Articles | Employment bulletin October 2015

This month we consider if an employee is working whilst travelling, reveal the risks of involving HR in a disciplinary process, and report on the continual expansion in discrimination claims.

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David Clay

David Clay

Mock cross-examination – How to be an effective witness

25th November 2015

FSP Employment Seminars

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Join us at our upcoming witness evidence event held in conjunction with the CIPD on 25th November 2015.

Louise Smyth will lead the session, focusing on the key points to be aware of if you, or your colleagues, are called to give evidence in the employment tribunal.  It will be an interactive session and will feature a mock cross-examination led by Leslie Millin, a barrister at Ely Place Chambers.  Read more to book your place.

Knowing your place

Use of HR renders dismissal potentially unfair

Knowing your place

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During a disciplinary process employers will commonly rely on the expertise of Human Resources (HR) personnel for guidance and support.  However, a recent case before the Employment Appeal Tribunal (EAT) has shown that HR teams that overplay their role risk undermining the validity of disciplinary sanctions.

The case involved Mr Ramphal, who worked for the Department for Transport (DFT).  The DFT investigated potential misconduct about Mr Ramphal’s expenses claims and use of hire cars.  It appointed Mr Goodchild as its investigatory and disciplinary officer and, in his initial draft report, Mr Goodchild recommended a finding of misconduct with a final written warning.  Although the draft report criticised Mr Ramphal, it did note that some of Mr Ramphal’s explanations were “consistent” and “plausible”.

Mr Goodchild was inexperienced in disciplinary proceedings and received extensive advice from DFT’s HR team.  Following HR’s input, significant amendments were made to the draft report and favourable comments were replaced with critical ones.  The final report found that Mr Ramphal was guilty of gross negligence and recommended summary dismissal.  Mr Ramphal was subsequently dismissed and brought a claim for unfair dismissal.

Although the original Tribunal dismissed Mr Ramphal’s claim, the EAT found that the changes made to Mr Goodchild’s report after HR’s involvement were so striking that they gave rise to an inference of improper influence.  It ordered that the case be re-heard.  In its judgment the EAT confirmed that advice from HR in a disciplinary process should be limited to matters of law and procedure, ensuring that all necessary matters have been addressed and that a clear outcome is communicated. HR should not normally determine issues of culpability.

It is important to remember that only communications with solicitors are protected through legal privilege and any communications with HR personnel, whether internal or external, will have to be disclosed as part of tribunal proceedings.  This is a particular risk if the advice from the HR personnel is damaging to your defence or they have essentially become the decision-maker in a disciplinary matter rather than the manager chairing the hearing.  

To reduce the risks employers should ensure that managers are sufficiently well trained so that they are not over-reliant on HR support and any sensitive matters, which may lead to litigation, are discussed directly with a solicitor.

European Court confirms that travelling time is working time

Is your business affected?

European Court confirms that travelling time is working time

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The Working Time Regulations give workers the right to certain rest breaks and imposes a maximum average working week of 48 hours (unless the worker opts out). To avoid breaching the Regulations, employers need to know what counts as working time.

As we reported in July (read more), a group of technicians with no fixed workplace claimed that time spent travelling between their homes and their first and last appointments of the day should count as working time.  The European Court of Justice (ECJ) has now agreed with the workers and confirmed the earlier opinion of the Advocate General.

The ECJ held that any period during which a worker is working, at their employer’s disposal and carrying out their activity or duties is “working time.”  The technicians’ journeys were an integral part of being a worker without a fixed workplace and essential to enable them to provide their services.  It rejected the employer’s argument that the travelling time was a period of rest.

It is important to note that this case impacts on the Working Time Regulations and not the National Minimum Wage Regulations.  The case does alter the calculation of rest breaks, but it does not automatically mean that workers need to be paid for their travel to and from work.  The general position is that travel time between home and a place of work, including for mobile workers, is excluded from the obligation to pay the National Minimum Wage.  Accordingly employers remain free to determine what (if any) remuneration they will provide for travelling time to and from work.  

