offshore workers can be required to take annual leave while onshore

Offshore workers in the oil and gas industries generally work on a ”two weeks on, two weeks off” shift basis.

In Russell & Ors v Transocean International Resources Ltd & Ors (Scotland), offshore workers, whose contracts required that they take their leave during periods when they were ashore, unsuccessfully sought to establish that they were entitled to take their statutory annual leave under the Working Time Regulations 1998 (WTR) at times when they would otherwise be offshore.

The competing representations were succinctly summarised by Lord Hope as follows:


like one of the family…

Domestic workers living as part of the family for whom they work can fall under the “au pairs and nannies” exception to the right to be paid minimum wage. Other exceptions listed in the Regulations include members of the armed forces, share fishermen, prisoners and, fairly obviously, volunteers and the self-employed. Of course, interns or trainees are not excepted and this has generated a good deal of recent media interest. The au pair exception – and how to determine whether a person falls within it, was recently examined by the Employment Appeal Tribunal (EAT) in Jose v Julio (and other linked cases).

The National Minimum Wage Regulations 1999 provide particular guidance as follows:


increases in tribunal limits

We reported last month the increases in limits for unfair dismissal compensation and calculation of a week’s pay for redundancy and other purposes. The full changes have now been published and are as follows:  – Maximum compensatory award for unfair dismissal: £72,300 (no maximum in discrimination cases)  – Maximum unfair dismissal basic award/redundancy payment: £12,900…


administrations, TUPE and redundancies

It is an unfortunate fact of modern life that it seems that new administrations for high street retailers and other businesses seem to be announced almost every working day. A key concern in the context of employment law and, more importantly, for the employees concerned, is whether their employment automatically transfers to the new employer under TUPE or whether the new employer can "cherry pick" or perhaps even select none of the existing employees for the new business.
There has been conflicting case law in the last few years but it seems that we now have a clear statement from the Court of Appeal.


award of nearly 1m pounds for race discrimination and unfair dismissal

A former NHS worker, Elliot Browne, has been awarded £933,115 in compensation for race discrimination and unfair dismissal.
Mr Browne was a divisional director at Central Manchester University NHS Foundation Trust until he was dismissed in 2008. An employment tribunal sitting in Manchester found that Mr Browne had been subjected to discriminatory treatment in the final year of his employment with the Trust. He had spent 34 years working for the NHS and was the first and only black man to hold the position of divisional director for clinical scientific services with the Manchester Trust.
In 2007 his manager raised concerns about overspending in the department and Mr Browne’s perceived lack of "personal leadership". He subsequently raised what the tribunal found to be a "well-founded" grievance about race discrimination, claiming that he had been unfairly singled out for disciplinary action and criticism by comparison with white work colleagues.
Mr Browne maintained that the result was that members of staff "closed ranks" and began disciplinary proceedings which may have led to dismissal. He was signed off work with stress and in May 2008 he was suspended and dismissed.


new pay rates, tribunal award limits and postponed pension provisions

New statutory pay rates
From 1 April the standard rate of statutory maternity, paternity and adoption pay increases from £128.73 to £135.45 per week.
From 6 April the standard rate of statutory sick pay increases from £81.60 to £85.85 per week. It is also expected that the basic state pension will increase from £102.15 to £107.45 in April.

Increases in maximum tribunal awards and "a week’s pay"
The maximum unfair dismissal award is to increase from £68,400 to £72,300


dismissal fair even though conduct not "reprehensible"

The decision of the Employment Appeal Tribunal in RBS v Donaghay has clarified a question which may not be obvious at the inception of disciplinary proceedings but often emerges in the course of the process: if an employee is to be dismissed for misconduct, does that conduct need to be what would be generally regarded as "reprehensible"? There is also a chain of case law which makes the question relevant in such circumstances.

According to the Oxford English Dictionary "reprehensible" means "deserving censure or condemnation".

