Employment Review March 2013

Transcription

1 Employment Review March 2013 In the last review, we provided a lot of information about forthcoming legislative developments. In this review, we concentrate on a number of recent cases providing guidance on some important questions. Following a TUPE transfer, is a transferee obliged to continue honouring a pre-transfer collective agreement in respect of post-transfer collectively agreed terms? Can the contents of a witness statement and the manner in which it was obtained in the course of tribunal proceedings constitute grounds for a resignation and a claim of constructive dismissal? Is it a reasonable adjustment for an employer to exempt a disabled employee from compliance with its short term absence policy? Does whistle-blowing protection extend to disclosures made after the end of employment? If an employee is dismissed after an accumulation of warnings, what duty does the tribunal have to examine the validity of previous warnings? Joanne Kay joanne.kay@freethcartwright.co.uk Alemo-Herron & Others v Parkwood Leisure Limited Whilst not yet in the realms of Jarndyce v Jarndyce, the Alemo-Herron litigation continues... Singh v Reading Borough Council The general concept of judicial proceedings immunity states that a party to litigation cannot be sued in relation to anything said or done for... Jennings v Barts and the London NHS Trust There is a common debate about the extent to which employers should make adjustments to their application of their absence policies in respect... Onyango v Berkeley Workers are protected from being subjected to a detriment by an employer because they have made a protected disclosure (commonly known as whistle... Simmonds v Milford Club Mr Simmonds was employed as a steward at a private social club. In September 2010 he was given a final written warning because instead of banking...

2 Alemo-Herron & Others v Parkwood Leisure Limited Whilst not yet in the realms of Jarndyce v Jarndyce, the Alemo-Herron litigation continues. The contracts of employment of the employees stated that their terms and conditions of employment will be in accordance with collective agreements negotiated from time to time by the National Joint Council for Local Government. In 2002 the employees transferred under TUPE from the public sector to CCL Limited and continued to receive pay increases in line with the collective agreement. In 2004, the employees transferred under TUPE to Parkwood Leisure Limited. The NJC negotiated a new collective agreement relating to rates of pay for the period from 1 April 2004 to 31 March Parkwood was not a party to the negotiations and declined to abide by the NJC terms. The employees brought claims for unlawful deduction from wages alleging that the new NJC terms should be applied. Regulation 5 of TUPE states that where there is a collective agreement in place at the point of transfer, that agreement shall, after the transfer, have effect as if made by or on behalf of the transferee with that trade union (in simple terms, the collective agreement transfers to the transferee). The debate, however, is whether it transfers on a static basis, ie the collective agreement is frozen as at the point of transfer, or whether it transfers on a dynamic basis, ie the transferee continues to be bound by future versions of the collective agreement (even if it is not a party to those negotiations). The Court of Appeal favoured a static interpretation. On appeal to the Supreme Court, the Supreme Court referred the matter to the ECJ, asking the ECJ whether the Acquired Rights Directive (on which TUPE is based) prohibits, permits or requires the transfer of dynamic contractual clauses. The Advocate General has now issued his opinion. This is not binding on the ECJ, but is normally followed by the ECJ. The Advocate General s opinion is that there is nothing in the Acquired Rights Directive that prevents a member state from adopting a dynamic approach to the transfer of contractual clauses. However, the Advocate General did make a comment that the effect of a dynamic approach must not be unconditional and irreversible. His view was that in the UK, collective agreements have their legal basis in individual contracts of employment and they could in theory always be renegotiated or amended by the parties at any time during the employment contract. The case is still to proceed to the ECJ. If the ECJ makes a decision in line with the Advocate General s opinion, then the key consequence will be that it will be open to the Supreme Court to decide that a dynamic interpretation is correct. This will not, however, necessarily be the Supreme Court s decision. The government is currently consulting on making changes to TUPE and one of the proposals is to clarify that Regulation 5 should provide for a static, rather than dynamic, interpretation. Further developments are therefore likely. In the interim this case is of considerable importance particularly for private sector employers who have taken on outsourced operations from the public sector and have inherited employees whose pay and conditions are governed by collective agreements.

3 Singh v Reading Borough Council The general concept of judicial proceedings immunity states that a party to litigation cannot be sued in relation to anything said or done for the purposes of litigation. For example, a witness cannot be sued for defamation in respect of the contents of a witness statement. Mrs Singh was employed by Reading Borough Council as the head teacher of a school. She submitted an Employment Tribunal claim complaining of discrimination, harassment and victimisation. She contacted the school business manager and clerk to the governing body (Mrs Heath) to ask if she would be a witness on her behalf. Mrs Heath told Mrs Singh that she had been instructed to have no contact with Mrs Singh. One of the witness statements subsequently served by Reading Borough Council was from Mrs Heath. Mrs Singh resigned alleging that Mrs Heath s witness statement was ridden with blatant lies and that Mrs Heath had been forced to provide such a statement of untruths deliberately and directly to undermine Mrs Singh. She claimed that this breached the implied contractual duty of trust and confidence. The EAT found that judicial proceedings immunity is absolute. Mrs Singh could not rely on an allegation that undue pressure had been placed on Mrs Heath to produce a false or inaccurate statement as it was covered by judicial proceedings immunity. The case provides some relief for employers as it would be unfortunate if steps taken in the litigation to defend the employer s position were to lead to constructive dismissal claims.

