Employment Bulletin - April 2006

• part-time workers
• employment status;
• statutory procedures
• whistleblowing; and
• rolled up holiday pay.

Part-time Workers

The House of Lords has heard the case of Matthews & Ors v Kent & Medway Fire Towns and Fire Authority & Ors which was a claim being made by part-time retained fire fighters to be engaged on the same terms and conditions as full time firefighters. The House of Lords held that when considering whether workers do the same or broadly similar work, rather than look at the differences between the work, emphasis should be placed on the similarities. The Lords also upheld the Court of Appeal’s view that when considering whether a worker is on the “same type of contract” an over precise exercise should not be undertaken. If that was the case, this would enable an employer to deliberately include additional duties in its full time contracts but not in part time contracts, in order to avoid the Regulations.

Lessons for Employers – this case should make it easier for part-time workers to claim parity with their full-time colleagues. Where the two roles are contractually different, this should be borne out in practice.

Employment Status

In the case of Cable & Wireless PLC v Muscat the Court of Appeal has again confirmed that an agency worker can be an employee of the end user.

The Court held that it may be possible to imply a contract of employment, on the grounds of necessity (to reflect the business reality of the situation), after considering all of the relevant circumstances, which would include who has control, who makes payment, any contracts in place. This does not mean that all agency workers will be the employee of the end-user and each case will turn on its own facts. However, the possibility of an implied contract should be considered.

Practical Tips – contracts with the agency should be reviewed to ensure that it is clear that the relationship is not intended to give rise to employment status. It would also be helpful to try and ensure that such a clause is also in the contract between the agency and the worker. Whilst this will not be determinative of the issue, it will be one of the factors which is considered.

Statutory Procedures

In the case of Canary Wharf Management v Edebi the Employment Appeal Tribunal held that a letter containing complaints about the employee’s health did not amount to a statutory grievance for the purposes of bringing a disability discrimination claim.

When considering this issue, the Employment Appeal Tribunal set out an objective test to determine whether a statutory grievance had been raised. The grievance will satisfy the requirements of the procedures “if the employers, on a true reading of the statement and having regard to the particular context in which it is made , can be expected to appreciate that the relevant complaint is being raised”.

But care needs to be taken and in the case of Arnold Clark Automobiles v Stewart & anor the Employment Appeal Tribunal held that a solicitor’s ‘letter before action’ sent to inform the employer of proposed legal action will amount to a grievance. This was the case even though the letter was marked “without prejudice” which would usually mean that such correspondence could not be referred to in the Tribunal.

Lesson for Employers – employers need to be mindful of the procedures when they receive anything in writing from the employee or on behalf of the employee. In the Edebi case, if the employee had chosen to bring a constructive dismissal claim rather than a disability discrimination claim, the content of the letter may have been sufficient. Employers should work on the basis that a grievance has been raised and follow the procedures.

Whistleblowing

In the case of Bolton School v Evans the Employment Appeal Tribunal held that protection under the Whistleblowing provisions of the Employment Rights Act 1996 only applies to actual disclosures and not to behaviour or actions connected to the disclosure. In that case, an employee hacked into the school’s computer system to demonstrate that it was not secure after he had informed the school of his concerns. He was given a written warning and resigned as a result. He brought a claim on the basis that he had suffered a detriment after making a protected disclosure. This was not upheld as the warning related to his conduct, not the fact that he had made a disclosure.

Comment – this case is useful. However, there will need to be genuine misconduct in order to avoid the employee having whistleblowing protection.

Rolled Up Holiday Pay

The European Court of Justice has held that, technically, rolled up holiday pay is unlawful and that a worker should receive pay for the actual period of time they take as holiday. It is not permissible to make the payments over the rest of the year.

But, whilst rolled up holiday pay is technically unlawful, there is a useful ‘get out clause’ for employers. The Court of Justice held that an employer can set off any extra payments which have been made in respect of rolled up holiday pay during the year, against the payment which should be made when the worker takes his or her holiday.

Practical Tips - Provided the employer can show that a genuine, additional payment has been made it should be possible to continue with rolled up holiday pay arrangements. However, there is a risk in so doing and it is advisable to review contracts and the methods of payment. Ideally, workers should be paid for the period of holiday taken, rather than receive additional payments throughout the year.

Next Month

Next month we outline the main provisions of the Employment Equality (Age) Regulations 2006.

If you would like further information on any of the above issues, or any other employment matter, please contact a member of the Employment Unit. The Employment Training Unit also provides bespoke training on all employment issues in a practical and comprehensive format. Again, please contact a member of the unit for further details.

If you would like further information on our Employment Unit or to discuss topics covered in this newsletter, please do not hesitate to contact Kevin McKernan, Head of our Employment Unit, or any other member of the team .

The Employment Training Unit provides bespoke training on all employment issues in a practical and comprehensive format. Again, please contact a member of the unit for further details.

If you are interested in any of the above or would like training on any other employment issue, please contact a member of the Employment Unit on 0191 233 9700.

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