Gordons Legal Employment Update – 24 March 2017

This week’s edition includes a mixture of recent case law and a useful guide on the carry-over of holidays when employees are on sick leave.

The Timing of Notice of Termination 

In the case of Newcastle Upon Tyne NHS Foundation Trust v Haywood, the Court of Appeal was asked to consider when notice of termination takes effect when an employee’s contract was silent on when notice was deemed to be given.

In this case, the Claimant was made redundant.  She was informed that she was at risk of redundancy in April 2011.  She went on holiday on 19th April 2011 and returned on 27th April.  Whilst she was away, the letter confirming that she was to be given notice of termination of her employment by reason of redundancy was sent to her whilst she was on holiday and she only read this when she returned from holiday.

Whilst her contract said she was entitled to be given 12 weeks’ notice, her contract was silent as to when notice was deemed to have been given.  This was a key issue because the Claimant was due to turn 50 on 20th July 2011 and if her notice expired after her 50th birthday, she would have been entitled to a more generous pension and redundancy payment.

Whilst the judges in the Court of Appeal disagreed as to the reason, the majority held that contractual notice was given on actual receipt of the letter.  As she had only received the letter when she got back from holiday, the termination took place after her 50th birthday and she was entitled to receive the enhanced payments.

Comment: This decision is consistent with the law on unfair dismissal i.e. the date of termination, for the purposes of bringing a claim for unfair dismissal, is the date the dismissal is communicated. So if there is a particular deadline to meet in terms of a termination taking place, maybe to avoid an employee having two years’ service or reaching a certain age as in the Haywood case, sending a letter may not be enough. For certainty, it will be worth trying to confirm the decision orally and making a note of that discussion for evidential purposes.

Discrimination

In the case of The Chief Constable of Kent Constabulary v Bowler, the EAT held that the incompetent handling of a grievance and careless attitude of the investigator is not sufficient to give rise to an inference of discrimination.

In this case, the appeal focused primarily on whether the Employment Tribunal had drawn an inference of discrimination and victimisation that was not open to it based on the primary facts.

The Employment Tribunal reasoned that the Claimant’s grievance was dealt with incompetently and that the investigator had a careless approach which “indicated that he held a stereotypical view that the Claimant was being oversensitive about being treated badly because of his race.  He would not have treated another grievance in a similar offhand manner.” Unlawful discrimination can occur when assumptions are made that an individual has characteristics associated with a protected characteristic, but Employment Tribunals are not entitled to rely on unproven assertions of stereotyping. There must be evidence that the Employment Tribunal can properly infer that a stereotypical assumption was made and that assumption operated in the mind of the alleged discriminator, whether consciously or subconsciously, when treating a complainant in the way alleged.

The EAT held that that whilst the grievance investigator was careless and incompetent there were no factual findings for the Employment Tribunal to conclude that the investigator held a stereotypical view of the officer because of his race and therefore the claim failed.

Comment: This case highlights a common misconception for many Claimants alleging direct discrimination that mistreatment + protected characteristic = discrimination. Instead, it must be mistreatment “because of” a protected characteristic and a Tribunal cannot infer discrimination just from unreasonable conduct.

Early Conciliation

Further developments have arisen with the issues surrounding the effect of early conciliation on time limits and specifically the interpretation of section 207B of the Employment Rights Act 1996 (‘ERA’). This was highlighted in the recent case of Fergusson v Combat Stress.

In two earlier English cases, Chandler v Thanet District Council ET and Myers and Wathey v Nottingham C.C ET, the Employment Tribunal interpreted section 207B meaning that all the time spent in early conciliation should always be added on to the normal time limit, even if the early conciliation begins before the time limit begins.  In contrast, in this case the Employment Tribunal interpreted section 207B as a ‘stop the clock’ provision and it only applied to days when the normal time limit would be running.  Therefore, the Claimant’s (F) claim was technically out of time.

By way of background, the Claimant (F) submitted an early conciliation form to ACAS on 14 July 2016, prior to F’s resignation on 12 August 2016.  The early conciliation certificate was issued on 14 August 2016.  The normal time limit would have expired on 11 November and F submitted her claim on 18 November. The Employment Tribunal concluded that the extended time limit had expired on 14 November, and F’s claim had been submitted four days out of time.

However, the Employment Tribunal accepted that it was not reasonably practicable for F to have submitted her claim within time, due to her representative’s interpretation.  Based on the two earlier cases and the lack of guidance to the normal time limit, her representative’s interpretation was not negligent as it was reasonable to interpret s.270B in that way. F’s case was allowed to proceed.

Comment: Now that the law has been better clarified on this point it may no longer be reasonable to interpret s.270B in the way that F’s lawyer did and the Tribunals may be less inclined to allow such “out of time” claims to continue in the future. Instead, Claimants would have a cause of action against the lawyer for negligent advice.

Sickness and Holiday Carry Over

As the end of the financial year approaches, it is also the end of the holiday year for many businesses who may need to consider the carry-over of any accrued but untaken holiday entitlement.  Below is a useful table which sets out the rights of both public and private sector workers’ entitlements:

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.