.clientele.

Could the employee make any claim?Could the employee make any claim? Would it make a difference if he was gay himself?Would it make a difference if he was gay himself? What was the end result – ie is this still a gay pub?What was the end result – ie is this still a gay pub?

Answer question twoAnswer question two 2. The employer did not want to dissuade 2. The employer did not want to dissuade

gay customers but wanted a wider clientele. gay customers but wanted a wider clientele. There was nothing unlawful about this nor There was nothing unlawful about this nor was taking steps to encourage this as long was taking steps to encourage this as long as it did not involve treating gay customers as it did not involve treating gay customers less favourably as a result. The EAT less favourably as a result. The EAT believed the policy did have this affect. believed the policy did have this affect. Asking Mr Lisboa to carry out these acts Asking Mr Lisboa to carry out these acts constituted less favourable treatment on the constituted less favourable treatment on the grounds of sexual orientation regardless of grounds of sexual orientation regardless of the sexual orientation of the employee. the sexual orientation of the employee. This type of case will be more common This type of case will be more common since the Equality Act.since the Equality Act.

Question threeQuestion three 3. In 3. In Desmond v Nottinghamshire PoliceDesmond v Nottinghamshire Police

a teacher was attending a conference. On a teacher was attending a conference. On his way to his hotel he asked a female for his way to his hotel he asked a female for directions. Later that night she was sexually directions. Later that night she was sexually assaulted. She mentioned that she had assaulted. She mentioned that she had given him directions. He was arrested. It given him directions. He was arrested. It became apparent that he had nothing to do became apparent that he had nothing to do with the incident. However the information with the incident. However the information remained on his record and was disclosed remained on his record and was disclosed during an enhanced disclosure as the police during an enhanced disclosure as the police had failed to erase the information. He had failed to erase the information. He claimed they were liable for the claimed they were liable for the consequences of their negligence. Were consequences of their negligence. Were they?they?

Answer question threeAnswer question three

3. The court decided that there is no 3. The court decided that there is no relevant head of claim under relevant head of claim under negligence law against the police. negligence law against the police. The police had a duty to provide any The police had a duty to provide any “relevant” information but if it was “relevant” information but if it was negligently given there was no negligently given there was no remedy under the law on negligence remedy under the law on negligence as the police owed no duty of care as as the police owed no duty of care as a matter of public policy.a matter of public policy.

Question fourQuestion four 4. In 4. In Locke v Candy & CandyLocke v Candy & Candy the the

individual’s contract had a bonus clause individual’s contract had a bonus clause which provided that the employee had to be which provided that the employee had to be employed by the company in order to employed by the company in order to receive a bonus.receive a bonus.

He was a model employee and a high He was a model employee and a high performer. His bonus was £160,000 after performer. His bonus was £160,000 after 12 months service. He was dismissed 12 months service. He was dismissed before the 12 months with 6 months pay in before the 12 months with 6 months pay in lieu of notice.lieu of notice.

The employer had a contractual right to The employer had a contractual right to make a payment in lieu of notice.make a payment in lieu of notice.

Was he entitled to a bonus?Was he entitled to a bonus?

Answer question fourAnswer question four

4. He was not entitled to a bonus. The 4. He was not entitled to a bonus. The contract was clear. The company had a contract was clear. The company had a right to make a payment in lieu and end right to make a payment in lieu and end employment immediately. He was employment immediately. He was therefore not employed at the date the therefore not employed at the date the bonus fell due. He was therefore not bonus fell due. He was therefore not entitled to the bonus. He had insufficient entitled to the bonus. He had insufficient service to claim unfair dismissal even service to claim unfair dismissal even adding on the statutory one week (he was adding on the statutory one week (he was dismissed 10 days before achieving one dismissed 10 days before achieving one year’s service).year’s service).

Question fiveQuestion five 5. In 5. In RBS v Ashton RBS v Ashton the employee suffered from the employee suffered from

migraines leading to significant periods off work. migraines leading to significant periods off work. Under the employer’s absence policy she would Under the employer’s absence policy she would normally have had a warning and had sick pay normally have had a warning and had sick pay stopped. In 99.5% of cases sick pay was stopped. It stopped. In 99.5% of cases sick pay was stopped. It was based on trigger points depending on duration was based on trigger points depending on duration and frequency.and frequency.

Due to length of service her eligibility for sick pay Due to length of service her eligibility for sick pay was 52 weeks.was 52 weeks.

