Employment Law Bulletin

January 2010

NEWS

Practical guidance - severe weather

The recent severe weather has caused significant problems for both employers and employees as employees struggle to get to and from the workplace, schools and nurseries are closed and access to the workplace may have become unsafe.

If an employee is unable to get to work either on time or at all then the employer should consider on a case by case basis whether this is a genuine reason. Assuming it is a genuine reason then it will not give the employer grounds to allege misconduct. Of most concern to the employee will be whether they get paid for the time away from the workplace. In the absence of any specific right in their contract of employment, the answer is likely to be that they are not entitled to be paid. In practice, most employers may tend to either turn a blind eye to a one off occurrence or if the absence is prolonged to seek to agree with the employee that they either use their paid holiday entitlement or take unpaid leave.

The effect of school and nursery closures has been felt hard in the last month. Many parents are unable to make alternative arrangements at short notice and have no option but to stay at home and look after the kids themselves. Section 57A of the Employment Rights Act makes provision for this and gives parents the legal right to take unpaid leave in these circumstances. From an employer’s point of view the most important step to take is to have a policy in place setting out who the employees should notify in these circumstances and to publicise that policy.

A further issue for employers to consider is whether the access to the workplace and the workplace itself remains safe. Accidents caused by the severe weather may lead to employers and occupiers’ liability claims.

The most important point to make in relation to all of these potential problems is that common sense should prevail and that safety of employees should be the main concern. In the medium term employers can seek to mitigate against these problems by introducing home working policies and more detailed disaster management plans.

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Acas introduces a new code for time off for trade union duties and activities

A new Acas Code of Practice, Time Off for Trade Union Duties and Activities, came into effect of the 1st January 2010. The code is intended to provide practical guidance on the time off to be permitted by an employer and to aid and improve the effectiveness of relationships between employers and the trade union. The code covers matters such as time off for trade union duties and activities, time off for training trade union representatives, the responsibilities of employers and trade unions in considering time off, formal arrangements regarding time off, industrial action, and the resolution of disputes concerning time off.

The code is accompanied by a guide entitled Trade Union Representation in the Workplace. The guide covers management of time off and training and facilities for trade union representatives. The guide gives details regarding issues and factors to be taken into account in designing and operating time off provisions along with advice on the rights, roles and responsibilities of employee representatives. A guide for non-union representation in the workplace is also available.

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Changes to statutory payments and compensation in 2010

• The maximum compensatory award for unfair dismissal taking place on or after the 1st February 2010 will be £65,300, a reduction from the current maximum of £66,200.
• Adoption, maternity and paternity pay is expected to increase to £124.88 in April 2010.

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CASES

Chickerova v. Holovachuk - why it pays to read your post

Not all employment case involve significant sums of money as set down in precedents, or raise interesting philosophical questions of the dividing line between the rights of capital and labour. Even employment specialists probably have a somewhat slanted view of what is important in their subject area, and will often not go beyond a few well thumbed sections in the Employment Rights Act or the discrimination statutes in their day to day application of law. Occasionally, however, when small scale disputes surface and get wide circulation which can be quite instructive in themselves. Such case was Chickerova v. Holovachuk EAT/0016/07. The Judge presiding over matters in the EAT, Langstaff J, described the facts and nature of the case as “bizarre”. Mrs. Holovachuk claimed the sum of £794 from Ms Chickerova by way of wages including holiday pay.

Ms Chickerova’s defence was that she had never heard of Mrs Holovachuk and had never met her. When she was served with the tribunal papers she didn’t think they were for her, apparently because her name was mis-spelt by the omission of one letter. Be that as it may, the first instance tribunal found in Mrs Holovachuk’s favour and awarded her the £794. After a review failed, Ms Chickerova appealed to the EAT. Following the “sift”, one ground of appeal survived: the Claim Form had been submitted less than 28 days after Mrs Holovachuk had complained in writing of her lack of wages.

Mrs Holovachuk then appears to have ignored the appeal process. No response to the appeal was filed by her and consequently she was debarred from defending the appeal. Ms Chickerova sent a “note” to the EAT saying that she didn’t intend to be present or represented, leaving Langstaff J in the surreal position of giving judgment to an empty court room.

Despite the absence of representation before him, Langstaff J carefully analysed the statutory provisions dealing with grievances and the jurisdiction of the tribunal to hear claims where the provisions have not been met. Of course, all this jurisprudence is now, happily, swept away and can be consigned to the legal dustbin alongside actions on the case and the barring of entails.

For the record, the Judge dismissed the appeal and affirmed the tribunal’s decision that, notwithstanding being barred out from attending the appeal, Mrs Holovachuk was entitled to her £764. The Statutory Dismissal Procedures may be happily mouldering in their grave, but ignoring correspondence from the tribunal (or a court) is a good guarantee of a result which will even survive appeals.

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Reasonableness of Adjustments Considered by EAT

Readers will no doubt be aware of the duty to make reasonable adjustments set out in Section 4A of the Disability Discrimination Act 1995 (DDA). A duty arises when a provision, criterion or practice applied by an employer or any physical feature of premises occupied by the employer, places a disabled employee at a substantial disadvantage in comparison with persons who are not disabled. The duty requires employers to take such steps as are reasonable, taking into consideration the circumstances of the case, to prevent the provision, criterion or practice having that effect. This duty was considered by the EAT in the recent case of Garrett -v-Lidl Ltd [2009] UKEAT/0541/09.

