1. Employment Law Update 2010 Jon Taylor 26 November 2010 Employment www.emwllp.com

2. What issues arise? Can a worker reschedule a period of sickness-affected statutory holiday? Can a worker insist on holiday being taken during a period of long-term sick leave? Can workers carry over untaken statutory holiday to the next leave year? Holidays and Sickness Employment www.emwllp.com

3. Working Time Directive (2003/88/EC) provides that member states must: "ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice" (Article 7(1)). Employment www.emwllp.com Holidays – recap on the basic rights

4. Working Time Regulations 1998 – give the right to take 5.6 weeks' paid holiday in each leave year The first 4 weeks' statutory holiday may only be taken in the leave year in respect of which they are due (regulation 13(9)). A "relevant agreement" may provide for the remaining 1.6 weeks' leave to be carried over to the next leave year (regulation 13A(7)). Leave may not be replaced by a payment in lieu except on termination of employment (regulation 13A(6)). A worker may make a holiday request by giving appropriate notice to the employer. However, the employer can reject such a request by giving counter-notice (regulation 15(3)). An employer can give notice to a worker specifying dates on which holiday must be taken (regulation 15(2)). On termination of employment, where the proportion of statutory holiday taken by the worker that leave year is less than the proportion of the leave year that has expired, the employer shall make a payment in lieu of the untaken holiday (regulation 14(2)). Holidays – recap on the basic rights Employment

5. Stringer v HM Revenue & Customs; Schultz-Hoff v Deutsche Rentenversicherung Bund. (ECJ) Under the Directive, workers on sick leave must continue to accrue holiday rights It is for member states to decide whether workers can actually take their statutory holiday during a period of sick leave If workers are prevented from taking their holiday because of sickness, they must be allowed to take it following their return to work, even if this means carrying it over to the next leave year Holidays & Sickness – the key decisions Employment www.emwllp.com

6. HM Revenue & Customs v Stringer (House of Lords) The parties agreed that the WTR expressly rule out carry over of statutory holiday to the next leave year WTR must be interpreted as allowing workers on long-term sick leave to take, and be paid in respect of, their statutory holiday entitlement Holidays & Sickness – the key decisions Employment www.emwllp.com

7. Pereda v Madrid Movilidad SA (ECJ) Where a worker's prearranged statutory holiday coincides with a period of sick leave, a worker has the option to designate an alternative period for the exercise of their holiday entitlement Although workers may be allowed to take holiday during sick leave, if they do not wish to do so the holiday must be granted at a different time, even if this means carrying it over to the next leave year Holidays & Sickness – the key decisions Employment www.emwllp.com

8. Pereda seems to say that they can. However…. UK workers derive rights from WTR not the Directive WTR prohibits payment in lieu or rescheduling Is there room for interpretation? – see Shah v First West Yorkshire Limited (ET) Holidays & Sickness – can a worker reschedule a period of sickness-affected statutory holiday? Employment www.emwllp.com

9. Refuse to allow workers to reschedule their (sickness-affected) holiday, on the basis that the WTR do not require them to do so Reinstate the worker's full holiday entitlement, and even allow that holiday to be carried over to the next leave year if necessary Options for employers Employment www.emwllp.com

10. Under Stringer (HoL) a worker can take holiday (and thus be paid for it) during a period of sick leave An employer can stop this by issuing a counter-notice (but there are risks) Pereda arguably stops an employer insisting on a worker taking holiday at a specific time Insisting on holiday being taken during a period of sick leave Employment www.emwllp.com

11. Post-Stringer tribunal decisions have been inconsistent Shah v First West Yorkshire Limited - concluded that it was possible to interpret the WTR in accordance with the ECJ case law Khan v Martin McColl - a tribunal held that it should only be possible to carry forward holiday if the worker has requested holiday, and had that request denied Souter v Royal College of Nursing Scotland - a tribunal took the view that regulation 13(9) prevents carry over. Regardless of whether the Directive requires annual leave to be carried forward in a case where a worker is sick, the effect of regulation 13(9) is that the leave may only be take in the leave year in respect of which it is due Carrying over holiday Employment www.emwllp.com

12. TUPE – what does it do? Transfers the contracts of employment of all those employed immediately prior to the relevant transfer in the undertaking being transferred from the transferor to the transferee Provides enhanced dismissal protection for employees Imposes obligations on transferors and transferees to inform and consult employees about the transfer Employment www.emwllp.com

13. TUPE A “relevant transfer” occurs either where there is: A transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity, or A Service Provision Change (SPC) Employment www.emwllp.com

14. TUPE - an SPC occurs where Activities cease to be carried out by a person ("a client") on his own behalf and are carried out instead by another person on the client's behalf ("a contractor"); Activities cease to be carried out by a contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by another person ("a subsequent contractor") on the client's behalf; or Activities cease to be carried out by a contractor or a subsequent contractor on a client's behalf (whether or not those activities had previously been carried out by the client on his own behalf) and are carried out instead by the client on his own behalf Where certain conditions are satisfied Employment www.emwllp.com

15. TUPE - SPC conditions There must be an organised grouping of employees situated in Great Britain immediately before the change whose principal purpose is carrying on the relevant activities on behalf of the client Immediately before the change, the client intends that the activities will be carried out by the contractor (or subsequent contractor) other than in connection with a single specific event or a task of short-term duration The activities do not consist wholly or mainly of the supply of goods for the client's use Employment www.emwllp.com

