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GL Employment Bulletin
October 2016




The month of tricks and treats is upon us. If there’s one thing that is sure to give employers the heebie jeebies, it’s the thought of reputational damage caused by having got something badly wrong in employment law. 

This autumn there is due to be a new mechanism by which the public at large can read all about employers’ failures. The Courts and Tribunals Service announced earlier in the year that employment tribunal decisions will be placed online. Those decisions are not currently as readily available as those of higher courts, which have been online for some time. 

Of course this works both ways. Employers who win cases will have that fact known. For those who don’t, there may well be greater publicity around mistakes and bad judgment calls. It will be interesting to see the extent to which the online availability of tribunal decisions will affect each party’s negotiating position in the run-up to a hearing. Will we see an increased appetite for, or more resistance to, settlement? 


Maintaining higher pay could be a reasonable adjustment
G4S Cash Security v Powell

The duty to make reasonable adjustments can tie employers up in knots. What is reasonable in one case won’t necessarily be reasonable in another. It really comes down to how far the employer should go to combat the disadvantage that the employee has been put to at work because of their disability. 

Mr Powell was disabled because of a back injury. His employer gave him a lesser role, but didn’t cut his pay. That arrangement lasted for nearly a year until the employer told Mr Powell that it would only continue to employ him in that role at a reduced rate of pay. Mr Powell didn’t agree to that and was dismissed. 

Maintaining the original level pay was a reasonable adjustment in this case, said the tribunal and the Employment Appeal Tribunal (EAT). However, the EAT made it clear that it won’t always be reasonable to maintain a pre-existing pay level - it will come down to the circumstances, including the ongoing financial considerations.  In this case, Mr Powell had been in the new role, paid at the old (higher) rate, for almost a year.  He expected the arrangement to be long-term. That was all relevant to the reasonableness of withdrawing the benefit of higher pay. Notably, the discontent of other employees was not a good enough reason to reduce pay in these circumstances.  


New Minimum Wage rates

1st October means one thing: changes to the National Minimum Wage. Here goes:

-    The rate for those aged between 21 and 24 has risen from £6.70 per hour to £6.95. 
-    For workers aged 18 to 20, it’s now £5.55 instead of £5.30.
-    The young workers’ rate for those aged 16 and 17 is £4.00 instead of £3.87. 
-    The apprentice rate has risen by 10p to £3.40. 

For workers aged 25 and over, the national living wage of £7.20 per hour continues to apply. 


Unfair dismissal for ‘inept and crass’ tweet 
Elliott v Lloyds Banking Group

For all its good points, social media presents countless challenges for employers and employees. In particular, employers will be at pains to not be associated with any comments made by their employees that are ill-advised or offensive. 

Ms Elliott was the manager of a small Lloyds Bank branch.  She posted the following tweet from her personal Twitter account:

‘Open fire on #calaismigrants then they will soon go home and stop causing the #ukproblems’

Ms Elliott’s Twitter profile contained her full name but it didn’t refer to her employer, her job or her place of work. However, her LinkedIn profile contained the same profile picture as her Twitter account, and it identified her as being a bank manager employed by Lloyds. She didn’t know that an online search using her image could connect the two social media accounts. 

That’s what happened; someone retweeted Ms Elliott’s tweet, attaching an image of her LinkedIn profile. It led to various people tweeting to complain, identifying Lloyds. Although she deleted her Twitter account straightaway, believing that that would remove her posts, Ms Elliott was dismissed. She was alleged to have breached this provision of the employer’s Personal Integrity Policy (PIP):

 ‘...electronic or social media sent or used within, or related to, the Group [must] not contain abusive, obscene or libellous comments...which might harm the reputation of the Group.’ 

Unfair dismissal, said the tribunal. There were all sorts of things wrong with the decisions taken and the process carried out by the employer, including an unsatisfactory investigation and a defective hearing. The following points are of particular interest: -

1.    No reasonable employer would have concluded that dismissal was proportionate. Even if Ms Elliott had breached a policy (which she hadn’t), there was plenty of mitigation, including her unblemished disciplinary record and the fact that no one would really have thought that she was making the comment on behalf of Lloyds. 

2.    A reasonable employer would not impose any sanction on an employee where, as in this case, the relevant company policies were not contractual or didn’t have direct application. However, it would be reasonable for an employer in these circumstances to require the employee to remove reference to her employer’s identity from her online profiles. 

3.    Ms Elliott had not contributed to her dismissal, even though her tweet was ‘inept and crass’. Relevant to that decision was the tribunal’s finding that she was not in breach of any policies (her tweet wasn’t sent within and didn’t relate to Lloyds, therefore wasn’t covered), and that she enjoyed a right to freedom of expression.  



