British employment law protection in Libya and elsewhere

Commuting is no fun, unless you are fortunate enough to work from home, but imagine the plight of the international commuter. Now at least they may have the comfort of knowing that they have employment law protection, as this case shows.
Since 1996, when the territorial restriction was removed from unfair dismissal legislation, there has been a series of cases looking at how far unfair dismissal protection applies to workers who spend all or part of the their time working outside the UK. Two situations were set out in Lawson v Serco [2006] ICR 250 where an employee could claim unfair dismissal while working abroad:

– employees based in the UK, even though they carry out many of their duties abroad – “peripatetic” employees; and
– expatriate employees – who both live and work outside the UK – who may be covered by unfair dismissal law in special cases where there is enough of a connection with the UK, for example living in an extra territorial enclave such as a military base or who are posted abroad to work for a UK based business

Are these categories exhaustive, or is it possible for employees working under different arrangements to have UK employment protection? This question of exactly what Lord Hoffman intended his categories to amount to in 2006 has often been debated, but given it was a House of Lords decision this has never been in an authoritative context – until now.


more about domestic workers, unfair dismissal and illegal contracts

Last month we reported the decision in Jose v Julio (and other linked cases) concerning au pairs and the minimum wage.
This month sees a new case looking at the position of a domestic worker from overseas and the extent to which she could benefit from UK employment law rights. The complications in Zarkasi v Anindita and another were that (i) this worker entered the UK using false documents obtained by her employer – with her full agreement and co-operation, (ii) she was thus an illegal immigrant with had no legal right to work in this country, and (iii) she believed – or at least was prepared to claim – that she had been the victim of human trafficking.


when is a group not a “grouping”?

Only organised groupings of employees, whose principal purpose is carrying out activities for a particular client, will be transferred under the service provision change sections of TUPE, and Eddie Stobart Ltd. v Moreman sheds useful light on what amounts to an “organised grouping” for this purpose.
The case was brought by 35 workers in a meat warehouse operated by Eddie Stobart Limited. They worked on warehousing contracts for a number of suppliers of meat to supermarkets, picking the meat to be supplied. Eddie Stobart shut down this warehousing operation.


Court of Appeal critical of heavy handed attempt to injunct former employee

In Caterpillar Logistics Services (UK) Ltd v de Crean, the Court of Appeal has upheld the refusal of an injunction application against a former employee.
Mrs de Crean had worked in a senior capacity and had a contract which included a confidentiality agreement but did not include terms restricting her activities after her employment ended. Three weeks after she resigned to join another company, the employer, with no prior warning, sent a long letter to her threatening legal proceedings. It made allegations of misconduct and demanded that she give undertakings not to use or disclose confidential information as they defined it, and also agreeing not to carry out certain areas of work in her new job. She was not prepared to give undertakings in these terms and the employer attempted to seek an injunction, first in the High Court and then in the Court of Appeal.
Both courts refused the application, and were highly critical of the employers’ over-reaction to the situation and their high-handed actions


can a Christian be required to work on Sundays?

I have often written about the surprising extent to which protection is available from discrimination on the ground of religion or belief or, for that matter because of having no religion or belief. It is therefore perhaps surprising that one of the central tenets of Christian faith, rest on a Sunday, is not something to which Christians are necessarily entitled. There are special rules for shop workers and betting workers but apart from these sectors, unless the contract of employment states otherwise, it is usually possible for employers to insist on employees working on Sundays, even if they are devout Christians. The point was recently confirmed in the employment tribunal case of Celestina Mba v Merton Council. Miss Mba worked for Merton Council at Brightwell Respite Care House in Morden for three years. She was required to work on Sundays since the Council said it had a duty to ensure children had weekend care. Miss Mba said she was prepared to work night shifts and on Saturdays in order to avoid having to work on Sundays. However, the tribunal found that there was no viable alternative to her working on Sundays.

The tribunal also took into account evidence from witnesses including Michael Nazir-Ali, former bishop of Rochester, and concluded that not working on Sundays was “not a core component of the Christian faith” because it was observed by some and not by others.


suspension of employees during disciplinary proceedings and referrals to the police

The case of Crawford and Another v Suffolk Mental Health Partnership NHS Trust, recently considered by the Court of Appeal, appears on its face to be concerned with relatively straightforward issues resulting from dismissals for gross misconduct following alleged mishandling of patients, particularly the deployment of a “safe handling technique” which had caused open skin tears as well as the forcible administration of medicine. The employees concerned were suspended and the police were informed about potential criminal offences. The process took its course and this resulted in a delay of six months between suspension and dismissal.

