Employment law quiz
2011
Toni McAlindin
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Question one
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1. In T L Russell and others v
Transocean International Resources
Ltd offshore oil workers worked two
weeks off and two weeks on. The
employer argued that this included
holidays. The employees argued that
they were entitled to holidays on top of
this and should be allowed to take the
holidays from weeks when they would
otherwise work. Who was right?
Answer question one
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1. The court decided that they were
entitled to holidays on top of their normal
time off. However the entitlement could
be satisfied by them taking the holidays
on weeks when they were not at work ie
their breaks. Overall they had many more
breaks than the law required. Had the
court decided otherwise other professions
such as teachers would have been entitled
to holidays during the school term.
Question two
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2. In Lisboa v Realpubs a “gay pub” was taken
over and made into a gastro pub and wanted to
attract a wider clientele. An employee was asked
to display a sign saying “this is not a gay pub” and
was asked to seat customers not looking overtly
gay in prominent positions near the window.
The pub wanted gay customers but also a wider
clientele.
Could the employee make any claim?
Would it make a difference if he was gay himself?
What was the end result – ie is this still a gay pub?
Answer question two
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2. The employer did not want to dissuade gay
customers but wanted a wider clientele. There
was nothing unlawful about this nor was taking
steps to encourage this as long as it did not
involve treating gay customers less favourably as
a result. The EAT believed the policy did have
this affect. Asking Mr Lisboa to carry out these
acts constituted less favourable treatment on the
grounds of sexual orientation regardless of the
sexual orientation of the employee. This type of
case will be more common since the Equality
Act.
Question three
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3. In Desmond v Nottinghamshire Police a
teacher was attending a conference. On his way
to his hotel he asked a female for directions.
Later that night she was sexually assaulted. She
mentioned that she had given him directions.
He was arrested. It became apparent that he
had nothing to do with the incident. However
the information remained on his record and was
disclosed during an enhanced disclosure as the
police had failed to erase the information. He
claimed they were liable for the consequences of
their negligence. Were they?
Answer question three
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3. The court decided that there is no
relevant head of claim under negligence
law against the police. The police had a
duty to provide any “relevant” information
but if it was negligently given there was
no remedy under the law on negligence as
the police owed no duty of care as a
matter of public policy.
Question four
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4. In Locke v Candy & Candy the individual’s
contract had a bonus clause which provided that
the employee had to be employed by the
company in order to receive a bonus.
He was a model employee and a high performer.
His bonus was £160,000 after 12 months
service. He was dismissed before the 12 months
with 6 months pay in lieu of notice.
The employer had a contractual right to make a
payment in lieu of notice.
Was he entitled to a bonus?
Answer question four
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4. He was not entitled to a bonus. The contract
was clear. The company had a right to make a
payment in lieu and end employment
immediately. He was therefore not employed at
the date the bonus fell due. He was therefore
not entitled to the bonus. He had insufficient
service to claim unfair dismissal even adding on
the statutory one week (he was dismissed 10
days before achieving one year’s service).
Question five
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5. In RBS v Ashton the employee suffered from
migraines leading to significant periods off work. Under
the employer’s absence policy she would normally have
had a warning and had sick pay stopped. In 99.5% of
cases sick pay was stopped. It was based on trigger
points depending on duration and frequency.
Due to length of service her eligibility for sick pay was 52
weeks.
Her duration and frequency would normally have
triggered a warning and no sick pay.
Eventually the employer felt it had made considerable
adjustments and gave her a disciplinary warning and
stopped her sick pay.
She complained of disability discrimination. Was it?
Answer question five
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5. The EAT held that there was no failure
to make reasonable adjustments. The
action to discipline and remove sick pay
was a legitimate exercise by the employer
within its policies. There was no
substantial disadvantage to the employee
compared to non-disabled employees as
all employees were treated the same. It
would rarely be a reasonable adjustment
to continue to extend sick pay.
