Employers must measure daily working time of individual workers

Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE (ECJ)

The Court of Justice of the European Union ("CJEU") has confirmed that the EU's Working Time Directive ("WTD") requires Member States to oblige employers to implement systems which measure the actual number of hours worked by each of their workers per day. Without such systems, the CJEU considered that it would be excessively difficult, if not impossible, for workers to verify compliance with their WTD rights to a maximum cap on weekly hours and daily/weekly rest breaks.

In this case, a Spanish trade union sought a judicial declaration (as permitted under local laws) to the effect that the existence of rights to maximum working time and daily/rest breaks, as enshrined in the EU Charter of Fundamental Rights and the WTD, required Deutsche Bank ('DB') to implement a system whereby the actual numbers of hours worked by all of its staff would be recorded. The union argued that this was necessary to enable workers to effectively verify compliance with applicable limits. DB contended that the only obligation under Spanish law was to record overtime hours. The Spanish Court referred the issue to the CJEU.

The CJEU agreed with the union, holding that individual Member States must require all employers to set up an "objective, reliable and accessible system" enabling the duration of time worked by each worker to be measured on a daily basis. Without such a system, rights to limits on working time would be excessively difficult to police and therefore at risk of being rendered meaningless. The CJEU specifically rejected arguments around the practicalities of introducing such measures, stating that the protection of health and safety should not be subordinated to economic considerations. It also highlighted the natural imbalance in the typical employer-employee relationship, which means that the burden for ensuring compliance should fall on the relevant organisation.

Having already decided that the legislative method of calculating holiday pay under English law was incompatible with EU law, in this case the CJEU emphasises another area in which the UK's Working Time Regulations 1998 ("WTR") may not effectively implement EU law. Regulation 9 WTR vaguely requires employers to keep "adequate records" to demonstrate compliance with weekly working time limits (and night work limits) for at least two years. This obligation does not extend to records of daily or weekly rest breaks, nor does it specifically require all hours of daily work to be recorded. Whilst this apparent discrepancy between UK and EU law leaves employers theoretically exposed to enforcement action by the Health & Safety Executive (the body responsible for enforcing the relevant provisions of the WTR) in the short to medium term (including post-Brexit, under current withdrawal legislation) the CJEU's undeniably bureaucratic approach to this issue will represent further ammunition for those who argue for pro-employer reforms to the WTR in due course, and who will say that the approach advocated by the CJEU is unworkable in the modern era of “agile” working.

High Court takes narrow approach to vicarious liability following work party injury

Shelbourne v Cancer Research UK (High Court)

The High Court has held that an employer was not vicariously liable for actions of a visiting scientist (who was not one of its employees), who had dropped an employee whilst dancing at a work Christmas party and caused her serious injury. The Court considered that the wrongdoer's "field of activities" in the context of the employer, namely his research work, was insufficiently connected with the incident so as to give rise to vicarious liability under common law principles.

The Claimant was at a work Christmas party, which had been organised by her employer. A visiting scientist, who was also in attendance due to his close involvement with the organisation, attempted to lift the Claimant whilst she was dancing with her supervisor. He then lost his balance and dropped her, causing her a serious back injury. The Claimant sued her employer on the basis of: (i) primary liability in negligence, on the grounds of inadequate supervision; and (ii) vicarious liability for the actions of the visiting scientist. The County Court rejected her claims entirely and she subsequently appealed to the High Court.

The High Court applied the generally accepted judicial test when considering whether to impose vicarious liability by asking: (i) what "field of activities" had been entrusted by the employer to the visiting scientist; and (ii) whether there was "sufficient connection" between these activities and his wrongful conduct, such that it would be just to impose vicarious liability. Assessing all the facts, the High Court concluded that the scope of his role was limited to his "research work" and that this was not sufficiently connected to the incident at the party so as to impose vicarious liability. The judge also concluded that whilst the employer clearly owed its employee a duty of care, this was context dependent and the safety measures it had taken – which included risk assessments – in the circumstances were sufficient to discharge its duty. The appeal was therefore dismissed.

This outcome highlights the limits of the vicarious liability doctrine and tempers the expansive approach to vicarious liability which courts appear to have taken in recent months. Employers may take comfort from an indication that they may not be held liable for the actions of 'spirited' employees at work events, where such a work event is clearly a party or similar event, with no direct connection to the wrongdoer's "field of activities". Employers should remember, however, that the individual in this case was not an employee of the Respondent and the course may take a different view of similar conduct by employees. In addition, each case rests on its own facts and merits, and that all necessary precautions should be taken in advance of work parties or events so as to make the environment as safe as feasibly possible for all in attendance.

