Canter Levin & Berg Employment Solutions

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the employment briefing

February 2015

Welcome to our February newsletter. It's nice to be noticed and this week we have been noticed by the Department of Business, Innovation and Skills who replied to a retweeted enquiry about the Government's online calculator for shared parental leave.

BIS tweet

If you have not yet done so I highly recommend a visit to our Employment Solutions Twitter feed which is the home of all manner of lively discussions concerning employment law. It also provides an ideal opportunity for you to "contribute to the debate" as David Dimbleby says on Question Time.

This month there has been a lot going on and therefore a lot to fit in this report. Topics covered include the inexorable rise in the number of zero hours contracts and more trouble for Sports Direct, the way in which acts from years ago can come back to haunt an employee, in this case concerning an offensive email, investigations concerning excessive mileage claims, the discriminatory impact of linking bonus entitlement to a sickness record, what constitutes an organised grouping of employees for TUPE and how to deal with e-cigarettes in the workplace.

We have also had the usual announcement at this time of year concerning increases in compensation limits. With effect from 6 April the maximum for calculating a week's pay is £475 (up from £464) (also applies to redundancy calculations) and the maximum compensatory award goes up to £78,335 (from £76,574).

Vince Cable has clashed with Justice Minister Chris Grayling concerning the dramatic fall in sex discrimination claims following the introduction of tribunal fees. The Conservatives had said that they would order an impact review one year after the introduction of the new fees. However there is no sign of any action in this regard and Mr Cable has therefore ordered his own review, investigating whether fees are operating as a barrier to justice. I would suggest that it's not the most challenging review ever ordered (given the overwhelming evidence) and there is more than a little irony that the fees were introduced by Mr Cable's Department in the face of strong protests that they would operate as...a barrier to justice.

Meanwhile the Northern Ireland Employment Tribunal is the first in the UK to have made a finding of disability discrimination following the ECJ judgment in the case of Karsten Kaltoft. In Bickerstaff v Butcher Mr Bickerstaff was subjected to taunts that he was "so fat that he could hardly walk" and "so fat that he would hardly feel a knife being stuck into him". He suffered from excessive BMI (48.5), sleep apnoea and gout. The tribunal judgment made clear that it made no difference that the condition could be seen as self-inflicted - the important thing for the tribunal was the impact of the condition on the worker, not its cause.

Kind regards

Martin Malone

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This month's news round-up:

1. zero hours at all time high and more trouble for Sports Direct

Sports-Direct

Zero hours contracts have been one of the main topics concerning employment lawyers in the last 18 months. I began writing about them in August 2013 when the Government estimated that some 250,000 people were working under such contracts.

However, the number of employees subject to such contracts has soared since then. The latest ONS Labour Force Survey (published on 15 February) has revealed that 697,000 were employed on a zero hours contract as their main source of employment in the three months to December 2014. Remarkably, this represents an increase of 100,000 in just that three months' period.

Some commentators have suggested that zero hours contracts have been a symptom of the recession. However, their increased adoption during what we are told is a period of economic recovery strongly suggests that they are here to stay.

As I have commented before there is no legal definition of a "zero hours contract". Rather, these working arrangements have emerged by custom and practice and there can therefore be unintended consequences.

Attention in this area has focused on Mike Ashley's Sports Direct although other high profile zero hours employers include McDonalds, J D Wetherspoon, Burger King and Dominos Pizzas. However it is Sports Direct that has made the news once again this month.

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2. actions from years ago can return to haunt employees

elland-road

Evan Glyn Williams was employed by Ken Bates as a technical director with Leeds United FC from 2006. He was on a salary of £200,000 per year, terminable on 12 months' notice. On 23 July 2013 he was given 12 months' notice of termination, pursuant to the contract. This arose as part of a redundancy exercise. However, it subsequently came to light that, in March 2008, Mr Williams had used the Club's email system to send an email with pornographic images attached to a male friend at another football club, Mr Dennis Wise. Photographs included "the fans", "pictures from the club house, the shower" and included numerous images of female genitalia. As a result, on 30 July 2013, he was dismissed for gross misconduct, without further payments.

Following the summary dismissal it came to light that Mr Williams had sent the same email to a junior female employee at the Club and another male friend at another club, Mr Gus Poyet. In resisting Mr Williams' claim the Club sought to rely on this additional information that had come to light following the dismissal.

Mr Williams contended that the conduct, while inappropriate, was not sufficient to justify summary dismissal and claimed the balance of his unpaid salary and other benefits.

The case was heard by Mr Justice Lewis, sitting in the High Court, on 9 to 11 February.

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3. what is to be done about e-cigarettes in the workplace?

e-cigarette

How should employers approach the potentially thorny question of whether or not to permit the use of e-cigarettes in and around the workplace? As a smoker, I have an easy way of dealing with the issue of smoking at work which is to leave my cigarettes at home.

Quite apart from the smoking ban in enclosed spaces, it is easy to understand why smoking cannot be tolerated in the workplace, what with the risks relating to passive smoking, generally noxious fumes, presenting a poor image and the notorious problems associated with "fag breaks".