Her duration and frequency would normally have Her duration and frequency would normally have triggered a warning and no sick pay. triggered a warning and no sick pay.

Eventually the employer felt it had made Eventually the employer felt it had made considerable adjustments and gave her a considerable adjustments and gave her a disciplinary warning and stopped her sick pay.disciplinary warning and stopped her sick pay.

She complained of disability discrimination. Was it?She complained of disability discrimination. Was it?

Answer question fiveAnswer question five

5. The EAT held that there was no 5. The EAT held that there was no failure to make reasonable adjustments. failure to make reasonable adjustments. The action to discipline and remove sick The action to discipline and remove sick pay was a legitimate exercise by the pay was a legitimate exercise by the employer within its policies. There was employer within its policies. There was no substantial disadvantage to the no substantial disadvantage to the employee compared to non-disabled employee compared to non-disabled employees as all employees were employees as all employees were treated the same. It would rarely be a treated the same. It would rarely be a reasonable adjustment to continue to reasonable adjustment to continue to extend sick pay.extend sick pay.

Question sixQuestion six 6. In 6. In CLECE SA v Maria Socorro Martin CLECE SA v Maria Socorro Martin

Valor and Ayuntamiento de CobisaValor and Ayuntamiento de Cobisa the the ECJ had to decide whether a change of ECJ had to decide whether a change of service provider was a transfer.service provider was a transfer.

A local authority contracted out cleaning A local authority contracted out cleaning of schools. It terminated the contract and of schools. It terminated the contract and brought it back in house.brought it back in house.

It declined to employer the contractor’s It declined to employer the contractor’s staff.staff.

No assets transferred between the parties.No assets transferred between the parties. Was this a transfer under the Acquired Was this a transfer under the Acquired

Rights directive?Rights directive?

Answer question sixAnswer question six

6. The court decided that as no 6. The court decided that as no assets or staff had transferred, the assets or staff had transferred, the directive did not apply.directive did not apply.

Remember this is a case under the Remember this is a case under the directive and not UK legislation.directive and not UK legislation.

Although UK legislation follows the Although UK legislation follows the directive, the 2006 TUPE specifically directive, the 2006 TUPE specifically provides that a change of service provides that a change of service provider is covered by the UK act.provider is covered by the UK act.

Question sevenQuestion seven 7. In 7. In NURMT v Serco & combined casesNURMT v Serco & combined cases the the

Court of Appeal heard an appeal against a Court of Appeal heard an appeal against a number of injunctions awarded to stop strike number of injunctions awarded to stop strike action on the grounds that the balloting rules had action on the grounds that the balloting rules had not been complied with.not been complied with.

The unions had argued that UK law was too The unions had argued that UK law was too complex and breached the European Convention complex and breached the European Convention on Human Rights.on Human Rights.

Some of the details were incorrect partly due to Some of the details were incorrect partly due to administrative error, accidental issues and the administrative error, accidental issues and the difficulty the union had in keeping membership difficulty the union had in keeping membership records up to date. Some of the information was records up to date. Some of the information was not in the union’s possession.not in the union’s possession.

Did the union succeed in having the injunctions Did the union succeed in having the injunctions overturned?overturned?

Answer question sevenAnswer question seven 7. This case is important as the courts have, after 7. This case is important as the courts have, after

different reasoning in earlier cases, held that the different reasoning in earlier cases, held that the provisions of TULRCA 1992, allows for accidental provisions of TULRCA 1992, allows for accidental ballot errors to be disregarded. This can save a ballot ballot errors to be disregarded. This can save a ballot where genuine and immaterial errors occur where genuine and immaterial errors occur (accidentally balloting two members not entitled to (accidentally balloting two members not entitled to vote).vote).

The provisions regarding information about The provisions regarding information about categories of workers entitled to vote only requires categories of workers entitled to vote only requires disclosure of information in the union’s possession. disclosure of information in the union’s possession. Although it should be as accurate as possible, there is Although it should be as accurate as possible, there is no obligation to improve existing records. no obligation to improve existing records.

A union can refer to general job categories not A union can refer to general job categories not specific jobs.specific jobs.

In other words as long as not positively and materially In other words as long as not positively and materially misleading, errors and accidents are ignoredmisleading, errors and accidents are ignored

Question eightQuestion eight

8. A new consultation paper on 8. A new consultation paper on Modern workplaces Modern workplaces covers four covers four specific areasspecific areas Flexible workingFlexible working Working time holiday carry overWorking time holiday carry over Equal pay auditsEqual pay audits Flexible workingFlexible working What is proposed in each of these What is proposed in each of these

areas?areas?