A different take on the headscarf issue
Bougnaoui v Micropole SA


In July we reported the Advocate General’s opinion in Achbita v G4S Secure Solutions NV. It was not direct discrimination for an employer to ban a Muslim employee from wearing a headscarf at work if that ban was not based on stereotypes or prejudice against a particular religion, or religions, or against religious beliefs in general. Any indirect discrimination may be justified by the legitimate need to enforce religious and ideological neutrality. 

This month, there’s a new case and a new Advocate General opinion that says something different. The French case of Bougnaoui v Micropole SA involved a Muslim woman who refused to remove her headscarf, following a customer complaint about her wearing it. She was dismissed. 

She lost her claim for religious discrimination, but her appeal has led her to the European Court of Justice (ECJ). So far, we have the Advocate General’s opinion (not a binding judgment) that there was direct discrimination. Ms Bougnaoui was dismissed because she had manifested her belief by refusing to remove her headscarf; a colleague who had not chosen to manifest their religion would not have been dismissed. It was less favourable treatment on religious grounds. And that direct discrimination could not be excused as a genuine occupational requirement - the headscarf didn’t hinder her ability to do her job. Nor could financial loss justify the discrimination. 

What about indirect discrimination? The Advocate General thought it unlikely that the employer’s ban would be proportionate. 

We shall have to wait and see what becomes of this conflict of Attorney General opinions. The formal Court decision in both cases is expected toward the end of this year. 


Inquiry into Corporate Governance 

An inquiry launched by the Business, Innovation and Skills (‘BIS’) Committee is shining the spotlight on corporate governance. 

Views are being sought on executive pay and directors’ duties. Also included is a look at the composition of boardrooms; including worker representation and the gender balance in executive positions. 

According to the Chair of the BIS Committee, Iain Wright MP:

‘...Good corporate governance shouldn't be a hindrance to business; it can contribute to companies' long-term prosperity and performance as well as showing to the world that a business is transparent, accountable and responsible.’

The deadline for written submissions via the Corporate Governance inquiry page is 26 October 2016. 


The importance of being client
CT Plus (Yorkshire) CIC v Black and others 

The Transfer of Undertakings (Protection of Employment) Regulations, better known as TUPE, apply to relevant transfers. A relevant transfer can happen where there is a service provision change – for example, a new contractor takes over. Where that’s the case, TUPE operates to transfer workers over to the new provider. 

The question in this case was had there been a service provision change? This hinged on whether or not the activities that had been carried out by a contractor (CT Plus) on a client’s (the Council’s) behalf were then carried out instead by a subsequent contractor (Stagecoach) on the client’s behalf.

CT Plus ran a Council-subsidised park-and-ride service. Stagecoach began operating along the same route. This led to the council terminating its arrangement with CT Plus. Stagecoach didn’t take on any CT Plus drivers; it didn’t think that TUPE applied. A claim followed.

The tribunal decided that the CT Plus drivers didn’t transfer because there was no service provision change. It was relevant that Stagecoach:

-    didn’t take anything over from CT Plus;
-    didn’t have a contract similar to the one between CT Plus and the Council;
-    didn’t receive a subsidy like CT Plus had received;
-    had changed the timing of the service, and
-    had recruited its own team of drivers, mainly by internal transfer.

The EAT upheld that decision; no TUPE transfer had taken place. It’s vital that the client is the same before and after the service provision change, and that wasn’t the case here. The Council was the client under the arrangement with CT Plus; that changed when Stagecoach took over. The Council was no longer the client; rather, Stagecoach was carrying out its own commercial venture on its own behalf – as opposed to on behalf of a client - and the council was just an ‘interested bystander’. So there was no service provision change and no TUPE transfer.


And finally...

Okay, so it’s Halloween. But with Christmas being just around the corner, it seems only right to spare a thought for hard-working elves.

It turns out that zero-hours contracts are the way forward for this lot – or for some, at least. The Guardian reported that one Center Parcs is recruiting a small number of elves who are prepared to enter into this sort of casual arrangement. For some of Santa’s crew this means they’ll only work when they are needed during busy periods. 

For all the criticism that lands at the door of zero-hours contracts, the seasonality of certain jobs and industries is one big reason for their appeal. If employers are happy, and workers are happy – and, let’s face it, you can’t get much happier than an elf – then there’s an argument that these ‘as-and-when’ arrangements deserve to play a part in modern workplaces.  

But according to a poll commissioned by the union, Unite, more than six in ten people in the UK want zero-hours contracts to be banned. With that in mind, the future of these agreements may not be looking all that... elfy!


John Dalby
Harriet Broughton

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