Frontline UK Employment Law Update Edition 3 2021 - Case updates
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1. RJ v Stadt Offenbach am Main (Case C-580/19) EU:C:2021:183
2. Page v NHS Trust Development Authority [2021] EWCA Civ 255
3. Smith v Pimlico Plumbers Ltd: UKEAT/0211/19/DA
4. Royal Mencap Society v Tomlinson-Blake UKSC 2018/0160
6. Evergreen Timber Frames Ltd v Harrington UKEAT/0072/20
1. RJ v Stadt Offenbach am Main (Case C-580/19) EU:C:2021:183 - LINK
In this case the Court of Justice of the European Union (“CJEU”) held that, when deciding if a firefighter’s time on standby was working time for the purposes of the Working Time Directive (“WTD”), it must be considered whether in all the circumstances the constraints imposed on that worker during standby “objectively and very significantly” affect their ability to freely manage their time and pursue their own interests when their services are not required by their employer.
The Claimant firefighter was regularly required to be on standby duty when not at work, meaning that he had to be reachable at all times and able to attend the scene of an incident anywhere within his town boundary, or go to his workplace within 20 minutes of receiving a call. He was also required to be in uniform with his service vehicle when he attended. The Claimant argued that his time spent on standby should be considered working time.
The German court asked the CJEU:
- Whether under the WTD, standby time which included such obligations as the Claimant’s constituted working time, if the employer had not prescribed a place where the employee must be present during that time.
- If so, whether the likelihood or extent of being called upon while on standby should be considered under the WTD.
The CJEU held that it is up to the relevant national court to determine whether standby time should be considered working time, but it should not be interpreted restrictively in a way that prejudices workers’ rights. The CJEU highlighted that, based on previous case law:
- During working time, the worker is usually at a location determined by their employer, available to the employer and if necessary able to provide their services immediately. The whole of that time is working time, regardless of the work carried out.
- A period of standby other than at the workplace would therefore be working time if there was an objective and very significant impact on the opportunity to pursue personal/social interests, rather than merely a requirement to be contactable.
The national court must therefore consider a worker’s ability to freely manage their time during a period of standby, when deciding whether standby time is working time. If the employer allows for a reasonable period for the worker to resume work during standby, which allows them to plan personal/social activities, then it will not be working time.
If instead a response is needed from the worker within a few minutes, standby time will be working time, as the worker is “strongly dissuaded from planning any kind of recreational activity, even of a short duration”. All the circumstances should be taken into account, such as whether any specialist equipment or vehicles would need to be obtained by the worker when work was required, and the frequency with which they are called upon by their employer.
The CJEU made a general observation that the WTD relates to workers’ health and safety rather than remuneration, and national laws or employers may provide for differences in remuneration during periods of standby depending on whether work is undertaken, even where it is all considered working time under the WTD. Furthermore, while standby time that is not working time will be considered a rest period, an employer’s duty to protect health and safety extends to ensuring that periods of standby time are not too long or frequent, which also may be provided for by national laws.
Although this decision was issued after the end of the Brexit transition period, the UK courts and tribunals may still have regard to CJEU case law where relevant to a matter before them. It is possible, therefore, that UK courts and tribunals dealing with cases brought under the Working Time Regulations 1998 may have regard to this decision when determining the issue of whether time spent on standby is working time.
2. Page v NHS Trust Development Authority [2021] EWCA Civ 255 - LINK
In this case the Court of Appeal (“CA”) confirmed an Employment Tribunal (“ET”)’s finding that the suspension and termination of a non-executive director’s appointment within an NHS trust and the related investigation, did not constitute unlawful discrimination and harassment on the basis of religion or belief, and victimisation contrary to the Equality Act 2010.
The Appellant was a practising Christian, who also acted as a magistrate in family courts, dealing with adoption cases as well as holding an NHS non-executive director appointment. He first faced disciplinary action in his role as a magistrate for telling his fellow magistrates that having both a mother and father was in the best interests of a child and it was “not normal” to be adopted by a single parent or same sex couple. The Appellant then gave interviews in the media repeating his beliefs and arguing that he had been discriminated against, which continued after he was removed from the magistracy.
The Appellant’s NHS trust warned him about the public expression of his views and asked to be told about any further media interest. After this warning, he continued to promote his views publicly in interviews. He was suspended pending investigation, on the basis that his public response to his removal as magistrate and his engagement with the media would negatively impact staff, patients and the public.
The Appellant brought claims of discrimination and victimisation against the Respondent. The ET held that his removal was not due to his belief or his expression of it, but rather due to him expressing his personal views in the media without permission, in a way that was inappropriate for someone in his position.
On appeal to the CA, it was held that the ET had been correct in finding that Article 9 of the European Convention on Human Rights regarding his beliefs was not engaged, but that if it was then the limitation to his freedom of religion was necessary and proportionate. The CA placed importance on the fact that his comments were likely to cause offence or be misinterpreted, that they might deter unwell homosexual people in the NHS trust’s area from engaging with its services, and that he had acted in an uncooperative way which did not respect both parties’ interests.