Answer question eightAnswer question eight

8. 8. Flexible workingFlexible working To be introduced for all employees. The existing To be introduced for all employees. The existing

statutory procedure will be replaced by a duty to statutory procedure will be replaced by a duty to consider requests “reasonably” and a statutory code of consider requests “reasonably” and a statutory code of practice will be issued to give employers guidance on practice will be issued to give employers guidance on how to handle requests and demonstrate a reasonable how to handle requests and demonstrate a reasonable process. Concerns re competing interests eg childcare, process. Concerns re competing interests eg childcare, disability etcdisability etc

Equal payEqual pay Employment tribunals would be able to require that Employment tribunals would be able to require that

employers that have discriminated on the grounds of employers that have discriminated on the grounds of sex in relation to contractual or non-contractual pay sex in relation to contractual or non-contractual pay matters conduct an equal pay auditmatters conduct an equal pay audit

Answer question eight continuedAnswer question eight continued

8. Working time regulations 19988. Working time regulations 1998 Will be amended to allow four weeks’ statutory annual Will be amended to allow four weeks’ statutory annual

leave to be rescheduled and/or carried over into the next leave to be rescheduled and/or carried over into the next leave year when a worker falls ill during annual leave. For leave year when a worker falls ill during annual leave. For maternity, paternity, parental and adoption leave it will be maternity, paternity, parental and adoption leave it will be 5.6 weeks of leave. Appears to be no limit to when this can 5.6 weeks of leave. Appears to be no limit to when this can happen.happen.

KHS AG v Winfried ShulteKHS AG v Winfried Shulte decision by Advocate General of decision by Advocate General of the ECJ appears confusing re the above.the ECJ appears confusing re the above.

Case asks whether the ability to accrue leave or to carry over Case asks whether the ability to accrue leave or to carry over is limited in time. Asks whether Member states can limit a is limited in time. Asks whether Member states can limit a worker’s entitlement to minimum paid annual leave to the worker’s entitlement to minimum paid annual leave to the holiday year in which it accrues, even for those on prolonged holiday year in which it accrues, even for those on prolonged sickness and if not whether it can be limited to 18 months.sickness and if not whether it can be limited to 18 months.

AG concluded that directive does not preclude capping AG concluded that directive does not preclude capping leave. Allowing leave to be taken sometime after it has leave. Allowing leave to be taken sometime after it has accrued does not achieve the directive’s purpose.accrued does not achieve the directive’s purpose.

18 months might be ok but six months may be too 18 months might be ok but six months may be too short a time, for Member states to draw up own short a time, for Member states to draw up own rules??????? Implications for UK.rules??????? Implications for UK.

Answer question eight continuedAnswer question eight continued

8. Parental leave8. Parental leave 18 weeks maternity leave for the sole use of the 18 weeks maternity leave for the sole use of the

mother, maternity pay and allowance as nowmother, maternity pay and allowance as now Fathers would continue to receive two weeks’ Fathers would continue to receive two weeks’

paternity leave at flat rate in first 8 weeks paternity leave at flat rate in first 8 weeks Remainder (34 weeks – 21 paid, 13 unpaid) to Remainder (34 weeks – 21 paid, 13 unpaid) to

be shared between parents, taken when they be shared between parents, taken when they choose, including together, in weeks or days choose, including together, in weeks or days depending on business need, to be reclassified depending on business need, to be reclassified as parental leave available to either parent on as parental leave available to either parent on an equal basis (same for adopters or same-sex an equal basis (same for adopters or same-sex couples)couples)

21 weeks of pay reclassified as parental pay21 weeks of pay reclassified as parental pay

Answer question eight continuedAnswer question eight continued

8. Parental leave continued8. Parental leave continued Part of the period of flexible parental leave will be Part of the period of flexible parental leave will be

reserved for the exclusive use of each parent ie four reserved for the exclusive use of each parent ie four weeksweeks

This would be paid at the flat rateThis would be paid at the flat rate Could be taken when the parties wish after birth and Could be taken when the parties wish after birth and

even togethereven together Means an extra four weeks in total ie if mother takes Means an extra four weeks in total ie if mother takes

mandatory 18 weeks then flexible 34 there needs to be mandatory 18 weeks then flexible 34 there needs to be another four weeks for the fatheranother four weeks for the father

Increase right to existing unpaid parental leave to 18 Increase right to existing unpaid parental leave to 18 weeks, consider raising age of child (currently 5)weeks, consider raising age of child (currently 5)

Rules on taking leave to take account of business need Rules on taking leave to take account of business need ie employer may not be able to accommodate part-time ie employer may not be able to accommodate part-time or short periods of leaveor short periods of leave

Consider unpaid ante-natal leave for fathersConsider unpaid ante-natal leave for fathers

Question nineQuestion nine

9. The Agency workers regulations 9. The Agency workers regulations come into force in October 2011.come into force in October 2011.