At the resulting employment tribunal it was accepted that the genuine reason for dismissal was misconduct and the question was whether dismissal was reasonable measuring the actions of this employer against the yardstick of a reasonable employer. There were factual errors so that some of the conclusions reached in the disciplinary process could not be sustained and this was accepted by the Trust. There were also procedural defects. Findings of unfair dismissal followed. The Trust appealed successfully and on further appeal to the Court of Appeal the findings of unfair dismissal were restored and the cases were remitted to a further tribunal to determine whether or not, had the employer followed a fair procedure, the employees might have been fairly dismissed and, if so, whether their compensation should be reduced (commonly referred to as the Polkey argument, after a case of that name).

So far, so unremarkable. However, Lord Justice Elias was clearly concerned about the delay between suspension and dismissal. It was pointed out to him that a delay of this length is not that unusual in practice but he was concerned that “six months’ suspension puts considerable pressure on staff” and that “it is difficult to see why the investigation of a single incident of this nature should have taken so long”.


employer entitled to refuse overtime to employee who refused to sign opt out from Working Time Regulations

Arriva London South Ltd v Nicolaou concerned a bus driver who complained that his employers were imposing an unlawful detriment when they withdrew rest day overtime from him. The decision was made under a policy of only giving overtime to those workers who had agreed to opt out of the 48 hour maximum working week. The policy was designed to ensure compliance with the rule on maximum working hours under the Working Time regulations.

His Honour Judge Peter Clark, sitting alone in the Employment Appeal Tribunal applied the test that it was necessary to establish the “reason why” an employer had acted in the way it had.


no compensation for manner of dismissal

In Edwards v Chesterfield Royal Hospital and Botham (FC) v Ministry of Defence the Supreme Court revisited the question of whether, over and above any right to compensation for unfair dismissal, employees can recover damages for the way in which they have been dismissed and specifically in the situation where the employer has failed to follow a contractual disciplinary procedure.The cases of Mr Edwards and Mr Botham concerned the same issues of law and were therefore considered together.

It has been long been clear that there is no scope for damages for injury to feelings being awarded in a claim for breach of contract (as opposed to a discrimination claim, where compensation for injury to feelings is established by statute). Numerous attempts have been made, however, to try and establish the possibility that a separate claim might succeed where an express term had been broken, rather than the implied term of mutual trust and confidence. The Supreme Court, by a majority, has now excluded that possibility, rejecting the suggestion that breach of a disciplinary procedure followed as part of the dismissal process can somehow be seen as independent of the dismissal itself. To do so might take it outside the rule excluding separate damages for the manner of dismissal – something the Supreme Court considered Parliament had intended should be fully encompassed within the statutory protection against unfair dismissal.


yet another TUPE update

To add to the panoply of TUPE cases, we have four useful decisions this month which illustrate the impact of the Regulations. Three out of the four, Enterprise, Pannu and Hunter, all deal with the scope of the rules applying TUPE to service provision changes (SPCs), which, as all our regular readers know, are not a matter of European law, but our very own wonderful invention. The cases consider situations where there is a change in the nature of the activity, the situation where the same services are provided but for a different client, and what amounts to a provision of a service, rather than the supply of goods.

In Enterprise Management Services Ltd v Connect-Up Ltd, the Employment Appeal Tribunal considered the break-up of a contract for the provision of IT support services to Leeds schools. Enterprise provided the services as a preferred supplier, under a contract which left schools free to go elsewhere if they so wished – which some did, to two other providers. At the end of the contract suppliers were invited to tender for a new contract which excluded about 15% of the work covered by the previous arrangement. Those tendering included Connect-Up, who were already providing IT support to some schools. The new contract also allowed schools to choose from a number of suppliers, and over half opted for Connect-Up. Employees dismissed by Enterprise when they lost the contract were found not to have transferred to Connect-up as the major provider of IT services after the new contract came into force for two reasons:


discrimination the ground of marital status and a judicial mention for Downton Abbey

The Equality Act 2010, like its predecessors, protects those with the protected characteristic of marriage from discrimination on the ground of that characteristic. Does this concept, originally introduced to deal with the outmoded practice of dismissing women as soon as they married, which still continued into the 1960s, have any current relevance in the 21st century?

Dunn v The Institute of Cemetery and Crematorium Management shows that it still has a place in modern employment law. In this case, the Employment Appeal Tribunal (EAT) looked at a situation where the discrimination did not take place simply because the claimant was married, but because she was married to a particular individual. Mrs Dunn was unfairly constructively dismissed, and alleged that the reason for this was that she was married specifically to her husband: Mr Dunn was also employed by the same employer, and in dispute with it over his other business interests. There was no evidence that the unfavourable treatment was because of her marital status alone, so the claim could only succeed on this ground if discrimination on the grounds of marital status extends to cover the situation of being married to a particular person.