Canter Levin & Berg Employment Solutions

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June 2015

the employment law briefing

Welcome to our June round up of employment law news. Of particular interest this month is the Opinion of the Advocate General of the European Court that time spent travelling to and from work by peripatetic workers counts as working time.

Unsurprisingly, in the face of the latest judicial review challenge to employment tribunal fees the Government has announced a review of the fees regime, having acknowledged that there has been a more than 60 per cent reduction in new claims since their introduction. The argument that the fees have operated as a barrier to justice now seems overwhelming, although it should be noted that this does not appear to have unduly concerned the Government in other areas.

This month sees the launch of our new responsive and mobile friendly website. Both the website and blog have been completely overhauled with a view to increasing accessibility on tablets and mobile phones. Our statistics show that more than 40 per cent of our readers access the website and these newsletters on iPads and other tablets so I hope that you see a significant improvement in the viewing experience. We are also taking the opportunity to revamp our online subscriber services and that process is nearing completion. In the meantime should any of our subscribers encounter any problems in accessing the service please contact me on 0151 239 1003 or at martinmalone@canter-law.co.uk.

We are also approaching a milestone with the word count on our blog standing at 298,871 words, and therefore likely to break 300,000 in the next month or two. As such, it is an incredibly powerful resource covering a very wide range of contemporary employment law issues. Topics can be found easily by using the search facility in the right hand sidebar.

This month's news:

  1. does time taken travelling to and from work count as working time?
  2. Qatar Airways under pressure to scrap policy that allows it to sack pregnant cabin crew
  3. Christian who told lesbian work colleague that homosexuality is a sin was victim of discrimination
  4. "fit notes" have not reduced sickness absence
  5. holiday pay doesn't include voluntary overtime, does it?

Kind regards

Martin Malone

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This month's news round-up:

1. does time taken travelling to and from work count as working time?

traffic_jam

It has long been the case that time spent in travelling to and from work does not form part of the working time of employees. Occasionally, specific issues have been considered, such as when an employer relocates, but the main principle has not altered.

However the European Court of Justice has now had its say in the case of Federacion de Servicios Privados del sindicato Comisiones Obreras. This case, on referral from the Spanish national court, concerned workers who were required to travel to different locations to work. The Advocate General described them as "peripatetic workers, that is to say workers who are not assigned to a fixed or habitual place of work [and] spend time travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes".

It was noted that, under Spanish law, working hours should not exceed 40 hours of "actual work" per week, calculated on an annual basis. There has to be at least 12 hours between the end of one working day and the beginning of another and normal working hours should not exceed nine per day.

The employees concerned were technicians who worked for security system installation and maintenance services. They were allocated to areas and they used company vehicles to travel to homes and industrial and commercial premises where they were required to carry out work. Unsurprisingly the distances from a worker's home to the first workplace varied considerably and were sometimes more than 100 km. They were also required to travel at least once a week to the offices of a transport logistics company to collect parts. Their place of work each day was notified to them by messages sent to company issued Blackberrys provided to each of them.

For the purpose of calculating working time the employer did not include time spent on the first journey of the day, from home to work, and the last journey of the day, from work to home. Instead, time was calculated with reference to the time of arrival at the first job and the time of departure from the last job.

In the view of the national court this arrangement meant that workers could not adjust their private life and their place of residence for the purpose of proximity to the place of work. Travelling time could not therefore be regarded as rest time, having regard also to health and safety issues. Equally it was not time that the worker was at the employer's disposal so that he could be assigned to other work. It was therefore not clear whether this was working time or a rest period, hence the referral to the European Court.

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2. Qatar Airways under pressure to scrap policy that allows it to sack pregnant cabin crew

Qatar_Airways

Although our blog is primarily concerned with cases that fall within the jurisdiction of England and Wales there are occasionally international cases which warrant comment. One such is the recent ruling of the International Labour Organisation, part of the United Nations, that Qatar Airways has discriminated against its female employees. Qatar Airways describes itself as the "World's Best Airline". Operating to over 140 destinations worldwide it has offices in Kensington, London and operates a premium lounge as part of its "five star service" for corporate customers at Heathrow Airport. Part of its website is devoted to social responsibility, including environmental awareness, commitment to limiting its carbon footprint and social projects to benefit children. However, the treatment of its female employees leaves a great deal to be desired.

Although the airline operates from its hub in Doha, it undertakes recruitment in the United Kingdom, as demonstrated by a pending recruitment fair at Heathrow on 11 and 12 July. On 16 June the ILO announced that, following a year long investigation it had concluded that the contract of employment for cabin crew breaches its convention against discrimination at work. The contract includes the following clause:

The company reserves the right to automatically terminate your contract as a flying cabin crew member should you become pregnant.

In effect there is no maternity leave; pregnancy equals loss of employment. Failure to disclose pregnancy would constitute a breach of contract by the employee concerned. The ILO also asked Qatar Airways to explain a requirement in the contract that employees must "obtain prior permission from the company in case [he or she] wishes to change marital status and get married" - a clause which has since been dropped. According to a report in The Guardian 80% of Qatar Airways 9000 cabin crew are female and 90% are migrants.

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3. Christian who told lesbian work colleague that homosexuality is a sin was victim of discrimination

bible

It seems that barely a month passes without religion and law conflicting in the area of protection from discrimination. I have written recently about the obvious dilemma when seeking to provide protection in respect of conflicting protected rights and by far the most obvious conflict is between religion or philosophical belief and the others. This month provides another very clear example, and one which should assist employers when confronted with this very tricky issue.