They will join other discrimination They will join other discrimination laws such as part-time and fixed-laws such as part-time and fixed-term regulations.term regulations.

What are the main provisions of the What are the main provisions of the regulations?regulations?

Answer question nineAnswer question nine 9. An agency worker will be entitled to similar terms and 9. An agency worker will be entitled to similar terms and

conditions as if directly employed after a 12 week period. It conditions as if directly employed after a 12 week period. It does not apply to the genuinely self-employed, itself a difficult does not apply to the genuinely self-employed, itself a difficult concept particularly for those who work as contractors and as concept particularly for those who work as contractors and as limited companies.limited companies.

The legislation does not cover all terms and conditions ie The legislation does not cover all terms and conditions ie pensions, occupational sick pay are excluded but pay related pensions, occupational sick pay are excluded but pay related matters and holidays are included.matters and holidays are included.

Complex rules apply re the calculation of the 12 week period Complex rules apply re the calculation of the 12 week period and which weeks break continuity. There are penalties for and which weeks break continuity. There are penalties for employers who try and avoid the 12 week rule eg by hiring for employers who try and avoid the 12 week rule eg by hiring for 11 weeks only.11 weeks only.

Where the worker moves to a substantially different position Where the worker moves to a substantially different position even for the same employer, continuity begins againeven for the same employer, continuity begins again

An individual can have continuity with different agenciesAn individual can have continuity with different agencies The agency worker does not become an employee and The agency worker does not become an employee and

therefore statutory rights such as unfair dismissal, redundancy therefore statutory rights such as unfair dismissal, redundancy etc will not apply.etc will not apply.

Question tenQuestion ten 10. In 10. In Autoclenz Ltd v Belcher Autoclenz Ltd v Belcher the Supreme Court the Supreme Court

(unusual for a case on employment status to reach (unusual for a case on employment status to reach this court) has heard a case where individuals had this court) has heard a case where individuals had documentation stating that they were self-employed documentation stating that they were self-employed contractors.contractors.

They paid their own tax and had to purchase their They paid their own tax and had to purchase their own insurance, uniforms and materials. Their own insurance, uniforms and materials. Their contracts stated that they were under no obligation to contracts stated that they were under no obligation to attend work although they were in reality expected to attend work although they were in reality expected to attend work and provide the services personally.attend work and provide the services personally.

In reality they had always worked as if they were In reality they had always worked as if they were employees.employees.

The court had to decide what took precedence, the The court had to decide what took precedence, the written word or the reality. There was talk of sham written word or the reality. There was talk of sham contracts.contracts.

Answer question tenAnswer question ten 10. This was a difficult case. On the one had there 10. This was a difficult case. On the one had there

was contractual documentation agreed by the parties was contractual documentation agreed by the parties which made clear they were self-employed.which made clear they were self-employed.

On the other hand they clearly worked to all respects On the other hand they clearly worked to all respects as if they were employees.as if they were employees.

They argued the written documentation was a sham.They argued the written documentation was a sham. The court was reluctant to go down the road of the The court was reluctant to go down the road of the

“sham” argument which tended to suggest illegality or “sham” argument which tended to suggest illegality or something unlawful.something unlawful.

They held that it was not necessary to prove a “sham” They held that it was not necessary to prove a “sham” in the sense of being misleading. in the sense of being misleading.

Everyone expected them to work personally – what is Everyone expected them to work personally – what is important therefore is the true intention of the parties important therefore is the true intention of the parties not what is written.not what is written.

Significant implications for contract law.Significant implications for contract law.

Question elevenQuestion eleven 11. In 11. In Preece v JD Wetherspoons Plc Preece v JD Wetherspoons Plc an employee an employee

was dismissed for gross misconduct when she posted was dismissed for gross misconduct when she posted inappropriate comments about customers on Facebook.inappropriate comments about customers on Facebook.

