Canter Levin & Berg Employment Solutions Canter Levin & Berg Employment Solutions
August 2013

This month's newsletter is packed with practical advice for employers and those involved in employment claims including the practicalities of zero hours contracts, what to do if someone is too afraid to give evidence and dealing with adjournments on medical grounds and subject access requests. I've also taken a look at the furore following the dismissal of a Ryanair employee who was interviewed for a Channel 4 documentary (choosing my words carefully given Ryanair's predisposition to litigation!). Finally, in what has been for most a holiday month, I've considered two recent case reports, one concerning whether holiday pay should provide for the equivalent of overtime payments and whether a finding of gross misconduct is always sufficient to justify dismissal.

The next few months will see the practical consequences of the numerous changes I have reported in recent editions of the newsletter, including tribunal fees, so-called "protected conversations", the capping of unfair dismissal compensation, redundancy consultation across entire organisations and, perhaps with more of a whimper, much loved by George Osborne but apparently hardly anyone else, employee shareholder status. Still, all in good time. For now, if you are recently back from holiday, feel good about the fact that you are building up your entitlement to the next one!

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Martin Malone

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This month's news round-up:

1. what are zero hours contracts and how do they work in practice?

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Zero hours contracts are often referred to in employment but they are not legally defined. They were popular a number of years ago because it was often very difficult for employees working under such contracts to secure sufficient continuous employment to benefit from employment protection, e.g. for unfair dismissal. However, since there is no longer a requirement to work a minimum number of hours per week to gain protection that potential benefit for employers no longer exists.

Nonetheless there has been a significant increase in the use of these contracts in the last few years. According to Government figures it is estimated that about 250,000 employees are working under zero hours contracts. However, the Chartered Institute of Personnel and Development has recently estimated that the correct figure is nearer one million and this has generated a good deal of press coverage about whether such contracts are "a good or bad thing".

On 20 August Shadow Business Secretary Chuka Umunna held a summit of employers and employees to discuss the key issues and, in particular, concerns about their widespread implementation. Business Secretary Vince Cable has acknowledged that there is "some exploitation" of workers on zero hours contracts but has also acknowledged that they "can work for the worker as well as the employer". He will decide in September whether to commence a formal consultation on specific proposals.

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2. what do you do if someone is too afraid to give evidence?

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In Duffy v George the Court of Appeal has considered what a tribunal should do if a claimant is too frightened to attend a hearing. It is easy to imagine situations, particularly with discrimination cases such as this one, in which a distressed employee or former employee is scared of attending a hearing at which the alleged discriminator will be in attendance. As with criminal proceedings it is well known that people may choose not to proceed with what would otherwise be entirely justified claims so that there is a serious risk of injustice, often based on the opponent's continuing threats or other bullying behaviour. Obviously a most unsatisfactory state of affairs.

Susannah George worked for Taylor Wimpey Homes as a sales executive and Michael Duffy was a projects manager. Ms George complained about sexual harassment by Mr Duffy, exemplified by him giving her a sex toy as a Valentine's gift and sending her "sexy text messages". Mr Duffy countered the allegations by claiming that Ms George "gave as good as she got". Ms George resigned and shortly thereafter Mr Duffy was dismissed.

Ms George brought proceedings against Taylor Wimpey Homes and Mr Duffy. Shortly before the employment tribunal hearing the claim against the former employer was settled. The hearing against Mr Duffy was adjourned. Mr Duffy then sent Ms George a horoscope with, according to the judgment, "a comment implying that she had made up the allegations and would suffer for it". In response her solicitors wrote to the tribunal stating that their client was "scared of attending a hearing".

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3. dealing with adjournments on medical grounds

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What should a tribunal do when a claimant is ill due to stress cased by an employer's alleged bullying?

