Gordons Legal Employment Update – 26 January 2017

With a lot going on in the Employment Law world this week, this edition of the Gordons Legal Employment Update covers a landmark reasonable adjustments claim, agency worker compensation calculations, public sector Gender Pay Gap Regulations, a social media dismissal based on historic tweets and social security benefit increases plus an interesting decision by the Information Commissioner regarding Departing Employees and Theft of Confidential Data.

First Group plc v Paulley – Reasonable adjustments

We now have the Supreme Court’s ruling for this headline-grabbing case which considered the use of spaces provided for wheelchair users on buses.

Facts

Mr Paulley, a wheelchair user, attempted to board a First Group bus. He was unable to do so because the designated wheelchair space was taken by a woman with a baby in a buggy. The woman refused to move having been asked by the driver to do so. The driver took no further action and Mr Paulley had to wait for the next bus.

A sign on the bus asked passengers occupying the space to ”please give up this space if needed for a wheelchair user.” Also, it was Company policy for drivers to also make this request, though not for them to do anything further.

Judgment

As a public service provider First Group was under a duty to make “reasonable adjustments” to avoid substantial disadvantage to disabled persons.

The Court concluded that First Group had breached this duty. The breach was not in relation to the sign. It was found that the wording was sufficient and more forceful “directive” notices are proven to be less effective anyway.

However, it was judged insufficient for First Group to instruct its drivers to simply request non-wheelchair users to vacate the wheelchair space and do nothing if the request is rejected. So, if any refusal to move is unreasonable, some further step to pressurise the non-wheelchair user to move should have been used.

Examples as to what further steps could be considered were provided as follows:

a)    re-phrasing the request as a requirement; or

b)    refusing to drive on for several minutes.

The Court did not go so far as making it a legal requirement for drivers to compel non-wheelchair users to move from wheel chair spaces which must come as a great relief to bus drivers across the land given the potential for conflict to arise.

Interestingly, the risk here is relatively low given Mr Paulley was awarded zero compensation despite winning his claim. However, it is likely that First Group spent a significant sum on legal fees just to get to this point.

Comment: This case does, of course, have direct relevance to bus operators and other service providers as it provides some parameters and suggestions for best practice. Examples a) and b) above are just two suggestions provided by the Supreme Court and operators could go further with more detailed signs or maybe even the imposition of fines for those service users that fail to comply with the requirement to vacate a space for wheelchair users.

The judgment is likely to have a somewhat limited effect on questions of “reasonableness” for employers more generally. This is because a distinction needs to be drawn between passengers and employees. The First Group driver was not in a position to force the uncooperative passenger to vacate the space, particularly in this case where the lady with a baby in a buggy had her own legitimate claim for preferential treatment. Employers, on the other hand, have greater control over their employees and can compel them to comply with the reasonable adjustments they implement.

Breach of Agency Workers Regulations: Calculating compensation

(1) Amissah and ors (2) Olewunne and ors v (1) trainpeople.co.uk (dissolved) (2) London Underground:

This Employment Appeal Tribunal has clarified the correct way to determine loss; namely, by analysing what would have happened but for the infringement or breach of the Agency Workers Regulations 2010 (AWR).

Under Regulation 5 of the Agency Workers Regulations 2010 (AWR); agency workers who have more than 12 weeks’ continuous service are entitled to the same basic terms and conditions (including higher pay) as those employed directly by the company for whom they are working for.

Facts

31 agency workers began working for London Underground Ltd (LU) through the recruitment agency trainpeople.co.uk (TP). After 12 weeks’ of continuous service, they should have had their terms and conditions equalised and their pay increased in line with LU’s direct hires. However, it took nearly 10 months for their pay to be adjusted at which point LU handed over back pay for the unequalised period.

Despite promises by TP’s managing director, the agency company did not pass the money to the workers. Trainpeople.co.uk later entered into administration.