She was a pub manager and whilst still at work posted She was a pub manager and whilst still at work posted comments on Facebook about abusive customers comments on Facebook about abusive customers identifying them by name.identifying them by name.

Her privacy settings meant that a wide range of people Her privacy settings meant that a wide range of people including the very customers could see her page. including the very customers could see her page.

One made a complaint and she was dismissed for gross One made a complaint and she was dismissed for gross misconduct.misconduct.

She admitted that she was aware of the company’s She admitted that she was aware of the company’s internet and email policy and knew she had breached it.internet and email policy and knew she had breached it.

Was dismissal fair?Was dismissal fair?

Answer question 11Answer question 11

11. Held to be a fair dismissal. The policy 11. Held to be a fair dismissal. The policy was clear and well known. She knew that was clear and well known. She knew that what she did breached the policy. Even what she did breached the policy. Even though this was on her own Facebook, she though this was on her own Facebook, she knew it had wide circulation.knew it had wide circulation.Clearly it is important to have such Clearly it is important to have such policies. In this case she breached the policies. In this case she breached the policy whilst at work but employers need policy whilst at work but employers need to ensure the policy is broad enough to to ensure the policy is broad enough to cover inappropriate comments whenever cover inappropriate comments whenever made.made.

Question twelveQuestion twelve 12. 12. Hashman v Milton Park (Dorset) Ltd t/a Hashman v Milton Park (Dorset) Ltd t/a

Orchard Park Orchard Park - an animal activist was - an animal activist was opposed to fox-hunting and hare-coursing. He opposed to fox-hunting and hare-coursing. He argued that his treatment at work was for this argued that his treatment at work was for this reason and argued that it was a protected reason and argued that it was a protected philosophical belief within the meaning of the philosophical belief within the meaning of the regulations.regulations.

Maistry v BBC – Maistry v BBC – an employee working for the an employee working for the BBC World service argued that the BBC’s BBC World service argued that the BBC’s influence overseas and his belief in the higher influence overseas and his belief in the higher purpose of public service broadcasting and purpose of public service broadcasting and impact on culture and social cohesion was a impact on culture and social cohesion was a philosophical belief.philosophical belief.

Answer question twelveAnswer question twelve 12. The tribunal held that a belief in animal rights 12. The tribunal held that a belief in animal rights

could amount to a philosophical belief. If his treatment could amount to a philosophical belief. If his treatment at work was due to this belief, there was at work was due to this belief, there was discrimination. discrimination.

A tribunal has held that a belief in the “higher purpose” A tribunal has held that a belief in the “higher purpose” of public service broadcasting, to promote cultural of public service broadcasting, to promote cultural interchange and social cohesion, is a protected interchange and social cohesion, is a protected philosophical belief.philosophical belief.

Mr Maistry’s belief was held to be more than a sincere Mr Maistry’s belief was held to be more than a sincere commitment to what is the BBC’s mission statement. commitment to what is the BBC’s mission statement. He referred to various publications regarding the He referred to various publications regarding the purpose of public service broadcasting which provides purpose of public service broadcasting which provides a “public space” in which everyone is free to enter and a “public space” in which everyone is free to enter and within which they can encounter culture, education and within which they can encounter culture, education and debate.debate.

Question thirteenQuestion thirteen 13. In 13. In Farrell v South Yorkshire Police AuthorityFarrell v South Yorkshire Police Authority

the employee was a principal intelligence analyst. He the employee was a principal intelligence analyst. He had to produce an annual strategic risk assessment for had to produce an annual strategic risk assessment for the police authority’s area. This was to analyse threats the police authority’s area. This was to analyse threats to life and community harm.to life and community harm.

His assessment was that the threat of terrorism was His assessment was that the threat of terrorism was internal not external. His report described protecting internal not external. His report described protecting vulnerable people and tackling crime as irrelevant. He vulnerable people and tackling crime as irrelevant. He included headings named “the truth about 7/7” and the included headings named “the truth about 7/7” and the “truth about 9/11”. He referred to the new world order “truth about 9/11”. He referred to the new world order and outlined his beliefs that 9/11 and 7/7 were false flag and outlined his beliefs that 9/11 and 7/7 were false flag operations authorised by the respective national operations authorised by the respective national governments to give them material to persuade the governments to give them material to persuade the people to support foreign wars.people to support foreign wars.

When he refused to do his job as required he was When he refused to do his job as required he was dismissed. He claimed he was dismissed for having a dismissed. He claimed he was dismissed for having a philosophical belief. Did he succeed?philosophical belief. Did he succeed?

