Employment Law BULLETIN

Transcription

1 OCTOBER 2015 Empoyment Law BULLETIN Wecome to our October empoyment aw buetin. In this issue we cover a number of interesting cases. In Inex Home Improvements Limited v Hodgkins the EAT considered that a temporary ay off of empoyees did not stop a service provision change TUPE transfer. In Rampha v Department for Transport the EAT considered that an empoyer s decision to dismiss was fawed on the ground of excessive input by an HR support officer. In Federacion de Servicios Privados de sindicato Comisiones Obreras v Tyco Integrated Security SL and another the European Court has foowed the Advocate Genera s opinion in deciding that the time spent traveing to the first assignment of the day and home from the ast assignment of the day by a person who does not have a fixed pace of work is working time for the purposes of the Working Time Directive. In Ha v Chief Constabe of West Yorkshire the EAT considered the distinction between caims for direct discrimination on the ground of disabiity and those for discrimination arising from disabiity. In Fanagan v Liontrust Investment Partners LLP and others the High Court has rued that an LLP agreement between more than two members wi not be terminated when a repudiatory breach by the LLP is accepted by a member of the LLP. In Thompson v London Centra Bus Company Limited the EAT has suggested that it may be possibe to bring a caim under the Equaity Act 2010 where the caimant aeges that he has been subject to a detriment because of someone ese s protected act. Our cient briefing this month is on empoyee grievances.

2 Finay, may I remind you of our forthcoming events: Cick any event tite for further detais. Managing Empoyment Risk Today A fu day conference, London, 27th November 2015 And in conjunction with ACAS Understanding TUPE: A practica guide to business transfers and outsourcing A fu day conference, Leeds, 9th November 2015 A fu day conference, Newcaste upon Tyne, 10th November 2015 Dr John McMuen, EDITOR john.mcmuen@wrigeys.co.uk Contents 1: Temporary ay off did not affect an organised grouping of empoyees for the purposes of a service provision change TUPE transfer 2: High eve of HR input into investigation report coud ead to unfair dismissa 3: ECJ foows Advocate Genera s opinion on trave time and working time 4: Lower hurde for discrimination arising from disabiity caims 5: Doctrine of repudiatory breach does not appy to an LLP agreement 6: Victimisation by association with others who have carried out protected acts 7: Cient Briefing: Deaing with empoyee grievances Wherever you see the BAILII ogo simpy cick on it to view more detai about a case

3 1: Temporary ay off did not affect an organised grouping of empoyees for the purposes of a service provision change TUPE transfer In Inex Home Improvements Limited v Hodgkins & Others the caimant empoyees worked on contracts which had been subcontracted to Inex, their empoyer, by another organisation. The work was reeased by the main contractor in tranches, each with its own works number. During November and December 2012 Inex competed works subject to work order no.8. No new order had been issued. It was anticipated that the next order woud be issued in January Temporariy there was no work for the empoyees to do. They were empoyed under the terms of the Construction Industry Joint Counci Working Rue Agreement which aowed for ayoff. They were thus aid off and informed this was temporary pending the next order. However this expected order was given to another subcontractor. The empoyees caimed to transfer with that work. An empoyment tribuna had considered that the empoyment of the individuas coud not transfer because immediatey before the date of the service provision change they were no onger an organised grouping of empoyees. The empoyment judge s reasoning was that they coud not be part of such a grouping because they were not working, having been temporariy aid off. If no work was being carried out, there coud be no organised grouping as the activity had ceased. The EAT (HHJ Serota QC) hed that a temporary absence from work or cessation of work did not of itsef deprive empoyees who had been invoved in the reevant activities of their status as an organised grouping of empoyees. The main point of interest in the case however is the judge s wiingness to appy principes derived from case aw on the construction of the Acquired Rights Directive notwithstanding that the service provision change rues did not derive from the ARD. He considered nonetheess a hepfu anaogy coud be drawn from the cases on the ARD on temporary cessation of activities (see Bork Internationa a/s v Foreningen Af Arbejdsedere I Danmark [1989] IRLR 41. It woud of course be odd if the position of empoyees on a service provision change was actuay worse than in reation to a business transfer. HHJ Serota QC considered that case aw on service provision change favouring the itera or pain meaning of interpretation of the provisions concerned coud not have been intended to excude the we recognised canons of statutory interpretation deveoped by Engish aw. Prima facie, the ega meaning of an enactment, when appied to particuar facts, is presumed to be that which corresponds to the itera meaning of the enactment in reation to those facts. But where an enactment is to remedy a particuar mischief it is presumed that the courts are expected by Pariament to find a construction which appies the remedy provided in such a way as to address the mischief. This is the presumption that the court shoud find a construction which furthers every aspect of the egisative purpose. So reguation 3(1)(b) athough not derived from European aw, was sti primariy intended to protect empoyment and avoid redundancy; and it coud not have been intended that in any case where there was a temporary cessation of work, incuding temporary ayoff, the organised grouping coud ose its identity. Accordingy, appying the European Court case aw on temporary cessation of work or temporary ayoff shoud not deprive empoyees from protection if there were a service provision change during the period of that temporary cessation. Page 3

