Cases from the workplace
Paul Scholey from Morrish Solicitors gave an update on Cases from the workplace. It has been an interesting 12 months in employment law, said Paul. Particularly in his core area of interest – the impact of technology and social media in the context of employment law. A selection of the cases discussed by Paul are presented below.
In the case of Talon Engineering v Smith (UKEAT/0236/17/BA), the employee was dismissed following email monitoring which brought to light a derogatory email in which they referred to a fellow employee as a ‘knob’. Following a finding of unfair dismissal at tribunal, the EAT upheld this, rejecting the claim that the tribunals application of the ‘band of reasonable responses’ tests involved a ‘substitution mindset’ for that of the employer. This pushes back against employer attempts to define the ‘band’ as anything which fits their actions. Paul states that there is a need for a legal challenge to the band, as the case law has developed such that unfair dismissal cases are no longer about fairness but only a broad definition of ‘reasonable responses’. The Supreme Court has actively encouraged a challenge to the band test at this level; the right case is now needed.
In Guler v Turkey (2018) IRLR 880, ECtHR) the European Court found that disciplinary action taken against a Turkish civil servant for attendance of a Labour day parade breached Article 11 rights. This has potential ramifications in the UK where participation in trade union activities such as a march are restricted to the ‘appropriate time’. This finding highlights that freedom of assembly entails unions’ right to organise as they see fit. There is scope for an Article 11 challenge to the UK law.
The Flowers v East of England Ambulance Trust (UKEAT/0235/17) case may have finally settled the question of voluntary overtime in holiday pay calculations. The answer is overtime should be included if it is part of usual remuneration, whereby there is an element of regularity. Paul states that this is a good outcome in terms of clarity as the test is much less technical than the ‘intrinsic part’ test used in the European Court, rather the question is only ‘is it normal’? The case is however subject to appeal.
In Quintiles Commercial UK Ltd v Barongo (UKEAT/0255/17 16 March 2018, unreported) the EAT stated that there is no distinction in s.98 (4) ERA between gross misconduct and other misconduct for the purposes of finding a dismissal unfair. The tribunal finding in favour of Barongo had erred by assuming as a general rule that a dismissal for a first offence for something short of gross misconduct was necessarily unfair. Paul says this finding risks a shift towards dismissals ‘willy-nilly’, especially given the ‘band of reasonable responses’ case law to date.
In City of York Council v Grosset (2018 EWCA Civ 1105), the EAT found that in cases where a disabled worker’s misconduct may be related to their disability it is the obligation of the employer to seek any relevant and available medical evidence to substantiate whether the misconduct arose as a result of disability, prior to taking any disciplinary action. Paul notes that in disability cases at least, the UK has pro-claimant jurisprudence well ahead of other European countries.
The final case of X v Y Ltd (UKEAT/0261/17 (9 August 2018, unreported)) demonstrates where exceptions may be found to legal professional privilege. In this case, the disabled claimant in a disability discrimination case received two inadvertent communications from the respondents’ law firm, in the form of an email and an overheard pub conversation. Both communications made clear there was intention to get rid of the claimant through redundancy as they were a ‘problem’. The court found that the ‘iniquity of conspiring to fraud’ exception to professional privilege applied to an attempt to cover up disability discrimination, therefore the case could proceed.
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