Employment Case Law Update August 2019
Nigel Crebbin gives an update on the latest employment law cases on whether the posting of an offensive image on Facebook was carried out in the course of employment, the verdict on an employer claiming that a breach of immigration rules meant that an employment contract was unenforceable, and an agency worker being offered different hours compared to a permanent employee? Finally, should pay entitlement for ‘part-year’ workers (e.g. term-time only contracts) be calculated under the Working Time Regulations on the basis of 12% of annual pay?
Was the posting of an offensive image on Facebook carried out “in the course of employment”?
Not in this case, according to the Employment Appeal Tribunal (EAT) in its judgment in the case of Forbes v LHR Airport Limited. The EAT stated that whether something is done in the course of employment, either in the ‘virtual landscape’ or the physical work environment, is a question of fact for the Employment Tribunal to decide in each case having regard to all the circumstances.
Mr Forbes (the Claimant), was a security officer working at Heathrow Airport. One of his colleagues, Ms Stevens, posted a discriminatory image of a golliwog on her Facebook timeline with the caption “Let’s see how far he can travel before Facebook takes him off”. Another colleague of Mr Forbes and Ms Stevens (who was a friend of Ms Stevens on Facebook) showed the image on Ms Stevens’ Facebook page to Mr Forbes (who was not a Facebook friend of Ms Stevens). Mr Forbes raised a formal grievance about the image which was upheld and Ms Stevens was disciplined. Mr Forbes was subsequently rostered to work with Ms Stevens. He complained and was moved to another location without explanation.
Mr Forbes brought an Employment Tribunal claim of racial harassment and argued that LHR Airport Limited (LHR), as his and Ms Stevens’ employer, was liable for Ms Stevens’ actions in posting the image. The Employment Tribunal decided, however, that Ms Steven’s posting of the image was done out of work, on a personal device and the posting was only shared amongst a private group, which did not include Mr Forbes. The Tribunal decided that Ms Stevens’ actions were not carried out “in the course of employment” and so LHR was not liable.
Mr Forbes then appealed to the EAT, who dismissed the appeal. The EAT decided that the factors relied upon by the Tribunal were correct. Other factors the EAT considered included that Ms Stevens was not at work when the image was posted, that the image had not made reference to LHR or any of its employees and that Ms Stevens did not use LHR’s equipment in sharing the image.
Can an employer rely on a breach of the immigration rules to argue that an employment contract is unenforceable?
No, where the circumstances are as in the case of Okedina v Chikale, decided the Court of Appeal (CA).
Ms Chikale was employed by Ms Okedina in Malawi to look after her parents. They both then came to the UK and Ms Chikale continued to work for Ms Okedina in the UK as a domestic worker. Ms Okedina applied for a visa for Ms Chikale, but when doing so provided false information. Ms Chikale was granted a visa, but then remained in the UK and continued working for Ms Okedina after the visa expired. Ms Okedina told Ms Chikale that the steps needed to get an extension to the visa were being taken. Ms Okedina applied for an extension to the visa in Ms Chikale’s name, but when making that application Ms Okedina (without Ms Chikale’s knowledge) falsely claimed that Ms Chikale was a member of her family and the application was refused.
When Ms Okedina dismissed Ms Chikale, Ms Chikale brought Employment Tribunal claims of unfair dismissal and unlawful deduction from wages. Ms Okedina argued that those claims could not succeed, as Ms Chikale had been working illegally and so her contract of employment was unenforceable.
The CA reviewed illegality under both statute and common law and decided that common law illegality did not apply in this case, due to the fact that Ms Chikale did not knowingly participate in any illegal performance of her employment contract. It was Ms Okedina who concealed from Ms Chikale the fact that her visa had not been extended.
In relation to statutory illegality, the CA decided that the Immigration Asylum and Nationality Act 2006 was not directed at those working illegally, but instead imposed penalties on those who employed people who were working illegally.
Ms Chikale had not knowingly participated in any illegality and so her Employment Tribunal claims could proceed.
Was an agency worker entitled to be offered the same number of hours of work as those performed by a permanent employee?
No, according to the Court of Appeal (CA) in the case of Kocur v Angard Staffing Solutions Limited.
The Claimant, who was an agency worker working at Royal Mail, argued that he was entitled to be offered a 39 hour week, on the basis that this was a standard working week for full time directly employed workers at Royal Mail.
The Agency Workers Regulations 2010 entitle an agency worker to the same conditions of work as a permanent employee, but this does not extend to an entitlement to be offered the same number of hours of work.
The CA concluded that the purpose of the Regulations was to ensure the equal treatment of agency workers and permanent employees while at work, and in respect of rights arising from their work. The Regulations did not, however, regulate the amount of work which agency workers were entitled to be given.
Should holiday pay entitlement for ‘part-year’ workers (e.g. term-time only contracts) be calculated under the Working Time Regulations on the basis of 12.07% of annual pay?
No, according to the Court of Appeal (CA) in the case of Brazel v The Harpur Trust.
The Claimant was a music teacher in permanent employment, but working term-time only. She worked variable hours and was paid for the hours she worked, but during the school holidays she gave no lessons and performed no other substantial duties. She was required to take her annual leave during the school holidays. Her contract stated that she had the right to 5.6 weeks’ paid annual leave, in line with the Working Time Regulations 1998 (WTR) and the Trust made three annual payments in respect of her leave, those payments being made in April, August and December. On each occasion, her holiday pay was calculated as 12.07% of her earnings in the preceding term. That calculation was based on the fact that for a full year worker who gets 5.6 weeks’ paid leave and works the other 46.4 weeks of the year, their holiday pay is a sum equal to 12.07% of the pay they receive for the weeks they work – that is, (5.6/46.4) x 100 = 12.07%.
The Claimant argued, however, that this was not the correct way of working out her holiday pay under the WTR. She argued that for each of her 5.6 weeks’ paid leave, she should be paid her average week’s pay and that (under section 224, Employment Rights Act 1996) this average should be based on the weeks for which she worked and therefore was paid. This would mean that based on her working and being paid for 32 weeks each year (the total term time), the correct calculation would be (5.6/32) x 100 = 17.5%.
The CA agreed with the Claimant’s approach.
About the author
Nigel is a Partner in the Employment Law & HR team at Burnetts.
Published: Tuesday 13th August 2019