4 2: High eve of HR input into investigation report coud ead to unfair dismissa In Rampha v Department for Transport, the EAT set aside an empoyment tribuna s finding that a dismissa was fair due to significant input from the HR department into the report of the investigating officer. This case concerned Mr Rampha, an aviation security compiance officer working for the Department for Transport. Foowing an audit, an investigation was commissioned into Mr Rampha s expenses caims and his use of a company credit card. The investigating officer (who aso acted as the discipinary officer) took advice from the HR team on the discipinary process. He then produced a first draft of the investigation report, which contained criticisms of the empoyee aongside more positive comments that some of the empoyee s expanations were pausibe and consistent. This version of the report concuded that the empoyee s actions amounted to misconduct, for which the sanction woud be a fina warning. Over the next six months, the draft report underwent severa significant aterations in content as a resut of communication between HR and the investigating officer. The fina report made a finding of gross misconduct and recommended summary dismissa. Mr Rampha brought a caim for unfair dismissa. An empoyment tribuna found that the process was fair and the decision to dismiss was within the band of reasonabe responses. The EAT aowed Mr Rampha s appea. It made reference to the Supreme Court case of Chhabra v West London Menta Heath NHS Trust [2014] ICR 194, which estabished that HR input into the discipinary process shoud be imited to advice on empoyment aw, procedure, and the carity and presentation of reports. HR officers shoud not have an infuence on decisions as to whether an empoyee is cupabe and shoud not advise on appropriate sanctions in a particuar case. To achieve a fair discipinary process eading to a fair dismissa on the ground of conduct, an empoyer must: beieve the empoyee to be guity of misconduct; have reasonabe grounds for beieving in the empoyee s misconduct; and those grounds must be based on a reasonabe investigation. Foowing Chhabra, the investigation report must aso be the work of the investigating officer and based on that officer s own investigations. 3: ECJ foows Advocate Genera s opinion on trave time and working time In Federacion de Servicios Privados de sindicato Comisiones Obreras v Tyco Integrated Security SL and another, the European Court has decided that the time spent traveing to the first assignment of the day and home from the ast assignment of the day by workers who do not have a fixed pace of work is working time for the purpose of the Working Time Directive (the Directive). The Directive defines working time as any time during which the worker is: working; at the empoyer s disposa; or carrying out activities or duties in accordance with nationa aws and/or practice. Page 4

