in-depth

Technical update - July 2018

Andrew Macmillan

Unappealing success

Issue

When an employee appeals against the decision to dismiss him or her under the employer’s contractual disciplinary procedure, they are usually hoping that the decision will be reversed and that they can keep their job. However in some cases there might be other reasons behind the submission of the appeal and the employee will have no intention of returning to work. Whether they could still bring a claim for unfair dismissal if their appeal was successful was an issue that the Court of Appeal considered in the recent case of Patel v Folkestone Nursing Home Ltd.

Facts

Mr Patel had been summarily dismissed from his position as a healthcare assistant in a nursing home after allegations were made that he had slept on duty and falsified residents’ records. Mr Patel’s appeal against this was successful though, as it was accepted he had been sleeping only during his rest break. However, Mr Patel did not return to work as he said he was dissatisfied with the appeal outcome in that it did not deal with the allegation that he had falsified records. He claimed that he had been unfairly dismissed.

Decision

It was held that the inclusion of a right of appeal in the employment contract provided the employee with a means of overturning a disciplinary decision. Where an appeal was successful, both the employer and the employee were contractually bound to treat the dismissal as having vanished.  It followed that a successful appeal did not give the employee an option about whether to return to work and his claim for unfair dismissal had to be rejected.

Action

The decision confirms the principle that a dismissal will ‘generally vanish’ where an appeal is successful. However employers should take into account the manner in which an appeal is handled as it could still give grounds for the employee to bring a claim. In this case it was considered that failing to address a challenge against a serious allegation at the appeal stage may have breached the duty of trust and confidence and given Mr Patel grounds to resign and claim constructive dismissal.

 

 

Early dismissal

Issue

Generally an employee will only be able to bring a claim for unfair dismissal if they have more than two years’ service. However statute provides that the one week minimum notice period will need to be taken into consideration when determining the dismissal date. In the recent case of Lancaster and Duke Ltd v Ms V Wileman the issue was whether the employee’s service would still be extended by one week if the employee had been dismissed for gross misconduct.

Facts

Ms Wileman, a recruitment consultant, began work for the employer on 22 September 2014. Following some disagreements with one of the directors she was informed on 20 September 2016 that she was to be summarily dismissed for gross misconduct. The employer carried out no process before the dismissal and gave her no right to appeal. She lodged a grievance, but no hearing took place. Ms Wileman submitted a claim for unfair dismissal.

Decision

The Employment Appeal Tribunal overturned the initial decision that the effective date of termination had to be extended by the statutory minimum notice of one week. That would apply for the purposes of assessing whether she had sufficient service if notice was due but the employer alleged that she had been guilty of gross misconduct which would mean that summary dismissal without notice would be permitted.

Action

In practice this means that an Employment Tribunal will have to hear evidence to establish whether the employee was guilty of gross misconduct prior to deciding whether the employee has the required length of service to bring a claim for unfair dismissal. This will further complicate and add expense to the cost of defending the claim. In order to avoid this risk the contract will need to be brought to an end at least two weeks before the two year service point would be reached.

 

 

Contractual holiday pay boost for NHS

Issue

The Deduction from Wages (Limitation) Regulations 2014, limits claims for outstanding holiday pay to two years and provides that statutory rights to paid holiday will not be implied into contracts of employment. This is aimed at preventing workers from seeking to recover holiday pay via contractual claims in the civil courts, which have a more generous six year limitation period.  However the recent case of Flowers and Others v East of England Ambulance Trust shows that contract claims for holiday pay are still possible if the written terms and conditions provide the same or even better rights.

Facts

The claimants, who were ambulance workers, did two types of overtime. One was non-guaranteed, where their shift ended in the middle of a task and the other was voluntary which they had to apply to do. Claims were brought that the employer should have taken into account the wages paid for this overtime in the calculation of their holiday pay. However in addition to claiming it was due under the Working Time Directive, it was also claimed that the further holiday pay was due under the standard national NHS Agenda for Change terms and conditions.