As an aside, the summary of the judgment posted on the Employment Appeals Tribunal website includes the word "esto" which is an obscure Scottish legal term (the employment tribunal was in Glasgow) and means "a technical term used in written pleadings used to introduce a secondary line of defence which accepts, only for the sake of argument, facts which are still disputed in the primary defence".

After a little diversion to deal with semantics, Mr Donaghay was a customer services adviser who was in a relationship and lived with another RBS employee, known in the proceedings as "LC". The facts of the case are set out in the decision:

"On Saturday 3 January 2009, the Claimant went out drinking with friends whilst LC remained in the flat. He returned late in the evening or in the early hours of 4 January. An argument took place between the Claimant and LC which culminated in him admittedly pushing her so as to cause her to fall onto the sofa. He then left but, having done so, tried to get back into the flat and caused a disturbance by shouting, swearing and kicking the front door so as to force his way back into the flat.


should a tribunal allow adjournments because a claimant is unwell?

Although not dealing with any new principles of law, the decision of the Employment Appeal Tribunal in the case of O’Cathail v Transport for London provides useful guidance about how tribunals should approach requests for adjournments from claimants on the ground of ill health.

It is well known to those who appear regularly at tribunal hearings (and other court hearings for that matter) that witnesses, including claimants, can find giving evidence and being subjected to cross examination a daunting ordeal. There is therefore often suspicion that those who say they are too unwell to attend the hearing are sometimes simply trying to avoid the hearing. Of course, as in all other walks of life, genuine illnesses can affect everyone and it’s often easy to identify that the person concerned clearly cannot attend the hearing.

However, particularly in tribunals where costs are generally not recoverable, the costs incurred as the result of an adjournment can be considerable (possibly including substantial barristers’, solicitors’ and expert witnesses’ costs) and a cynic might take the view that a late adjournment might even promote an offer in settlement of a claim in order to avoid further costs resulting from the adjournment.


reasonable for employee to reject alternatives to redundancy which would have been accepted by a reasonable employee

Is it reasonable for someone to refuse a job offer as an alternative to redundancy if a reasonable person would have accepted the job offered? Yes, according to the Employment Appeal Tribunal in Readman v Devon Primary Care Trust.
Mrs Readman was at risk of being made redundant by her employer and was offered three posts as alternatives to redundancy. Two of them were at a lower grade and the other was at an equivalent grade. She tried one of the lower grade jobs for a four-week statutory trial period but she resigned from this and claimed a redundancy payment.
Instead she was offered the equivalent grade position as an alternative to redundancy. She was asked to accept the offer and, if she did not do so, the Trust would decide whether to make a redundancy payment or not, based on whether her refusal to take the job was unreasonable.
Critically Mrs Readman began her nursing career in 1976 and she had worked as a community nurse since 1985. The alternative job at an equivalent grade was as a Modern Matron and would require her to work in a hospital setting. She did not wish to do so. The Trust decided that her refusal of the job offer was unreasonable and therefore declined to make a redundancy payment.
The employment tribunal therefore had to decide:
(1) whether the offer of employment was an offer of suitable employment, and
(2) whether the employee had unreasonably refused that offer.


unfair dismissal qualifying period change will not be retrospective

As we reported last month, the qualifying period in order to bring a claim of unfair dismissal is being restored to two years. Although the change will come into force this April it will only apply to employees whose employment commences on or after 6 April 2012. It will therefore take some time for the change to have a practical impact for employers.
For example, someone who commences employment on 5 April 2012 will secure protection from unfair dismissal from 5 April 2013, whereas someone who commences employment on 6 April will not achieve the same level of protection until 6 April 2014.
However, it is vitally important for employers to remember that there are unfair dismissal claims for which there is no qualifying period so that protection from unfair dismissal is available from day one. These are chiefly claims resulting from the assertion of statutory rights and those which can lead to findings of automatically unfair dismissal. Subscribers should check our employment law guide for details of those unfair dismissal claims in respect of which the qualifying period does not apply.
It is equally important to remember that the qualifying period only applies to unfair dismissal claims.