5 The case concerned a group of security system technicians working for a Spanish company, Tyco. Before Tyco cosed its regiona offices in 2011, the technicians were required to pick up their vehices and daiy task ist from the office before traveing to the first assignment of the day; a technician s working time was cacuated from the time of arriva at the regiona office unti the time the vehice was dropped off at the office at the end of the day. Foowing the cosure of the regiona offices, working time was cacuated from the time the technician arrived at the first assignment of the day to the time the technician competed his ast assignment of the day. Trave to and from these assignments (which sometimes covered a distance of over 100km) was not incuded as working time. The ECJ agreed with the Advocate Genera s opinion that this trave time met the three criteria for working time set out in the Directive. First, traveing is an integra part of being a peripatetic worker, meaning that the technicians are working when traveing. Secondy, the empoyer has contro over the order of assignments and can remove assignments from or add assignments to the task ist, suggesting that the technicians are at the empoyer s disposa. And thirdy, trave to and from these assignments constitutes the technicians carrying out their activities and duties, particuary because the first and ast journeys of the day were counted as working time before the cosure of the regiona offices. The ECJ commented that the workers shoud not be disadvantaged by the empoyer s decision to cose the regiona offices, eading as it did to the workers inabiity to contro the distance they had to trave between their homes and the pace at which their working day began. 4: Lower hurde for discrimination arising from disabiity caims In Ha v Chief Constabe of West Yorkshire, the EAT considered the distinction between caims for direct discrimination on the ground of disabiity and those for discrimination arising from disabiity. This case confirms the oose causation test appicabe in discrimination arising from disabiity caims under section 15 of the Equaity Act 2010 (EA 2010) and suggests that such caims wi be easier to make out than those for direct discrimination under section 13 EA Under section 15 EA 2010, discrimination arising from disabiity occurs where A treats B unfavouraby because of something arising in consequence of B s disabiity and A cannot show that the treatment is a proportionate means of achieving a egitimate aim. Ms Ha was empoyed by West Yorkshire Poice for many years. In 2010, she had a period of sickness absence due to stress, anxiety, depression and a heart condition. During this time, aegations arose that Ms Ha was working in a pub, eading her empoyer to arrange for covert surveiance. One month after heart surgery, Ms Ha received a notice of investigation from her empoyer, foowed by a etter which stated that she was expected to return to work and to have no further absences for three months. After two further notices, West Yorkshire Poice arranged for a discipinary hearing. Ms Ha requested extra time to prepare for the hearing, but this was refused. The hearing was conducted in her absence and concuded that Ms Ha shoud be dismissed for gross misconduct. Ms Ha brought a caim for unfair dismissa (uphed by the Empoyment Tribuna) and a caim for discrimination arising from disabiity. This atter caim was dismissed by the Empoyment Tribuna. Whie it determined that the empoyee had been subjected to unfavourabe treatment (for exampe the covert surveiance and not aowing her extra time to prepare for a hearing), the tribuna stated that under section 15 the disabiity had to be a cause of the empoyee s unfavourabe treatment and not merey the background circumstance. Page 5