Decision

It was held that payments for both regular non-guaranteed overtime and voluntary overtime would need to be included in the calculation of pay for the Working Time Directive four-week statutory holidays. Both types of overtime should be treated the same. Even more importantly it found that the contractual terms were aimed at giving the employees the right to have their holiday pay calculated on the same basis as if they had been at work which would include “payments for work outside normal hours.”

Action

The finding that the extra holiday pay is also due under the contract will mean that the employer has to pay additional sums for all their annual leave and not just the statutory four weeks leave. This could prove very costly as it will apply to all employees on those terms and there could be backdated claims going back six years. An application for leave to appeal to the Court of Appeal has been made. Employers in the private sector may wish to check the contract wording doesn’t create any greater liability in respect of holiday liabilities.

 

 

Wake up call for sleep-in attendants

Issue

The national minimum wage must be paid for all the hours that a person is ‘working’. In addition if someone is required to be ‘on-call’ away from home then they will also be deemed to be working, except during those times that they are asleep in accordance with the work arrangements. The question of how that impacts the rights of sleep-in workers to receive national minimum wage came before the Court of Appeal in the recent case of Royal Mencap Society v Tomlinson-Blake.

Facts

Ms Tomlinson-Blake, a specialist care support worker would do overnight ‘sleep-in’ shifts at two residential properties where clients with learning difficulties required 24 hour care. During the sleep-in shifts she was expected to keep a ‘listening ear’ in case her support was needed but otherwise was free to sleep and a bedroom was provided for her at the premises. In 16 months she had only been required to get up on six occasions but she claimed minimum wage for all the hours present.

Decision

It was held that under the statutory provisions relating to ‘on-call’ shifts, only hours when awake should be deemed to be working time for the purposes of the national minimum wage.  This was clear from the wording of the statute and was confirmed in the official reports published at the time the minimum wage was introduced. A number of earlier cases in which being asleep was considered actual work rather being on-call had been decided in error.

Action

The impact of this decision on the social care sector is huge. However the arrangements for individuals to attend premises to be on call overnight for reasons other than providing care and assistance will need to be assessed too. It will be important to consider if workers are on call or if they are actually working. If on-call and they are expected use the sleeping facilities provided it may be possible to limit payment for the shift to just an allowance rather than an hourly rate.

 

 

Can a fair dismissal be discriminatory?

Issue

Discrimination arising from a disability occurs where an employee is treated unfavourably because of something arising in consequence of their disability. In the case of Grosset v City of York the Court of Appeal had to consider whether an employer could be found guilty of this type of discrimination where it had dismissed an employee for a clear act of misconduct when unaware that it was linked to his disability.

Facts

Mr Grosset was a teacher. The employer was aware that he suffered from cystic fibrosis and that he was disabled. Following the appointment of a new head teacher Mr Grosset’s workload increased and as a result he became stressed. It was then discovered that he had shown the 18-rated movie “Halloween” to a class of 15 and 16 year olds. Mr Grosset was dismissed for gross misconduct. He claimed that this was unfair and that it was discriminatory as his error had been caused by stress.

Decision

It was held that the dismissal was fair as it was within the range of reasonable responses. However, it was also held that as the film had been shown whilst Mr Grosset was suffering from stress that arose from his disability, so his claim for discrimination arising from a disability succeeded. The dismissal had not been shown to be justified and it did not matter that the employer had not known the conduct had been caused by his disability as it was an objective test.

Action

This case highlights the importance of a full investigation into the circumstances when a disabled employee claims their performance had been affected by a medical condition.  If the employee is at a disadvantage due to a disability have reasonable adjustments been made and maintained? Medical evidence will be important in answering these questions. A finding of disability discrimination can be very costly as was seen here where an award of £646,000 was subsequently made.

 

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Andrew Macmillan

Andrew Macmillan

Partner

Andrew is a specialist employment lawyer, with a particular focus on contentious work such as reorganisations, redundancies, employment aspects of insolvency, executive severance, employment relations issues and employment tribunal litigation.