Wright, Johnston & Mackenzie Solicitors

Parental time off for emergencies

In Royal Bank of Scotland (RBS) v Harrison the Employment Appeal Tribunal (EAT) held that a parent’s entitlement to parental leave under the Employment Rights Act 1996, which is triggered as a result of an unexpected disruption or termination of care arrangements for dependents, is not limited to last minute unavailability or sudden emergencies.

Mrs Harrison worked for RBS. While she attended work her two young children were cared for by a childminder. In December 2006, Mrs Harrison was given two weeks notice by the child minder that she would be unable to work on a specific date. When Mrs Harrison couldn’t make alternative arrangements she asked her employer if she could take the day off to care for her children. A week later, and two days before the childminders absence, RBS informed Mrs Harrison that her request had been refused. Mrs Harrison took the day off and was subsequently disciplined by RBS.

Mrs Harrison claimed that she had been subjected to a detriment for taking time off work to care for her children. RBS argued that situations such as this, where there was a two-week gap between becoming aware of the problem and the date that the problem took effect, did not come within the remit of the legislation, which was intended to cover 2 “emergencies”. They claimed that, as Mrs Harrison knew of the problem in advance, this was not an emergency.

The EAT disagreed. It held that the passage of time between the employee’s discovery of the potential disruption to care arrangements and that disruption taking effect was only to be considered as part of the question whether it was “necessary” for an employee to take the time off. Furthermore, it ruled that the word “unexpected” does not involve a time element. The word should be given its natural, and not literal, meaning.

If there is a gap in time, employers should consider any such requests carefully. It would be acceptable in most cases to ask the employee what they have done in an attempt to resolve the difficulty created by the emergency.

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Protection extended to discrimination by association on religious grounds

In last month’s bulletin we reported on the European Court of Justice decision in Coleman v Attridge which extended the protection against discrimination to individuals who are not disabled but suffer because of their association with a disabled person.

In a similar vein, the EAT has recently held, in Saini v All Saints Haque Centre, that equality legislation will be breached not only where an employee is harassed on the grounds that he holds certain religious beliefs but also where he is harassed because someone else holds certain religious beliefs. In this case, an employee of a Wolverhampton advice centre was harassed because of another employee’s religious beliefs.

The EAT held that regulation 5(1) the Employment Equality (Religion or Belief) Regulations 2003 does not require the unwanted conduct to be on the grounds of the employee’s own religious beliefs. This interpretation was held to be consistent with the aims and intention of the EC Framework Directive and with the judicial interpretation of the Race Relations Act 1976, which is similarly engaged where there is discriminatory conduct on the grounds of someone else’s race.

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Worker entitled to breaks while "on call"

Hughes v Jones (t/a Graylyns Residential Home) is a recent EAT decision. Mrs Hughes worked as a care assistant. She had accommodation provided at a heavily subsidised rent and was expected to be “on-call” from 9pm to 8 am. She would normally be called out around twice in a month. When her employer gave her notice to quit the flat, Mrs Hughes raised a number of complaints (primarily unfair dismissal). She claimed that Graylyns had breached the Working Time Regulations 1998 in respect of hours of work and rest breaks.

The Employment Tribunal dismissed her claim due to insufficient evidence. Mrs Hughes then appealed to the EAT. The EAT, relying on ECJ authority, upheld her appeal noting that as a salaried worker, she was “working” throughout the whole on-call period. This applied whether or not she was actually called out.

Mrs Hughes did not receive a continuous period of 24 hours rest because she was on call seven nights a week, for 11 hours a night. She was not given a rest break of at least 20 minutes after 6 hours being on call. Combined with her other shifts Mrs Hughes effectively worked 85 hours a week and was entitled to the protection of the Working Time Regulations in respect of breaks.

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Employee's admission of wrongdoing limits the need for investigation by an employer prior to dismissal

In Community Integrated Care Ltd v Smith, Miss Smith was dismissed for abusing a patient by using foul language. A number of employees confirmed that Miss Smith used foul language and Miss Smith admitted, at a disciplinary hearing, that she had done so. An Employment Tribunal concluded that the dismissal was unfair, due to an inadequate investigation. The employer appealed.

The EAT concluded that the Tribunal had, in fact, substituted their views for those of the employer. In this case it was plainly open to a reasonable employer to conclude that offensive language had been used, given Miss Smith’s admission. The EAT held that once the employers had what appeared to be a clear admission of wrongdoing, that limited the extent of any further investigation. The position would have been otherwise had there been a real dispute on the facts.

The EAT held that the dismissal was fair and overturned the original Tribunal’s judgment.

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Whistleblowing protection not restricted to actions of employer

The EAT has confirmed that the whistleblowing rules contained within the Employment Rights Act 1996 provide protection to employees, even where the wrong doing was by a third party and not the employer.

A language teacher, working on secondment one day a week for a Neighbourhood Project charity, became alarmed when she discovered, from a local newspaper article, that a potential student she had just interviewed for the charity was a suspect in a rape case. She passed his contact details to the police and, in so doing, upset her employers.

The employee lodged a grievance with her main employer and finally resigned, bringing a Tribunal claim under the whistleblowing parts of the Act. She lost this because her whistleblowing did not relate to any wrongdoing by her employer and therefore the Tribunal had no jurisdiction. She appealed to the EAT.

The EAT found in her favour, and upheld the appeal, stating that the original Tribunal had been wrong to find that the whistle blowing provisions do not apply where the “wrongdoing” or “failure” was by a body which was not the employer of the person who made the disclosure.

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EU votes to upgrade status of Temporary Workers

The European Parliament has approved a new EU Directive which will give temporary and agency workers throughout Europe the right to equal treatment with permanent workers.

The Directive covers basic working and employment conditions, including pay, holidays, working time, rest periods and maternity leave, equal access to collective facilities and better access to training. The Directive will cover these aspects of the employment relationship from the outset, a position that differs from the current UK position whereby temporary workers only become entitled to equal rights after being employed for 12 weeks.

Member States have three years in which to implement the measure.

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Home Office confirms tough new rules for business visitors

The Home Office has unveiled new rules affecting those visiting Britain for business which it claims are designed to safeguard the visitor route into the UK. Those wishing to come to the UK on business for up to six months must apply for a dedicated new business visa and prove they will be carrying out the following activities:

• Attending meetings or conferences
• Arranging deals, negotiating or signing trade agreement or contracts
• Undertaking fact-finding missions, checking details or goods, and
• Conducting site visits and promotional activities

In June 2008, new visa routes for business, tourist and family visitors were announced in a shake-up of Britain’s short-term visa system. The Home Office has also now set out further detail on two new visitor routes for sportspeople and entertainers. These new routes mean that a historical concession which allowed sportspeople and entertainers to visit the UK for a limited period, to take part in certain events without a work permit will be retained.

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Further Information

For further information on these or any other employment issues please contact:

Martin Stephen .(JavaScript must be enabled to view this email address) 0141 248 3434

Andrew Wilson .(JavaScript must be enabled to view this email address) 0131 221 5560

Liam Entwistle .(JavaScript must be enabled to view this email address). 0141 248 3434

For information on our HR Services please contact:

Julia MacDonald .(JavaScript must be enabled to view this email address) 0141 248 3434

For information on Praesidium Employment Law Protection please contact:

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Employment Firm of the Year 2008

The Law Awards of Scotland

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