Question six
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6. In CLECE SA v Maria Socorro Martin
Valor and Ayuntamiento de Cobisa the ECJ
had to decide whether a change of service
provider was a transfer.
A local authority contracted out cleaning of
schools. It terminated the contract and brought
it back in house.
It declined to employer the contractor’s staff.
No assets transferred between the parties.
Was this a transfer under the Acquired Rights
directive?
Answer question six
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6. The court decided that as no assets or
staff had transferred, the directive did not
apply.
Remember this is a case under the
directive and not UK legislation.
Although UK legislation follows the
directive, the 2006 TUPE specifically
provides that a change of service provider
is covered by the UK act.
Question seven
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7. In NURMT v Serco & combined cases the Court of
Appeal heard an appeal against a number of injunctions
awarded to stop strike action on the grounds that the
balloting rules had not been complied with.
The unions had argued that UK law was too complex
and breached the European Convention on Human
Rights.
Some of the details were incorrect partly due to
administrative error, accidental issues and the difficulty
the union had in keeping membership records up to
date. Some of the information was not in the union’s
possession.
Did the union succeed in having the injunctions
overturned?
Answer question seven
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7. This case is important as the courts have, after
different reasoning in earlier cases, held that the
provisions of TULRCA 1992, allows for accidental ballot
errors to be disregarded. This can save a ballot where
genuine and immaterial errors occur (accidentally
balloting two members not entitled to vote).
The provisions regarding information about categories of
workers entitled to vote only requires disclosure of
information in the union’s possession. Although it should
be as accurate as possible, there is no obligation to
improve existing records.
A union can refer to general job categories not specific
jobs.
In other words as long as not positively and materially
misleading, errors and accidents are ignored
Question eight
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8. A new consultation paper on Modern
workplaces covers four specific areas
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Flexible working
Working time holiday carry over
Equal pay audits
Flexible working
What is proposed in each of these areas?
Answer question eight
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8. Flexible working
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To be introduced for all employees. The existing statutory
procedure will be replaced by a duty to consider requests
“reasonably” and a statutory code of practice will be issued to
give employers guidance on how to handle requests and
demonstrate a reasonable process. Concerns re competing
interests eg childcare, disability etc
Equal pay
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Employment tribunals would be able to require that employers
that have discriminated on the grounds of sex in relation to
contractual or non-contractual pay matters conduct an equal pay
audit
Answer question eight continued
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8. Working time regulations 1998
 Will be amended to allow four weeks’ statutory annual leave to
be rescheduled and/or carried over into the next leave year
when a worker falls ill during annual leave. For maternity,
paternity, parental and adoption leave it will be 5.6 weeks of
leave. Appears to be no limit to when this can happen.
KHS AG v Winfried Shulte decision by Advocate General of the
ECJ appears confusing re the above.
Case asks whether the ability to accrue leave or to carry over is
limited in time. Asks whether Member states can limit a worker’s
entitlement to minimum paid annual leave to the holiday year in
which it accrues, even for those on prolonged sickness and if not
whether it can be limited to 18 months.
AG concluded that directive does not preclude capping
leave. Allowing leave to be taken sometime after it has
accrued does not achieve the directive’s purpose.
18 months might be ok but six months may be too short a
time, for Member states to draw up own rules???????
Implications for UK.
Answer question eight continued
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8. Parental leave
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18 weeks maternity leave for the sole use of the
mother, maternity pay and allowance as now
Fathers would continue to receive two weeks’
paternity leave at flat rate in first 8 weeks
Remainder (34 weeks – 21 paid, 13 unpaid) to be
shared between parents, taken when they choose,
including together, in weeks or days depending on
business need, to be reclassified as parental leave
available to either parent on an equal basis (same for
adopters or same-sex couples)
21 weeks of pay reclassified as parental pay
Answer question eight continued
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8. Parental leave continued
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Part of the period of flexible parental leave will be reserved for
the exclusive use of each parent ie four weeks
This would be paid at the flat rate
Could be taken when the parties wish after birth and even
together
Means an extra four weeks in total ie if mother takes mandatory
18 weeks then flexible 34 there needs to be another four weeks
for the father
Increase right to existing unpaid parental leave to 18 weeks,
consider raising age of child (currently 5)
Rules on taking leave to take account of business need ie
employer may not be able to accommodate part-time or short
periods of leave
Consider unpaid ante-natal leave for fathers
Question nine
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9. The Agency workers regulations come
into force in October 2011.
