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Five From 5

Message from the Editor, Dan Hobbs

This edition is packed with great content that I hope will be both informative and interesting to our ever growing readership. There are five short articles on (i) Alan Payne QC taking silk; (ii) paying part-time workers appropriately; (iii) vicarious liability; (iv) excluded impairments; and (v) the fairness of capability dismissals when there are employee sickness benefits in the background.

As editor, I continue to draw upon the vast pool of experience and knowledge held by the 5 Essex Court employment law team.

Anyone wishing to join the mailing list should email the team at employment@5essexcourt.co.uk. 

1-5Congratulations to Alan Payne QC, a longstanding member of the 5 Essex Court Employment Team, who takes Silk this year.

As Editor, I take great pleasure in (i) summarising some of Alan's career highlights to date and (ii) wishing him every success for the future.

Alan acted on behalf of Chelsea F.C. in the case involving the dismissal of Mark Bosnich and Fulham F.C. in the case brought by Jean Tigana (employment tribunal/EAT). He also helped to draft the employees’ handbook for Chelsea F.C. He is the co-author of the Employment Tribunals Handbook (5th edition 2017) published by Bloomsbury Professional.

Alan has acted in employment cases for the DWP, SOCA the Home Office and Foreign Office. In addition to unfair/constructive dismissal cases, and discrimination cases, Alan has recently acted in:

• A case involving a challenge to the lawfulness of pre-employment checks which involve consideration of the immigration history of the potential employee.

• A case involving a challenge to the lawfulness of the national security requirement that those who have access to sensitive material need to have British nationality.

• A test case brought against SOCA by interpreters (who unsuccessfully sought to argue that they were employed as opposed to self-employed).

• Pensions cases involving complex transfer provisions between the MET and SOCA.

In addition, Alan regularly provides high level advice on TUPE issues, and has acted in a number of cases focusing on post termination restraints (both obtaining and resisting injunctions).

Part time workers should receive pro-rata pay unless the employer 2-5can justify a different approach

Mark Thomas and Victoria von Wachter

The Court of Appeal has provided a recent reminder that the hours worked by part time staff shouldn’t exceed their pro rata salary when compared to full time colleagues, unless that difference can be objectively justified.

In British Airways plc v Pinaud [2018] EWCA Civ 2427, the Court of Appeal had to decide whether a part-time worker was treated less favourably when she worked 53.5% of full-time hours but received 50% of full-time pay.

Regulation 5 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (PTWR) provides that a part-time worker has the right not to be treated by his employer less favourably than a comparable full-time worker as regards the terms of his contract or by being subjected to any detriment by any act or deliberate failure to act. This right only applies if the treatment is on the ground that the worker is a part-time worker and the treatment is not justified on objective grounds.

Ms Pinaud had to be available for work 130 days per year. Her full-time comparator had to be available for 243 days per year. Ms Pinaud was paid 50% of her comparator's salary but had to be available for 53.5% of her comparator's hours. The terms of her contract were therefore less favourable than her full-time comparator. The Court of Appeal agreed with the EAT that the case should be remitted to the ET for the question of justification to be decided.

How often do part time workers end up having to work additional (unpaid) hours when compared to their fulltime colleagues, merely to squeeze their roles into their reduced hours? This case should remind employers of the perils of such cases.

Following on from this we hear that the Royal Borough of Greenwich Council has agreed an estimated £4 million settlement after it was accused of failing to do the sums that pro-rated the annual leave of 5,000 local authority employees, including part-time cleaners, teaching assistants, and catering workers, resulting in some of them losing up to five days' pay a year. Again the argument was won by making a comparison with equivalent full time workers. The claim was brought by Unison and the public blushes of the Council were spared by the expedient decision to settle the claim

3-5Hangovers from the Christmas Party Season

Richard Oulton

Readers of this article will no doubt be familiar with the Supreme Court decision in Mohamud v W M Morrison Supermarkets PLC [2016] AC 677, in which employers were held to be vicariously liable for the actions of their employee, a petrol pump attendant, who had carried out a violent assault on a customer on the forecourt of a petrol station.