Can the same objections be raised concerning e-cigs? Although the World Health Organisation recommends a ban on their use indoors, there is no clear evidence of any passive smoking risk and it could be argued that preventing their use is preventing the employee from pursuing a course of treatment aimed at stopping smoking. What about the use of nicotine pads?

Insley v Accent Catering ET/3200687/2014 is the first known employment tribunal case dealing with the topic.

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4. dismissal following excessive mileage claims - how much investigation is required?

odometer

Rajendra Shrestha worked for Genesis Housing Association Limited as a floating support worker. His job required him to visit clients at their home addresses. In order to reclaim his expenses he was required to complete an online claim form, providing the reading from his car's odometer (rounded up to the next mile) at the start and end of each qualifying journey.

An audit covering three months in 2011 led to a disciplinary procedure. Mr Shrestha was founded to have fraudulently exaggerated his claims and he was dismissed for gross misconduct. Claims for unfair and wrongful dismissal were dismissed by an employment tribunal in April 2013. An appeal to the Employment Appeal Tribunal was dismissed without a hearing in October 2013 and, undeterred, Mr Shrestha appealed to the Court of Appeal. The appeal hearing took place on 5 February.

In its judgment the Court of Appeal found that in 2011 Mr Shrestha sought payment of an essential car user allowance worth £1000 per year. The allowance was available to those employees who routinely exceeded qualifying mileage of 2500 per financial year. The request raised suspicion because Mr Shrestha's mileage had not previously reached the limit. The resulting audit compared mileages claimed with those shown by AA route finder for the same journeys. The mileages claimed were consistently much higher than the AA figures. As an example the claim for July 2011 was 197 miles whereas the route finder equivalent was 99 miles. Mr Shrestha attributed the discrepancy to difficulty in parking, one way road systems and road works causing closures or diversions.

At his disciplinary hearing Mr Shrestha pointed out that there are differences between AA and RAC figures for the same journey. However both were lower than the amount claimed. It was acknowledged that the employer considered a range of sample journeys rather than each and every one claimed.

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5. is rewarding good attendance discriminatory?

land_registry

In Land Registry -v- Houghton and others the question for the Employment Appeal Tribunal was whether a scheme designed to reward good attendance was discriminatory in respect of disabled employees.

The Land Registry operated a discretionary bonus scheme which commenced in 2012. All eligible employees were entitled to £900. However, any employee who received a formal warning in respect of sickness absence during the relevant financial year was not entitled to receive the payment.

Ms Houghton and four colleagues were all disabled pursuant to the criteria set out in the Equality Act 2010. They all had sickness absences but these were attributable to their disabilities. There was no doubt that the Land Registry had made reasonable adjustments to accommodate the employees' disabilities. Nonetheless they were all issued with formal warnings relating to sickness. Accordingly they were all ineligible for the bonus payments. There was no discretion. Managers could determine that conduct matters would not affect entitlement to the bonus; not so for sickness absence which automatically triggered rejection.

At the employment tribunal the suggestion by the Land Registry that the link between disability and and non-payment of the bonus was too remote was rejected. On the contrary "non-payment of bonus was the consequence, result, effect or outcome of each Claimant's disability".

Justification is a possible defence to a claim of discrimination. There was a legitimate aim: encouraging and rewarding good performance and attendance. However the scheme was not a proportionate means of achieving the aim. The Claimants were awarded compensation for injury to feelings and the equivalent of pro-rated bonus payments.

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6. what is an "organised grouping of employees" for the purposes of TUPE?

rynda

We TUPE aficianodas have a fond recollection of Mrs Schmidt, a cleaner in a German bank who, in 1994, was found to be a "stable economic entity capable of preserving its (her) identity" following a TUPE transfer (Christel Schmidt v Spar- und Leihkasse der fruheren Amter Bordesholm, Kiel und Cronshagen (Case C-392/92, (1994)).

Fast forward to 2015 and the matter of a single worker has again been considered, this time in the Court of Appeal case of Rynda (UK) Limited v Ailien Rhijnsburger, handed down on 13 February. Rynda owns a large portfolio of properties across Europe. Drivers Jonas LLP acted as agent to manage the properties. In May 2009 Ms Rhijnsburger was engaged by Drivers Jonas on a six months' fixed term contract to manage the properties in the Netherlands. In October 2009 her role expanded to become an Associate, Asset and Property Management, Europe Group.

In April 2010 Drivers Jonas LLP merged with Deloitte LLP to become Drivers Jonas Deloitte LLP (DJD). In autumn 2010 DJD decided to pull out of managing properties and notified Rynda Group accordingly. Rynda decided to pass the property management duties to Rynda Real Estate Management Limited (REM) which subsequently became Rynda (UK) Limited. Another straightforward, easy to follow TUPE case!

At the end of 2010 Ms Rhijnsburger moved from DJD to REM and took up the post of Senior Asset Manager on 1 January 2011. In effect she did exactly the same job as before. In September 2011 she was dismissed and brought an employment tribunal claim for unfair dismissal. One of the questions for the tribunal was whether her employment commenced on 1 January 2011 or whether she could carry forward her prior employment with DJD for the purpose of calculating continuity, in which case her employment commenced in May 2009. The tribunal held that there was a relevant transfer, as did the Employment Appeal Tribunal.

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