The CA also held that the ET was correct to find that the act complained of in support of his discrimination claims was the way that the Appellant had manifested his belief, i.e. the way he had expressed his views in the media, rather than the belief he held. On this basis, the Respondent’s actions were justified and did not amount to unlawful discrimination.
The Appellant sought to argue that the protected acts for which he was victimised were his statements in interviews that his removal as a magistrate was unlawful discrimination. The CA held that the Respondent’s actions were prompted by his decision to express views in the media about same-sex adoption and homosexuality that would impact the Respondent’s ability to engage with homosexual people, and not the fact that he said he was discriminated against. His victimisation claim therefore failed.
As a general point, the CA strongly disagreed with the Appellant’s argument that the decision would make it difficult for Christians to hold public positions. Instead, the issue was the public expression of such views. This case emphasises that the freedom to express religious beliefs is not unlimited, and those in public positions may need to accept some limitation on their ability to express their views publicly on sensitive subjects. Whether such limitations are justified will depend on all of the circumstances of the particular case.
Employers face difficult decisions when confronted with employees who express their religious views or other beliefs publicly or to others in the workplace, particularly where those beliefs are offensive to other protected groups (such as the LGBTQ+ community). The tension between the rights of individuals not to be discriminated against on grounds of religion or belief, and rights not to be discriminated against on grounds of sexual orientation, remains fertile ground for litigation.
3. Smith v Pimlico Plumbers Ltd: UKEAT/0211/19/DA - LINK
In this case, the Employment Appeal Tribunal (“EAT”) held that a worker who had taken annual leave but not been paid for it could not proceed with his claim for holiday pay under the Working Time Regulations 1998 (“WTR”) as the claim had not been brought within three months of the date on which payment should have been made as required under regulation 30 of the WTR. It had been reasonably practicable for the Claimant to submit the claim within the three-month time limit so no further extension was permitted.
The Claimant worked for the Respondent between 2005 and 2011. During that period, he was treated as an independent contractor with no holiday entitlement, but he took unpaid leave. Following a Supreme Court decision (reported in Frontline here), holding that the Claimant was a worker, entitled to paid holiday, he sought £74,000 in compensation for the unpaid holiday that he had taken.
The Employment Tribunal (“ET”) dismissed his claim on the basis that it was out of time, having been brought more than three months from the date on which the payment should have been made, and the Claimant having failed to establish that it was not reasonably practicable to bring the claim within that time limit. The ET considered the European Court of Justice (“CJEU”)’s decision in King v Sash Window Workshop Limited, in which it had been held that a worker who had been prevented from taking annual leave because of the employer’s failure to pay for that leave was entitled to carry that untaken leave forward and to receive a payment in lieu upon termination of his engagement. The ET held that King was not relevant to the Claimant’s situation, as he had in fact taken leave during his engagement.
The EAT stated “had it been the CJEU’s intention to develop, through its judgment in King, a carry-over right in respect of leave that is taken but unpaid, one could have expected it to say so…”.
The EAT also held that the ET had not erred in determining that it had been reasonably practicable for the Claimant to have brought his claim in respect of holiday pay within the three-month time limit. The ET had been entitled to find that it had been reasonably practicable for the Claimant, as “an intelligent man carrying out a professional service”, to have made inquiries as to his position and brought a claim in time. The Claimant knew, when taking annual leave, that he was not being paid for it and there was no real impediment to him making inquiries about his position and seeing legal advice at that time.
It is worth noting that although it was held to have been reasonably practicable for this Claimant in this case to bring a claim within the three month time limit, this may not be the case in all claims of this type, where a worker who has been misclassified as self-employed, and has taken only unpaid leave as a result, claims payment after the event. The EAT acknowledged that a worker who is less well paid and lacks the resources to challenge documentation imposed on them, or whose employer has actively deceived them as to their legal rights, may succeed in arguing that it was not reasonably practicable to present a claim in time.
4. Royal Mencap Society v Tomlinson-Blake UKSC 2018/0160 - LINK
In this case, the Supreme Court (“SC”) held that workers who were required to sleep at their workplace and be available to provide assistance if required could lawfully be treated as not working for the purpose of calculating the hours which were to be taken into account for the purposes of determining entitlement to the National Minimum Wage (“NMW”), despite the fact that the workers were required to be present at the workplace during specified hours.
The Claimant provided care and support for two vulnerable adults who both have autism and substantial learning difficulties. She was required by the Respondent, her employer, to carry out a sleep-in shift from 10pm to 7am for which she was paid £29.05. No specific tasks were allocated in the sleep-in shift, but she needed to keep a ‘listening ear’ out during the night in case her assistance was required. If her assistance was required, she was expected to intervene where required or respond to any requests for help. Where such interventions were not required, the Claimant was entitled to sleep throughout. The need to intervene arose six times over the preceding 16 months. For interventions, the Claimant was not additionally remunerated for the first hour but was paid in full for any further hours thereafter.