This was the question for the Court of Appeal in Riley v The Crown Prosecution Service. The history of relevant events is complicated so please bear with me! Tyica Riley was appointed as a Senior Crown Prosecutor with the CPS in February 2005. In August 2006 she raised a grievance alleging bullying and harassment which was upheld in part. In November 2007 she was transferred to a different team in Lewisham and in August 2008 she went off sick. She never returned to work thereafter. In September 2008 she raised a second grievance and this was not upheld in June 2009. Further it was suggested that the allegations were false and made maliciously. This led to disciplinary proceedings. However in August 2009 an occupational health report was obtained, confirming that she remained unfit to return to work and that removal of the disciplinary process "will significantly improve her ill health". Also in August her appeal in respect of the first grievance was rejected.

Ms Riley commenced her first employment tribunal claim in September 2009, alleging race discrimination, disability discrimination and whistle blowing. In December 2009 an appeal by another employee against the finding made against him in Ms Riley's first grievance was upheld and in February 2010 Ms Riley's appeal against the rejection of her second grievance was also rejected. It was rejected again in March 2010.

In April 2010 Ms Riley commenced her second employment tribunal claim, concerning allegations of bullying by the employee who was the subject of her first grievance. Notwithstanding her continuing absence through ill health a disciplinary hearing was scheduled to take place in early June 2010. Unsurprisingly Ms Riley provided notification that she was unfit to attend. In July 2010 a psychiatric report was obtained which concluded that Ms Riley was "unable to cope or attend any legal proceedings or hearings" and that her problems were "a direct result of her on going legal battle".

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4. how to deal with subject access requests

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On 8 August 2013 the Information Commissioner's Office published a new Subject Access Code of Practice. The 58 page guide offers a great deal of practical information concerning how to deal with requests.

It is comprehensive and commendably straightforward and, as such, it's essential reading and reference for anyone who has to deal with subject access requests.

Introducing the Code the Information Commissioner, Christopher Graham, said:

We are all being asked to provide organisations with more and more information about ourselves and subject access requests are a useful tool for keeping control of our data. They can be particularly important when checking your credit rating or applying for a loan, but the ICO's complaints figures show that many organisations still need to improve their processes for dealing with these requests.

Handling subject access requests correctly can also benefit organisations by highlighting errors and helping them to make sure the information they are using is accurate and up-to-date

Our new subject access code of practice will help organisations deal with these types of requests in a timely and efficient manner, allowing them to demonstrate that they are looking after their customers' data and being open and transparent about the information they collect. This can only be a good thing for organisations and consumers.

The Code attempts to tackle the thorny question of whether there is an obligation to comply with a subject access request when the person making the request is contemplating or has already commenced legal proceedings. My view, based on my experience of the rules concerning disclosure of documents in civil proceedings is that making such a request with the express purpose of securing "back door disclosure" is an obvious and plainly unacceptable abuse of the process. Why have court rules concerning disclosure if they can effectively be disregarded by utilising the subject access procedure?

Unsurprisingly the Information Commissioner disagrees.

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5. Ryanair and whistleblowing - a dilemma

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A couple of weeks ago I watched a 30 minute documentary on Channel 4 in its Dispatches strand, Ryanair: Secrets from the Cockpit. At the core of the programme were the results of a survey of the members of the Ryanair Pilot Group. The name of the Group would naturally suggest that it comprises a membership of Ryanair pilots, although it has been cast in various lights, including a suggestion that it is in fact a method of seeking unionisation of the Ryanair pilots at the instigation of other, already unionised, European pilots.

The information disclosed in the programme was generally not new and broadly underwhelming. We "learned" that Ryanair is firmly focused on saving costs and this includes carrying limited fuel loads which, significantly, are above the legal minimum. Separately it was recently reported that pilots have been asked to extend flight times, apparently by an average two minutes per one hour 10 minutes, thereby saving costs by reducing fuel consumption.