They will join other discrimination laws
such as part-time and fixed-term
regulations.
What are the main provisions of the
regulations?
Answer question nine
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9. An agency worker will be entitled to similar terms and conditions
as if directly employed after a 12 week period. It does not apply to
the genuinely self-employed, itself a difficult concept particularly for
those who work as contractors and as limited companies.
The legislation does not cover all terms and conditions ie pensions,
occupational sick pay are excluded but pay related matters and
holidays are included.
Complex rules apply re the calculation of the 12 week period and
which weeks break continuity. There are penalties for employers
who try and avoid the 12 week rule eg by hiring for 11 weeks only.
Where the worker moves to a substantially different position even
for the same employer, continuity begins again
An individual can have continuity with different agencies
The agency worker does not become an employee and therefore
statutory rights such as unfair dismissal, redundancy etc will not
apply.
Question ten
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10. In Autoclenz Ltd v Belcher the Supreme Court
(unusual for a case on employment status to reach this
court) has heard a case where individuals had
documentation stating that they were self-employed
contractors.
They paid their own tax and had to purchase their own
insurance, uniforms and materials. Their contracts
stated that they were under no obligation to attend work
although they were in reality expected to attend work
and provide the services personally.
In reality they had always worked as if they were
employees.
The court had to decide what took precedence, the
written word or the reality. There was talk of sham
contracts.
Answer question ten
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10. This was a difficult case. On the one had there was
contractual documentation agreed by the parties which
made clear they were self-employed.
On the other hand they clearly worked to all respects as
if they were employees.
They argued the written documentation was a sham.
The court was reluctant to go down the road of the
“sham” argument which tended to suggest illegality or
something unlawful.
They held that it was not necessary to prove a “sham” in
the sense of being misleading.
Everyone expected them to work personally – what is
important therefore is the true intention of the parties
not what is written.
Significant implications for contract law.
Question eleven
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11. In Preece v JD Wetherspoons Plc an employee
was dismissed for gross misconduct when she posted
inappropriate comments about customers on Facebook.
She was a pub manager and whilst still at work posted
comments on Facebook about abusive customers
identifying them by name.
Her privacy settings meant that a wide range of people
including the very customers could see her page.
One made a complaint and she was dismissed for gross
misconduct.
She admitted that she was aware of the company’s
internet and email policy and knew she had breached it.
Was dismissal fair?
Answer question 11
11. Held to be a fair dismissal. The policy was
clear and well known. She knew that what she
did breached the policy. Even though this was
on her own Facebook, she knew it had wide
circulation.
Clearly it is important to have such policies. In
this case she breached the policy whilst at work
but employers need to ensure the policy is
broad enough to cover inappropriate comments
whenever made.
Question twelve
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12. Hashman v Milton Park (Dorset) Ltd
t/a Orchard Park - an animal activist was
opposed to fox-hunting and hare-coursing. He
argued that his treatment at work was for this
reason and argued that it was a protected
philosophical belief within the meaning of the
regulations.
Maistry v BBC – an employee working for the
BBC World service argued that the BBC’s
influence overseas and his belief in the higher
purpose of public service broadcasting and
impact on culture and social cohesion was a
philosophical belief.
Answer question twelve
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12. The tribunal held that a belief in animal rights could
amount to a philosophical belief. If his treatment at
work was due to this belief, there was discrimination.
A tribunal has held that a belief in the “higher purpose”
of public service broadcasting, to promote cultural
interchange and social cohesion, is a protected
philosophical belief.
