Employment Law Revision Day with Mark McAllister

Posted in : Supplementary Articles NI on 22 January 2020
Mark McAllister
Labour Relations Agency
Issues covered:

Director of Employment Relations Services at Labour Relations Agency, Mark McAllister and Head of Learning and Development at Legal Island, Scott Alexander, discuss the top 10 employment cases of the year 2019.

Cases covered in this webinar include:

  1. Kuteh v Dartford and Gravesham NHS Trust – a case about religious proselytising (improper) and fair dismissal. Important in these liberal days where starkly polarised views attempt to trump one another.

  2. Tillman v Egon Zehnder Ltd – a case about the scope, breadth and enforceability of a post-termination restrictive covenant that uses a broad expression within an otherwise standard clause.

  3.  Patel v Folkstone Nursing Home Ltd – the concept of the vanishing dismissal where an appeal is successful but where earlier adjoined charges are not dealt with and are effectively “up in the air” and the impact on the implied duty of trust and confidence.

  4.  Phoenix House Ltd v Stockman – the impact of secret recording of hearings/meetings in terms of classifying and categorising it as a form of misconduct and the EAT considerations therein.

  5. Pazur v Lexington Catering Ltd – A working time related detriment case whereupon threat of dismissal linked to a refusal to return to work because rest breaks were not given.

  6. Hargreaves v Manchester Grammar – An employment investigation case based upon one word versus the other and where evidence that did not material effect the decision emanating from the investigation was withheld from the claimant and the impact therein.

  7. Shelbourne v Cancer Research UK – The obligatory Christmas party / employer liability case demonstrating a slightly more nuanced approach to vicarious liability by examining – close connection, field of activities and now social justice.

  8. BA v BALPA – Industrial action ballot cases are often technical and can turn on a simple set of facts or indeed the interpretation of a word, in this case “categories” of workers for the purpose of the ballot notice and how far a trade union needs to go in terms of explanatory detail of who will be going on strike.

  9. Raj v Capita Management Business Services – When a line manager gives an unwanted shoulder massage in an open plan office is it automatically sex based harassment?

  10. Harpur Trust v Brazel – Holiday pay calculation for term time zeros hours worker based on 12 week back referencing averaging system not 12.07% of annual earnings


Scott: Good morning, everybody. This is Scott: Alexander. I'm from Legal-Island. Welcome to our webinar. I'm here with Rolanda Markey from the L&D Department in Legal-Island. Like me, Rolanda used to manage the Enquiry Point at the LRA.

Our guest today is Mark McAllister who is Director of Employment Relation Services. Many of you will know Mark from the annual reviews employment law. He would take the review of the year, and he does it in two parts, before and after. He always has a top 10 cases of the year that are not Northern Ireland cases.

And what we're going to do, is we're going to review those and see if there's been any developments, but also at the end we're going to try and tidy up and have a look at one or two things that might be coming along this year and things to look out for. And we'll also be giving you an offer on our Absence event as well, so stick around for that. We'll follow that up after the webinar.

There's a little text box on your screen. So if you want to ask questions, you can ask some questions as we go along. I'm not sure if we'll have time to deal with them all today, but if we don't, we'll follow up with them anyway.

Dismissal for Inappropriate Religious Proselytising

So let's get started. We're going to look at the top 10 cases, and the first one Mark, that you raised, your 10th case of 10, was Kuteh against Dartford and Gravesham NHS Trust. It's a case about religious proselytising, improper proselytising, as if there could be a proper one, and fair dismissal. So, it’s really about the dismissal of somebody who was a committee Christian. We'll come to that in a minute. And you reckon that's important in these liberal days where the starkly polarised views will attempt to trump one another.

We'll find that over Brexit, and lots of other political things so far. We've also had same-sex marriage has been introduced into Northern Ireland. We've got the abortion legislation to come as well. It's been approved. And so quite a lot of things. And I can see why you picked that as number 10 in your top 10.

So a little bit of background and why is it so important to employers in Northern Ireland?

Mark: Well, I mean, I think that the contextual backdrop to the case, it really speaks for itself. You've alluded to the liberalisation of the law in regard to same-sex marriage and abortion as being the context. In this particular case, what happened was this was a nurse who was . . . didn't claim religious discrimination. It's an unfair dismissal case. And effectively, she was on a final written warning for a completely unrelated, religiously unrelated factor and was told not to engage in proselytising by her employer. She was moved to a different role and effectively told not to not engage.

