So, you have finally agreed to terminate the employee on long term sick. You draft and then post the letter giving notice safe in the knowledge that posting a letter by ordinary post is deemed served. Job done: notice has been served by the employer?
Recent case law [Haywood v Newcastle upon Tyne NHS Foundation Trust  EWCA Civ 153] has confirmed that this is not always so.
Here are the facts
The employee [respondent] was employed as an associate director of Business Development by Newcastle Primary Care NHS Trust (“PCT”) from 1 November 2008 to July 2011. Newcastle and North Tyneside Primary Care Trusts had a joint board, of which Mrs Haywood was a member. Her role was business development for community services in both Newcastle and North Tyneside Primary Care Trusts which had a joint budget of £80m. The value of the business finally transferred was £54m. Although she had much nursing experience, hers was the only non-clinical Band. She was paid in excess of £80K per annum.
“While the employee was on holiday abroad her employer sent her a letter, by recorded delivery on 20 April 2011, notifying her that it was terminating her employment by reason of redundancy, with 12 weeks’ notice, in accordance with her contract of employment, terminating on 15 July. An attempted delivery card was left at the employee’s address on 21 April and a relative collected the recorded delivery letter from the sorting office on 26 April leaving it at the employee’s address. The employee did not read the letter until 27 April upon her return from holiday. At issue was whether she had received 12 weeks’ notice of dismissal before her 50th birthday on 20 July and therefore would receive a lower pension than she would have done if the notice period had expired on or after her 50th birthday. The judge declared that the employee was employed up to and including 20 July 2011, concluding that notice had only been given once the employee had actually read the letter of dismissal on 27 April so that the contents were communicated to her.” The employer appealed.
The appeal was dismissed (Lewison LJ dissenting). “A notice had to be received even if sent by post. The employee did not receive notice of termination of her contract with the employer until 27 April and therefore the notice period did not expire before her 50th birthday. (Per Proudman J) The contents of the letter had to be actually communicated to the employee before it took effect.
Case law established that there was a requirement that employees needed to know where they stood, that the date of notice carried some importance and that there was a general requirement that all notices of all kinds in employment contracts needed to be communicated and therefore there was an implied term in an employment contract that notice of dismissal should be communicated to the employee in order for it to be effective. (Per Arden LJ) There was no implied term in the present case that the employer should have communicated notice of termination to the employee. A term that notice could be given by post was implied into the contract. However, a term as to when that notice was effective could not be implied but rather was governed by the general law. When the notice was sent by post to be effective it still had to be received and even when it was physically delivered to a person’s home, it was not necessarily received.
‘The law presumes unless the contrary was shown that a party to whom notice was addressed would have received it the next working day plus one following posting. But this presumption gives rise to a rebuttable presumption of receipt.’ That is, the employee can argue that they did not receive the letter and this must be then determined by the court.
Citation:  EWCA Civ 153,  WLR(D) 206
Nicola Brown, Partner at law firm Mills & Reeve LLP writes a reminder about employee loans on their employment law blog following a Privy Council ruling that “reminds [employers] to think carefully about the repayment terms attached to employee loans.
The dispute was about whether an employee was obliged to repay a very substantial loan after he had volunteered for redundancy.”
“…. trouble could have been avoided if the Company had applied its mind to the full range of circumstances in which the employment might be ended, when agreeing the terms of the loan. It is common for detailed “good leaver” and “bad leaver” provisions to be included in share option schemes and the like. Where a loan is advanced for a significant amount of money, there is an argument for including equivalent leaver provisions to avoid uncertainty. Certainly employers should not assume that they can get their money back if the employment is ended while a loan is still repayable, unless the employee is clearly at fault.”
About the Author
The Author, Nicola Brown is described as enjoying “a reputation in the higher education sector for her ‘ability to talk in plain English and her efficiency’.”
I am grateful for Mills & Reeve LLP for publishing the blog “Implied “no sacking” term may attach to repayment of employee loans.”
This was a Privy Council judgement. The Privy Council is often overlooked and yet remains a court with significant impact on the common law as well as both international and UK Employment law.
