Articles | Employment bulletin November 2015

This month we examine ill-health dismissals, responding to groundless grievances and whether employees should receive the minimum wage for sleeping on the job.

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David Clay

David Clay

You snooze you lose?

Minimum wage for sleep-in on-call workers

You snooze you lose?

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Most UK workers are entitled to be paid the National Minimum Wage (NMW), which is expressed as a minimum hourly rate.  The Employment Appeal Tribunal (EAT) has recently considered whether an on-call night worker who lived at his place of work was entitled to be paid NMW for all the hours of his night shift.

The case involved Mr Shannon, a night assistant who for many years lived in a flat at his employer’s care home.  In return for free on-site accommodation and a small weekly salary, Mr Shannon was required to remain in his care home residence every evening from 10pm to 7am in case the care worker on duty required his assistance.   He was permitted to sleep during these hours and, in practice, his help was rarely needed.  Following a break-down in his relationship with the care home, Mr Shannon was dismissed.  He brought a claim for almost £240,000 in unpaid NMW in respect of all the night-time hours when he had been required to stay in his flat.

The EAT held that Mr Shannon was only entitled to receive NMW when he was awake for the purposes of working.  This was limited to those odd occasions when he was required to assist the care worker on duty.  Mr Shannon’s flat-rate of weekly pay and free accommodation meant that he had received the NMW at all times.

While acknowledging that on-call arrangements are “particularly fact sensitive,” the EAT distinguished the case of Mr Shannon from a scenario where a worker is working simply by being present at their employer’s premises.  In these latter circumstances, NMW may be payable for all hours of a night shift, including those spent asleep.

While this case confirms that being present at a workplace is not in itself sufficient for entitlement to NMW, it does little to resolve the ongoing uncertainty surrounding NMW liability for sleep-in on-call workers.  Given that failure to pay NMW can result in criminal convictions, the current lack of clarity is regrettable.  Where finances allow, the cautious approach is to pay NMW for all on-call hours.  If this is impractical or unpalatable, affected employers may prefer to wait for further guidance as case law develops.

Violence vs threats

Is inconsistent treatment unreasonable?

Violence vs threats

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For a misconduct dismissal to be fair it must be within the band of reasonable responses open to the employer.  One recent case concerned an altercation between two employees which resulted in the dismissal of one for gross misconduct, but not the other.  The Employment Appeal Tribunal (EAT) considered whether their employer, MBNA Limited, had acted fairly.

Mr Jones and Mr Battersby both attended an MBNA work social event.  Before the event, all staff were told that normal standards of behaviour and conduct would apply and were warned that any misbehaviour would be subject to MBNA’s procedures and guidelines.  During the work event, and after a number of more minor incidents, Mr Jones punched Mr Battersby in the face.  Later the same evening, but after the event had concluded, Mr Battersby sent Mr Jones several incendiary texts, threatening to follow Mr Jones home and “rip your…head off”.

MBNA investigated the incidents and the same person chaired disciplinary hearings for both Mr Jones and Mr Battersby.  Mr Jones was found to have behaved in a way that could seriously impair the bank’s reputation and was dismissed for gross misconduct.  Although Mr Battersby’s texts were considered to be of an extremely violent nature and also amounted to gross misconduct, MBNA felt the texts were an immediate response to Mr Jones’ actions and decided a final written warning was the appropriate sanction.  Mr Jones brought a claim for unfair dismissal.

The EAT held that MBNA’s decision to dismiss Mr Jones was reasonable in all the circumstances, and accordingly his dismissal was fair.  It added that whether an employer had acted with undue leniency towards another employee “is neither here nor there”, although it qualified this slightly by noting that disparity of treatment in truly parallel circumstances could support an argument for unfair dismissal.  In this particular case, Mr Jones’ punch at a work event could not be seen as sufficiently similar to threats sent afterwards by Mr Battersby which, ultimately, were not carried out.