Mr Maistry’s belief was held to be more than a sincere
commitment to what is the BBC’s mission statement. He
referred to various publications regarding the purpose of
public service broadcasting which provides a “public
space” in which everyone is free to enter and within
which they can encounter culture, education and debate.
Question thirteen
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13. In Farrell v South Yorkshire Police Authority
the employee was a principal intelligence analyst. He
had to produce an annual strategic risk assessment for
the police authority’s area. This was to analyse threats
to life and community harm.
His assessment was that the threat of terrorism was
internal not external. His report described protecting
vulnerable people and tackling crime as irrelevant. He
included headings named “the truth about 7/7” and the
“truth about 9/11”. He referred to the new world order
and outlined his beliefs that 9/11 and 7/7 were false flag
operations authorised by the respective national
governments to give them material to persuade the
people to support foreign wars.
When he refused to do his job as required he was
dismissed. He claimed he was dismissed for having a
philosophical belief. Did he succeed?
Answer question thirteen
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13. The court held that he genuinely held these views. His
views were held to relate to a weighty and substantial
aspect of human life and behaviour. There was nothing
incompatible with human dignity in his beliefs although
they contain shocking statements about the motivation of
certain people.
Of more difficulty was the test of whether the beliefs
attained a level of “cogency, seriousness, cohesion and
importance”. This involved a level of scrutiny of his beliefs.
On examination the evidence was contradicted by far more
evidence and his testimony was incoherent.
Inconsistencies in his beliefs became apparent.
He believed that the Twin Towers collapsed due to bomb
being detonated inside the building. Taking all this into
account the tribunal held that there was failure to meet
any minimum standard of cogency or coherence therefore
there was no protection under the belief regulations.
Question fourteen
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14. In Cherfi v G4S Security Services Ltd, Mr Cherfi
who is a Muslim, worked as a security guard. He had
been allowed to leave work to attend Friday prayers at a
local mosque.
Under a new contract his employer was obliged to
ensure a certain quota of employees on site at any time.
If he was to leave on a Friday, this was not possible.
The employer tried to find a solution, including different
shift pattern, he refused, took time off via holidays,
sickness etc.
This was unsustainable and he was told this was
unacceptable.
He made a religious discrimination claim. Did he
succeed?
Answer question fourteen
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14. The EAT held that the employer had
discriminated but that it was objectively justified.
The employer had no choice in requiring a
certain quota of employees each day and there
would be commercial ramifications if they did
not comply.
He had been offered an alternative shift pattern,
there would be no loss of pay, and there was a
prayer room on site.
There was therefore a legitimate aim – ie the
commercial consequences and this was a
proportionate means of achieving that aim.
Question fifteen
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15. In Nixon v Ross Coates Solicitors – Ms Nixon
was seen at a Christmas party kissing another employee
and spending the night in his room
She also had a relationship with another employee
She told her employer she was pregnant
Staff gossiped about the paternity of her baby
She raised a grievance and asked to be moved
The firm refused and also refused to pay for her absence
during this period
She claimed pregnancy discrimination. Did she succeed?
Answer question fifteen
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15. The EAT upheld her pregnancy
discrimination claim
The gossip was pregnancy-related, it was
distressing, it amounted to gender-harassment
It awarded no reduction due to contribution –
the contribution had to have caused the
dismissal – here the contribution was a view
about her personal life
Question sixteen
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In Clarke v Credit Resource Solutions, the
employee had an hour’s pay deduced from his wages
and was dismissed after he arrived late for work because
he had to make emergency childcare arrangements.
He refused to sign a late form authorising the deduction
from pay and was subsequently invited to a disciplinary
hearing.
He was told to sign the late form and give a written
apology to the company in return for a final written
warning. Failure to do so would result in dismissal.
16.
He was subsequently dismissed. What did he claim?
Answer question sixteen
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16. The tribunal found that he had a right to
emergency time off and that it was reasonable
in the circumstances.
He was subjected to a detriment for exercising a
statutory right.
He was dismissed for refusing to sign a late form
and it was unfair.