I am grateful for Mills & Reeve LLP for publishing the blog “Implied “no sacking” term may attach to repayment of employee loans.”
Case: Ali v Petroleum Company of Trinidad and Tobago (Trinidad and Tobago)  UKPC 2 (13 February 2017) (access to the judgement is free).
Citation:  WLR(D) 110,  UKPC 2
A recent case [Grange v Abellio London Ltd (Working Time Regulations)  UKEAT 0130_16_1611 (16 November 2016) ] has highlighted that a common sense construction of Regulation 30(1), read together with Regulation 12(1) (right to an uninterrupted break) will enable employers to meet their obligation to provide lunch breaks (compliant with the purposes of the WTD) and the EAT’s Judgment in Truslove where :
That entitlement will be “refused” by the employer if it puts into place working arrangements that fail to allow the taking of 20 minute rest breaks (MacCartney). If, however, the employer has taken active steps to ensure working arrangements that enable the worker to take the requisite rest break, it will have met the obligation upon it: workers cannot be forced to take the rest breaks but they are to be positively enabled to do so.
Tired of ‘Uber’ or ‘Pimlico Plumbers’ (or should that be Pimlico trades-people) then why not read about Engel (the part time Judiciary)?
Warning: this blog talks about Pensions and objctivity!
Let us start with the law surrounding part time workers
A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker [Reg 5. Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the 2000 Regulations”] –
“(a) as regards the terms of his contract; or
(b) by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
(2) The right conferred by paragraph (1) applies only if –
(a) the treatment is on the ground that the worker is a part-time worker, and
(b) the treatment is not justified on objective grounds.
(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.”
Central to these appeals is Regulation 5(2)(a), which provides that the right conferred by Regulation 5(1) applies only if the less favourable treatment is “on the ground that the worker is a part-time worker”.
The 2000 Regulations were enacted to implement the Part-Time Workers Directive 1997 97/81/EC (hereafter “PTWD”). This confirmed a framework agreement on part-time work concluded by social partners. The framework agreement provided as follows:
“Clause 4: Principle of non-discrimination
- In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds.
- Where appropriate, the principle of pro rata temporis shall apply.
- The arrangements for the application of this clause shall be defined by the Member States and/or social partners, having regard to European legislation, national law, collective agreements and practice.
- Where justified by objective reasons, Member States after consultation of the social partners in accordance with national law, collective agreements or practice and/or social partners may, where appropriate, make access to particular conditions of employment subject to a period of service, time worked or earnings qualification. Qualifications relating to access by part-time workers to particular conditions of employment should be reviewed periodically having regard to the principle of non-discrimination as expressed in Clause 4.1.”
Well, that seems very clear. An employer can not treat a part time worker differently to a person undertaking the same (or substantially similar) role just because they are part time unless their is objective grounds for doing so. So what could possibly go wrong?
What is a Recorder?
The CJEU (European Court) determined that workers were to be defined nationally (by the UK Parliament) and not by the European Court. Further the social framework was concluded and the read so that part time Recorders were Workers.
In a related and important case a Mr O’Brien O’Brien v Ministry of Justice  ICR 499), who was then in practice as a barrister, decided to apply to become a recorder ( a Judge in ordinary language). He was appointed as a recorder with effect from 1 March 1978, and he continued sitting as a recorder until he ceased to hold that office on March 2005. The question then arose as to whether, as he was no longer the holder of a judicial office, he was entitled to a pension under the judicial pension scheme.
The office of recorder is not one of the judicial offices for which provision for the payment of pensions was made in the Judicial Pensions Act 1981. So over time at least 1981 until 2005) the part time role of a Recorder did not attract a pension BUT the full time role did. This term coined for this difference is an “historic” reason for the difference.
What can be an objective difference?
Historical difference might exist (as in O’Brien’s case) but they need to be justified or they might be unlawful.