Answer question thirteenAnswer question thirteen 13. The court held that he genuinely held these views. His 13. The court held that he genuinely held these views. His

views were held to relate to a weighty and substantial aspect views were held to relate to a weighty and substantial aspect of human life and behaviour. There was nothing incompatible of human life and behaviour. There was nothing incompatible with human dignity in his beliefs although they contain with human dignity in his beliefs although they contain shocking statements about the motivation of certain people.shocking statements about the motivation of certain people.

Of more difficulty was the test of whether the beliefs attained Of more difficulty was the test of whether the beliefs attained a level of “cogency, seriousness, cohesion and importance”. a level of “cogency, seriousness, cohesion and importance”. This involved a level of scrutiny of his beliefs. On examination This involved a level of scrutiny of his beliefs. On examination the evidence was contradicted by far more evidence and his the evidence was contradicted by far more evidence and his testimony was incoherent. Inconsistencies in his beliefs testimony was incoherent. Inconsistencies in his beliefs became apparent.became apparent.

He believed that the Twin Towers collapsed due to bomb He believed that the Twin Towers collapsed due to bomb being detonated inside the building. Taking all this into being detonated inside the building. Taking all this into account the tribunal held that there was failure to meet any account the tribunal held that there was failure to meet any minimum standard of cogency or coherence therefore there minimum standard of cogency or coherence therefore there was no protection under the belief regulations.was no protection under the belief regulations.

Question fourteenQuestion fourteen 14. In 14. In Cherfi v G4S Security Services Ltd, Cherfi v G4S Security Services Ltd, Mr Mr

Cherfi who is a Muslim, worked as a security guard. Cherfi who is a Muslim, worked as a security guard. He had been allowed to leave work to attend He had been allowed to leave work to attend Friday prayers at a local mosque.Friday prayers at a local mosque.

Under a new contract his employer was obliged to Under a new contract his employer was obliged to ensure a certain quota of employees on site at any ensure a certain quota of employees on site at any time. If he was to leave on a Friday, this was not time. If he was to leave on a Friday, this was not possible.possible.

The employer tried to find a solution, including The employer tried to find a solution, including different shift pattern, he refused, took time off via different shift pattern, he refused, took time off via holidays, sickness etc.holidays, sickness etc.

This was unsustainable and he was told this was This was unsustainable and he was told this was unacceptable.unacceptable.

He made a religious discrimination claim. Did he He made a religious discrimination claim. Did he succeed?succeed?

Answer question fourteenAnswer question fourteen 14. The EAT held that the employer had 14. The EAT held that the employer had

discriminated but that it was objectively justified.discriminated but that it was objectively justified. The employer had no choice in requiring a The employer had no choice in requiring a

certain quota of employees each day and there certain quota of employees each day and there would be commercial ramifications if they did would be commercial ramifications if they did not comply.not comply.

He had been offered an alternative shift pattern, He had been offered an alternative shift pattern, there would be no loss of pay, and there was a there would be no loss of pay, and there was a prayer room on site.prayer room on site.

There was therefore a legitimate aim – ie the There was therefore a legitimate aim – ie the commercial consequences and this was a commercial consequences and this was a proportionate means of achieving that aim.proportionate means of achieving that aim.

Question fifteenQuestion fifteen 15. In 15. In Nixon v Ross Coates SolicitorsNixon v Ross Coates Solicitors – Ms Nixon – Ms Nixon

was seen at a Christmas party kissing another was seen at a Christmas party kissing another employee and spending the night in his roomemployee and spending the night in his room

She also had a relationship with another employeeShe also had a relationship with another employee She told her employer she was pregnantShe told her employer she was pregnant Staff gossiped about the paternity of her babyStaff gossiped about the paternity of her baby She raised a grievance and asked to be moved She raised a grievance and asked to be moved The firm refused and also refused to pay for her The firm refused and also refused to pay for her

absence during this periodabsence during this period She claimed pregnancy discrimination. Did she She claimed pregnancy discrimination. Did she

succeed?succeed?

