HR lessons from the top four employment law cases of 2015
Why these judgments should shape employer practices in 2016
A number of this year’s cases have particularly important implications for HR practitioners. The highly anticipated appeal in the commission and holiday pay case, Lock v British Gas, was heard this month, but the judgment is likely to be published in 2016 and no doubt will be included in next year’s ‘top cases’.
Chesterton Global v Nurmohamed
In April, the Employment Appeal Tribunal (EAT) applied the new legal test for whistleblowing disclosures: they have to be ‘in the public interest’ to qualify for employment protection. Here the disclosure was on behalf of a relatively small group of employees.
Nurmohamed complained the company accounts were being manipulated, which adversely affected his commission and those of around 100 other managers. An employment tribunal concluded this was sufficient for the matter disclosed to be ‘in the public interest’. The employer appealed but the EAT dismissed the appeal and concluded that although the employee's concerns regarding commission were primarily personal, it was inevitable that only a section of the public would be directly affected by any given whistleblowing disclosure, and that the group of 100 was sufficient to satisfy the test.
Comment: As the case law currently stands, employers should be aware that whistleblowing complaints could still arise from disputes with employees over their own terms and conditions of employment, with allegations of victimisation or dismissal arising as a result. Another appeal in the Nurmohamed case is due to be heard in late 2016.
Plumb v Duncan Print Group
In July, this case resolved a long standing lack of clarity for employers on how to treat the holiday entitlement of employees on long term sick leave. The case questioned how far back employees could claim holiday entitlement where they had been unwilling, or unable, to take holiday while on sick leave.
The EAT settled the question by ruling that any carryover of holidays in these circumstances should be limited to 18 months, bringing the UK in line with European case law.
Comment: This is an important decision for any employer with employees on long term sick leave. They can now be confident that any carryover will be limited to a period of 18 months after the end of the leave year in which the leave accrues.
Ramphal v Department for Transport
In February 2015, the employee in a case called Shrestha v Genesis Housing Association argued that a tribunal had failed to consider whether his employer had carried out a reasonable investigation into the defences he raised in disciplinary proceedings against him, in which it was alleged that he had fraudulently over-claimed mileage expenses.
The Court of Appeal clarified that it was the reasonableness of the investigation as a whole that was relevant and that an employer may not need to investigate every element of an employee’s defence extensively in every case, as this would be too narrow an approach. However, employers should still ensure a reasonable investigation is carried out as the legal test has not changed.
In September 2015, the EAT provided useful guidance on the role of HR in an investigation in the Ramphal case. The EAT was critical of an HR department's intervention that appeared to change a manager's conclusions about the level of misconduct and appropriate disciplinary penalty for an employee. Here what had been a final written warning became gross misconduct.
Comment: HR practitioners should be aware that whereas they are able to advise on disciplinary process, they must avoid straying into areas of culpability (except to ensure consistency within the business), as it is down to the investigating officer to make those findings.
Federacion de Servicios Privados v Tyco
In September, this case made legal headlines as the Court of Justice of the European Union decided that for workers with no fixed base of work, employers would now have to count time spent on the first and last journey between home and appointments as 'working time'.
Comment: The implications for employers with many workers who have no fixed base are potentially significant, and may require employers to review whether each worker is receiving adequate daily and weekly rest entitlements. However, employers may be relieved to know that as travel time is treated differently under the National Minimum Wage Regulations 2015 (depending on the type of work and travel), such additional 'working time' may not necessarily need to be paid for. Nevertheless, employers should check the contractual position in each case and this remains a potential area for negotiation from an employee relations perspective.
First Floor Offices, 11-23 Market St.
Tel: 01427 678660
HR and Accounts:
26/26a Hickman Street
Tel: 01427 678660
West 1, West Dock Street
Hull HU3 4HH
Tel: 01482 534 348
Hyde Park House, Cartwright Street
Newton, Hyde, Cheshire SK14 4EH
Tel: 0161 367 1214
2450 Regents Court The Crescent
Birmingham Business Park Solihull B37 7YE
Tel: 0121 69 59 290
4th Floor, 86-90 Paul Street
London EC2A 4NE
Tel: 0207 111 0958
Copyright © 2017 Stallard Kane Associates. All rights reserved.