The O’Brien judgement stated at  “The Ministry have struggled to explain what they are seeking to achieve by denying a pension to part-timers while granting one to full-timers. One aim seems to be to give a greater reward to those who are thought to need it most. This might be a legitimate aim, but (as Advocate General Kokott explained) the unequal treatment of different classes of employees must be justified by the existence of precise, concrete factors, characterising the employment condition concerned in its specific context and on the basis of objective and transparent criteria. An employer might devise a scheme which rewarded its workers according to need rather than to their contribution, but the criteria would have to be precise and transparent. That is not so here. Some part-timers will need this provision as much as, if not more than, some of the full-timers. On examination, this objective amounts to nothing more than a blanket discrimination between the different classes of worker, which would undermine the basic principle of the PTWD.
Similarly (but inconsistently), an employer might aim to give a greater reward to those who make the greater contribution to the justice system, but the Ministry have failed to demonstrate that fee-paid part-timers, as a class, make a lesser contribution to the justice system than do full-timers, as a class. Once again, the criteria for assessing such contributions are not precise and transparent. They amount to nothing more than a blanket discrimination between the two classes of worker. The proper approach to differential contributions is to make special payments for extra responsibilities. The argument also fails to take into account the benefits to the system in having a cadre of fee-paid part-timers who can be flexibly deployed to meet the changing demands upon it.”
So for a difference to be (legitimate/permissible) Advocate General Kokott explained it must be:
- based on concrete factors, and
- specific to the context.
So what is the case of Engel about?
The O’Brien situation was sent back to the Employment Tribunal to sort out and the Engel’s case is one of many where the lawyers argued about comparitors (like for like work) and whether or not a procedural or legal error was made.
As an aside, can budgets/costs be relevant?
Budgetary considerations cannot justify discrimination: see, to that effect, Schönheit v Stadt Frankfurt am Main (Joined Cases C-4/02 and C-5/02  ECR I-12575, para 85, and Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol (Case C-486/08)  ECR I-3527, para 46.” Sound management of [the public] finances may be a legitimate aim, but that is very different from deliberately discriminating against part-time workers in order to save money.
Suppose a company that pays its own part-time workers pro rata to full-time workers takes over part-time employees who do similar work from another company, which paid them less? Can it be permissible under the 2000 Regulations for the company to perpetuate the lower rate of pay to the newly acquired part-time workers? in Engel the Claimant submitted it would be contrary to the purpose of the 2000 Regulations if this were the case, but, this very much depends on the reason why the company pays less, a matter which an Employment Tribunal would investigate with care and which it would be for the company to identify.
Can reward based on contribution be justified?
Where the difference is based on greater reward to those who contribute more the same rules apply – anything less is discriminatory.
Whilst the Engels Judgement does not advance us much further, it is clear that objective criteria are to be the bedrock of difference they they must be relevant and concise. Or as Advocate General Kokott explained:
- based on concrete factors, and
- specific to the context.
Citation:  ICR 277,  UKEAT 0337_15_3008 Continue reading
In an appeal against a decision that the Claimant had suffered indirect sex discrimination because there was a requirement to be able to work over 50% of rosters and on Saturdays which was a PCP that put women and her at a particular disadvantage. Appeal allowed and remitted to a fresh Tribunal.
The Claimant was a female train driver. She made various claims against the First and Second Respondent and 6 other individual Respondents. The Employment Tribunal found that a PCP which required train drivers employed by the First Respondent to work at least 50% of their roster and on a number of Saturdays put women at a particular disadvantage. The Claimant thus won her claim for sex discrimination. The First Respondent appealed.
The EAT allowed the appeal. The ET had not erred by finding that there was a PCP that put women at a particular disadvantage but they had failed to weigh the legitimate aims of the First Respondent against the discriminatory impact of the PCP rather than their own. The claim was remitted to a fresh ET to decide whether the discriminatory PCP was a proportionate means of achieving a legitimate aim.
This case serves to remind us that the reasoning (justification) is often key to a successful challenge to discrimination claims.
XC Trains Ltd v CD & Anor
An employee for a large chain had been demoted to the role of team leader following disciplinary and signed a new contract for that role. However she maintained her objections to the role and after working in the new role for some 5 months eventually resigned (constructive dismissal).
