What did we get up to last month?
We've had a busy start to the year with a variety of instructions ranging from advice on holiday pay/overtime implications, drafting shared parental leave policies, advising a leading football club on a number of dismissals and employment tribunal representation in a disability discrimination claim. Interestingly, this claim included a preliminary hearing to determine whether or not the Tribunal in fact had the ability to consider the claim after the claimant's solicitors miscalculated the impact that the ACAS Early Conciliation procedure had on the standard three month time limit and issued the claim a number of weeks out of time. We expect that this is not the first tribunal hearing to deal with errors that have been made arising from Early Conciliation procedure, and we doubt that it will be the last.
We saw this article which reports the alterations made by John Lewis and Waitrose to workers' contracts to reflect last year's EAT judgment which held that non-guaranteed overtime must be included in workers' holiday pay. The additional costs to the business is estimated at around £12million per year, although this represents less than 1% of the total annual payroll costs.
This headline caught our eye – we're no strangers to giving advice to employers about workers' unauthorised absence, but we've not come across absence lasting for 24 years before!
Any new cases to be aware of?
In Salmon v Castlebeck Care (Teesdale) Ltd and Danshell Healthcare Ltd, the EAT determined that a successful appeal against a dismissal had the effect of automatically reviving the employee's contract of employment, even if the outcome of the appeal was not communicated to the employee. In this case, Ms Salmon was dismissed for gross misconduct by Castlebeck in July 2013. She appealed. On 4 September 2013, Castlebeck transferred to Danshell, giving rise to a TUPE transfer. On 17 September 2013, Ms Salmon's appeal was heard by one of the managers who had transferred to Danshell. This manager concluded that the dismissal was unsafe, although did not communicate this finding to Ms Salmon, or make an express decision to reinstate her. In fact, Ms Salmon didn't ever find out the outcome of her appeal. She brought claims against both Castlebeck and Danshell for unfair dismissal.
The Tribunal upheld Ms Salmon's claim against Castlebeck but dismissed it against Danshell, concluding that she had not transferred under TUPE since she had not been employed at the date of the transfer. It held that since she had not been informed of the outcome of her appeal, her employment had not been revived by the appeal process. However, this decision was overturned by the EAT who upheld her claim against Danshell, but dismissed it against Castlebeck on the grounds that Ms Salmon HAD transferred under TUPE. In the EAT's judgment, the Tribunal had been incorrect to conclude that Ms Salmon's contract had not been reinstated and had erred in holding that the outcome of the appeal needed to be communicated to be effective. The EAT was clear that a successful appeal automatically revives the employment contract as if the dismissal had not taken place. It followed that Ms Salmon was employed immediately prior to the transfer, which meant that her employment rights transferred to Danshell.
In Das v Ayreshire & Arran Health Board, Dr Das succeeded in his claim for victimisation when he was rejected for a new role with the Board, for whom he had worked previously. Dr Das had had a troubled employment history with the Board which included whistle-blowing complaints, grievance, his resignation in 2009 and employment tribunal proceedings having been brought by Dr Das under a whistle-blowing and race discrimination legislation in 2010 after he unsuccessfully applied for a role at the Board (these were subsequently settled following judicial mediation).
In 2012, Dr Das applied for another role with the Board. He was the only applicant and there were some legitimate concerns for those reviewing his application and his suitability based on his experience and skills. The Board decided to ask him to attend a panel interview which would be carried out by doctors who had limited or no knowledge about Dr Das' employment history with the Board. However, the HR Manager and medical director knew about Dr Das' past and were concerned that if he were not appointed to the role he would issue tribunal proceedings again. Ultimately, they took the decision to withdraw the role and explained that this was due to an ongoing reorganisation within the Board.
The Tribunal held that the real reason for the withdrawal of the role was the concern that Dr Das would issue a claim if he were not successful following the interview. It therefore upheld his claim for victimisation. It awarded his for £5,000 injury to feelings, as well as five years' loss of earnings, although reduced the latter compensation by 90% on the basis that it believed that there was only a 10% chance that he would have been appointed in any event given the concerns about his suitability for the role.
