AT A GLANCE, KEY DEVELOPMENTS THIS MONTH
- Equality Act 2010: Caste covered in race discrimination
- TUPE: Organised grouping depends on circumstances
- Unfair Dismissal: Dismissal fair despite label given
- Equality Act 2010: Reasonable adjustments not required where employee not ready to return
- Trade Unions: Old ballot and injunction
- Unfair Dismissal: ET must consider actual reasons for dismissal
- Part Time Workers: Same or broadly similar work
- Unfair Dismissal: Redundancy not the reason where facilities removed
- Jurisdiction: Remote workers in Australia claim in the UK
- ERA 1996: Stable employment and pension
- Appeal Against Dismissal: Success revives contract
- ACAS : Draft revisions to Code of Practice on Disciplinary and Grievance Procedures
- National Minimum Wage: Consolidated NMW regulations from April 2015
- Employment Agency Advertising: Regulations on limits to advertising in EEA
- Fit for Work Advisory Service: Launch of government service and guidance notes
- Whistleblowing: Protection for student nurses and student midwives
- Shared Parental Leave: Government issues updated technical guidance
- HMRC: Income tax exceptions for some employer funded medical treatment
- Deduction from Wages: Regs following the ' Bear Scotland' case
Chandok and another v Tirkey UKEAT/0190/14
In Chandok v Tirkey the EAT heard a claim from a domestic worker, Ms Tirkey, that she was treated badly by reason of her caste (she belonged to the Adivasi, a caste perceived as low in status). She sought to extend her claim of race discrimination to include a claim of discrimination on the basis of her caste. The EAT held that Ms Tirkey could proceed with a claim for caste discrimination as part of her race discrimination complaint. Although caste was not specifically included as part of the definition of race in section 9(1) Equality Act 2010, that definition is not exhaustive and ‘ethnic or national origins’ could include race.
London Borough of Hillingdon v Gormanley and others UKEAT/0169/14
In the context of service provision transfers, regulation 3(3)(a)(i) of TUPE 2006 provides that immediately before a service provision change there must be an organised grouping of employees whose principal purpose is carrying out the relevant activities on behalf of the client. The EAT held in London Borough of Hillingdon v Gormanley and others UKEAT/0169/14 that when determining whether certain employees had been assigned to such an organised grouping, all factual circumstances should be taken into account, notably the contractual duties of the individuals and their role in the organisational structure. Applying Botzen v Rotterdamsche Droogdok Maatschappij BV  ECR 519 the EAT noted that it was essential to consider these factors in order to determine whether for the purposes of TUPE an individual is assigned to the organised grouping of employees carrying out relevant activities.
Brito-Bapapulle v Ealing Hospital NHS Trust  EWCA Civ 1626
In Brito-Bapapulle v Ealing Hospital NHS Trust Ms B-B, a consultant haematologist, took sick leave from Ealing Hospital but continued seeing private patients during that time, in contravention of the Trust’s instruction that she should not do so during her sick leave. The disciplinary panel dismissed her for gross misconduct on the ground of fraud. Ms B-B appealed against a tribunal’s finding that the dismissal had been fair, arguing that the tribunal should have a genuine belief that her conduct amounted to fraud.
Doran v Department for Work and Pensions UKEAT/0017/14
The EAT in Doran v DWP held that there was no duty to make reasonable adjustments when an employee, Ms Doran, was certified as unfit for any work and had not given any indication of when she might be able to return to work. Her medical certificates stated that she was not fit for any work. The EAT held that the tribunal were right to find that the ball was in Ms Doran’s court to discuss the offer of a post with a phased return when she became fit to do some work.
This is a common-sense since it makes clear that in order for the employer’s duty to make reasonable adjustments to be triggered, it must know that the employee is fit enough to return to work. Otherwise, the adjustments would be premature.
Westminster Kingsway College v University and College Union  EWHC 4409
Under section 226 Trade Union and Labour Relations (Consolidation) Act 1992 an act done by a trade union to induce a person to take part in or continue to take part in industrial action is not protected unless the industrial action has the support of a ballot. Sub-section 2 provides that industrial action shall be regarded as having the support of a ballot only if the Union has held a ballot in respect of the action. Section 234 provides that industrial action must be taken within four weeks of a ballot (or a longer period not exceeding eight weeks if agreed between the union and employer).
Robinson v Combat Stress UKEAT/0310/14
In Robinson v Combat Stress, Ms Robinson, a nurse, was dismissed in relation to three incidents (not observing procedures ‘the car park incident’, inappropriate sexualised behaviour (the ‘sexual assault incident’), and sexualised references to a veteran (the ‘one-to-one incident’). CS did not believe the 1-to-1 incident merited dismissal but when all the incidents were considered together, gross misconduct was justified and it dismissed Ms Robinson. A tribunal then found that the investigation into the sexual assault incident was flawed and the car park incident was only raised at the hearing itself. The tribunal thought the 1-to-1 incident was sufficiently serious to have merited dismissal and it was within the range of reasonable responses to dismiss for this even though CS itself did not view it as sufficiently serious. The EAT held that the tribunal should have applied section 98 Employment Rights Act and had regard to the actual reasons the employer had for dismissal, rather than the justifiable reasons he could have had. So, if an employer has a number of reasons which, when taken together, form a composite reason for dismissal, the tribunal should look at those reasons as a whole when assessing fairness.
This is a reminder not only to tribunals on the correct approach but also to employers to be confident of the reason(s) for dismissal. Where any reason could stand on its own as a reason for dismissal, this should be made clear.
Moultrie and others v Ministry of Justice UKEAT/0239/14
Mr Moultrie and other fee-paid medical members of certain tribunals were not given access to a pension scheme in respect of their service whereas salaried or full-time regional medical members were. In Moultrie and others v MOJ, they argued that the work of the typical fee-paid medical member was the same as or broadly similar to that of the regional medical members within the meaning of regulation 2(4)(a) (ii) of the Part–Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
EXOL Lubricants Ltd v Birch and another UKEAT/0219/14
The EAT has held that where two delivery drivers were dismissed on purported grounds of redundancy when the employer removed their overnight parking facility in Stockport, the dismissal was unfair. In EXOL Lubricants Ltd v Birch the EAT found that the removal of the facility on cost grounds did not affect the fact that there was no diminution in the need for delivery drivers and the place of work had not changed. There was no workplace closure under section 139(1)(a) Employment Rights Act 1996.
Lodge v Dignity & Choice in Dying and Compassion in Dying UKEAT/0252/14
Whether an employee has jurisdiction to pursue a claim under the Employment Rights Act 1996 must be decided in line with case law, in particular Serco Ltd v Lawson  IRLR 289, Duncombe v Secretary of State for Children Schools and Families (No 2)  IRLR 840 and Ravat v Halliburton Manufacturing and Services Ltd  IRLR 315. In Lodge v Dignity & Choice in Dying the EAT held that Ms Lodge, who, with her employer’s consent, moved to Australia for family reasons and continued her work remotely there for Dignity’s London branch, was entitled to bring claims for unfair dismissal and whistleblowing. Her written contract was governed by the laws of England & Wales, all of her work was for the London office, she had no status to bring a claim in Australia and her grievance was handled in London under the UK’s grievance procedure.
Remote working has become much more current. Employers should remember that simply because an employee is based overseas, this will not necessarily mean that he loses his right to statutory protection under ERA 1996.