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Russell Cooke Solicitors - Employment Law Update

MAY 2010


Welcome to the latest edition of the Employment Law Update brought to you by the employment team at Russell-Cooke. The aim of this service is to keep you informed of recent developments in this fast moving field of law so that you are better prepared to deal with issues as they arise in your workplace and recognise when professional advice might be required.

Contact details for members of the team are provided at the end of the Update. If you have a query about the issues covered or about any employment law related matter please do not hesitate to get in touch.

In this update:

  • Samuel Smith Old Brewery (Tadcaster) v Mr Marshall & Mrs Marshall – Failure to hold a grievance appeal before the conclusion of disciplinary proceedings did not render a dismissal unfair
  • BP plc v Elstone and another – A worker can bring a whistleblowing claim against a current employer based on a protected disclosure made while working for a previous employer
  • Malone and others v British Airways Plc – A collective agreement concerning crewing levels is found not to be incorporated into employees’ contracts
  • Chief Constable of South Yorkshire v Mr M D Jelic – Reasonable adjustments under the Disability Discrimination Act 1995 can include swapping a disabled employee’s role with a non-disabled employee’s role
  • Equality Act 2010
  • Additional Paternity Leave and Pay Regulations
  • Fit notes replace sick notes – Medical statements will now include GP’s advice on the adjustments necessary to enable a recovering employee to return to work


Samuel Smith Old Brewery (Tadcaster) v Mr Marshall & Mrs Marshall UKEAT/0488/09

Failure to hold a grievance appeal before the conclusion of disciplinary proceedings did not render a dismissal unfair.

Employers should ensure that overlapping or related grievances and disciplinary proceedings are managed carefully to avoid the risk of challenges from staff. The right approach will depend on the individual circumstances. In this case, the employer employed two joint pub managers. The employer was operating in a difficult financial environment and was seeking to cope with increases in costs.

Both managers were responsible for managing the number of hours worked by staff in their branch. They were instructed to reduce the number of hours worked by the staff they managed from 84 hours to 45. Both managers raised a grievance, alleging that the reduction in staff hours would mean that they themselves would be forced to work an unacceptable number of hours. Both managers gave notice to terminate their opt out from the 48 hour week limit and refused to reduce staff hours in the meantime. The Tribunal noted that other managers were involved in similar disputes with the employer elsewhere.

The employer agreed to increase the number of hours staff could work to 58.5 hours. This was not accepted by the managers and a formal grievance meeting was held. Following this, the limit on hours was revised again and reduced to 52 hours. The employer gave the managers reasons for this decision and stated that managers would not need to work additional hours under the new model. The managers’ grievance was not upheld and they were instructed to implement the new hours immediately. The managers appealed and refused to comply with the instruction in the interim.

The employer commenced disciplinary proceedings. Both managers refused to attend a disciplinary meeting until the grievance appeal was concluded. Disciplinary meetings were arranged but the employees maintained their refusal to attend and the meeting was eventually held in their absence and they were dismissed for gross misconduct. The employees succeeded at the Employment Tribunal, where it was held that their dismissals were unfair because the employer had not held the grievance appeal before proceeding with a disciplinary meeting.

On appeal, the employer argued that the Tribunal had accepted that the employer’s instruction was reasonable and that the dismissal had been within the range of reasonable responses. The Employment Appeal Tribunal noted that the ACAS Code of Practice did not require grievances to be heard first; it was neutral on the issue. The employer’s own policy did not prohibit the implementation of the new limit on hours while the appeal was outstanding. The employees could have raised the basis of their grievance appeals as a defence in the disciplinary hearing. There was no detriment to the employees if they complied with the employer’s instruction in the interim as the employer had promised to recalculate the working hours limit if the employees succeeded in their appeal. The Employment Appeal Tribunal upheld the employer’s appeal, stating that it would only be in rare cases that a decision to proceed with a disciplinary procedure before hearing a grievance appeal would be unfair.

It is important to note that this case focused on the fairness of following a disciplinary process while the grievance appeal was outstanding and that the employers in fact heard the grievance promptly. The wording of internal policies and any detriment that employees might face needs to be considered in each case and employers should consider all the factors before deciding on the order in which grievances and disciplinary matters should be heard. Consideration should also be given to whether the matters should be heard together and advice sought where appropriate.