In Mbuyi v Newpark Childcare (Shepherds Bush) Limited, a case which was heard in the Watford Employment Tribunal, the claimant was a Belgian national and an evangelical Christian who worked for the employer from April 2013. Her position as a nursery assistant at the employer's Shepherds Bush site was made permanent in September 2013. Following her permanent appointment there were a few apparently minor issues. For example she said to another employee (referred to as LP in the proceedings) that she had "hair too short for a woman". On 3 or 4 September Miss Mbuyi was alleged to have said to LP "Oh my God, are you a lesbian?". LP was a lesbian and living in a civil partnership. It appears that there were no significant incidents thereafter until, following a return from sickness absence, Miss Mbuyi gave LP a bible as a gift. In the bible Miss Mbuyi had written a note referring to LP's struggle or difficulties. In the run up to Christmas the staff held a secret Santa gift exercise. Miss Mbuyi gave LP a book written from a Christian perspective by Joyce Meyer. The book contained a similar message to that written in the bible. Subsequently, in early January, Miss Mbuyi and LP were discussing the church that the claimant attended. She pointed out that, according to the church's teachings, homosexuality is a sin. It appeared that she said this because she thought that LP would view her sexuality as a bar to her attendance at the church. LP was upset by the discussion and left the room. Due to her upset she was sent home.

Miss Mbuyi was already required to attend a disciplinary meeting as a result of lateness. After her conversation with LP the scope of the disciplinary meeting was extended so that it covered lateness and "alleged discriminatory conduct in regard to co-workers". At the outset of the hearing Miss Mbuyi was informed that dismissal was a possible outcome. In her version of events Miss Mbuyi stated "During the conversation about my church Laura asked me if she would be welcomed at church and if God is okay with what she is doing. I believe in God and as a Christian I follow the bible. So I told her that God is not okay with what you do". She went on to say "I can only tell the biblical truth. I am not a homophobic person but I believe homosexuality is a sin and God doesn't like that".

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4. "fit notes" have not reduced sickness absence

medical_consultation

In 2010 I reported the introduction of fit notes as a way of focusing on making arrangements for employees to return to work rather than just being signed off without more. In 2014 the system was backed up with the launch of a Health and Work Service. However its scope has been restricted and there have been delays in implementation. Although scheduled to commence nationwide in April 2015 the scheme is currently being rolled out and appears to be limited to a telephone advice service. It requires the consent of employees/patients to participate.

In the meantime the EEF has published its Sickness Absence Survey 2015. Its conclusion is clear: "Five years on [from its introduction] - the government's fit note isn't working". The comprehensive survey, conducted with 345 employers and covering 83,654 employees, is the twelfth national survey of its kind and SMEs accounted for 82% of respondents. According to the research, as at September 2014, only 5000 GPs from a pool of 40,584 had received training in health and work.

The survey revealed that 43 per cent of employers said that the fit note had not helped employees to return to work, up from 35 per cent shortly after the scheme was introduced in 2010. Employers also reported that the quality of GP advice on fitness for work has deteriorated.

It was noted that GPs and medical professionals are still issuing low numbers of "may be fit for work" fit notes and over a quarter of the businesses responding had not received any.

In terms of overall absence trends there is a sickness absence rate of 2.2% which equates to 5.1 sickness absence days per employee per year. However, as in previous years, over half of employees had no absence because of sickness. There was a notable increase in long-term sickness absence with the main cause being back problems and other musculo-skeletal disorders. However, for businesses with more than 500 employees the most common cause is stress and other mental ill health disorders.

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5. holiday pay doesn't include voluntary overtime, does it?

payslip

I rarely report decisions of the Northern Ireland courts because they are not binding in England and Wales. However, this is the second consecutive month in which a Northern Irish decision is worthy of comment, this time from the Court of Appeal in Patterson v Castlereagh Borough Council.

Mr Patterson, a lead claimant for the purposes of a multiple claim, alleged that there was an unlawful deduction from his wages because he was no longer paid holiday pay relating to casual work as a recreation assistant in addition to his post as an assistant plant engineer. His claim was amended to allege that his holiday pay did not take into account the voluntary overtime he worked in his full time post.

His claim relating to his casual work was successful and this was not challenged. Consequently his appeal was limited to the voluntary overtime aspect. In this case Mr Patterson was asked to work overtime by his employer and could choose whether or not to do so because it was not a contractual obligation. Hence its classification as voluntary. There was a technical point concerning whether Mr Patterson had established the earnings he received pursuant to the voluntary overtime but both parties agreed that the point of principle should be determined.

Assuming that the earnings were established evidence submitted for the appeal suggested that they would have amounted an average additional pay of £60 per week. Having considered the relevant sections of the Working Time Directive the Court went on to consider the relevant case law. In British Airways plc v Williams (2012) the Supreme Court considered whether, for the purposes of calculating holiday pay, a pilot's remuneration should be treated as basic pay or whether it should be based on "normal remuneration", i.e. including payments "intrinsically linked" to the performance of the employee's duties. Having referred the question to the European Court of Justice the answer was that it should be based on normal remuneration.

In Lock v British Gas (2014) that principle was extended to include commission payments and in Bear Scotland Limited and Others (2015) employees were successful in having included in the holiday calculation overtime which they were required to work, but which the employer was not obliged to offer.

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