16. TUPE – some current issues What happens when a client/customer moves its business from one supplier to another? Hunt v Storm Communications – H was an employee of PR agency. She spent 70%of her time working on for one client. She had not been employed specifically to service that client’s work and had done work for other clients. Did H transfer? Ward Hadaway Solicitors v Love - L spent all his time working on files for one particular client of WH. The client moved its instructions in relation to new work to C but allowed WH to continue to complete work in progress. Did L transfer? Employment www.emwllp.com

17. TUPE – some current issues When is a service provision change not a service provision change? OCS Group v Jones – OCS contract provided for the provision of a full service canteen providing hot and cold food and beverages. The MIS contract required the provision of pre-prepared sandwiches at dry kiosks. Was there a service provision change? Employment www.emwllp.com

18. TUPE – who actually transfers? Albron Catering – R and other employees were employed within the Heineken International Group (HIG). R and all other employees were employed by HNB which was the central employer for the group. R and 70 others were assigned to HN which provided catering activities across HIG’s various sites. The catering activities were outsourced to Albron on 1 March 2005. Albron and HN took the view that there was no transfer because R and the others were not employed by HN Was there a transfer? What are the implications of this decision? Employment www.emwllp.com

19. Unfair Dismissal Some statistics (ET statistics 2009/10) 57,400 unfair dismissal claims (up from 52,711 in 08/09) 57,400 UD claims out of 236,000 claims in total 24% were withdrawn and 44% were settled via ACAS Only 10% were successful at hearing Number represented by trade union has dropped by more than half since 2007 Employment www.emwllp.com

20. Unfair Dismissal Some statistics (ET statistics 2008/9) Average award of compensation was £9,120 Only in 2% cases was the award over £50,000 Just over 400 costs orders out of 227,000 cases disposed of Employment www.emwllp.com

21. Unfair Dismissal - Taking into account previous incidents for which no warning given London Borough of Brent v Fuller [2010] F was a member of administrative staff at Vernon House School which catered for children with social and emotional problems. In May 2007 a physically disruptive pupil was being restrained by staff when F verbally intervened. No action was taken against F although the Head told her that she should not interfere in such matters. In October 2007 a similar incident occurred and, again F, interfered, refused to remove herself from the scene despite repeated requests from the Head and alleged that the child was being restrained in a “sexual manner” F was dismissed for gross misconduct and in its decision on appeal, the appeal panel referred to the May 2007 incident The ET found that the May 2007 incident had been “rolled up” into the October incident making the latter more serious than it otherwise have been and had it not been for that, F would not have been dismissed Employment

22. London Borough of Brent v Fuller [2010] The EAT said The May incident was relevant to the October incident… She was dismissed for the October incident and the background to it was the May incident In short, it was the management case that the unacceptable behaviour in October was something the Claimant was aware of as a result of the May incident All matters relating to the background of a dismissal are relevant This was not a disciplinary warning, but an instruction to the Claimant that she should not interfere where a child is being restrained Employment www.emwllp.com

23. Unfair Dismissal - Failure to take into account medical explanation for misconduct Employment www.emwllp.com City of Edinburgh Council v Dickson [2010] D suffered from type 1 diabetes. D was seen viewing images of a "seriously pornographic" nature on a computer in the school where he worked. D explained that, although he had no recollection of the incident, his out-of-character behaviour must have resulted from a hypoglycaemic episode. At the time of the incident his diabetes was poorly controlled due to a mis-prescription of the wrong strength of insulin. Before the hearing CEC’s HR adviser asked his wife whether that could be an explanation. She said it could not. This was reported back to the dismissing manager who relied on it in dismissing D despite the fact that CEC’s OHP had said that his behaviour could be explained by a hypoglycaemic episode.

24. City of Edinburgh Council v Dickson [2010] CEC had failed to satisfy the 3 elements of the Burchell test CEC did not have reasonable grounds for that belief because it had simply refused to "engage with" Mr Dickson's defence CEC had also carried out an inadequate investigation, choosing to take into account an uninformed opinion from a third party (that hypoglycaemia could not explain Mr Dickson's behaviour) rather than properly investigating the possible consequences of Mr Dickson's condition with qualified doctors ET entitled to conclude that a fair investigation would probably have held that Mr Dickson was not responsible for his actions on the occasion in question Employment www.emwllp.com

25. The more serious the consequences for the employee, the fuller the investigation need to be. Salford Royal NHS Foundation Trust v Roldan [2010] R, a nurse from the Philippines, was alleged to have abused a patient in a number of ways. A manager interviewed R and Denton (who claimed to have witnessed the events). The manager made lengthy notes of the interview with R, but none of the interview with D. The disciplinary panel found R's evidence unconvincing and preferred that of D. They dismissed R. The matter was reported to the police and R was prosecuted but acquitted. She also lost her right to remain in the UK As the manager and the disciplinary panel believed D had no reason to lie, they had not in any way sought to question the reliability of her evidence. Some elements of that evidence needed further enquiry. The tribunal found the dismissal unfair. The ET held that SR should have made further enquiries into D's evidence, and should have questioned other employees about R's interactions with the patient in question Employment

26. Salford Royal NHS Foundation Trust v Roldan [2010] The ET decision was upheld by the Court of Appeal When assessing the reasonableness of an investigation, tribunals should take into account the gravity of the consequences on the employee Where these are serious, the investigator must be "even-handed" in looking for evidence in the accused's favour as well as evidence against them An employer faced with a conflict of evidence does not always have to decide that it "believes" one person and not another. It could decide that the difference is merely one of perception, and that both parties are telling the truth as they see it. Alternatively, it could decide that the conflict cannot be resolved, in which case the accused employee must have the benefit of the doubt Employment www.emwllp.com

27. Employment Law Update 2010 Jon Taylor 26 November 2010 Employment www.emwllp.com