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Range of Reasonable Responses: March 2019

Something struck me this week when delivering an employment law update for a regular client. I had last visited them this time last year and I looked back over last year's content to make sure that everything I was covering this year was new. What I noticed was the number of cases covered in last year's update that had been overturned on appeal. By my count there was Crawford v Network Rail on rest breaks, Royal Mencap Society v Tomlinson Blake on sleepover shifts and the Minimum Wage, London Borough of Lambeth v Agoreyo on suspension as a potential breach of contract and Lee v Ashers Baking Company on sexual orientation - and cakes.

One thing that often strikes non-lawyers as strange is that when a case is overturned on appeal, the courts do not regard themselves as changing the law - they are simply correcting the mistakes of the courts below. Take the issue of whether sleepover shifts count towards the calculation of minimum wage entitlement. Prior to the Court of Appeal's decision in the Mencap case the reasonably settled position was that, by and large, they did count. The Court of Appeal has now ruled pretty clearly that they do not. At some stage - I would guess, early next year - the Supreme Court will reach a definitive view (at least, we hope so). If they overturn the Court of Appeal decision, employers who had been relying on that decision to support the view that sleepover shifts do not count as working time will not be able to argue that they were acting according to the law as it was at the time. The Supreme Court will not have changed the law, just corrected the Court of Appeal's misunderstanding of it. The law will always have been what the Supreme Court says it is. If the decision is overturned, then workers whose pay has fallen short will be able to claim backpay from their employers even for that period when the ruling from the Court of Appeal was that sleepover shifts did not count as work.

So when a big decision comes through it is always worth asking whether this is really the courts' final answer on the question. Big issues can take years to work through the system so it is worth making contingency plans in case of an unexpected final outcome.

Pimlico Plumbers - the saga continues

This week saw Mr Smith - whose case against Pimlico Plumbers resulted in the Supreme Court ruling that he was a worker for the purposes of the Working Time Regulations and an employee for the purposes of the Equality Act - lose his claim for unpaid holiday pay in the Employment Tribunal. He had been given no paid holiday throughout his employment and was bringing an eyewatering claim for £75,000. The Tribunal held that his claims for unpaid holiday were out of time.

This prompted a bold comment from Charlie Mullins:

“While the Supreme Court deemed him to be a worker and entitled to associated rights, the tables have been turned and common sense prevailed in the actual Employment Tribunal and Mr Smith has been told that he wasn’t entitled to a penny.”

Well up to a point, Lord Copper.

Quite a lot of commentary around this case seemed to suggest that after Mr Smith had spent 7 years arguing for his right to bring a claim, it turns out he doesn't have a claim at all. But this misses two important points.

The first point is that this Tribunal decision only concerned his claim for wages deductions and unpaid holidays. There is still a disability discrimination case which I understand will be heard in June.

The second point is that the Tribunal's findings were based on the time limits that apply when claiming for unpaid holidays. There are all sorts of tricky legal points that arise when claiming several years' worth of holiday pay for workers whose employer told them they were not entitled to any. I don't know the details of how his claim was structured, but one major obstacle in the way of such claims is the EAT decision in the Bear Scotland case concerning the inclusion of overtime in holiday pay. The EAT introduced a novel requirement that there should be a gap of no more than three months between any two shortfalls in pay in order for them to be treated as part of a series of deductions. News of this requirement came as a surprise to employment lawyers, because there is nothing in the legislation to suggest it. The Bear Scotland case was not taken to the Court of Appeal so its innovative approach to time limits was not tested. I suspect it will be tested now.

Mr Smith's lawyers would have known that they were likely to lose at this stage. If they think this part of the claim is worth £75,000, then I suspect they are planning for a lengthy legal battle. I would assume that the case would go to at least the Court of Appeal - and I wouldn't be surprised if Charlie Mullins finds himself in the Supreme Court once again. His jubilation at being 'vindicated' by the Tribunal is rather premature.

Safeguarding and discrimination.

At the last update I gave, one of the delegates made what I thought was a really good point about safeguarding and discrimination. We were discussing the case of Sutton Oak Church of England Primary School v Whittaker. This is a case in which a teacher was dismissed after admitting meeting a year five boy on a one-to-one basis and giving him sweets. This followed a warning for inappropriate behaviour some years earlier after which he was given instructions not to be left alone with a pupil. The school's concern was that the teacher could be seen as 'grooming' the pupil - but the teacher argued that this was sexual orientation discrimination, with the school assuming that the fact that he was gay meant that there was a greater risk of him being a paedophile. The Tribunal upheld his claim but this finding was overturned by the EAT which held that the Tribunal had not considered whether a heterosexual teacher who had been given a similar warning in the past would have been treated differently.

Most of the delegates - many of whom were involved in schools HR - instinctively felt that a heterosexual male teacher behaving the same way towards a girl would also have been a cause for concern. But one pointed out that the situation might have been handled very differently if the teacher was a woman.

This reminded me of a tribunal case I came across some years ago - Keller v Hertfordshire County Council (ET 1501425/2013) - in which a number of 'safeguarding concerns' about the behaviour of a male site manager of a school led to his dismissal. The Tribunal found that the case against him was weak and that the employer had overstated the seriousness of the conduct alleged. Furthermore, similar behaviour on the part of three other members of staff - all of them women – had not resulted in any formal safeguarding concerns. The female headteacher admitted in evidence that men working with very young children were viewed differently from women - which is quite an admission to make in a sex discrimination case. The Tribunal found that the dismissal did indeed amount to sex discrimination.

It is important to appreciate that the undeniable fact that sexual abuse is most commonly carried out by men does not allow employers to treat men and women differently when it comes to safeguarding. Whether that happened in Mr Wittaker's case is of course impossible to know because sex discrimination was not alleged. Nevertheless this is one more legal pitfall that employers with safeguarding obligations should be alert to.

Parish Notices

It was great to see so many people from East Midlands Councils earlier this month. My next public event is my annual employment law update for West London CIPD. It's open to anyone and you can find tickets here: https://www.eventbrite.co.uk/e/employment-law-workshop-tickets-59220532206

This month I also recorded a webinar for XpertHR answering questions on sickness absence. Over 1,300 people tuned in live, but you can catch up with the recording here: https://www.xperthr.co.uk/audio-and-video/webinar-tricky-sickness-issues-your-questions-answered

I always enjoy doing things for XpertHR - not least because they use a photo of me that must be more than 10 years old by now. I had a fresher look, and rather more hair then!

That's all for this month. Thanks again for subscribing. Don't forget that you can find out more about what I do by going to me website: darrennewman.org

Darren