Answer question fifteenAnswer question fifteen

15. The EAT upheld her pregnancy 15. The EAT upheld her pregnancy discrimination claimdiscrimination claim

The gossip was pregnancy-related, it was The gossip was pregnancy-related, it was distressing, it amounted to gender-distressing, it amounted to gender-harassmentharassment

It awarded no reduction due to It awarded no reduction due to contribution – the contribution had to have contribution – the contribution had to have caused the dismissal – here the caused the dismissal – here the contribution was a view about her contribution was a view about her personal lifepersonal life

Question sixteenQuestion sixteen

16. 16. In In Clarke v Credit Resource SolutionsClarke v Credit Resource Solutions, the , the employee had an hour’s pay deduced from his employee had an hour’s pay deduced from his wages and was dismissed after he arrived late for wages and was dismissed after he arrived late for work because he had to make emergency childcare work because he had to make emergency childcare arrangements. arrangements.

He refused to sign a late form authorising the He refused to sign a late form authorising the deduction from pay and was subsequently invited to deduction from pay and was subsequently invited to a disciplinary hearing. a disciplinary hearing.

He was told to sign the late form and give a written He was told to sign the late form and give a written apology to the company in return for a final written apology to the company in return for a final written warning. Failure to do so would result in dismissal.warning. Failure to do so would result in dismissal.

He was subsequently dismissed. What did he claim?He was subsequently dismissed. What did he claim?

Answer question sixteenAnswer question sixteen 1616. . The tribunal found that he had a right to The tribunal found that he had a right to

emergency time off and that it was emergency time off and that it was reasonable in the circumstances. reasonable in the circumstances.

He was subjected to a detriment for He was subjected to a detriment for exercising a statutory right. exercising a statutory right.

He was dismissed for refusing to sign a He was dismissed for refusing to sign a late form and it was unfair. late form and it was unfair.

The policy on lateness whilst normally The policy on lateness whilst normally acceptable should have been tailored to acceptable should have been tailored to deal with issues such as statutory time off.deal with issues such as statutory time off.

Question seventeenQuestion seventeen 17. In 17. In Gilbert & others v Barnsley Gilbert & others v Barnsley three employees three employees

worked term time contracts for 44 weeks but were worked term time contracts for 44 weeks but were paid over 52 weeks (including holidays).paid over 52 weeks (including holidays).

They were made redundant. Their redundancy pay They were made redundant. Their redundancy pay was based on 1/52 of annual salary.was based on 1/52 of annual salary.

They argued that it should be 1/44 based on weeks They argued that it should be 1/44 based on weeks actually worked. This would have led to higher pay.actually worked. This would have led to higher pay.

The rules require that a week’s pay must be calculated The rules require that a week’s pay must be calculated in accordance with s.221-229 of the Employment in accordance with s.221-229 of the Employment Rights Act 1996.Rights Act 1996.

Different provisions apply depending on whether or Different provisions apply depending on whether or not the employee has normal working hours.not the employee has normal working hours.

Accepted that there were normal working hoursAccepted that there were normal working hours Who was right in the calculation the employer or the Who was right in the calculation the employer or the

employees?employees?

Answer question seventeenAnswer question seventeen 17. The employer argued that pay did not vary with the 17. The employer argued that pay did not vary with the

work done as they were paid the same throughout the year work done as they were paid the same throughout the year whether working or not or whether on holiday or notwhether working or not or whether on holiday or not

A week’s pay should therefore be what they were paid each A week’s pay should therefore be what they were paid each week of the year ie 1/52week of the year ie 1/52

The employees argued that their normal working hours did The employees argued that their normal working hours did vary as there were weeks when they did not work. vary as there were weeks when they did not work.

Even though they were paid throughout the year it could Even though they were paid throughout the year it could only be apportioned to the weeks actually workedonly be apportioned to the weeks actually worked

In such cases it is necessary to average pay in the 12 In such cases it is necessary to average pay in the 12 weeks prior to the calculation date ignoring weeks when weeks prior to the calculation date ignoring weeks when there is no paythere is no pay

This would mean 1/44This would mean 1/44 The EAT agreed but thought that the legislation had not The EAT agreed but thought that the legislation had not

been drafted to cover such situationsbeen drafted to cover such situations Paying over 12 months was for administrative convenience Paying over 12 months was for administrative convenience

so pay did vary with the work doneso pay did vary with the work done

Question eighteenQuestion eighteen 18. In 18. In NHS Leeds v LarnerNHS Leeds v Larner, the employee , the employee

was absent for the whole of a holiday year was absent for the whole of a holiday year and had not taken or arranged to take any and had not taken or arranged to take any holidays.holidays.

She was dismissed on the grounds of She was dismissed on the grounds of capability but was not given any payment capability but was not given any payment for untaken holidays.for untaken holidays.