Employers who take on workers without a fixed workplace must now review their total working time, shift patterns and allocated breaks to avoid breaching the Regulations.  Where accounting for travelling time is likely to push workers over the 48 hour average working week, employers may need to consider asking workers to sign a valid opt-out form.  If employers have any concerns about workers using travelling time to run personal errands they may also wish to consider implementing appropriate monitoring procedures.

Discriminating against a company

Could you face a claim?

Discriminating against a company

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The Equality Act is generally understood to protect individuals from less favourable treatment on grounds of a ‘protected characteristic’ (such as age, race or sex).  But can a company benefit from the protection of discrimination law as well?  The Employment Appeal Tribunal (EAT) recently considered this issue in a dispute between Mr Abrams and EAD Solicitors LLP.

Mr Abrams, a member of the LLP, decided for tax reasons to set up a limited company with himself as sole director.  This company then replaced Mr Abrams as an LLP member.  It was expected that, through his company, Mr Abrams would continue to provide services to the LLP much as before.  However, Mr Abrams was no longer employed by the LLP and there was no obligation on him to perform services personally.

Once Mr Abrams reached the LLP’s retirement age of 62, the LLP objected to the company continuing to offer Mr Abrams’ services.  It noted that were Mr Abrams’ an LLP member in his own right he would have retired at that time.  Mr Abrams brought direct age discrimination claims on behalf of himself and his company.  The LLP argued that as only individuals can have a protected characteristic, only individuals are protected from discrimination.

The EAT disagreed with the LLP and held that a limited company could bring a claim of direct discrimination.  It explained that discrimination occurs where detrimental treatment is caused by or related to a person’s age or other protected characteristic. The development of associative discrimination claims shows that a person does not have to possess a certain characteristic themselves to bring a claim, and references to a ‘person’ in the Equality Act include a ‘legal person’ such as a limited company.

While the vast majority of discrimination claims will continue to be brought by individuals, employers who shun selected companies because they are seen to have certain religious or political connections, or they employ or engage workers from a particular ethnic background, will be putting themselves at risk.  With no caps on awards for discrimination, and corporate bodies tending to have deeper pockets, employers should take care to ensure that their treatment of companies is not discriminatory.

Another ‘new’ discrimination claim?

Employee argues he was victimised ‘by association’

Another ‘new’ discrimination claim?

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Under the Equality Act an employee can bring a claim for victimisation where his employer treats him unfavourably because he has issued, asserted or supported a discrimination claim (a protected act).  The Employment Appeal Tribunal (EAT) has recently determined whether it is also possible to claim victimisation on the basis of a protected act done by a colleague or a third party with which the employee was associated.

The case concerned Mr Thompson, a bus driver for London Central Bus Company (LCB), who had been dismissed for misconduct.  Prior to his dismissal, Mr Thompson had told LCB management that he had overhead a conversation in which managers boasted about targeting those employees who had claimed LCB were in breach of the Equality Act.  Mr Thompson had not made allegations of breach of the Equality Act himself, but argued that he was associated with those other employees in the minds of LCB and that this was the reason for his dismissal.  He brought a claim for associative victimisation.

The EAT found that Mr Thompson could be victimised by association.  It held that the correct test to apply was whether, in the mind of the employer, the protected act of a third party was the reason for Mr Thompson’s treatment.  The EAT rejected the argument that there needed to be a particular link between Mr Thompson and those employees who had done protected acts and that his mere membership of the same union could be a sufficient connection.

Until quite recently it was widely thought that claims for associative discrimination were limited to direct discrimination and harassment.  However, the decision in this case comes hot on the heels of a recent European judgment that a person can claim indirect discrimination on the basis of an association with a particular racial group, despite not sharing that group’s racial origin (read more).  These recent employee-friendly interpretations of discrimination law make it very difficult for employers to predict when discrimination claims may arise, and therefore they must ensure that the reasons for instigating any disciplinary process are fair and well-documented.