Employment Update - February 2010
In this month’s review we look at recent cases relating to the right to legal representation
at disciplinary hearings and the preconditions that must be met in order for an employer
to fall under a duty to conduct a risk assessment for a pregnant worker. We also consider
two recent decisions concerning an employer’s right to refuse annual leave requests and
a surprising and controversial case in which an agency worker was found to have no
protection against discrimination.
Fiona Powell
0845 274 6812
fiona.powell@freethcartwright.co.uk
G v X School
O’Neill v Buckinghamshire County Council
Lyons v Mitie Security
Muschett v HM Prison Service
Update: Tribunal awards and statutory payments
And Finally…..
An employee should be allowed an opportunity to be legally represented at a disciplinary/ appeal hearing where it will determine their right to practise a profession under Article 6 of the European Convention on Human Rights (”ECHR”).
G was a teaching assistant at X school. An allegation was made that he had had sexual contact with a 15 year-old boy. The school governors conducted a disciplinary hearing and dismissed him, reporting his dismissal to the Independent Safeguarding Authority (ISA) to determine whether he should be placed on a ‘barred’ list of those unsuitable to work with children. G brought judicial review proceedings, challenging the governors’ decisions not to allow him legal representation at a disciplinary or appeal hearing.
The Court of Appeal followed its decision last year in Kulkarni v Milton Keynes Hospital NHS Trust and found that:
• the right to practise a profession was a “civil right or obligation” under the ECHR;
• an ISA listing would fundamentally limit his ability to practise his profession; and
• the school’s internal process would have a “substantial influence or effect” on the decisionmaking of the ISA.
The Court of Appeal held that the level of procedural protection under Article 6 depends on the seriousness of the allegation. G was therefore entitled to legal representation at the disciplinary and appeal hearings.
What does this mean for employers?
The Human Rights Act 1998 only binds public authorities, therefore Article 6 ECHR is only directly enforceable against a public sector employer. However, an employment tribunal will be bound to take account of Article 6 when deciding whether a dismissal by an employer was unfair. This case may, therefore, have a limited affect for private sector employers where the disciplinary or appeal hearing concerns serious allegations which will have an effect on the employee’s ability to continue to work in that profession.
O’Neill v Buckinghamshire County Council
This case set out four preconditions which must be met in order for an employer to fall under a duty to conduct a risk assessment for a pregnant worker.
The preconditions set are:
(a) the employee notifies the employer in writing that she is pregnant;
(b) the work is of a kind which could involve a risk of harm or danger to the health and safety of the expectant mother or her baby;
(c) the risk arises from either processes, working conditions or physical, chemical or biological agents in the workplace.
There is no more general obligation to carry out a risk assessment for a pregnant worker. An employer must also provide the employee with comprehensive and relevant information on the identified risks to her health and safety.
This case also provided tentative support for the proposition that, if an obligation to carry out a risk assessment, and a failure to carry out that risk assessment is established, then discrimination results. Proof of detriment is not necessary.
What does this mean for employers?
Employers need to ensure they carry out risk assessments where the above preconditions are met. Employees should also be provided with comprehensive information on the identified risks to their health and safety. Failure to carry out a risk assessment where the above conditions are met could expose employers to a potential discrimination claim.
An employer could refuse a request for annual leave when it was made towards the end of the leave year and did not fit in with the employer’s staffing patterns. In the circumstances, the employer was not legally obliged to permit an employee to take all of their statutory holiday during the applicable holiday year.
Mr Lyons was employed as a security officer and was entitled to the statutory minimum holiday. At the beginning of March 2008 Mr Lyons had an outstanding entitlement of nine days’ holiday which needed to be taken by 31 March. On 6 March 2008 Mr Lyons sent a fax to Mitie requesting payment for those nine days before the end of the holiday year. He did not make a request for specific days as holiday and did not use Mitie’s standard form.
Mitie’s holiday year ran from 1 April to 31 March. Holiday requests had to be submitted on Mitie’s standard form at least four weeks before the holiday start date wherever possible. Applications for holiday on shorter notice would be considered on their merits and subject to staffing requirements. All holiday had to be taken during the relevant holiday year and could not be carried forward to the following year. Pay for holiday entitlement not taken in the relevant holiday year would be forfeited.
Mitie did not pay Mr Lyons for the nine days and Mr Lyons subsequently brought a grievance which was rejected. Mr Lyons resigned and brought a claim for unfair constructive dismissal and pay in lieu of untaken holiday.
Law
A workers right to take holiday is governed partly by the Working Time Regulations and their contract.
Under the Working Time Regulations:
• Workers are currently entitled to 5.6 weeks holiday in each holiday year and may have a contractual right to holiday in excess of the statutory entitlement (regulation 13).