BP plc v Elstone and another UKEAT/0141/09

A worker can bring a whistleblowing claim against a current employer based on a protected disclosure made while working for a previous employer.

Mr Elstone was employed by Petrotechnics Ltd, whose clients included BP plc. Mr Elstone told two senior BP employees that he had safety concerns in relation to his work with Petrotechnics Ltd. Petrotechnics viewed this as a disclosure of confidential information breaching Mr Elstone’s contract of employment and dismissed him on 4 June 2008 for gross misconduct.

Following his dismissal Mr Elstone carried out some consultancy work for BP but this was discontinued when BP were informed of the reason for Mr Elstone’s dismissal by Petrotechnics Ltd. Mr Elstone brought a claim against BP on the basis that he had been subjected to a detriment because he had made a protected disclosure under the Public Interest Disclosure Act 1998. The Tribunal considered, as a preliminary issue, whether Mr Elstone was able to bring a claim against his current employer in relation to a disclosure he made whilst employed by his previous employer.

The judge held that, under the Employment Rights Act 1996, for a disclosure to be protected it must be made by a worker and a worker has the right not be made subject to a detriment by his employer on the grounds that he has made a protected disclosure. Accordingly, an individual needs to be employed to receive protection under the Act, but there is nothing in the Act to specify that the worker’s employer must be the same at the time of the protected disclosure as at the time at which the whistleblowing claim is brought. Therefore, Mr Elstone could bring his claim against BP.

Both parties appealed against the judge’s decision which was subsequently upheld by the EAT. The EAT stated that a literal reading of the Employment Rights Act did not require the disclosure and detriment to relate to the same employer. The purpose of the legislation is to protect employees who make disclosures whilst in employment. An interpretation of the legislation that does not allow for this protection to continue when an employee changes employers would be contrary to this purpose. With this in mind, the EAT held that the Tribunal was not required to go beyond a literal reading of the legislation and Mr Elstone could proceed with his claim.


Malone and others v British Airways Plc [2010] EWHC 302 (QB)

A collective agreement concerning crewing levels is found not to be incorporated into employees’ contracts.

Under the Trade Union and Labour Relations (Consolidation) Act 1992 (TURLCA) a collective agreement is not legally enforceable unless it is agreed to be so in writing by the parties. Where this has not happened the terms of a collective agreement can only be incorporated into the employment contracts of individual employees where it is “apt” to do so.

This claim was bought by three BA cabin crew on behalf of approximately 5000 BA employees in response to proposed cuts in the number of cabin crew on flights. The Claimants argued that a collective agreement setting out minimum staffing levels for different types of flight was incorporated into the cabin crew’s individual contracts of employment. Accordingly, they maintained that BA had breached the employment contracts by reducing staffing levels and sought an injunction preventing BA from continuing with the reduced staffing rotas.

In his judgement, Sir Christopher Holland found that the terms of the collective agreement were not incorporated citing, amongst other reasons: a lack of evidence that the agreement was intended to be legally binding; that the terms of the collective agreement could not sensibly have been set out in the individual employees’ contracts; and finally that there were already legally binding minimum staff levels in place.

The judge went on to state that, regardless of his findings in relation to incorporation, the granting of an injunction “could not possibly be justified”, saying that the “disparity in terms of convenience [was] quite overwhelming”. It is clear from the judgement that the judge was conscious of BA’s troubled financial circumstances and that he viewed the staffing reductions as preferable to alternative action more immediately affecting job security and pay. This emphasis in the judgement on the financial context of the claim will be particularly troubling for unions.


Chief Constable of South Yorkshire v Mr M D Jelic [2010] UKEAT 0491/09/2904

Reasonable adjustments under the Disability Discrimination Act 1995 can include swapping a disabled employee’s role with a non-disabled employee’s role.

Mr Jelic was a police officer and suffered from acute anxiety syndrome, which meant that he was unable to deal with members of the public face-to-face. He was moved to a temporary role in the Safer Neighbourhood Unit which did not involve face-to-face contact with the public and worked well in the department for several years without any significant absence for ill-health. However, the role of the Safer Neighbourhood Unit changed over time and, by 2007, police officers working in this area were increasingly required to deal directly in person with members of the public.