Disability first raised at appeal hearing led to discriminatory dismissal

Baldeh v Churches Housing Association of Dudley and District Ltd (EAT).

The EAT has confirmed that where an employer dismissed an employee on the grounds of capability before becoming aware of her disability during the hearing of her unsuccessful appeal against that dismissal, their decision to terminate could still amount to unlawful discrimination under the Equality Act 2010 ("EqA").

The Claimant in this case was dismissed by her employer at the end of a six-month probationary period as a result of perceived poor performance. The Claimant subsequently appealed against her dismissal, during which she informed her employer that she suffered from depression which could, on occasion, lead to her behaving unusually and to suffer short term memory lapses. Her appeal was unsuccessful and she subsequently initiated a claim for discrimination arising from her disability, under s.15 EqA, on the basis that she had been dismissed, and therefore treated unfavourably, due to "something arising" in consequence of her disability, namely her performance lapses.

At first instance, the Tribunal accepted that she had a disability for the purposes of the EqA, but rejected her claim on the basis that (amongst other things) her employer had no actual or constructive knowledge of her disability at the point of dismissal; they only became aware of this at the appeal stage. On appeal, the EAT disagreed that this could be determinative to the claim. Instead, the EAT found that the outcome of an appeal against dismissal is "integral to the overall decision to dismiss" and so any knowledge which could be imputed at that later stage could be taken into account when determining the lawfulness of the overall termination. Given the seriousness of the Tribunal's errors, the case was remitted to a fresh tribunal for determination.

This outcome represents a helpful reminder to employers that, where required, the appeal stage is a fundamental and inextricable aspect of any decision to dismiss. Employers should carefully consider any new information disclosed at that later stage and determine whether it impacts the lawfulness of the original decision, particularly where conduct or capability issues may be explained by an underlying condition.

EAT decision on territorial scope of whistleblowing co-worker claims overturned by Court of Appeal

Bamieh v Foreign and Commonwealth Office (Court of Appeal)

The Court of Appeal has held that the territorial jurisdiction of the Employment Rights Act 1996 ("ERA") does not allow an employee who was seconded abroad to bring personal claims of unlawful whistleblowing detriment against two co-workers in respect of events which occurred whilst they were all working outside Great Britain on an international secondment. The fact that the relevant individuals had never worked together in the UK and had been assigned to the relevant "international mission" separately meant the factual "connection" with Great Britain, which is necessary to engage the ERA's territorial jurisdiction, was not present.

In this case, a British employee of the Foreign & Commonwealth Office ("FCO") was seconded to work for EULEX (an EU mission based in Kosovo). She brought claims against two other FCO secondees (as well as the FCO itself) who worked alongside her at EULEX alleging that they had subjected her to an unlawful detriment on the ground that she had made a protected (whistleblowing) disclosure, as defined and prohibited by the ERA. Although the Tribunal held at first instance that the actions of these co-workers were not caught by the territorial scope of the ERA, the EAT disagreed on the basis that there was a sufficiently "strong" factual connection between the individuals in question, their actions and British employment law.

The co-workers appealed to the CA, which overturned the EAT's decision and confirmed that the claims against them did not fall within the territorial scope of the ERA. The CA considered that the default position under the ERA is that whistleblowing protections will not generally apply to employment outside the Great Britain, but that this default position can be overturned where the connection between the employment and British employment law and, in the case of personal claims, the relationship between co-workers and British employment law, is sufficiently strong. This was not the case here. The fact that they had a common UK-based employer was not enough to confer jurisdiction; from a practical perspective, these individuals were required to work in the sole interests of the international mission to which they were assigned whilst seconded. Further, they had not worked together in GB and had been sent abroad separately. Taken together, all of this meant that the factual relationship between the individuals and their activities whilst on secondment had a closer connection to EU or local (Kosovan) law, as opposed to British law.

This is the first appellate case in which the question of the territorial scope of whistleblowing detriment claims against co-workers has been considered. The contradictory decisions reached within these proceedings illustrate the difficult, wide ranging and ultimately fact-specific considerations which need to be considered when employment claims involve claimants and respondents outside of Great Britain. Leave has been sought to appeal the decision to the Supreme Court; we wait to see whether there is another twist in this tale.