Employment Briefing - June Update
23rd July 2018
- Zero Hours Workers and The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
- Standards of Misconduct and Unfair Dismissal
- Right to Work
- Workplace Banter
- New ACAS Guidance on Overtime
Welcome to our Employment news briefing, providing a summary of some of the main employment judgements in June.
If you have any questions about any of the topics covered, or would like to meet with our Employment team, please call Martin Stephen on 0141 248 3434 or email firstname.lastname@example.org
Zero Hours Workers and The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
An Employment Appeal Tribunal (EAT) has found in the case of Roddis v Sheffield Hallam University that a lecturer employed under a zero hours contract can enjoy protections found in the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. In Roddis the zero hours lecturer compared his working conditions with that of a full-time lecturer working under a permanent contract. At first instance a tribunal had rejected Roddis’ claim on the grounds that the two types of contract were not comparable. However, on appeal the EAT applied a broad interpretation to the Regulations so as to ensure that their purpose of protecting workers who do not work fulltime is fulfilled.
This decision represents a further widening of the protection afforded to atypical workers and employers should consult the WJM Employment Team for advice before entering contractual relations.
Standards of Misconduct and Unfair Dismissal
In the case of Quintiles Commercial v Barongo the Employment Tribunal in the first instance held that a dismissal for ‘serious’ misconduct, where the employee had not received prior warnings about their misconduct, would automatically be unfair. The Employment Appeal Tribunal overturned the decision, saying that there is no hard and fast rule requiring employers to warn employees before dismissing them for misconduct that falls short of ‘gross misconduct’. However, the Tribunal did emphasise that dismissing someone for serious misconduct without any prior warning will usually be outside the range of reasonable responses.
This case is fact sensitive and we recommend that clients to seek our advice before terminating a contract of employment.
Right to Work
In Afzal v East London Pizza Ltd (trading as ‘Dominos Pizza’) the employer reasonably (but mistakenly) believed that the employee no longer had a right to work in the UK. East London Pizza dismissed the employee in order to avoid civil and criminal penalties under the Immigration, Asylum and Nationality Act 2006. East London Pizza did not provide Mr. Afzal with an opportunity to appeal against his dismissal. The Employment Tribunal decided the dismissal was not unfair just because there had been no appeal as there was nothing to appeal against.
The Employment Appeal Tribunal found that Mr Afzal should have been given the opportunity to appeal. A right of appeal would have been an important part of the fairness process. It held that it might have been possible for Mr Afzal to produce evidence in the course of the appeal to support his right to work. The employer could not rely upon the fact that at time the decision was made to dismiss the employee it was reasonable to do so, as a ground for then not allowing the employee the chance to appeal against the dismissal decision.
The employee in this case had more than two years service and was therefore entitled to claim unfair dismissal. Where employees have less than two years service there are a limited number ground for claiming unfair dismissal. If there are no such grounds an employee with less than two years service does not have to be given the right of appeal. Employers should always seek advice from the WJM Employment Team.
A Birmingham car dealership has lost a victimisation and discrimination case, after dismissing racial slurs against a particular Asian employee as amounting to ‘banter.’ The Salesman claimed co-workers swore about him in Urdu and Hindi and nicknamed him ‘Apu’. While his claims were found to have been exaggerated and embellished the employment tribunal said it was ‘almost wilful blindness’ to dismiss the conduct as being equivalent to other forms of work place banter, especially as the actions and words were specific to the claimant’s background. The tribunal also found fault with the Dealership’s handling of the grievance procedure.
We would advise our client’s to have adopt a zero-tolerance policy towards discrimination in the workplace and not to fall into the trap of categorizing it as banter.
Complaints of victimisation and discrimination should be taken seriously from the outset. Sometimes things will be said innocently by the alleged abuser or misinterpreted by the alleged victim, so knee-jerk reactions to any complaint should be avoided (and these could themselves lead to unfair dismissal claims). Employers should be consistent and even handed in their approach.
New ACAS Guidance on Overtime
ACAS has provided new guidance on overtime, covering:
- The different types of overtime
- Working time limits on overtime
- Payment for overtime
- Overtime for part-time workers
- The impact of overtime on holiday calculations
The link to this guidance can be found here:
The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at July 2018. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 302 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.
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