6 Setting aside this decision, the EAT found that the Empoyment Tribuna had not appied a sufficienty oose causation test. Considering the egisative background to section 15 EA 2010, the EAT made cear that the provision was intended to ower the hurde for caims where the reason for the unfavourabe treatment was not the disabiity itsef, but something arising from that disabiity. The EAT carified that disabiity need ony be a significant infuence on the unfavourabe treatment or a cause which is not the main or the soe cause, but is nonetheess an effective cause of the treatment. It aso stated that the motivation of the empoyer was not a reevant factor in a section 15 caim. This, the court stated, is distinguishabe from a caim for direct disabiity discrimination, in which the reason for the ess favourabe treatment is the disabiity itsef. 5: Doctrine of repudiatory breach does not appy to an LLP agreement The High Court has recenty rued that a LLP agreement between more than two members wi not be terminated when a repudiatory breach by the LLP is accepted by a member of the LLP. In Fanagan v Liontrust Investment Partners LLP and others, Henderson J found that the statutory regime governing LLPs impicity excudes the doctrine of repudiatory breach. LLPs are governed by the Limited Liabiity Partnerships Act 2000 (LLPA 2000). Under section 5(1) LLPA 2000, LLPs are governed by the terms of an agreement between the members, or (in defaut of such agreement) by the Limited Liabiity Partnership Reguations 2001 (LLPR 2001). Under these defaut provisions, a members of an LLP are entited to an equa share of capita and profits and may take part in managing the LLP. It is not possibe for a majority of the members to expe a member uness there is express provision for this in the LLP agreement. Mr Fanagan was a member of a LLP which ran a hedge fund. The LLP agreement and side etter which governed the caimant s reationship with the LLP stated that Mr Fanagan s membership coud not be terminated within two years of commencement and that six months notice of termination was required. He was entited under the agreement to a fixed aocation of 125,000 aong with a variabe aocation of profits dependent on his own and his team s performance. He had no equity interest in the LLP. The LLP took the decision to cose down the fund and terminate Mr Fanagan s membership. Mr Fanagan was served with a notice to retire more than six months from the end of his term of two years. This notice had not been issued foowing a management committee meeting and it was ater discovered that meeting minutes reating to the notice had been fasified. Mr Fanagan appied to the High Court for decarations that the LLP agreement and side etter had been terminated and so the statutory defaut provisions now appied to his reationship with the LLP. He aso brought a petition for unfair prejudice, asserting that the service of an invaid notice to retire was a repudiatory breach of contract, his acceptance of which acted to terminate the contract. Mr Fanagan argued that under the statutory defaut provisions he was now entited to an equa share of the LLP s capita and profits (amounting to 8 miion) and to take part in management committee meetings. He caimed that the LLP coud not expe him, given that the defaut provisions ony aow for cessation of membership on death, dissoution, by notice of the retiring member, or by agreement with the other LLP members. The High Court found that the notice to retire was invaid and constituted a breach of contract which was repudiatory in nature. It aso hed that Mr Fanagan had not affirmed the contract by continuing to receive payments into his bank account. However, it rued that the common aw doctrine of repudiatory breach did not appy to the LLP agreement and that the contract coud not be treated as terminated. Page 6

7 The court commented on the incoherence which woud ensue where some members of a LLP continued to be governed by the LLP agreement whie others were governed by the statutory defaut provisions. The court rued it is impicit in the statutory regime that a members of a LLP are governed by the same rues. It was aso infuenced by the fact that the LLP agreement in this case expressy excuded the reevant provisions of the LLPR Henderson J decared that Mr Fanagan was sti a member of the LLP and coud bring a caim for damages if he had suffered oss as a consequence of the breach. He commented that, as the LLP agreement was sti intact, it was sti open for a majority of members to expe Mr Fanagan. The court eft open the question of whether the defaut provisions woud appy in the case of a LLP with ony two members. 6: Victimisation by association with others who have carried out protected acts In Thompson v London Centra Bus Company Limited, the EAT suggested that it may be possibe to bring a caim under the Equaity Act 2010 where the caimant aeges he has been subjected to a detriment because of someone ese s protected act. Under the Equaity Act, A victimises B when A subjects B to a detriment because of B s protected act or because A beieves that B has done or wi do a protected act. This woud suggest that the person bringing the caim must be the person to have done, or been thought to have done, the protected act. Direct discrimination and harassment caims based on association with others with a protected characteristic can aready be brought under the Equaity Act. Recent European Court of Justice case aw has had the effect of extending the concept of discrimination by association to indirect discrimination caims. Foowing Thompson, it now appears to be possibe to bring a caim for victimisation by association with a third party. Mr Thompson was a bus driver for London Centra Bus Company Ltd (London Centra). He caimed that he had advised management that he had overheard a conversation in which it was suggested that London Centra had targeted certain empoyees who had made aegations of racism severa years ago. Soon after this, Mr Thompson was invoved in discipinary action based on his aeged contravention of Heath and Safety requirements. Mr Thompson caimed that he was associated in the mind of London Centra with those empoyees who had made discrimination aegations, party because he was a member of the same trade union. He caimed that the discipinary action constituted victimisation because of someone ese s protected act. A preiminary hearing confirmed that victimisation by association was possibe. At a second preiminary hearing, the case was struck out as the ink or association between the empoyees who had performed the protected acts and Mr Thompson was not thought to be sufficient. The EAT aowed the appea considering that the judge had erred in not considering the evidence and the factua basis for the treatment. The EAT remitted the case for a rehearing, considering that the appropriate test was whether the empoyer subjected the caimant to a detriment by reason of the protected acts of others. There need not be a particuar form or degree of association. The EAT stated that the test is whether, in the mind of the empoyer, the reasons for the empoyee being subjected to a detriment incuded the protected act of a third party. Page 7