The policy on lateness whilst normally
acceptable should have been tailored to deal
with issues such as statutory time off.
Question seventeen
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17. In Gilbert & others v Barnsley three employees
worked term time contracts for 44 weeks but were paid
over 52 weeks (including holidays).
They were made redundant. Their redundancy pay was
based on 1/52 of annual salary.
They argued that it should be 1/44 based on weeks
actually worked. This would have led to higher pay.
The rules require that a week’s pay must be calculated in
accordance with s.221-229 of the Employment Rights
Act 1996.
Different provisions apply depending on whether or not
the employee has normal working hours.
Accepted that there were normal working hours
Who was right in the calculation the employer or the
employees?
Answer question seventeen
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17. The employer argued that pay did not vary with the work done
as they were paid the same throughout the year whether working or
not or whether on holiday or not
A week’s pay should therefore be what they were paid each week of
the year ie 1/52
The employees argued that their normal working hours did vary as
there were weeks when they did not work.
Even though they were paid throughout the year it could only be
apportioned to the weeks actually worked
In such cases it is necessary to average pay in the 12 weeks prior to
the calculation date ignoring weeks when there is no pay
This would mean 1/44
The EAT agreed but thought that the legislation had not been
drafted to cover such situations
Paying over 12 months was for administrative convenience so pay
did vary with the work done
Question eighteen
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18. In NHS Leeds v Larner, the employee was
absent for the whole of a holiday year and had
not taken or arranged to take any holidays.
She was dismissed on the grounds of capability
but was not given any payment for untaken
holidays.
The employer argued that her right to holidays
expired at the end of the holiday year ie “use
them or lose them”. They argued that she had
made no request to take holidays during the
year.
Was she entitled to holidays?
Answer question eighteen
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18. The EAT disagreed. She was unable to take her
holidays due to sickness and was entitled to take them
at a later date. As she was dismissed this meant in
monetary form.
There was no requirement on an employee to request
holidays. It would be different had the employee been
at work and had failed to request or use the holidays.
This will be affected by the Government’s proposals on
carry forward of holidays but may be affected by the
recent decision of the Advocate General which does not
appear to rule out restrictions on the right of carry over.
Question nineteen
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19. In Puri v Bradford Teaching Hospitals a
doctor was dismissed for rudeness and found
hard to find other work. Was he entitled to legal
representation at his disciplinary meeting?
In Gentry v Dartford and Gravesham NHS
Trust Dr Gentry was disciplined and eventually
dismissed for poor performance. Her solicitors
asked to be present at her appeal hearing
arguing that her career was at stake. This was
refused. Did she have a claim?
Answer question nineteen
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19. In Puri the court held that he could find other work
even though the NHS was a major employer. There was
no need for his dismissal to comply with Article 6 of the
Convention on Human Rights. This was upheld on
appeal.
In Gentry the court took the view that legal
representation might have led to a different finding given
the major impact on her career of losing work in the
NHS. In so doing they followed the case of R(on the
application of G ) v Governors of X school.
However this case has now been overruled and there will
be few cases where Article 6 applies and the right to
legal representation in internal disciplinary proceedings.
Question twenty
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20. In Davies v Sandwell Metropolitan
Borough Council the court had to look at the
fairness of a dismissal which involved an earlier
warning (had there been no final warning there
would not have been a dismissal). The
employee failed to appeal against the final
warning. The court therefore accepted that it
was valid even though they had doubts about it.
What did the appeal court decide?
Answer question twenty
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20. In general courts do not delve in any depth
into the fairness of an earlier warning unless it is
brought into the proceedings by one of the
parties. The court may then have reason to
believe that the earlier warning was not given in
good faith or for a wrong motive.
This may then affect the fairness of the dismissal.
In the present case the earlier court had placed
too much emphasis on the employee’s failure to
appeal which was irrelevant. If there were doubts
about the final warning and the tribunal held that
it was a nullity, it would affect any subsequent
dismissal.
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