The Appellant in this case suffered from Fibromyalgia Syndrome which caused her to suffer pain, fatigue and muscle stiffness. She had worked at the Respondent’s store in Woolwich as a shop manager. However, following a risk assessment, it was determined that the Appellant should no longer act as store manager at the Woolwich store and she was suspended on full pay pending a report from her employer’s Occupational Health. The Respondent subsequently concluded that the Appellant should move to a store in Welling which was a training store thus making the necessary adjustments easier to accommodate. Whilst the Appellant subsequently returned to work at the Welling store, she later brought a number of claims under the DDA against her employers, including a failure to make reasonable adjustments.

The tribunal at first instance held that there had been a provision, criterion or practice which placed the Appellant at a substantial disadvantage (the provision, criterion or practice included the fact that staff at the Woolwich store carried out all roles within the store which meant that taking breaks at prescribed times was difficult). The tribunal considered the fact that the Appellant was a supernumerary (which meant that her salary was not included in the productivity calculation of the shop) at the Welling store and queried the ability of the Respondent to implement this adjustment at the Woolwich store. However, the tribunal concluded that the Respondent had complied with a duty to make reasonable adjustments as the adjustments had been made at the Welling store.

On appeal to the EAT, the Appellant asserted that the tribunal had failed to consider adequately whether the adjustments could have been achieved at the Woolwich store by making her a supernumerary and had instead wrongly focused on whether it was reasonable for her employer to require her to change store.

The EAT dismissed this element of the appeal. In doing so, the EAT highlighted that, whilst it makes “good industrial sense for employers to consider first of all whether, if possible [the necessary] adjustments can be put in place at the existing workplace”, the EAT held that “there is no fetter on the adjustments best being achieved at an alternative place of work”. Given that, in this case, the employee’s contract contained a mobility clause and that the employee had in the past worked at different stores, it was not found to have been unreasonable for the adjustment to have been best achieved by moving the Appellant to another store.

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EAT reviews the meaning of ‘long-term’

The issue to be considered by the EAT in the recent case of Patel v Oldham Metropolitan Borough Council and another UKEAT/0225/09 was “whether the effect of two different impairments over two periods amounting together to 12 months or more can be considered to constitute a substantial and long term adverse effect within the meaning of the DDA Schedule 1 paragraph 2”.

Under the DDA, a person will be said to have a disability for the purposes of the DDA if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The relevant provisions of the DDA referred to above, stipulate that the effect of an impairment will be a long-term effect if it has lasted at least 12 months, it is likely to last at least 12 months or is likely to last for the rest of the life of the person affected.

In this case, the Claimant suffered from low grade myelitis and myofacial pain syndrome. The jointly instructed expert in the case explained that the low grade myelitis had gone on to develop a secondary myofacial pain syndrome but his evidence was that the myofacial pain syndrome was not likely to last more than 12 months.

On behalf of the Claimant it was submitted that, given several impairments could be aggregated for the purposes of determining whether an impairment had a substantial adverse effect, consecutive related impairments should be taken together to determine the length of time the adverse effect of an impairment was suffered.

The EAT acknowledged the lack of authority on this issue and held that the tribunal at first instance had erred in failing to consider whether the myofacial pain syndrome developed from the Claimant’s myelitis in determining whether the duration of the effects were to be aggregated in order to determine whether they were long-term. The case was therefore remitted for reconsideration.

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EAT gives further guidance on burden of proof in unfair dismissal claims

The test for establishing that misconduct was the reason for an employee’s dismissal was set out in the case of British Home Stores Ltd. -v- Burchell [1980] ICR 303. In accordance with this test, an employer must establish that:

• He believed the employee was guilty of misconduct;
• He had in his mind reasonable grounds upon which to sustain that belief;
• At the stage at which he formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in all the circumstances.

An employer’s obligation in this respect has recently been considered by the EAT in the case of Sheffield Health & Social Care NHS Foundation Trust -v- Crabtree UKEAT/0331/09.

Mr Crabtree had been employed by the Trust as a staff nurse on an acute adult mental health ward. A former patient on that ward subsequently complained that she had received text messages from Mr Crabtree following her discharge from hospital. An investigation meeting was held at which Mr Crabtree confirmed that he had sent several messages but claimed only to have sent them in response to messages received from the former patient. Following the conclusion of the investigation, a management statement was prepared and Mr Crabtree had the opportunity to respond to this. A disciplinary hearing was subsequently heard and Mr Crabtree was thereafter dismissed.

The Tribunal held that the Trust had not carried out as much investigation as was reasonable nor that the dismissal fell within the band of reasonable responses. An appeal against the tribunal’s decision was subsequently brought. On behalf of the Trust, it was argued on appeal to the EAT, that the tribunal had misdirected itself as to the burden of proof as Burchell had been decided before the burden of proof had been amended by Section 6 of the Employment Act 1980.

The EAT highlighted that the first question established in Burchell goes to the reason for the dismissal and thus the burden of proof is with the employer. However, for the next two questions the burden is neutral as these questions are relevant to the question of reasonableness as opposed to going to the reason for the dismissal. The EAT also indicated that the tribunal’s assertion that an employer’s task is to gather all available evidence, was incorrect as the obligation is only to carry out reasonable investigation. Consequently, the EAT remitted the case for re-hearing to a differently constituted tribunal.

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