Employment Law Case Update - September 2016
This month's focus from Natalie Ruane investigates holiday pay, unfair dismissal and employers' whistleblowing obligations.
Case Law Round up (July-August 2016)
16 August 2016 - In the case of Brettle and Others v Dudley Metropolitan Council, the Employment Judge confirmed that voluntary overtime (i.e. overtime which neither the employer is obliged to provide and the employee is not obliged to work) should still be taken into account when assessing average pay for the purposes of determining the rate of holiday pay.
The key factor which will determine whether voluntary overtime should be taken into account is whether or not it is regular. Therefore it cannot be occasional, unusual, rare or ancillary. Where it is regular, it will be considered “normal pay” for the purposes of calculating holiday pay.
Two of the employees in this case carried out regular overtime on Saturdays. The first claimant worked every Saturday for the previous few years while the second claimant worked regular Saturdays (although not every week). The test that the judge applied was whether the payment was “intrinsically linked to normal work, paid in such a manner and with such sufficient regularity to be considered part of normal remuneration”. In each case this will be decided on a case by case basis.
11 August 2016 - In the case of Dronsfield v University of Reading the Employment Appeal Tribunal (“EAT”) found that a dismissal was unfair when it relied on an investigatory report that had been heavily influenced and amended by the University’s HR and in-house legal departments and omitted various findings which were favourable to the employee. For this reason, the EAT felt that the standards of objective fairness had been compromised.
The findings in this case send a clear message that decisions in relation to disciplinary matters should be based on an objective assessment of the facts available to the decision maker. Whilst a draft report can still be amended and finalised, the investigator must still retain ownership of the report and be happy that it reflects the investigation he or she carried out and their findings. HR’s role should be limited to matters of law and procedure on disciplinary matters. It should always be for the deciding manager to make up his or her own mind about the appropriate action in any given case.
July 2016 – Royal Mail Group Limited v Jhuti. In this case, the claimant brought a claim of automatic unfair dismissal on the basis that she was dismissed due to her protected disclosure. A protected disclosure offers employees protection when disclosing information through a whistleblowing process (read more on whistleblowing here).
The Employment Appeal Tribunal in this case overturned the original decision of the Employment Tribunal that the claim should fail because the decision maker was not aware of the claimant’s protected disclosure. The reason that the decision maker was not aware was because she was only given partial information in relation to the original protected disclosure. However, the fact that the decision arose as a result of sick leave and performance issues, both of which had arisen as a result of unrealistic goals being set by her original manager after she raised the original protected disclosure, established the connection between the whistleblowing and the disciplinary decision to render it automatically unfair.
28 July 2016 – In the case of McTigue v University Hospitals Bristol NHS Foundation Trust the Employment Appeal Tribunal confirmed that an agency nurse, who was assigned to work for the Hospital Trust, was protected by whistleblowing legislation.
The original decision in the Employment Tribunal was that she was not a “worker” under the standard definition in the Employment Rights Act 1996 or under the extended definition which applies for the purpose of the whistleblowing provisions. This is because neither the agency nor the Hospital had determined the terms of the working arrangement.
However, the EAT held that, between them, the agency and the Hospital had determined the relevant terms of the working arrangement and therefore the worker had ‘two employers’ for the purpose of satisfying the definition of “worker” in the legislation.
What is clear from this decision is that where the terms of an agency worker’s assignment are drawn from contracts with multiple parties, it is not necessary to examine exactly which terms are derived from which party for satisfying the definition of a “worker”. This is because there can be more than one “employer” for the purposes of establishing a whistleblowing claim.
For further information on how the cases above might impact your organisation, contact Natalie Ruane on 01228 552222.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.