The Employment Appeal Tribunal (EAT) has held that an employee’s written acceptance of new terms of employment for a demoted role did not affirm the contract of employment.
The legal principles in affirmation established in W E Cox Toner (International) Ltd v Crook  IRLR 443 were agreed (so we are seeing no new case law emerging: :
“13. … Mere delay by itself (unaccompanied by any express or implied affirmation of the contract) does not constitute affirmation of the contract; but if it is prolonged it may be evidence of an implied affirmation: Allen v Robles  1 WLR 1193. Affirmation of the contract can be implied. Thus, if the innocent party calls on the guilty party for further performance of the contract, he will normally be taken to have affirmed the contract since his conduct is only consistent with the continued existence of the contractual obligation. Moreover, if the innocent party himself does acts which are only consistent with the continued existence of the contract, such acts will normally show affirmation of the contract. However, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation …”
The full case Novakovic v Tesco Stores Ltd EAT/0315/15 can be read: http://www.bailii.org/uk/cases/UKEAT/2016/0315_15_0103.html
In this well publicised court action we find another twist Various Claimants v McAlpine & Ors  EWHC 45 (QB) the “Claimants were all construction workers whose names appeared on a secret industry-wide blacklist. The blacklist operated to deny them employment opportunities within the construction industry. They sought permission to rely upon an expert’s ‘hybrid’ report (which combined large-scale national data with adjustments to take account of individual circumstances) to determine loss of earnings consequent upon inclusion on the blacklist.
The High Court dismissed the application on the grounds that the proposed methodology amounted essentially to “research” and accordingly did not constitute a recognised expertise governed by recognised standards and rules of conduct. Further, the Court was not satisfied that the proposal would genuinely help it to determine the matters at issue or prove sufficiently more accurate than the traditional methods of assessing loss of earnings already at its disposal. Finally, the High Court was not convinced that the time and expense necessarily involved in compiling the proposed report would be proportionate. The application was dismissed.”
The laws around expert witnesses are getting tighter case by case and this one adds throws a spanner in the works of data lovers and to my mind illustrates that the High Court is not ready for bid data. This case also serves to show how court action can be so complex and unaffordable that it is beyond the reach of many (if not most)!
Neutral Citation Number:  EWHC 45 (QB)
The power of strike out is used sparingly by the courts. It is a last resort used only for plain and obvious cases. Below is one example where the application by the AA failed in employment matters.
Cases involving issues where the law is in a state of development are not suitable for strike out applications BUT where the issues involve novel causes of action and defences, the statements of case may well be vulnerable to strike out (i.e. get rid of the absurd).
Strike out applications on the ground of abuse of process will not automatically be granted if the abuse can be dealt with in another way.
An application for strike out on the ground of non-compliance with or breach of a rule, practice direction or court order will not be granted if other remedies are available, such as costs penalties, payments into court and interest at a penalty rate or conversely, loss of interest. Only in the most serious cases of non-compliance will strike out be suitable.
There are other mechanisms more suitable than strike out for dealing with what are believed to be defective cases and unsuccessful applications for strike out will result in wasted costs (the applicant is likely to have to bear both its own costs and those of its opponent).
Recent example that has been set aside (dismissed) is: Dambagolla v Automobile Association Ltd UKEAT/0192/15/RN
‘The Claimant, who had a disability recognised by the Respondent (back pain), worked for the Respondent as an AA Patrolman from 1988 until 2012, when he was dismissed, allegedly for gross misconduct. The Claimant issued proceedings for unfair dismissal, direct and indirect disability discrimination, discrimination arising from a disability, victimisation and harassment. The Respondent subsequently made an application to strike out the disability discrimination claims or, in the alternative, for a deposit order, on the basis that the claims had no reasonable prospect of success or little reasonable prospect of success respectively. An Employment Judge heard the application and duly dismissed all the Claimant’s discrimination claims, leaving just the unfair dismissal claim outstanding. The Claimant appealed, broadly on the grounds that the Employment Judge had failed to identify the relevant law, failed to set out the legal test for strike-out and had mistakenly shifted the burden onto the Claimant.