Mr Jelic was asked to attend a meeting to discuss his retirement on medical grounds in mid-2007 and a report was prepared which found that his condition meant that he was unable to perform the full duties of a police officer. He was retired from the South Yorkshire Police Force in 2008 on medical grounds and brought a complaint of disability discrimination against his former employer. The Tribunal upheld his complaint on the basis that the Chief Constable had breached his duty to make reasonable adjustments to accommodate Mr Jelic’s disability.

On the facts, the Tribunal identified the following as possible reasonable adjustments: a) swapping Mr Jelic’s role with that of a non-disabled officer whose job did not involve dealing face-to-face with members of the public; or b) allowing Mr Jelic to retire on medical grounds on his police pension and then employing him in an alternative role as a civilian staff member. The Chief Constable appealed the decision in the EAT on the basis that both of these options were beyond the scope of the Disability Discrimination Act 1995 and would have adverse practical implications.

The EAT allowed the appeal in respect of retirement and re-employment in a civilian role. It found that this aspect of the appeal had been inadequately explained and should be submitted to a fresh tribunal for consideration. However, it dismissed the appeal against the Tribunal’s decision regarding swapping Mr Jelic’s role with that of his non-disabled colleague, PC Franklin. The EAT acknowledged that what constituted a reasonable adjustment would depend on the facts of the particular situation. However, it found that the DDA did not preclude as a matter of law swapping the role of a disabled employee with a non-disabled employee. In addition, especially given that PC Franklin as a police officer would be obliged to obey an order to swap posts, swapping the two roles would have been a reasonable adjustment in the circumstances.


Equality Act 2010

The Equality Act received Royal Assent on 8 April. The legislation is the end result of a consultation process which started in 2005 with the aim of harmonising existing discrimination law in addition to adding new provisions. Previously, separate legislation covered discrimination in relation to the protected characteristics of sex, race, disability, sexual orientation, religion and belief and age. The Act encompasses discrimination legislation in relation to all the protected characteristics in one statute and sets out what is broadly a common approach across the various forms of discrimination.

One example of this is the harmonisation of various definitions including the concepts of justification, indirect discrimination and disability-related discrimination. Other measures include: new provisions to deal with claims relating to discrimination on the basis of more than one protected characteristic (eg. sex and race); the introduction of an “occupational requirement” defence across all protected characteristics; limits to the enforceability of pay secrecy clauses in employment contracts; and the introduction of a power to require large employers to report on gender pay gaps within their organisation.

At the time the Act received Royal Assent it was intended that the main provisions would come into force in October this year. However, in light of the change of government the future of the Act is unclear. The Conservatives had previously indicated that, although the party is not wholly opposed to the Act, they would not bring into force several of the provisions, including those relating to gender pay gap reporting. The Liberal Democrats have been historically supportive of the Act but what will happen to it under the coalition government remains unclear.


Additional Paternity Leave and Pay Regulations

In April the government published a set of six regulations introducing additional paternity leave and pay provisions for parents whose babies are born on or after 3 April 2011. The regulations also apply to adoptive parents who are notified that they are matched with a child for adoption on or after this date.

New fathers will be eligible to take up to 26 weeks’ leave where the mother has returned to work without using her full maternity leave entitlement. The same applies in relation to adoptive parents where the primary carer returns to work with entitlement to leave remaining. The employee must have been with his employer for not less than 26 weeks by the end of the week before the 14th week immediately preceding the week in which the child is expected to be born. The regulations put into place additional provisions which apply if the mother or primary carer dies within a year of the child’s birth or adoption.

If the mother has returned to work whilst maternity pay is payable then part of the additional paternity leave may be paid. The rate of pay is currently the lower of £124.88 a week and 90% of the employee’s pay. As with other legislation passed prior to the general election, it is not yet clear if the regulations will be affected by the change in government.


