UK: Employment Law Bulletin - November 2011

Last Updated: 21 December 2011
Article by Thomas Eggar's Employment Team

There may be big changes ahead. According to a report by venture capitalist Adrian Beecroft leaked on 25 October, the government has been advised to alter unfair dismissal rules to help employers to more easily dismiss unproductive staff and workers who "coast along". The report apparently recommends a "Compensated No Fault Dismissal" where an employee could simply be dismissed with basic redundancy pay and notice - presumably without further explanation or comeback.

In addition, in discussions about the major package of employment law to be introduced Nick Clegg has backed the idea of "protected conversations" as a means to resolve disputes informally. The idea is that employers will be able to challenge unproductive staff or advise them to consider retirement without worrying about the concern of comments becoming grounds for a tribunal claim.

Another report has concluded that extended drinking hours have had a direct impact on workplace absence; but not in a good way. A comparison of work absence carried out through the UK Labour Force Survey found that absence rates rose by 1% after more pubs and bars could legally stay open past 11pm. That is an estimated 5,349,617 hours or 667,702 sick days. Perhaps this can be explained in part by the results of separate research carried out by Aviva, which reveals that almost one in ten employees polled said they needed to drink to unwind at the end of the day. One in seven said, that said, that their diet has suffered as they have no time to cook. Of course, this may be because they are down at the pub.

Bribery Act – first conviction

The Bribery Act has claimed its first conviction. But perhaps surprisingly, this was not about a corporate entity accused of failing to take the adequate procedures required by the Act, but about a magistrate's court clerk. Mr Patel admitted bribery and misconduct after taking a £500 bribe to avoid putting details of a traffic summons on the court database. He now faces a maximum of ten years in prison.

On a grander scale, in a current German bribery trial centering around the motorsports world, Gerhard Gribkowsky, the former Bayerische Landesbank manager, is accused of accepting bribes as part of CVC Capital Partners Ltd's 2005 purchase of BayernLB's 47% stake in Formula One. Bernie Eccleston will be giving evidence and the case will no doubt be watched with interest by prosecutors in the UK. Any British national who is alleged to have committed bribery, regardless of where in the world, could be investigated and prosecuted by the SFO in the UK.

Fear of penalties resulting in dismissal

Mrs Okuoimose, a Nigerian, worked for City Facilities Management (CFM). Because she was married to an EEA national she had a right of residence but when a Home Office stamp in her passport ran out she was suspended without pay. She was dismissed some weeks later on the grounds that it would be illegal to continue to employ her. However on the same day as the dismissal, Mrs Okuoimose provided CFM with a letter from the Border Agency confirming that she could work in the UK. CFM re-instated her and she made a claim for unlawful deductions of wages for the suspension period.

The tribunal dismissed her claim, concluding that the contract was illegal during that period because Mrs Okuoimose had failed to provide proof of her entitlement to work. The EAT disagreed. If the right to residence exists (in this case because Mrs Okuoimose was a family member of an EEA national) then the expiry of a passport stamp will not alter that fact and will not make continued employment illegal. It was irrelevant whether CFM thought it was behaving reasonably or that it was worried about penalties.

Other employers who have not fared well recently include Orchard Farm in Dorset. Former employee Mr Hashman, who had won the right in October 2010 to have his anti-hunting beliefs protected under the Religion and Belief Regulations, has now won his claim for unfair dismissal. When Mr Hashman was told his services would no longer be required, he believed this was directly related to the fact he had been a witness at two hunting prosecutions, as written about on his internet blog.

Also, Poundland has had to review its dress code after a member of staff walked out after being told she should remove a remembrance poppy. She subsequently received support from customers who launched a Facebook campaign to boycott Poundland shops in protest. The company has now apologised and will allow employees to use their own discretion in wearing poppies.

Reasonable adjustments and issues of cost

In Cordell v Foreign Commonwealth Office a deaf employee was supported by a team of lip speakers in her role in Warsaw. An offer of another role in Kazakhstan was withdrawn after an assessment of the costs of providing a similar team there. Not only were there real practical difficulties in arranging lip speakers in Kazakhstan but also the cost of provision would amount to five times Ms Cordell's salary and indeed was nearly as high as the costs of running the whole embassy.

She claimed disability discrimination but this was rejected by the EAT. While cost is not a decisive issue in deciding whether an adjustment is reasonable, this does not mean that it is not relevant. A tribunal can consider a range of issues, such as the size of any budget, what the employer has spent in comparable situations and what other employers are prepared to spend. The tribunal was entitled to take into account the FCO's budget for reasonable adjustments and in this context, the adjustment sought was not reasonable.

Delay and fairness in disciplinary procedures

In Dr Lim v Royal Wolverhampton Hospitals NHS Trust, the High Court held that there is an implied term in contracts of employment that disciplinary processes be conducted fairly and without undue delay. Dr Lim faced capability and conduct hearings. As part of the conduct issues, the trust raised allegations of conduct some three years after the events in question had taken place. The court held that there was an implied term requiring that disciplinary processes be conducted fairly and without undue delay (although it also held that the Trust had not acted in breach of this).

Withdrawing a dismissal and special circumstances

We know that where either an employer or employee uses unambiguous words of dismissal or resignation, they are deemed to have dismissed or resigned unless "special circumstances" apply; such as words said in the heat of an argument. In CF Capital Plc v Willoughby, the employer and Mrs Willoughby were involved in negotiations about a transfer of her status from employment to self-employed work. She asked for more information before making up her mind but before it was received, her manager wrote to confirm her move to self employed status and stated that the termination of her employment contract would become effective from a certain date. When she protested, he tried to retrieve the position and said that he had misunderstood the outcome of the negotiations.

Were these "special circumstances"? No, said the Court of Appeal. The essence of the special circumstances exception is that the person using the unambiguous words must be given the chance to "cool off" and say that he did not mean what was said, before the recipient acts on them. The exception does not simply provide an opportunity for a retraction or withdrawal of those words.

Sleeping on the job

In Wray v JW Lees & Co, Ms Wray's claim concerned the question of whether all the hours she was required to stay on the premises should be taken into account in assessing whether she had been paid the National Minimum Wage. She was a temporary pub manager who was provided with free accommodation and she was required to sleep in that accommodation every night as a security and preventative measure.

She claimed pay, at the minimum wage, for all the time she was on the premises - including when asleep. Her claim was dismissed. It came down to whether or not a worker is required to do any work during the time she sleeps on the premises. If not, those hours will not be treated as salaried hours. Even if she did have to call the emergency services had there been a fire or break-in, the degree of responsibility was minimal. It would be a different story if, for example, she were a night-sleeper in a residential care home or a hotel manager.

And it reasonable to ventilate a toilet?

Mrs Wallace wanted to open a window after she had been to the toilet at her workplace at Glasgow City Council, but unfortunately found that she was unable to reach the window. Enterprisingly, she stood on the rim of the bowl to do so; but it then toppled over and so did she, injuring her foot. Should she have left the window closed or gone to the janitor's office for a pole?

No, said the Court of Session. It was "wholly foreseeable that a person would be anxious to be in a position to ventilate the toilet after she had used it". No risk assessment had been carried out in relation to the use of the toilet bowl for opening the window and the council was ordered to pay Mrs Wallace £15,900 in damages. This was, however, reduced by 50% to reflect the contribution of her actions to the accident.

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