The EAT allowed the appeal. The Employment Judge had erred in law in that he had failed to set out the test for strike-out and had failed to make it explicit that it was for the Respondent (and not the Claimant) to satisfy the burden of demonstrating that the case had no reasonable prospect of success. The Employment Judge further failed to differentiate sufficiently between a finding that a claim is out of time (where the burden rests on the Claimant) and a finding of no reasonable prospect of success (where the burden rests on the Respondent). There were clearly triable issues of fact which required determination at a full hearing. The strike-out order was accordingly set aside and the case remitted for full hearing.’
In the above case the EAT (Mr Justice Kerr, sitting alone) simply decided  “In my view it was not rational to overlook that part of the Claimant’s case when deciding the strike-out application…….. I have come to the conclusion that the decision cannot stand. I am quite satisfied that the strike-out application could not properly have succeeded and, it seems to me, that it falls within limb (b) of Laws LJ’s formulation in Jafri v Lincoln College  ICR 920 .
That is short for a waste of time over nothing (and at the employers cost)!
I love this recent EAT finding in Ham v The Governing Body of Beardwood Humanities College where is was observed  ‘that the expression “gross misconduct” is steeped in industrial history, predating the introduction of the statutory concept of unfair dismissal, introduced by the Industrial Relations Act 1971. It is convenient shorthand for the old common law concept of wrongful dismissal: that is, where the employee is guilty of repudiatory conduct entitling the employer to summarily dismiss him without notice or pay in lieu thereof. The expression does not appear in s.98 of the Employment Rights Act.’
“Employment Tribunals have a separate wrongful dismissal jurisdiction under the Extension of Jurisdiction Order 1994. However, unfair and wrongful dismissal are separate and distinct causes of action: see Redbridge London Borough Council v Fishman  ICR 569; applied in Farrant v Woodroffe School  ICR 184. A wrongful dismissal may be unfair; a fair dismissal may be wrongful.”
So, to comply with Section 98(4) employers should avoid using the outdated term of gross misconduct and use the terms “fair reason for dismissal” are …..examples of conduct !? Not sure that will catch on but who knows.
Citation:  UKEAT 0379_13_0404
The right to be accompanied at a disciplinary hearing resurfaced earlier this year in the High Court.
The High Court has held that an employer breached its implied duty of trust and confidence towards an employee who was not allowed to be accompanied at a disciplinary investigation by his choice of companion. But don’t despair, the right has not been widened significantly.
‘The Claimant, Professor Stevens, is a highly distinguished clinical academic. In 2004 he was appointed to the Chair of Medicine (Diabetes and Metabolism) at Birmingham University. His contract of employment as one of the University’s 241 clinical academic staff is expressly dependent upon his having and retaining an honorary appointment contract with the Heart of England NHS Foundation Trust (“HEFT”) under which he undertakes clinical duties as a consultant. Professor Stevens receives no remuneration from HEFT under his contract with them, but HEFT provides the University with the funds from which to pay his salary.’
‘Professor Stevens has a job whose main duties are split between academic duties and clinical duties and gives an indicative split of his time between them, which is stated to be “flexible”. One of his listed academic duties and responsibilities is to “lead and co-ordinate a programme of research into the aetiology and management of diabetic neuropathy, foot complications and heart disease complicating diabetes.” His listed clinical duties include leading the multidisciplinary diabetic foot service and multidisciplinary diabetic neuropathy service across HEFT. That is to say, he has a role that includes highly technical and skilled research.’
‘Professor Stevens was the subject to a number of allegations of misconduct that largely relate to an alleged lack of oversight of the team of researchers, inappropriate delegation, a failure to keep proper records or samples of tests, and other matters pertaining to the way in which the trials were conducted or documented. There were no allegations that patients were put at risk or inappropriately treated, though one allegation is that Professor Stevens “failed to ensure that medication was prescribed following proper checks and assessments by health professionals and in accordance with HEFT policies for prescribing”. That said, the University had no choice but to take these matters seriously.’