The Claimant claimed that she was entitled to have all hours spent sleeping in counted as working time for the purposes of entitlement to the NMW. However, the SC made clear that workers should only be entitled to the NMW for all times when a worker is ‘available’ and this “only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping”.
This case puts to bed a long-held belief that employees are working throughout sleep-in shifts following the Court of Appeal’s decision in British Nursing v HMRC [2002], with the SC indicating that the decision in British Nursing should no longer be regarded as authoritative. It is a useful reminder to employers in care services that NMW does not need to be paid to workers whilst they are sleeping. The debate over whether this is the “right” result for a care sector already criticised for low levels of pay, and calls for the government to implement legislative changes in this area, will no doubt continue.
5. McTear Contracts Ltd v Bennett and others UKEATS/0023/19; Mitie Property Services UK Ltd v Bennett and others UKEATS/0030/19 - LINK
In this case, the Employment Appeal Tribunal (“EAT”) held that the European Court of Justice's (“CJEU”) finding in ISS Facility Services v Govaerts C-344/18 (previously covered in Frontline here) also applied in the context of service provision changes under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”), meaning that in a service provision change involving multiple transferees, the contract of the transferring worker could be split between each of the transferees in proportion to the tasks performed by the worker.
Amey Services Ltd (“Amey”) undertook a kitchen installation contract for a local authority. The contract was subsequently retendered and the work was split between two contractors, McTear Contracts Ltd (“McTear”) and Mitie Property Services UK Ltd (“Mitie”). Each took a separate lot based on geographical location (in this case, north and south). Amey was of the view that TUPE would apply to transfer the employees’ existing contracts to either McTear or Mitie based on the amount of time the employees had broadly spent in each of the two geographical locations. However, while McTear and Mitie took on certain employees on new terms, they did not take on all employees, as they argued TUPE did not apply. A number of employees consequently brought claims against Amey, McTear and Mitie in the Employment Tribunal (the “ET”), including for unfair dismissal. The ET held that there was a service provision change amounting to a relevant transfer under TUPE and allocated the relevant employees either to McTear or Mitie using the same approach Amey had adopted. McTear and Mitie appealed.
The EAT considered the position in light of Govaerts and found that although there was no requirement to apply the CJEU decision to the purely domestic UK provisions of TUPE on service provision changes, taking a different approach depending on whether the transfer was a business transfer or a service provision change would not be desirable. The EAT found there was no reason in principle why an employee might not hold two or more contracts of employment with different employers at the same time, provided that the work attributable to each contract was clearly separate and identifiable. The EAT therefore set aside the ET’s decision on the allocation of the employees and remitted the case to the ET to be decided in light of Govaerts.
This decision creates potential headaches for employers involved in service provision changes. They will have to consider potential transfers that involve multiple transferees carefully, as the fragmentation of activities between a number of new service providers will not necessarily mean that TUPE does not apply. In practice employees may be unwilling to have their employment contracts split between more than one employer, or such a split may be unworkable (for example, where workplaces are physically remote from each other). This may result in more claims being made in reliance on regulation 4(9) of TUPE, which entitles employees to resign and treat themselves as dismissed where the transfer involves a substantial change in working conditions to their material detriment.
6. Evergreen Timber Frames Ltd v Harrington UKEAT/0072/20 - LINK
In this case, the Employment Appeal Tribunal (“EAT”) held that an employer and ex-employee had not entered into a contractually binding agreement to transfer ownership of a company car to the employee upon termination of his employment.
The Claimant and Respondent had been involved in various discussions about severance terms and pay off in the context of a redundancy dismissal. Some of the discussions were detailed in a letter to the Claimant. Although the letter omitted certain aspects of the Respondent’s offer, in relation to computer and bonus, it did state that the Respondent would like to give the Claimant his company car as a gift. The Claimant responded to accept the gift of the car, but challenged the overall offer on the basis that it was incomplete. When the Respondent failed to transfer the car to him, he brought a claim for breach of contract.
The EAT found that the Respondent had made a valid offer to give the Claimant the car. However, the case turned on whether there had been valid acceptance of that offer by the Claimant. The EAT held that the negotiation of severance agreements would become too complex if it were possible for one party to unilaterally sever and accept some terms of an offer, while rejecting or seeking improvement to others. The EAT held that the parties had not entered a contractually binding agreement under which ownership of the car would be transferred upon termination of the Claimant’s employment and the Claimant could not succeed in his breach of contract claim on this basis.
The EAT held that the case should be remitted to a new Employment Tribunal to determine whether there had been a previous oral agreement to transfer the car, as asserted by the Claimant.
This case serves as a reminder to employers seeking to negotiate the terms of a settlement or termination agreement with an employee or former employee that the communications used to convey and negotiate those terms must be crystal clear. It is always advisable for offers to be made in writing, and to be expressly stated to be “subject to contract”, to minimise the scope for dispute over what terms have been agreed. Careful notes should be kept of any verbal offers or negotiations, and these should ideally be followed up with written confirmation.
