This month's newsletter includes the following :-
- An ‘establishment’ is the entity to which a worker is assigned
- Refusal to bake ‘gay cake’ was discriminatory
- Working time does not require worker to be at employer’s control and direction
- Fair Dismissal of employee who contravened instruction not to contact ICO
- Dismissal not necessarily unfair where disciplinary proceedings are not postponed pending grievance.
- Lock case to be back in the courts
- Sports Direct’s zero hours ‘shame’
- EC Consultation on consolidation of Directives.
Lyttle and others v Bluebird UK Bidco 2 Ltd (C-182/13);
Cañas v Nexea Gestión Documental and another (C-392/13)
USDAW and anor v WW Realisation 1 Ltd and ors (C-80/14)
Following the decision in the ‘Woolworths case’ (USDAW and anor v WW Realisation 1 Ltd and ors) that an establishment is the entity to which a worker is assigned, the ECJ has now handed down decisions in Lyttle and Cañas. In Lyttle, the ECJ confirmed that, as in the Woolworths case, ‘establishment’ means the entity to which workers are assigned to perform their duties. However, as Cañas turned on Spanish legislation it has no direct relevance to the UK.
Lee v Ashers Baking Co Ltd and others  NICty 2
In a case that has attracted a lot of media coverage, Lee v Ashers Baking Co Ltd, a Northern Ireland county court has found that there was direct discrimination on the grounds of sexual orientation when a bakery refused to bake a cake with graphics supporting same-sex marriage for a gay customer. Their refusal was on the grounds that they were a ‘Christian business’.
Edwards and anor v Encirc Ltd UKEAT/0367/14
Under Regulation 2(1) of the Working Time Regulations 1998, working time is defined as any period during which the worker is working, carrying out his duties, and at the employer’s disposal or any period during which the worker is receiving training. In Edwards v Encirc Ltd the EAT had to consider whether workers were working, at their employer’s disposal and carrying out their employer’s activities or duties when attending meetings in their capacity as a representative of a recognised trade union or health and safety representative. Mr Edwards and others argued that he had been subjected to a detriment when Encirc refused to grant them a daily rest period of at least 11 hours between the end of those meetings and the beginning of their night shifts.
Barton v Royal Borough of Greenwich UKEAT/0041/14
In Barton v Royal Borough of Greenwich, Mr Barton, an employee of RB Greenwich, was concerned that his line manager had emailed a large number of documents to her home which he believed contained confidential or personal data about himself and her personal email was not part of a secure system nor encrypted. Mr Barton considered that this was a significant breach of the Data Protection Act 1998. He did not report the matter to his line managers but reported his concerns to the Information Commissioner’s Office (“ICO”), and thereafter to his line managers. The information he provided to the ICO was wholly inaccurate. The manager had emailed 11 documents to her home email which was password protected. None of the documents were regarded as inappropriate for her to have sent.
Jinadu v Docklands Buses  UKEAT/0434/14
Ms Jinadu was employed as a bus driver. Her driving was considered to be unacceptable and she was instructed to arrange a driving assessment at her employer’s in-house training centre. She repeatedly refused to comply with the instruction and was dismissed for gross misconduct. She appealed against her dismissal. The appeal hearing was adjourned in order for her to attend the training centre. Ultimately she did attend and was required to attend corrective training. Following the corrective training she took an assessment, which she failed. The appeal was reconvened. The only reason that appeared to have been given for the dismissal of the appeal was that she failed to display a satisfactory driving standard and that her dismissal was in the interest of public safety. Ms Jinadu meanwhile had claimed that she felt bullied and intimidated into attending driving school.
British Gas has lodged an appeal in the Lock holiday pay case, which is expected to be heard towards the end of the year. British Gas is arguing that the decision in Bear Scotland v Fulton (that non guaranteed overtime should be taken into account when calculating holiday pay) should not apply to the decision in Lock since commission (as in the Lock case) and non-guaranteed overtime are dealt with under different statutory provisions and using different language. It is likely that a large number of similar cases will remain stayed pending this appeal.
Unite has announced that it is launching a confidential advice and support line as part of a campaign to confront abusive ‘Victorian’ work practices at Sports Direct. It is estimated that only 300 out of the 5,000 plus workers at the Shirebrook depot actually have employment contracts, with the remainder on zero hours contracts. Unite’s move follows a Channel 4 Dispatches exposé on working practices at Sports Direct.
The European Commission has started a consultation with EU level social partners in order to obtain their views on the possible consolidation of the Directives on collective redundancies, transfer of undertakings and the general framework for information and consultation of workers and aligning the concepts of information and consultation.
At a glance - key developments this month
- Whistleblowing complaint was ‘in the public interest’
- Zero hours worker receives large pay-out for injury to feelings
- School mentor’s appointment as mayor was ‘SOSR’
- No implied contract between blacklisted agency worker and end user
- Costs award made to claimants whose fees were paid by union
- Settlement Agreement could not be re-opened on later discovery of misrepresentations
- Circumstances when an extended restricted reporting order is appropriate
- Applications for fee remission after submission of claims were in time
- Warning given in bad faith could not be relied upon
- Costs award against claimant who was unable to pay