On deciding loss, the ET stated that there was no loss attributable to TP’s failure to equalise terms. Instead, Judge Snelson ruled that the loss was due to the Claimants not enforcing their right to recover the sums due and consequently losing the chance to do so after the debt crystallised due to TP’s administration.

Judgment

The EAT found no fault with the existence of a breach of AWR, merely fault with the ET’s attribution of loss and consequent compensation calculation. Instead of starting at the end of the process (where the loss had already occurred and the opportunity to sue TP has passed), the following should have been considered from the start:

1. What was the infringement? Failure to equalise the workers’ terms

2. Who is responsible for the breach? TP, with contribution by LU

3. Who should pay the compensation? Undecided (TP are dissolved and LU had already paid back pay)

4. What is a just and equitable amount to award?

This must include the loss of any benefit that the claimant might reasonably be expected to have had but for the infringement – i.e. the higher level of wages the agency workers should have been paid.

The EAT judge determined that the case needs to be sent back to an ET to answer a variety of questions that will help determine the relevant level of compensation. Those further answers are needed in order to find the ‘just and equitable’ balance point between compensating the out of pocket workers and considering that LU (who, it should be remembered, chose to employ agency workers) have already paid back pay. The EAT judge also found LU to have had some blame for the non-payment that had arisen.

Comment: The original ET stated that the case contained ‘circumstances suggestive of fraud’ and this is certainly an unusual and peculiar case. Nonetheless, the EAT’s overhaul of the ET’s original ruling provides clear reasoning and a helpful outline of the straightforward approach that should be taken. The AWR provides necessary protection for otherwise marginalised workers. The ability to fully compensate those who have suffered an infringement (with the potential for unlimited compensation subject to the normal rules on mitigation and contributory fault) requires those Regulations to be respected.

Can negligence amount to gross misconduct?

In Adesokan v Sainsbury’s Supermarkets Ltd, the Court of Appeal has ruled than an omission amounting to ‘gross negligence’ can be fairly construed as gross misconduct.

Colin Adesokan was a Regional Manager of Sainsbury’s in London responsible for approximately 20 stores. When asked to facilitate an employee satisfaction survey (Talkback Procedure), the HR Manager that Mr Adesokan was responsible for issued an e-mail to the store managers requesting that only ‘enthusiastic’ employees fill in the survey.

Although Mr Adesokan did not compose or send the email, he was aware of its existence and did nothing to prevent its circulation. Sainsbury’s concluded that this amounted to gross misconduct to which the High Court and the Court of Appeal both agreed.

They held that the act of negligence in not correcting the HR Manager’s mistake ultimately resulted in the disruption of an important management consultation exercise which Sainsbury’s held in high regard. In addition, Mr Adesokan was aware that people had previously been fired for disrupting the Talkback Procedure.

When appealing, the Claimant’s representative had stated:

“For someone with such long and unblemished service who was not even responsible for sending the email, it was too harsh to dismiss the appellant without notice for a single act of negligent wrongdoing.”

The Court disagreed stating that his omissions had ‘the effect of undermining the trust and confidence in the employment relationship. The appellant seems to have been indifferent to what in the company’s eyes was a very serious breach of an important procedure.’ The summary dismissal was therefore fair.

Adesokan had originally brought a claim to the tribunal for wrongful dismissal (breach of contract) and was claiming £139,000.

Comment: Although another fact-specific case, it highlights the lessons to be learned from negligent inaction even if that inaction is not deliberate. Even though the Claimant did not think the HR Manager’s email would be taken seriously by the store managers, he should have acted responsibly.

Although, the decision could perhaps be deemed harsh, Sainsburys clearly held the consultation exercise in high regard. It was therefore reasonable for them to use their disciplinary procedure to dismiss the Claimant for not using his authority to prevent detriment to an important business process.

The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017

Following on from the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, which compels private sector companies with more than 250 staff to provide a snapshot of the gender pay gap within their organisations, the government have extended the obligation alongside the existing equality duties for the public sector.

