Collective redundancies – ECJ confirms ‘Woolworths case’ decision in two further decisions

The ECJ has confirmed its decision in the Woolworths case in two new decisions (Lyttle v Bluebird UK Bidco 2 and Rabal Canas v Nexea Gestion Documental). It confirmed that when deciding whether the obligation to collectively consult on redundancies is triggered, the focus is on redundancies made in a particular establishment, not across the whole organisation. An establishment is the business unit to which the employees are assigned to carry out their duties. This will normally be just a part of the overall organisation. Read a detailed analysis of theWoolworths decision.

Whistleblowing: disclosures to an external body and unfair dismissal

In Barton v Royal Borough of Greenwich, the EAT upheld a Tribunal’s finding that an employee was fairly dismissed in circumstances where he had made a disclosure to the Information Commissioner’s Office (ICO). The facts in brief are that Mr Barton was informed that a colleague had sent emails containing his personal information to her home computer. Instead of raising the issue with his employer, he contacted the ICO and asked for advice. He then informed the employer and was asked not to contact the ICO again without speaking to his manager pending an internal investigation. Despite this instruction, he telephoned the ICO to ask whether this was lawful. He was subsequently dismissed, in part because he had contacted the ICO in contravention of the instruction he had been given.

While this case has unusual facts, there are some useful principles to note for employers. First, the Tribunal and EAT held that the first disclosure to the ICO, although a “qualifying disclosure”, was not “protected”. This was because it was made to an external body, so Mr Barton was required to satisfy the higher standard of having a reasonable belief that the information was substantially true. He had taken no steps to verify the information before contacting the ICO, so he could not do so. Second, the telephone call made to the ICO did not convey information and so was not a protected disclosure on its own. Third, the two ICO communications had to be treated separately, not together. Overall, Mr Barton had no whistleblowing protection and his dismissal, which was for misconduct, was not unfair.

A particular point of interest in this case relates to the employer’s instruction that Mr Barton should not contact the ICO. Before the EAT, he argued that this instruction was unlawful. The EAT, while holding that it was not required to deal with the point, concluded that it was not unlawful. Employers should be cautious about relying on this though, as it was relevant that the prohibition on contacting the ICO was only for a short period while the internal investigation was conducted and was also only limited to making contact without first discussing the issue with a manager. This case is not, therefore, authority that employers may lawfully prevent employees from making external disclosures.

Age discrimination – mental processes of only the decision maker taken into account

The Court of Appeal has considered whose mental processes are relevant when deciding whether a decision to dismiss was discriminatory on the grounds of age. In CLFIS (UK) Ltd v Reynolds, the CA overturned the decision of the EAT, holding that only the decision making process of the ultimate decision maker is relevant. The case concerned the termination of the consultancy agreement of Dr Reynolds. At the time, she was 73 and she alleged that the agreement was terminated due to her age. The General Manager took the decision to terminate, but in doing so, he received information from other employees.

The EAT, reversing the Tribunal’s decision, found that discrimination was made out because the views of others had a “significant influence” on the decision maker. However, this was overturned by the Court of Appeal. The decision had been taken by the General Manager alone, a position accepted by both parties. Accordingly, it was only his mental process that was relevant, and since it was found that he had not discriminated on grounds of age, Dr Reynolds’ claim failed.

This is a helpful decision for employers in broad terms but it should be treated with caution as it is a departure from an earlier House of Lords decision. In that case (Nagarajan v London Regional Transport) it was held that it was enough for discriminatory grounds to have had a “significant influence” on the outcome. To a degree, the difference can be explained by different facts and the way the claims were pleaded, so employers should not view this as comfort in circumstances where clear discrimination has occurred at an early stage in a dispute which leads to a discrimination claim.

Union meetings can count as working time – in certain circumstances

Under the Working Time Regulations 1988 (WTR), “working time” is primarily defined as “ any period during which the worker is working, carrying out his duties and at the employer’s disposal.” In Edwards and Another v Encirc Ltd, the EAT considered whether this definition covers attendance by union and health and safety representatives at union meetings which took place outside of working hours.

The EAT, overturning the decision of the Tribunal, found that it could. It was necessary for the meetings to fulfil all three limbs of the definition (i.e. while attending the meeting, the employee must be working, carrying out his duties and at the employer’s disposal). On the facts, the EAT held that this was the case here. The key points to note are that attendance at union meetings was found to be a duty that was in a broad sense of benefit to the employer’s business and that, as the employer had set the time for the meetings, the employees were at the employer’s disposal while attending. The consequence of the finding is that union meetings do not count towards the 11 hour daily rest break to which employees are entitled under the WTR.

At first glance, this is yet another example of broad interpretation being applied to the WTR, due to its health and safety aim, resulting in an outcome which is unhelpful for employers. However, it is worth remembering that the claimants were union representatives, not just union members and that importance was placed on the fact that the employer had arranged the meetings (although whether this was actually the case is one of the points on which further submissions will be made when the case is remitted). It is therefore still open to employers to differentiate their own circumstances and argue that attendance at a union meeting does not count as working time for the purposes of the WTR.

TUPE transfers and discrimination protection

In NHS Direct NHS Trust v Gunn, a disabled employee’s employment was due to transfer under TUPE. The transferee refused to continue with an adjustment to her working arrangements made by the transferor and so the employee objected to the transfer. She brought a discrimination claim, arguing that the transferee had failed to make reasonable adjustment. Although she was not its employee, she argued that she was “an applicant” for employment and the duty to make reasonable adjustments was therefore triggered. The EAT rejected this argument. The impact of TUPE is to transfer employees automatically, so the claimant could never have been said to be “an applicant” for her role.