The university’s disciplinary procedure allows Professor Stevens to be accompanied at any investigatory meetings by an employee of the university or a trade union representative. Although Professor Stevens is not a member of a trade union, he is a member of the Medical Protection Society (MPS), a medical defence organisation.
‘Professor Stevens has explained in his evidence that he has no friends who are employees of the University who would be suitable to accompany him to the meeting. His responsibilities mean that he spends a lot of time away from the University campus, and he has no regular contact or meetings with University employees other than members of his own laboratory. He plainly could not bring with him any member of staff who was involved in the trials that are the subject of the investigations and might be called as a witness. He says that if he is unable to bring Dr Palmer with him, he will be compelled to attend the meeting unaccompanied, and that this would be unfair.’
“On the face of it, Professor Stevens’ request to be accompanied by Dr Palmer appears perfectly reasonable, and the University’s intransigence on the subject seems extraordinary. However, Mr Sutton QC, who appeared on behalf of the University, explained that there is a concern that what the University contends would be a departure from the terms of the contract of employment between itself and Professor Stevens, and in particular a departure from the “Disciplinary Procedure” in the Ordinances agreed back in 2008 between the University and its approved Union, the UCU (formerly the AUT) after four years of hard negotiations, would open the floodgates to similar requests. Put simply, the University does not want to create a precedent.”
However, the High Court concluded that the university’s refusal to allow Dr Palmer to act as a companion seriously damaged the relationship of trust and confidence between the employer and employee and was “patently unfair”.
In coming to this conclusion, the High Court stressed the following:
- The investigatory meeting is a crucial stage in the disciplinary process.
- The university enlisted the support of an external HR consultant to attend the investigatory meeting on its behalf, but was forcing Professor Stevens to go into the meeting without any similar support.
- The allegations are very serious and have potentially serious ramifications for Professor Stevens.
- The MPS serves a similar function to a union, and has similar know-how and experience.
- Professor Stevens has a cogent explanation as to why there is nobody in his own department he can approach and, even if he does ask someone from another department, such as the law faculty, to act as companion, that person would not have the necessary technical know-how that Dr Palmer has.
- Professor Stevens has no influence over whether it is the university or HEFT that takes the lead in the investigation. If HEFT’s disciplinary procedure applies, Professor Stevens’ choice of companion would have been accepted.
- The university’s justification for its stance is not sufficient to allow it to treat Professor Stevens unfairly. It is difficult to accept that the union would ever object to an employer conferring more favourable treatment on its employees than it has agreed with the union, as long as this does not result in union members being treated less favourably than non-union members.
The High Court concluded that “there is no reasonable and proper cause for the university’s objectively unfair conduct”. It granted Professor Stevens a declaration that the university’s behaviour is a breach of the implied contractual term that the employer should do nothing to damage seriously the relationship of mutual trust and confidence without good and sufficient reason.
A useful example of the practical operation of the implied term is United Bank v Akhtar  IRLR 507. The case concerned a mobility clause which provided that “the bank may from time to time require an employee to be transferred temporarily or permanently to any place of business which the bank may have in the UK“. The bank sought to rely on that clause to move Mr Akhtar from Leeds to Birmingham at less than a week’s notice, and refused his request that the transfer be postponed for three months because of certain personal difficulties relating to his wife’s health and the sale of his house. Mr Akhtar’s further request to be allowed 24 days’ leave to sort out his affairs before commencing work in Birmingham received no response. His claim for constructive dismissal was upheld.
Knox J, who delivered the judgment of the Employment Appeal Tribunal (“EAT”) dismissing the bank’s appeal, identified the key issue as “whether the bank was in repudiatory breach of contract as a matter of common law in the way in which it sought to exercise its powers under [the mobility clause]”. At  he referred to the earlier judgment of Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd  IRLR 347 in which he explained that:
to constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the [Tribunal’s function] is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is that the employee cannot be expected to put up with it.“
Citation: EWHC 2300 (QB)