8 7: Cient Briefing: Deaing with empoyee grievances This cient briefing just provides an overview of the aw in this area. You shoud tak to a awyer for a compete understanding of how it may affect your particuar circumstances. This cient briefing sets out how an organisation shoud respond if an empoyee raises a grievance. Why is it important to foow the ACAS Code? It can avoid a potentia caim The ACAS Code of Practice on discipinary and grievance procedures was introduced to hep organisations and empoyees resove grievances in the workpace. Deaing with a grievance effectivey can avoid empoyment tribuna caims by aowing the issue to be resoved internay. It can affect the eve of compensation If an empoyee s caim is successfu, but either the organisation or the empoyee has faied to foow the ACAS Code, the eve of compensation awarded can be affected: If the empoyer unreasonaby faied to foow the Code, the empoyment tribuna may increase the empoyee s compensation by up to 25%; or If the empoyee unreasonaby faied to foow the Code, the empoyment tribuna may reduce their compensation by up to 25%. This regime appies to the majority of caims brought in an empoyment tribuna, incuding those reated to: Discrimination; Unfair dismissa; and Breach of contract. How shoud grievances be handed? The grievance shoud be raised in writing A grievance can be any concern, probem or compaint an empoyee raises with the empoyer. If a grievance cannot be resoved informay, the empoyee shoud raise this in writing with a manager. If the grievance concerns their ine manager, their grievance shoud be raised with another manager. A faiure to raise the grievance in writing does not prevent an empoyee bringing an empoyment tribuna caim. However, in these cases, ess compensation may be awarded. The organisation shoud hod a meeting and investigate the compaint A meeting shoud be hed with the empoyee to enabe them to expain their grievance and how they think it shoud be resoved. If the matter needs further investigation, the meeting shoud be adjourned and resumed after the investigation has taken pace. When the meeting is concuded, the organisation shoud communicate its decision prompty in Page 8

9 writing, incuding detais of any action it intends to take to resove the grievance. The empoyee can bring a companion An empoyee has the ega right to bring a companion (a feow worker or a trade union representative) to a grievance meeting. The empoyee has a right of appea The empoyer shoud inform the empoyee that they have a right of appea when the decision is communicated. If the empoyee is not satisfied with the outcome, any appea must be made in writing and specify the grounds of appea. If an empoyment caim is brought without first going through the appea process, an empoyee s compensation may be reduced. The appea shoud, if possibe, be deat with by a manager who has not been previousy been invoved. The empoyee shoud be informed in advance of the time and pace of the appea hearing and may bring a companion. The empoyer shoud communicate its decision prompty in writing. Handing grievances during a discipinary procedure Empoyees often submit grievances during discipinary procedures, either regarding the procedure itsef or the circumstances eading up to the initiation of that procedure. The empoyer must decide whether to suspend the discipinary procedure to investigate the grievance fuy or, if the issues are reated, dea with them both concurrenty. The practica steps empoyers can take to improve their grievance procedures Invove empoyees or their representatives in deveoping workpace procedures and make sure those procedures are transparent and accessibe to empoyees. Train managers on: how to hande grievances effectivey; when to invove HR; and how to spot potentia ega caims. Encourage managers to resove issues quicky and informay before they get to a forma grievance stage. Aow empoyees to put their side of the story at a meeting before undertaking any necessary investigation and again before making a decision. Keep written records, incuding minutes of meetings. Communicate decisions effectivey and prompty, setting out reasons. If you d ike to contact us pease emai john.mcmuen@wrigeys.co.uk Wrigeys Soicitors LLP, 19 Cookridge Street, Leeds LS2 3AG. Teephone Fax If you have any questions as to how your data was obtained and how it is processed pease contact us. Discaimer: This buetin is a summary of seected recent deveopments. Lega advice shoud be sought if a particuar course of action is envisaged. Page 9