On these facts, the EAT did find in her favour on another ground, so this decision is only guidance on the issue. However, given that this is the first time the issue has been considered, it will be persuasive in future claims.

Acas Conciliation and extension of time limits

Since 2014, the period of Acas early conciliation “is not to be counted” when working out when a time limit expires. In Chandler v Thanet District Council, this led to confusion because the conciliation period started before the termination date. The conciliation started on 8 May 2014 and ended on 8 June 2014, while the termination date was 14 May 2014.

  • The employer argued that the correct interpretation was to ignore the part of the three month period for bringing a claim which fell within the conciliation period. Therefore, the three month time limit started to run on 9 June 2014 (the day after conciliation came to an end). This meant that the employee was out of time.
  • The employee argued that the provision should be interpreted purposively. In particular, the Employment Tribunal guidance, although non-statutory, states that the time limit will be “three months plus the time during which Acas conciliates.”

The Tribunal agreed with the employee’s interpretation, meaning that he had presented his claim in time.

It is important to remember that this is only a Tribunal decision on what are very complex rules and the judge stated that the issue was “finely balanced”. We are also anecdotally aware of Acas giving the opposite advice on similar facts. Accordingly, until the point is considered by a higher court, if an employer is in receipt of an ET3 which would be out of time under the first interpretation above, it is still worth arguing that the Tribunal does not have jurisdiction to hear the claim.

Two decisions on the rejection of claims

Two decisions this month also look at the Tribunal’s power to reject claim forms. Both show that Tribunals are taking a strict approach, although the latter case does suggest that in most cases, the claimant will be given an opportunity to make representations.

In Sterling v United Learning Trust, the claimant had put an incorrect early conciliation number on her form. It was rejected and on appeal the EAT upheld the Tribunal’s decision (albeit party due to the way the appeal was argued).

In Higgins v Home Office and Another, the claim was rejected by the Tribunal as an abuse of process, which meant that the Claimant was given no opportunity to make representations. The Claimant was six years out of time, but had been unable to file previously due to mental health problems. The EAT said that claims should only be rejected as an abuse of process in plain and obvious cases. Given the significant time lapse here, it suggests that this power will only be used by the Tribunal in particularly compelling circumstances and it is more likely that Tribunals will either reject claims at the sift stage or by using the power of strike out.

Territorial scope: Swiss-based employee not entitled to bring statutory UK employment claims

The EAT in Olsen v Gearbulk Services Ltd & another has held that a Danish peripatetic employee, based in Switzerland, who spent just under half his working time in the UK, was not sufficiently closely connected with the UK or UK employment law to bring UK whistleblowing and unfair dismissal claims. He had an international role which allowed him to discharge his obligations wherever in the world he chose. Although he spent a sizeable portion of his working time in the UK, he had decided to base himself in Switzerland with his family, and had actively chosen for tax efficiency reasons to distance himself from the UK when structuring his employment relationship.

The EAT in this case emphasised that the fact that the relative proportion of working time spent by an individual in the UK, whilst a factor, is not determinative in deciding whether they should be entitled to bring UK employment law claims. Instead, where the individual is based is the primary focus when looking at peripatetic employees.

Privacy orders – EAT sets aside permanent anonymity order

The EAT has overturned a Tribunal’s decision in BBC v Roden to grant an anonymity order to a claimant where allegations of serious sexual assaults had been made. Whilst open justice is the default position, Tribunals have a broad power to make privacy orders if necessary in the interest of justice or to protect a person’s rights to privacy and a fair trial.

In this case, the claimant was a BBC producer whose contract was not renewed after allegations of serious sexual assault were made about him. The Employment Judge ordered that the claimant’s identity should be anonymised throughout the hearing. After the Tribunal gave an anonymised judgment, in which it held that the dismissal was fair, the Judge ordered permanent anonymity, on the basis that the public might conclude the claimant had actually committed the alleged acts when the allegations had not been investigated or proven. The Tribunal said this would have devastating consequences for the claimant.

The EAT allowed the appeal. The Employment Judge’s sole reason for granting the anonymity order was invalid. In the context of criminal investigations into sex abuse allegations, the public could be trusted to distinguish between allegations and actual findings of guilt. As this invalid reason was the only factor relied on by the Judge as outweighing the principle of open justice, there was no basis for granting anonymity. In the context of these sorts of serious criminal allegations, the public interest in open justice outweighed the claimant’s rights to privacy.

Discrimination in the provision of goods and services

Two recent decisions from the English and Northern Ireland county courts serve as a useful reminder to businesses of the application of anti-discrimination legislation in the provision of goods, services and facilities to the public.

Zero hours exclusivity ban now in force

The provisions in the Small Business, Enterprise and Employment Act 2015 banning exclusivity clauses in zero hours contracts have now been brought into force. Detailed regulations fleshing out the scope of the new provisions are still to be finalised.

New UK Government’s employment law legislative programme

The Queen’s Speech contained a number of employment law-related proposals, including:

  • A Trade Unions Bill to reform trade unions and to protect essential public services against strikes. This Bill will, among other things, introduce a requirement for at least a 50% voter turnout before a ballot can be effective;
  • An Immigration Bill that will make illegal working a criminal offence, allowing for seizure of illegal workers’ wages. It will also require employment agencies not to recruit solely from abroad without advertising the jobs in Britain and in English. The Bill will also create an immigration enforcement agency to crack down on the worst cases of exploitation by employers; and
  • The Government will consult on replacing the Human Rights Act 1998 with a British Bill of Rights.