Both private and public sector organisations will have 12 months from the snapshot date to publish discrepancies in pay between genders. Whereas the private sector date is 5 April 2017, the date for public sector organisations with 250+ staff is 31 March 2017 subject to parliamentary approval.

Comment: As previously stated in past e-Briefs, the Gender Pay Gay Regulations have the potential to be technically tricky. These Regulations put this obligation on public sector organisations as well. With just over 2 months to go before the first ‘snapshot’ dates, preparation is paramount.

Social media: Historic tweets lead to dismissal

A lead gas engineer with over 30 years’ service has been fairly dismissed on the basis of tweets posted up to three years’ previously. In Creighton v Together Housing Association, a tribunal found that the employer had been reasonable in dismissing Mr Creighton for gross misconduct.

After an investigation into the bullying of another engineer, management came across Mr Creighton’s open twitter account. They found a tweet that Mr Creighton had sent to two other colleagues stating; “just carry on and pick up your wage, this place is f**cked. It’s full of absolute b*ll ends who ant [sic] got any balls.” In addition, Mr Creighton posted derogatory comments about the Respondent and the Respondent’s service users.

Despite Mr Creighton’s arguments that he thought his account was private, he posted the tweets two or three years ago and he “deserved to be treated sympathetically” after nearly 30 years’ service; the tribunal held that the Respondent’s decision to dismiss fell within the band of reasonable responses.

Mr Creighton had been given ample opportunity to provide an explanation as to why he posted the derogatory comments to which he failed to provide an adequate answer. In addition, the investigation conducted by the Respondent (with the accusations of bullying present) was found to be reasonable and fair in the circumstances.

Comment: There is no hard and fast rule for determining what will be deemed as gross misconduct in social media dismissal cases. An employment tribunal will consider all of the facts of the case with particular reference to whether the employee’s account was open, private or work-related; the nature, severity and subject matter of the comments and their potential effect on business reputation; the existence and content of any social media policies and consequent training and whether there are any confidentiality issues amongst other factors.

As an employer, making sure any social media policy you have reasonably covers both work and personal use is essential if you wish to later rely on it for disciplinary proceedings. Thorough and clear training in these policies should also be mandatory for all employees.

Departing Employees and Theft of Confidential Data – what else can be done?

Employers hear all too often about employees taking confidential data and breaching restrictive covenants. They also tend to know that civil enforcement action, such as injunctions, can be very costly. And no one outside the organisation seems to care very much – in such cases you are generally on your own.

Well perhaps the tide has changed with recent action taken by the Information Commissioner’s Office. Employers probably don’t normally think about involving outside agencies – indeed doing so might be inviting unwanted scrutiny of your systems but then again, think of the message sent from this little tale.

Rebecca Gray, a recruitment consultant, has been prosecuted at Warrington Magistrates’ Court for the offence of unlawfully obtaining data. The defendant, who at the time worked at a recruitment agency based in Widnes, emailed the personal data of approximately 100 clients and potential clients to her personal email address as she was leaving to start a new role at a rival recruitment company. Ms Gray used the information in order to contact those individuals in her new job.

Ms Gray pleaded guilty to the offence under section 55 of the Data Protection Act, and was fined £200, ordered to pay £214 prosecution costs and a £30 victim surcharge.

A salutary lesson to those with nefarious plans about their next career move!

Social Security Benefits Up-Rating Order 2017

The Order increases certain social security benefits, pensions and allowances. In particular:

• Statutory Sick Pay (SSP) is increasing from £88.45 to £89.35
• Statutory Maternity Pay (SMP), Statutory Paternity Pay, Statutory Adoption Pay and Statutory Shared Parental Leave (ShPP) are all increasing from £139.58 to £140.98
• The rates and amounts of certain pensions and allowances are increasing, as are other pension and retirement benefits

The changes set out in the Order are scheduled to be implemented between the 1st and 12th April 2017.

Please CLICK HERE for an up to date figures document for your reference. A 2017 version will be sent out at the end of March shortly before the majority of the new figures come into force.

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.