HR Two Minute Monthly: Working time; disciplinary proceedings; discrimination; TUPE; October 2015 key employment law changes


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Summary: Our October HR Two MInute Monthly includes cases on working time, TUPE and two decisions highlighting the trend for a broadening of discrimination rights. We also look at the changes to employment law which take effect from October 2015.

ECJ holds that travelling time for peripatetic workers counts towards working time under the Working Time Directive

The ECJ has followed the Advocate General’s opinion in the Spanish case of Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL and another on the working time status of travelling time at the start and end of the working day. In this case, a group of technicians, with no fixed or habitual place of work, travelled from home to client premises using a company vehicle. The time spent travelling from home to the first assignment and from the last assignment back to home was not treated as working time and this was challenged by the union. The issue was referred by the Spanish courts to the ECJ.

The ECJ agreed with the Advocate General that this does amount to “working time” for the purposes of the Working Time Directive. The ECJ found that the workers were carrying out their activities or duties when travelling at the start and end of each day; that the workers were at the employer’s disposal while travelling as the employer was able to change the order of clients or to cancel appointments; and mobile workers travelling to and from assignments were “at work”.

The likely impact of this case in the UK is that challenges will be made to employers who currently do not treat travel from home to the first assignment of the day and travel back from the assignment to home as “working time”. Given that the UK legislation mirrors the Directive, such challenges are likely to succeed. While employees are not entitled to be paid for this time as a result of this finding, it impacts on issues such as rest breaks and the maximum working week for employees who have not opted out.

EAT guidance on the limits of HR assistance in disciplinary proceedings

In Ramphal v Department for Transport, the EAT gave guidance on the limits of HR assistance in disciplinary proceedings. This case is a useful reminder that, while HR can advise on the scope of investigations, on process and the consistency of a proposed sanction, it is inappropriate for HR to influence the disciplinary officer’s decision as to issues of culpability.

Our article on the case can be accessed here and gives a fuller analysis of when action by HR will be considered inappropriate.

Two employee friendly EAT discrimination cases

Individuals can bring a claim for associative victimisation

The ECJ in the case of CHEZ Rezpredelenie Bulgaria has recently extended the ambit of associative discrimination to cover indirect discrimination. In Thompson v London Central Bus Company Ltd, the EAT extended this further, holding that a claim for victimisation brought by a person who did not do the protected act should not have been struck out.

The question for the EAT was the particular form or degree of association needed to succeed in such a claim, there being no dispute about whether a claim for associative victimisation could be brought (the ET having accepted this in order to ensure compliance with EU obligations). The Claimant’s victimisation claim was not that he himself had committed a protected act, but that he was associated in the mind of the Respondent with others who had committed protected acts (after having told management that he had overheard a conversation suggesting that the Respondent’s predecessor company had boasted of getting rid of employees who had alleged wrongdoing by management). It was following this that the Claimant was subjected to disciplinary proceedings.

The ET dismissed the associative victimisation claim concluding that the link between the Claimant and the individuals who had done the protected act was too tenuous. On appeal, the EAT held that there was no need to establish a particular relationship between the Claimant and the third party, but that it was a question of fact for the ET whether the employer subjected the Claimant to treatment because of the protected act of a third party.

Loose causal link required in discrimination arising from disability claims

In Hall v Chief Constable of West Yorkshire Police, the ET dismissed the Claimant’s discrimination claim because the reason for the treatment was the Respondent’s belief that the Claimant was falsely claiming to be sick, not the Claimant’s disability (i.e. the causal link between the disability and the unfavourable treatment was too remote).

The EAT found for the Claimant concluding that: the ET had imposed too stringent a causal link between the Claimant’s disability and the unfavourable treatment; the Claimant’s disability did not need to be the cause of the Respondent’s action; and the Respondent’s motivation for the discriminatory treatment was an irrelevant consideration.

Both Thompson and Hall continue the current trend of cases expanding the scope of discrimination protection, following on the back of the ECJ decision in CHEZ Rezpredelenie Bulgaria mentioned above and considered in this article. This is concerning for UK employers given the potential for significant compensation if discrimination claims succeed and highlights the importance of focusing on non-discriminatory explanations for behaviours complained of and/or justification rather than seeking to defeat claims on technical grounds.