It was a little surprising that pilots appear to be scored on a league table according to the extent of savings made. While some may deprecate such an approach, it cannot be said that it follows that safety is likely to be impaired as a result, although this was the clear implication

Earlier this year but with rather less press coverage, at least in the UK, similar allegations were made in a book Ryanair. Low cost mais à quel prix? written under the pseudonym Christian Fletcher "to protect the pilot from being sacked". The author criticised Ryanair's "obsession" with cutting aviation fuel costs and suggested quick turn-round times contributed to the stress of employees and that staff worked in a "permanent climate of fear, with tactics of intimidation and punishment".

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6. should holiday pay include overtime?

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It is very rare for me to comment on an employment tribunal judgment that has not been the subject of an appeal, not least because such judgments do not provide a binding authority which can be applied in other cases. However the judgment of Employment Judge van Gelder in the Birmingham tribunal in Neal v Freightliner Limited is worthy of note since it deals with the very practical question of whether holiday pay should include provision for notional overtime.

Mr Neal worked as a "Multi-Skilled Operative" (MSO) at Freightliner's Birmingham depot. In early 2012 he raised a grievance concerning his holiday pay. The grievance was followed by an employment tribunal claim in respect of a series of unauthorised deductions from wages in relation to alleged underpayment of holiday pay and breaches of the Working Time Regulations 1998. The issue was straightforward. Freightliner contended that Mr Neal was entitled to holiday payments equivalent to his basic pay whereas Mr Neal contended that his holiday pay should be calculated with reference to his normal pay, i.e. including routine overtime. The working of overtime was so routine that although Mr Neal's contract provided for a seven hour shift, he had never worked a shift of only seven hours and his shifts were mainly nine hours and occasionally as long as twelve hours.

Having considered the Working Time Regulations and related legislation Judge van Gelder was taken by Freightliner's representative to the 2004 decision of the Court of Appeal in Bamsey and others v Albion Engineering in which it was held that compulsory but non-guaranteed overtime did not have to be taken into account when calculating holiday pay. Mr Neal's representative relied on the rather more recent decision of the European Court of Justice in British Airways plc v Williams and others (2011) in which it was held that holiday pay should equate to "normal remuneration", thereby incorporating payments which are "intrinsically linked" to the work required to be carried out under the terms of the contract of employment.

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7. does a finding of gross misconduct always justify dismissal?

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It may seem an obvious reply. Surely gross misconduct, once established, has destroyed the employment relationship at such a fundamental level that it cannot realistically continue.

The question was considered by the Employment Appeal Tribunal in Brito-Babapulle v Ealing Hospital NHS Trust. Ms Brito-Babapulle was a consultant haematologist at Ealing Hospital. Pursuant to the terms of her contract she was entitled to have a session of private patients in addition to her NHS patients. She commenced a period of sickness absence on 13 March 2009 which, apart from one day, continued until 8 June 2009. Her employer suspected that she was continuing to see private patients while she was certified unfit to work and in receipt of full contractual sick pay. Disciplinary proceedings were commenced accordingly.

Ms Brito-Babapulle accepted during the disciplinary proceedings that what she had done was wrong although she maintained that she did not think so at the time of the wrongdoing. She had received two prior notifications that if certificated sick she should not work in private practice. She claimed not to recall the notifications but her evidence on this point was rejected both in the disciplinary proceedings and the subsequent tribunal. It was concluded in the disciplinary proceedings that there had been gross misconduct. Alternatives to dismissal were not seriously considered in light of the breach of trust. Taking into account her experience she should have known better. She appealed against her dismissal and the appeal was not upheld.

The Tribunal which followed considered whether dismissal was justified:

On the facts decided by and known by the Respondent at the time we take the view that this dismissal did fall within the range of reasonable responses. The Respondent was entitled to find that the Claimant's actions amounted to gross misconduct. We bear in mind the not unreasonable findings that the Claimant had been told in 2007 about this very same conduct; that she was a very experienced doctor who had knowledge of sick certificates and had herself decided not to sign the reverse of those sick certificates as she had indeed been working. Once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for this Tribunal to substitute any sanctions we might have imposed or whether we would have dismissed the Claimant in these circumstances. We cannot say that the dismissal was outside the range of reasonable responses.

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