The case demonstrates that provided a decision is reasonable and any departures from normal approaches can be objectively justified for non-discriminatory reasons, employers should feel able to exercise a degree of discretion in determining appropriate disciplinary sanctions.

Fair ill-health dismissals

Must employers ‘go the extra mile’ if they aggravate an illness?

Fair ill-health dismissals

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Before dismissing an employee on long-term sick leave, employers should obtain a medical report, follow a fair process and act reasonably in treating the employee’s absence as a sufficient reason to justify dismissal.  The Employment Appeal Tribunal (EAT) has recently considered whether an employer who is partly responsible for an employee’s illness must then do more to show that a subsequent dismissal is fair.

The case concerned a Loans Manager (M) accused by another woman of harassing her outside of work.  Between November 2009 and July 2010 M’s employer received several emails complaining about M’s conduct.  M’s employer investigated the complaints and found they were baseless, but repeatedly refused to disclose the emails to M. When M eventually obtained the emails (via an anonymous source) and showed them to the police, the case against her was dropped.

At the same time, from January 2010, M was suffering from reactive depression after a problematic operation on her jaw and she took 162 days off work in that calendar year.  M was subsequently dismissed for her absence record and brought a claim for unfair dismissal.

The EAT found M’s dismissal was unfair. In reaching its decision it noted that almost all of M’s absence was caused by her depression.  Although the employer had not originally caused M’s illness, it had aggravated it by failing, without sound reason, to take action that would have ended the harassment saga more quickly.  The EAT held that an employer’s responsibility for an employee’s illness can be taken into account in determining the fairness of an ill health dismissal, and an employer that is responsible in some way may have to ‘go the extra mile’ before it can fairly dismiss for absence reasons.

In practice, going the extra mile may require an employer to endure longer periods of absence or give more extensive consideration to alternative employment than it otherwise would.  It does not mean that an employer is prohibited from dismissing at any stage.  Before any sickness absence dismissal, employers should also consider whether the absent employee is disabled and, if so, whether they have done enough to satisfy the duty to make reasonable adjustments.

Groundless Grievances

Could a failure to investigate land you in hot water?

Groundless Grievances

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Where an employee brings a grievance, employers should attempt to resolve it in line with the ACAS Code of Practice on disciplinary and grievance procedures (the Code).  This normally involves holding a meeting with the employee, giving them the right to be accompanied, carrying out further investigation (where necessary) and deciding on appropriate action.  But does this still apply if the grievance is entirely groundless?

In a recent case before the Employment Appeal Tribunal (EAT) a security guard named Mr Singh, of Indian ethnic origin, was sent home from work as he smelt of alcohol.  While his employer, Cordant Security, investigated his drinking, Mr Singh alleged that his supervisor, who was white, had used racially abusive language towards him.  Cordant did not meet with Mr Singh about the grievance or investigate it, and told him that no action would be taken.  Mr Singh brought a claim for race discrimination.

The EAT held that for his discrimination claim to succeed, Mr Singh had to show both less favourable treatment (in this case because of race) and also that he suffered a detriment.  As Cordant could not explain its failure to investigate Mr Singh’s grievance, it was found that Mr Singh had been treated less favourably.  However, Mr Singh’s allegations of racial abuse were false and completely fabricated.  Had Cordant investigated Mr Singh’s complaint it would have found it to be untrue.  Mr Singh could not demonstrate that he had suffered any detriment and accordingly there had been no discrimination.

The EAT added that, in other circumstances, an employee who brought an unsubstantiated grievance could nonetheless suffer a detriment.  It suggested a distinction could be made between a misguided employee who genuinely believed what they had said and an employee who deliberately concocted untrue allegations.

This case underscores the importance of following appropriate procedures for all grievances.  In failing to conduct any meeting or investigation, Cordant left themselves open to a claim.  By responding to grievances consistently, employers can rebuff suggestions of less favourable treatment and avoid being drawn into arguments on the trickier issue of detriment.  Where commercial factors make compliance with the Code problematic, employers should at least record a reason for not considering a grievance further.