• A worker who wishes to take holiday must give notice to their employer twice as many days in advance of the number of days to which the notice relates. An employer can respond which can have the effect of refusing the holiday request, either in whole or in part. These provisions can be varied or excluded by a contract (regulation 15).
The Employment Appeal Tribunal (”EAT”) concluded that a worker’s right to statutory holiday was subject to the notice provisions set out in regulation 15 of the Working Time Regulations. The right to statutory holiday was not an inalienable right that obliged employers to ensure workers took holidays they were entitled to. There were practical and logistical reasons why employers required notice for holiday requests.
The EAT warned that notice provisions should not be operated by an employer in an unreasonable manner in order to deny any lawfully requested entitlement. Further, if operated correctly, it could result in the loss of the right to leave that had not been taken at the end of the leave year.
What does this mean for employers?
Employers can after consideration refuse holiday requests where it does not fit in with staffing patterns and the needs of the business, even where this would result in a loss of annual leave at the end of the leave year. However, employers should be aware that an unreasonable response to a request could result in a grievance and a possible constructive dismissal claim. As a result, care should be taken in reviewing requests for holiday and many employers may also wish to continue to permit a small amount of holiday to be carried over into the next holiday year.
Mr Muschett was placed in a temporary role as a laundry assistant at Feltham Young Offenders Unit by Brook Street (UK) Limited. In the letter offering the temporary position to Mr Muschett, Brook Street stated “…this assignment may be terminated by the client, yourself or us at any time without prior notice or liability”.
Mr Muschett worked at the prison from 22 January to 10 May 2007. He subsequently brought claims against both Brook Street and HM Prison Service for unfair dismissal, wrongful dismissal, race, sex and religious discrimination.
Law
Under section 230 of Employment Rights Act 1996 (ERA) an employee is an individual who has entered into, or works under a contract of employment. A contract of employment is an express (whether oral or written) or implied contract of service.
Under the Race Relations Act 1976 (RRA) “Employment” is defined as: “employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour”. Further “contract workers” are defined as “individuals…who are employed not by the principal himself but by another person, who supplies them under a contract made with the principal”. It is unlawful for a “principal” to discriminate against or harass a “contract worker” employed at an establishment.
Agency workers have generally been considered to be “contract workers” employed by the employment business (the agency) for the purposes of discrimination law, and are therefore protected against discrimination by the agency (as their employer) or the principal.
The Court of Appeal considered whether Mr Muschett was an employee of the agency’s client under section 230 of ERA 1996, or employed by the client under the wider definition in the discrimination legislation.
The Court of Appeal found that where contractual terms are clear, which they were in this case, and by considering the degree of control, personal performance and mutuality of obligation in the work carried out by Mr Muschett there was no need to imply a contract of employment. The application of the Employment Rights Act test confirmed he was not an employee.
Further, because the Mr Muschett had no contractual obligation to HM Prison Service to do any work for them, and because there was no contract between him and HM Prison Service, he had no contract for service in the context RRA and was therefore not an ‘employee’ applying the discrimination law test.
What does this mean for employers?
The outcome of this case is so surprising because of the Tribunal’s finding that Mr Muschett was not employed by the agency in the wider sense, and was also not a ‘contract worker’ in relation to the client (which appears to be based on the fact he did not have to perform the work personally for the agency). The outcome goes against a tide of previous case law, which found that the agency was the employer for discrimination law purposes under a contract for services.
Leave to appeal to the Employment Appeal Tribunal was refused in this case, although it is not clear why, and it may be that this was because Mr Muschett was not legally represented.
Employers should not, however, assume that following this case, agency workers will not be afforded protection under discrimination law. This is a first instance decision, and is not binding on other Tribunals. Tribunals may, however, follow this decision which would have huge implications for all agency workers who are not “employed” by either the agency, or the agency’s client they work for, as they will not be afforded protection under the discrimination legislation. In the meantime, employers should watch this space to see how the case law in this area develops.
Update: Tribunal awards and statutory payments
Tribunal awards
With the first ever decrease, from 1 February 2010 the maximum compensatory award will decrease from £66,200 to £65,300.
Statutory payments
From April, the standard rate of statutory maternity, paternity and adoption pay increases from £123.06 to £124.88 per week.
The standard rate of statutory sick pay will remain at the 2009 level of £79.15.
The weekly earnings threshold for the above payments will rise from £95 to £97.
For those who do not recognise the name and face of this month’s author, I thought I would take this opportunity to introduce myself. I have recently joined the employment department at Freeth Cartwright and am based in the Leicester office. Previously, I worked for Bevan Brittan LLP in their London office, advising and managing all aspects of Employment Tribunal Litigation.
Whilst every effort has been made to ensure the accuracy of this bulletin, it does not provide complete coverage of the subjects referred to, and it is not a substitute for professional legal advice and should not be relied upon as such.
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