4 Jennings v Barts and the London NHS Trust There is a common debate about the extent to which employers should make adjustments to their application of their absence policies in respect of disabled employees. Mr Jennings was dismissed on grounds of poor attendance due to ill health. The Trust had applied its short term absence policy rigorously and as part of his disability discrimination claim, Mr Jennings claimed that in light of his disability (paranoid personality disorder and major depression), an adjustment should have been made to the short term absence policy, effectively exempting him from it. Under the Equality Act 2010, if a provision, criteria or practice (PCP) places a disabled employee at a substantial disadvantage, the employer has an obligation to make reasonable adjustments to avoid the disadvantage. The Tribunal identified the PCP in this case as the application of the Trust s short term absence policy. In this case, having identified the PCP, the Tribunal identified the disadvantage to Mr Jennings; his condition was erratic and recurrent, if he returned to work and was absent again, he would be disciplined. The duty to make reasonable adjustments was therefore triggered. Mr Jennings had suggested adjustments essentially amounting to the disapplication of the Trust s absence policies and the application of a policy bespoke to Mr Jennings. The EAT found that the Tribunal had given an adequate explanation of why they did not think it was reasonable for the Trust to have to tailor its procedures to suit Mr Jennings situation. It should be noted that as with many cases, the EAT are asked to see if the Tribunal made an error of law in its decision and found that it did not. The case does not set a precedent whereby no employer could ever be required to amend its absence policies to take account of an employee s disability. However, the case does demonstrate that there will be circumstances in which an employer can apply its absence policy, without adjustment, to a disabled employee.

5 Onyango v Berkeley Workers are protected from being subjected to a detriment by an employer because they have made a protected disclosure (commonly known as whistle-blowing). Case law has established that where an employee makes a protected disclosure during his employment, he will be protected against any detriment that he suffers at the hands of the employer after the employment has ended (for example, in relation to the provision of a reference). However, up until now, there had been no reported appeal decision dealing with the question of whether a disclosure made after employment can be a protected disclosure. Mr Onyango was a solicitor employed by Berkeley Solicitors. His employment ended on 15 June On 13 August 2010 he wrote a letter before action to his former employers threatening litigation and on 17 September 2010 he wrote a letter to the Legal Complaints Service about his employer. His former employer then reported him to the Solicitors Regulation Authority, citing allegations of forgery and dishonesty which led the SRA to investigate him. Mr Onyango brought a number of discrimination claims against his employer, but also alleged that he had been subject to a detriment by reasons of a protected disclosure by his former employer reporting him to the SRA. The EAT confirmed that whistle-blower protection extends to acts of whistle-blowing even if they occur after the end of the employment relationship. This is an important decision as under the current case law (although this may be amended by future legislative changes), any threat of litigation by an ex-employee may amount to a protected disclosure. Subsequently subjecting that employee to a detriment, for example, by refusing to provide a reference, may give rise to a further cause of action.

6 Simmonds v Milford Club Mr Simmonds was employed as a steward at a private social club. In September 2010 he was given a final written warning because instead of banking the club s takings himself, as he was not able to park in a nearby car park, he parked immediately outside the bank and his wife went into the bank to pay the money in. The employer s insurance did not cover money that was in the custody of someone who was not one of its employees and Mr Simmonds was therefore given a final written warning. He appealed against the warning, but the appeal was dismissed. In January 2011 he was instructed to give each employee a Christmas bonus in the form of a bottle or bottles of wine up to the value of Instead he gave them each in cash. The employers believed this amounted to misconduct and on the basis that he had already received a final written warning that dismissal was the appropriate sanction. The key issue that was dealt with on appeal was the extent to which an Employment Tribunal should explore the validity of a previous warning (particularly a final written warning), which subsequently triggers dismissal in the event of further misconduct. The EAT confirmed that it was only where on the facts there was a real concern that a previous sanction may have been manifestly inappropriate that it will be necessary for an Employment Tribunal to engage in a factual enquiry and detailed scrutiny of the circumstances in which that previous warning was applied. This case is a reminder that in relation to a dismissal that results from a series of warnings, the Tribunal is not required to subject each warning to a band of reasonable responses test. If a final warning makes clear that any future misconduct (while the warning is live) will lead to dismissal, then that warning should only be scrutinised if it was a manifestly inappropriate sanction (which will be difficult for an employee to establish).

7 Employment Team: Key contacts David Potter Cumberland Court, 80 Mount Street, Nottingham NG1 6HH Tel: Julian Middleton One Colton Square, Leicester LE1 1QH Tel: Joanne Kay Floor 2, West Point, Cardinal Square, 10 Nottingham Road, Derby DE1 3QT Tel: Pat Jones St James Building, Oxford Street, Manchester M1 6FQ Tel: Rebecca Sawbridge 6 Bennetts Hill, Birmingham B2 5ST Tel: rebecca.sawbridge@freethcartwright.co.uk Peter Gavin Churchill House, Regent Road, Stoke on Trent ST1 3RQ Tel: peter.gavin@freethcartwright.co.uk Philomena Price Kimbells Freeth LLP Power House, Harrison Close, Knowlhill, Milton Keynes MK5 8PA Tel: philomena.price@kimbellsfreeth.co.uk James Simpson Henmans Freeth LLP 5000 Oxford Business Park South Oxford OX4 2BH Tel: james.simpson@henmansfreeth.co.uk This update is only a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist advice should be sought from a member of the Freeth Cartwright Employment Team in relation to any queries that may arise. Banking & Finance / Business Services / Corporate Finance / Construction / Employment / Public Sector / Real Estate / Services for Individuals / Taxation Offices in: Birmingham, Derby, Leicester, London, Manchester, Milton Keynes, Nottingham, Oxford, Sheffield and Stoke on Trent Want to know more? Visit freethcartwright.co.uk