Permanently incapacitated employee not “assigned” on a service provision change under TUPE

In BT Managed Services Ltd v Edwards and another, the EAT held that an employee who had been on sick leave for 6 years, was considered permanently incapacitated and was in receipt of PHI was not assigned to the relevant grouping of employees on a service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).

The transferee in this case refused to accept that the employee had transferred to it under TUPE arguing that the employee’s long-term absence prevented him from being “assigned” to the organised grouping at the time of the transfer. The EAT agreed, finding that assignment requires something more than a mere administrative or historical connection; and that to be assigned, there must be some level of participation by the relevant employee in the activities which are the principal purpose of the organised grouping.

Whether an employee is assigned to an organised grouping is a question of fact. This case should be treated with caution by employers as it was very fact specific (and the judge himself commented on its unusualness). In particular, there was clear evidence before the ET and the EAT that the transferor had made a conscious decision that the employee was “permanently” absent from work. It is clear from the ECJ’s decision that temporary absence by an employee, whether as a result of long-term sickness absence, maternity leave or otherwise, does not mean that an employee will not be “assigned” where there is an expectation that the employee will return to carry out those activities in the future.

As part of managing long-term sickness absence, employers should consider carefully before they make a conscious decision that an individual is considered “permanently” incapacitated, especially if they are engaged in a service which has previously been outsourced and may be subject to further transfers in the future.

Employees to be sued in the member state in which they are domiciled even where they are being sued in their capacity as both an employee and a director

In Holterman Ferho Exploitatie BV v Spies von Büllesheim, the ECJ considered the rules which apply to determine which country has jurisdiction to hear a claim. This was in the context of an individual who was being sued for damages both in his capacity as an employee and a director.

The individual in this case was a German national, resident in Germany, who entered into contracts with the Dutch parent and its German subsidiaries. These companies commenced proceedings against the individual in the Netherlands courts for damages on the basis of allegedly serious misconduct by the individual in the performance of his duties. The Netherlands Supreme Court concluded that there was a distinction in the jurisdictional rules depending on whether the individual was acting in their capacity as a director or as an employee.

The ECJ held that the key question was whether the individual has a contract of employment. If so, the individual can only be sued in the country in which they are domiciled under the rules of the Recast Brussels Regulation which gives special protection to employees. The fact that the individual has additional obligations which may be performed in a country in which they are not domiciled (including the existence of obligations under company law) did not change this position.

This case is a useful confirmation of the established principle that employees can only be sued in the courts of the member state in which they are domiciled, unless special jurisdiction rules apply. It is particularly relevant given that a number of companies will be faced with exactly this situation - where wrongdoing is by an individual who is both an employee and company director.

Scottish Government plans to abolish fees in employment tribunals

Shortly after the Court of Appeal dismissed Unison’s judicial review of the Employment Tribunal fees and EAT fees regime, the Scottish Government published its programme for Scotland for 2015-2016. As part of this programme, the Scottish Government proposes to use the additional powers due to come to the Scottish Parliament to abolish fees in the Scottish employment tribunals. This will be done in order to ensure that individuals have a fair opportunity to have their cases heard. The Scottish Government also plans to consult on the form of the services that can best support access to employment justice.

If this proposal is taken forward, we may see some individuals “forum shopping”, i.e. choosing to bring their claims in Scotland, where they are able to do so, to avoid fees. The UK Government continues with its review of the fees regime which is expected to conclude later this year.

Key employment law changes in October 2015

On 1 October 2015, the following key employment law changes will come into force: employment tribunals will no longer have the power to make wider recommendations in successful discrimination cases (but will still have the power to make recommendations of benefit to the particular claimant); the right of Sikhs to wear a turban instead of a safety helmet will be expanded to most workplaces in Great Britain (although certain limited exceptions will remain); and new national minimum wage rates come into force.

The Modern Slavery Act 2015 contains a provision (due to come into force in October 2015) requiring large businesses to prepare and publish a slavery and human trafficking statement for each financial year, setting out the steps the organisation has taken during the financial year to ensure that slavery and human trafficking is not taking place in any of its supply chains, and in any part of its own business. Details of transitional arrangements and statutory guidance on the requirements are still awaited.

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