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Employment Law & HR Update - February 2019

Employment Law & HR Update - February 2019

In her February 2019 update, Sinead McCracken explains the latest case law on: discrimination, substituting employees, whistleblowing and working hours.

In a discrimination case, should the tribunal draw a negative conclusion from the employer’s failure to put forward evidence about the people the claimant is comparing themselves with?

Not unless the claimant has already been able to demonstrate a case of discrimination on the face of it, said the Court of Appeal (CofA) in Efobi – v – Royal Mail Group Ltd.

In a discrimination claim, the claimant has to produce evidence which points to there having been unlawful discrimination. Once the claimant has done this, the burden of proof then shifts to the employer to show that there was in fact no such discrimination.

Mr Efobi is a black Nigerian with a post-graduate qualification in information systems and forensic computing. He was employed as a postman, but he had aspirations to move into a management or IT role. He applied for multiple posts unsuccessfully and he complained of direct race discrimination.

The Royal Mail did not provide any evidence about the identity or qualifications of the successful candidates for the management or IT roles. Mr Efobi, who was representing himself in the Employment Tribunal, did not ask the Royal Mail to provide any such evidence. The Tribunal decided that Mr Efobi had not presented facts from which discrimination could be inferred and so his claim failed.

The Employment Appeal Tribunal (EAT) concluded that in deciding whether Mr Efobi had presented evidence from which discrimination on the part of the Royal Mail could be inferred, the Tribunal should have considered whether negative inferences should be drawn because the Royal Mail did not provide evidence about the successful candidates. The CofA disagreed with this however and said that the burden was on Mr Efobi to prove his case at the first stage. The CofA said that he had not provided the Tribunal with sufficient information to allow it to identify the characteristics of a proposed comparator, who would be an individual in the same or a similar situation to Mr Efobi but not of the same race. Because he had failed to do this, his claim failed.

Is the right to use a substitute consistent with employee status?

Yes, according to the Employment Appeal Tribunal (EAT) in Chatfeild-Roberts – v – Phillips & Universal Aunts Limited.

The claimant was a live-in carer for the first respondent’s uncle and the second respondent was an agency, which introduced the claimant to the family. The claimant had worked for the first respondent for three years and she had been paid gross, filing her income tax and national insurance contributions herself. When the arrangement ended, she filed a number of claims in the Employment Tribunal and the Tribunal had to decide whether or not the claimant was the first respondent’s employee.

The claimant had initially been engaged for six months, which had then been extended. She originally submitted invoices for her work, but later stopped doing so and was then paid by standing order. While the second respondent’s carers normally worked on a rota basis, the claimant did not.

The Tribunal accepted that there was mutuality of obligation between the claimant and the first respondent and that the first respondent had sufficient control over the claimant. However, on some occasions the claimant had approached the second respondent to arrange a substitute to carry out the work for the first respondent in the claimant’s place. The Tribunal decided that nonetheless the claimant was the first respondent’s employee. The first respondent appealed.

The EAT considered the question of substitution. Substitution had only happened on the claimant’s days off each week, for a period of jury service or for periods of annual leave (for which she had been paid). The EAT followed the principle in the Pimilco Plumbers case, where the EAT said that where the right of substitution exists only when a contractor is unable to work, this can still be in line with personal performance and so consistent with the contractor being an employee.

Can complaining about defamation form the basis of a protected disclosure in a ‘whistleblowing’ claim?

Yes, according to the Employment Appeal Tribunal (EAT) in Ibrahim – v – HCA International, although on the facts the public interest test was not met.

Whistleblowing arises where an individual brings information to the attention of their employer or a relevant organisation about a failure to comply with a legal obligation, commonly known as “blowing the whistle”. It is more formally known as “making a disclosure in the public interest”. To have protection against being dismissed or penalised for making the disclosure, the individual must reasonably believe that their disclosure is in the public interest.

The claimant was an interpreter at a hospital. He alleged in grievances that colleagues had defamed him by falsely blaming him for breaches of confidentiality. His Employment Tribunal claim was that he had then been penalised for making these allegations of defamation. The Tribunal dismissed the claim on the basis that: (1) the allegations of defamation did not amount to allegations of a failure to comply with a legal obligation, and (2) the claimant did not have a reasonable belief that he was making the allegations in the public interest.

The EAT said that by complaining about defamation, the claimant had disclosed information tending to show that a person had failed to comply with a legal obligation. However, it also decided that the Tribunal was entitled to say that the claimant did not reasonably believe, at the time he made his allegations of defamation, that those allegations were in the public interest and on that basis, the appeal failed.

Is it necessary for an employer to keep records of actual hours worked to fulfil its obligations under the Working Time Directive?

Yes, states Advocate General Pitzruella in the Court of Justice of the European Union (CJEU) in Federacion de Servicios de Comisiones Obreras (CCOO) – v – Deutsche Bank SAE.

In cases before the CJEU, an official called the Advocate General makes a recommendation to the Court as to what judgment he or she believes the Court should make in the case. The Court does not then have to follow the Advocate General’s recommendation, although it usually does.  

The CCOO is a trade union which brought a group action in the National High Court in Spain against Deutsche Bank, applying for a judgment declaring that the bank was under a legal obligation to record the actual daily working time of its employees. Deutsche Bank used an absences calendar recording staff absences for full working days (such as annual leave and sick leave), but it did not keep a record of the actual hours its employees worked.

The Advocate General Pitruzella said that in order to comply with the duties under the Working Time Directive, national law must require employers to keep records of actual time worked by workers.

For more information on how these cases may affect your business, contact a member of the Employment Law and HR team here.

About the author

Sinead McCracken profile photo

Sinead McCracken

Sinead McCracken is a trainee solicitor at Burnetts.

Published: Friday 15th February 2019
Categorised: Commercial Client, Employment, HR, Legal Services in Newcastle, Penrith, West Cumbria

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