Fit notes replace sick notes

Medical statements will now include GP’s advice on the adjustments necessary to enable a recovering employee to return to work

The Social Security (Medical Evidence) Regulations and the Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 came into force on 6 April 2010, introducing the "statement of fitness for work", or "fit note". Previously, medical statements (or sick notes) required an employee’s GP to advise whether an employee’s health condition meant that they were able to work or should refrain from work. The new form of medical statement allows an employee’s GP to advise that the employee is “not fit for work”, or “may be fit for work taking account of the following advice”.

Where an employee “may be fit for work” the GP can specify recommended measures to support a return to work. This can include adapting hours and duties and phasing the employee’s return to work. The statement includes tick boxes for the most commonly used measures and additional space for the doctor to provide more detailed advice. The statement remains evidence of capacity for the purposes of Statutory Sick Pay, either where the employee is certified as “not fit for work” or where it is not possible for the employer to implement the adjustments that the GP recommends to support the recovering employee.

The changes are designed to prompt employers and employees to consider what a recovering employee is able, rather than unable, to do and to encourage employees to return to work earlier. However, in situations where the employer is able to implement recommended adjustments the employer must take care not to put either the returning employee or the other employees at risk, or to inadvertently invalidate employer’s indemnity insurance or permanent health insurance (which usually only applies after an employee has been absent for 6 months) if there is little prospect of a successful return. DWP guidance advises that employers should carry out risk assessments in relation to returning employees, and that employers should contact their insurers if they have concerns.


A Strategic Approach to HR - Managing and Making the most out of your staff in a difficult environment

We are holding our first HR conference with the Charities HR Network on 14th June in central London. The conference is aimed at experienced HR practitioners and sessions will be presented by specialists from the country’s largest charities as well as lawyers from the Russell-Cooke Charity Team.

Ruth Spellman Chief Executive of The Chartered Management Institute will give a keynote address on managing and making the most out of your staff in a difficult environment.

The day will be an opportunity to review HR strategy across a broad range of practice areas and to network with fellow professionals in the sector. Workshop subjects include:

  • Reducing costs in difficult times
  • Volunteers
  • Points based immigration system
  • Harassment and bullying
  • Managing disputes: Settling v not settling
  • Developing a mediation culture

Booking Details
To view the conference programme and to download a booking form please click on the respective link: http://www.russell-cooke.co.uk/resources-events-detail.cfm?id=22&all=1

Alternatively, to book your place please contact our marketing office on 020 8394 6372 or send an email to janev.djemil@russell-cooke.co.uk 


Voluntary Sector Legal Handbook

Written by the team of leading charity lawyers at Russell-Cooke Solicitors and Sandy Adirondack, The Russell-Cooke Voluntary Sector Legal Handbook is an essential guide to the law as it applies to charities, community groups and other voluntary organisations.

The entire book has been comprehensively updated for its third edition. It not only reflects legal changes that are in force, but also future changes that will or might take place.

This title covers the law of England and Wales. Some areas of law are the same in Scotland and NI but some are different and these are not covered.

The book covers:

  • The organisation
  • Governance
  • Employees, workers, volunteers and other staff
  • Services and activities
  • Funding and fundraising
  • Finance
  • Property
  • Background to the law

The book can be purchased at the following website http://www.dsc.org.uk/Publications/Law/@15924


Contact us:

The Employment Team
Russell-Cooke Solicitors,
2 Putney Hill,
SW15 6AB

Tel: 020 8789 9111


This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke.

© Copyright: Russell-Cooke,

The Employment Team at Russell-Cooke
Anthony Sakrouge (Partner) – 020 8394  6504  Anthony.Sakrouge@russell-cooke.co.uk
Alex Bearman (Partner) – 020 8394 6524  Alex.Bearman@russell-cooke.co.uk
Fudia Smartt (Solicitor) – 020 8394 6525 Fudia.Smartt@russell-cooke.co.uk
Emma O'Byrne (Solicitor) – 020 8394 6537 Emma.O'Byrne@russell-cooke.co.uk

Specialists in advising charities, not for profits and public bodies
Jane Klauber (Partner) – 020 8394 6483  Jane.Klauber@russell-cooke.co.uk
Deborah Nathan (Solicitor) – 020 8394 6437 Deborah.Nathan@russell-cooke.co.uk   

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