In reaching its decision to find the employer liable, the Supreme Court held that there were two key issues to be addressed:

(1) What functions or field of activities had been entrusted to the employee? / What was the nature of his job?

(2) Was there sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice?

Those principles were recently applied by the Court of Appeal in Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214. The case concerned an incident which occurred at an impromptu drinking session which had taken place following the company’s Christmas party in the early hours of the morning. The discussion turned to work, and the (significantly inebriated) managing director lost his temper when challenged on a decision he had taken, and punched an employee so hard that he knocked him out, fracturing his skull.

Applying the principles formulated in Mohamud, the Court of Appeal overturned the judge’s decision that the managing director was on a frolic of his own, and found the company vicariously liable for his actions. The critical factor was that the managing director was laying down the law on a work related matter when he lost control and committed the assault. His exercise of authority therefore arose from a field of activity assigned to him.

It is unsurprising that the office Christmas party is usually treated as amounting to an extension of the workplace. What makes this case surprising is that it involved misconduct committed AFTER the party had ended when some members of staff decided to carry the festivities on in a hotel bar. Employers will therefore be advised to issue appropriate warnings to staff in advance of the party to (i) avoid impromptu drinking sessions; or (ii) avoid talking about work matters when attending such sessions.

‘Tendency to steal’ – Not all actions can be explained away as 4-5something ‘arising’ from disability

Dan Hobbs

In Wood v Durham County Council, the EAT upheld an employment tribunal’s decision that the dismissal of an employee for shoplifting was not disability discrimination.

W was dismissed for theft (criminal conduct outside the workplace) and brought claims of disability discrimination. He argued that his PTSD caused him to suffer forgetfulness, which resulted in him forgetting to pay for items in Boots. In particular, he relied upon discrimination ‘arising’ from something related to his disability.

The employment tribunal rejected W’s disability discrimination claims, accepting the Council’s argument that the incident showed a ‘tendency to steal’, which is an excluded condition under Reg 4 of the Equality Act 2010 (Disability) Regulations 2010. W appealed to the EAT.

The EAT dismissed the appeal. It noted that the nub of the dispute was whether the events of 24 August 2015 demonstrated that W had a ‘tendency to steal’ or merely suffered from forgetfulness. It held that the tribunal was entitled to conclude that it was the former.

Employers would be wise to bear in mind the excluded impairments when defending disability claims. They are: a tendency towards setting fires, stealing, physically or sexually abusing others, exhibitionism and voyeurism. Such actions cannot always be explained away as something 'arising' from a disability.

5-300x300-4Dismissing an employee entitled to long term disability benefits likely to be unfair

Dan Hobbs

In Awan v ICTS UK Ltd, the employee’s contract of employment entitled him to contractual sick pay and the benefit of a long-term disability benefit plan. He was certified as unfit to work because of depression and remained off sick until the termination of his employment on capability grounds. By this time, he had been in receipt of payments under the long-term disability benefits plan for some time.

A brought proceedings complaining that the decision to dismiss him while he was still entitled to long-term disability benefits was unfair.

The EAT held that, on a proper construction of the contract, it was contrary to the functioning of the long-term disability plan to dismiss A and to deprive him of the benefits of the plan. It held that a term could be implied into A’s contract, whether on the ‘officious bystander’ test or the business efficacy test, to provide that once an employee becomes entitled to payment of disability income, the employer will not dismiss him on the grounds of his continuing incapacity to work.

The EAT held that the tribunal’s erroneous conclusion that there was no such implied term meant that its finding that A’s dismissal was fair could not stand and remitted the question of fairness to be reconsidered by the tribunal.

Employers often forget that the dismissal of an employee on capability grounds is likely to be unfair if that employee's entitlement to income protection insurance is dependent upon his continued employment. The termination of employment has the effect of depriving the employee of a valuable contractual benefit and is therefore likely to be deemed unfair unless other factors apply.

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