In Brief: Case Law Special (May 2019)

This month’s 'In Brief' is a common law catch up. It can be hard to keep up-to-date with case law developments – it’s all too easy to miss an important decision that has major implications for employers and employees. For this very reason we decided to compile a list of some of the most interesting employment cases that have been decided in the last few months.

If you want to know more about any of the cases, each has a link to a more detailed case review on the Northern Ireland Employment Law Hub, where you will also find a further link to the full judgment online.

The decisions highlighted in this article cover a wide range of employment issues, including unfair dismissal in a redundancy situation; importance of adhering to time limits for lodging an unfair dismissal claim; working time issues including ‘on call’ time and payment for ‘frozen’ holiday pay accrued after the introduction of regulations; trade union duties and activities; suspension; sex based harassment for hair pulling; parallel disciplinary/policy proceedings. 

Robinson v Portview Fit-Out Limited [2019] 5364/18IT

This case reminds employers that caution should be exercised in a redundancy situation to avoid a finding of unfair dismissal and commented that providing an opportunity to apply for alternative employment is not an offer of alternative employment. 

Pora v Cape Industrial Services Ltd [2019] UKEAT 0253_18_1902

Time limits for lodging a claim of Unfair Dismissal need to be strictly adhered to and a failure by a representative to submit on time was not sufficient reason for the tribunal to extend the time limit.

Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE [2019] CJEU C 55/18

Regulation 11 of The Working Time Regulations (NI) 2016 requires employers to keep ‘adequate records’ to prove that weekly working time limits and night work limits are being complied with.  The Advocate General said (and the CJEU agreed) that such records should also include daily or weekly rest and a record of all hours worked.  At present the regulations do not cover these areas so current record keeping methods may be open to challenge.

Nixon v Royal Mail Group Limited 2019 332576/2017

Hair pulling by a male of a female colleague’s hair amount to sex-based harassment. Employers need to be mindful of the importance of regular training covering discrimination and harassment in the workplace.

Ritchie v Tesco Stores Limited 2019 10265/18IT

Payment for ‘frozen’ holiday pay should be based on the hours worked when the leave was accrued. 

North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387

The Court of Appeal in this case, saw no obvious reason why an employer must halt their own internal disciplinary procedures when a concurrent police investigation is ongoing.

London Borough of Lambeth v Agoreyo [2019]

The Court of Appeal has overturned the High Court's decision on this case, which involved the resignation of a teacher, following her suspension pending investigation over allegations of using unreasonable force against two children. The High Court had ruled that suspension was not a neutral act.

Benavides v Britannia Services Group Limited [2019] (Case Number: 2208186/2016)

A Claimant who was dismissed for organising and participating in a 200-person protest outside the Respondent’s premises was found to have been unfairly dismissed for participating in Trade Union Activities.  While the respondent argued that ‘large scale public direct-action protests’ cannot come within the scope of a union’s ‘typical activities,’ the tribunal disagreed.

Mr Jozsef Fitz v Holland and Barrett Retail Limited [2019] 1401671/17

In the absence of an express agreement, the Claimant was entitled to be paid for extra hours involved in opening up and closing the store.

Frudd and another v The Partington Group Ltd [2019] UKEAT/0240/18/OO

The Claimants in this case were employed at a caravan site as a warden/receptionist team. Alongside two other such teams they worked ‘on call’ from evening until morning. They argued that the whole period of time spent on call should be considered ‘time work’ for the purposes of the national minimum wage (NMW) legislation.  The EAT held that when the caravan park was shut (known as the ‘closed season’), the claimants were ‘available for work’ rather than actually working and this therefore did not constitute ‘time work’.

Shelbourne v Cancer Research UK [2019] EWHC 842 (QB)

In this case an animal research worker at the charity had been lifted and dropped by a drunk visiting Cambridge University scientist. Ms Shelbourne sustained serious back injuries. She sued her employer, rather than the visiting scientist. The High Court distinguished the present case from previous case law in a number of areas but, in particular finding that the visiting scientist was not an employee of the charity (never mind the owner) and the party was organised by volunteers at their behest.