The employer argued that her right to The employer argued that her right to holidays expired at the end of the holiday holidays expired at the end of the holiday year ie “use them or lose them”. They year ie “use them or lose them”. They argued that she had made no request to argued that she had made no request to take holidays during the year.take holidays during the year.

Was she entitled to holidays? Was she entitled to holidays?

Answer question eighteenAnswer question eighteen 18. The EAT disagreed. She was unable to take her 18. The EAT disagreed. She was unable to take her

holidays due to sickness and was entitled to take holidays due to sickness and was entitled to take them at a later date. As she was dismissed this meant them at a later date. As she was dismissed this meant in monetary form.in monetary form.

There was no requirement on an employee to request There was no requirement on an employee to request holidays. It would be different had the employee been holidays. It would be different had the employee been at work and had failed to request or use the holidays.at work and had failed to request or use the holidays.

This will be affected by the Government’s proposals This will be affected by the Government’s proposals on carry forward of holidays but may be affected by on carry forward of holidays but may be affected by the recent decision of the Advocate General which the recent decision of the Advocate General which does not appear to rule out restrictions on the right of does not appear to rule out restrictions on the right of carry over.carry over.

Question nineteenQuestion nineteen

19. In 19. In Puri v Bradford Teaching Hospitals Puri v Bradford Teaching Hospitals a doctor was dismissed for rudeness and found a doctor was dismissed for rudeness and found hard to find other work. Was he entitled to hard to find other work. Was he entitled to legal representation at his disciplinary legal representation at his disciplinary meeting?meeting?

In In Gentry v Dartford and Gravesham NHS Gentry v Dartford and Gravesham NHS TrustTrust Dr Gentry was disciplined and eventually Dr Gentry was disciplined and eventually dismissed for poor performance. Her solicitors dismissed for poor performance. Her solicitors asked to be present at her appeal hearing asked to be present at her appeal hearing arguing that her career was at stake. This was arguing that her career was at stake. This was refused. Did she have a claim?refused. Did she have a claim?

Answer question nineteenAnswer question nineteen 19. In Puri the court held that he could find other 19. In Puri the court held that he could find other

work even though the NHS was a major employer. work even though the NHS was a major employer. There was no need for his dismissal to comply with There was no need for his dismissal to comply with Article 6 of the Convention on Human Rights. This Article 6 of the Convention on Human Rights. This was upheld on appeal.was upheld on appeal.

In Gentry the court took the view that legal In Gentry the court took the view that legal representation might have led to a different finding representation might have led to a different finding given the major impact on her career of losing work given the major impact on her career of losing work in the NHS. In so doing they followed the case of in the NHS. In so doing they followed the case of R(on the application of G ) v Governors of X R(on the application of G ) v Governors of X school. school. However this case has now been overruled However this case has now been overruled and there will be few cases where Article 6 applies and there will be few cases where Article 6 applies and the right to legal representation in internal and the right to legal representation in internal disciplinary proceedings.disciplinary proceedings.

Question twentyQuestion twenty

20. In 20. In Davies v Sandwell Metropolitan Davies v Sandwell Metropolitan Borough CouncilBorough Council the court had to look at the court had to look at the fairness of a dismissal which involved the fairness of a dismissal which involved an earlier warning (had there been no final an earlier warning (had there been no final warning there would not have been a warning there would not have been a dismissal). The employee failed to appeal dismissal). The employee failed to appeal against the final warning. The court against the final warning. The court therefore accepted that it was valid even therefore accepted that it was valid even though they had doubts about it. What did though they had doubts about it. What did the appeal court decide?the appeal court decide?

Answer question twentyAnswer question twenty 20. In general courts do not delve in any depth 20. In general courts do not delve in any depth

into the fairness of an earlier warning unless it is into the fairness of an earlier warning unless it is brought into the proceedings by one of the brought into the proceedings by one of the parties. The court may then have reason to parties. The court may then have reason to believe that the earlier warning was not given in believe that the earlier warning was not given in good faith or for a wrong motive.good faith or for a wrong motive.

This may then affect the fairness of the dismissal.This may then affect the fairness of the dismissal. In the present case the earlier court had placed In the present case the earlier court had placed

too much emphasis on the employee’s failure to too much emphasis on the employee’s failure to appeal which was irrelevant. If there were doubts appeal which was irrelevant. If there were doubts about the final warning and the tribunal held that about the final warning and the tribunal held that it was a nullity, it would affect any subsequent it was a nullity, it would affect any subsequent dismissal.dismissal.

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