Scott: And she agreed not to do it.

Mark: She agreed on two separate occasions that she wouldn't engage in it. And in her new role, a pre-operative role, one of those involved filling out a form that would ask a question about religious belief. In this particular instance, she went further than that and said to patient that the chance of survival of an operation would increase dramatically if they prayed, and this was seen to be the final straw that broke the camel's back as such. And she was dismissed.

Now, her complaint was about unfair dismissal and primarily around Article 9 of the European Convention on Human Rights, which is about the freedom of thought, conscience, and religion. So it's not a run-of-the-mill discrimination case.

But if you look at it purely from an unfair dismissal case, the facts spoke for themselves. There was a reasonable investigation conducted. She was given a lawful instruction, which she didn't follow, and the employer was deemed to have fairly dismissed her in this context.

And you've alluded to it at the start there, Scott; In Northern Ireland, the context with the liberalisation of the law and the fact that we have some fairly fervent religious beliefs here, there's potential breeding ground there for, in the workplace for individuals to engage in what's referred to in the decision as improper proselytising. In other words, it's not simply saying, "I believe you should convert to my religion," but it goes further than that, and it is in contravention of the employer's rules and regulations about things like harassment or bullying in the workplace.

Scott: Okay, and so what should employers do then? You know, they're not all going to have, I suppose, a religious zealot in their place.

Mark: No.

Scott: But they could have a political zealot. They could have somebody who's very strong . . . Brexit is going to come next week . . .

Mark: Absolutely.

Scott: . . . and you can find a lot of fallout perhaps. You could have issues around, certainly around abortion that will be come through. Same sex marriage. I think now so more people have accepted that. But, you know, it's a touchy subject.

Mark: It is a touchy subject.

Scott: So what should employers do?

Mark: Employers need to be aware of the culture in the organisation where people might feel that they get their liberty now in the context of Brexit and the change in legislation to be able to say things that in previous times they wouldn't. They maybe think that the days of political correctness, as they see it, have gone, and therefore it's a case of I think I should say what I believe and I think that, you know, that should be, you should convert to my religion.

So the potential for proselytising in that, given that context is there. I think employers need to be aware of it. I don't think they need to necessarily amend policies, but I think they need to have their fingers on the strings about the culture of how people speak to one another in these sort of febrile times because you may find employees feel they can say what they like with regard to religion, because they're, you know, the freedom of expression shouldn't be impinged upon by legislation. But on a workplace context, it is impinged upon by legislation, so therefore, they just can't say what they want.

Scott: Okay, So, folks, you're listening to Mark McAllister there. He's from the Labour Relations Agency, well known to many listeners here. I see hundreds coming in here, listening in. I'm Scott: Alexander. I'm from Legal-Island. We're going through the top 10 cases of the year, in Mark's opinion, that are not Northern Ireland cases.

Restrictive Covenants

And so the next case that's going to come up . . . that one was about an overzealous employee, and here we have perhaps an overzealous employer. The next case, which is Tillman against Egon Zehnder Ltd., is a case about the scope, breadth, and enforceability of post-termination restrictive covenants that uses a broad expression within an otherwise standard clause. That's a bit complex. Explain, Mark. Make it simple.

Mark: It is. It is. It's pretty standard issue, when you have senior executives in an organisation, to have a clause in their contract that limits what they can do when they leave the organisation. And so post-termination, i.e. at the end of the contract, restrictive trade practice clause. In other words, it seeks to limit what the employee can do when they leave, usually for a period of time and usually in a variety of contexts. So for senior executives, it's things like not working for a competitor for a year, not taking client lists . . .

Scott: Not setting up business.

Mark: . . . not setting up business and competition, you know, issues with regard to trade secrets, etc., etc. Now, the courts are very cautious about this because, generally speaking, these restrictive trade practice clauses avoid the common law. But if the employer can make the argument that they're genuine, reasonable to protect the genuine interests of the business, then the court will allow them to be enforceable. The difficultly and that's demonstrated in this case is, what happens when you have a component part of the clause that offends against that reasonableness?

So in this particular case, Ms Tillman signed a clause that effectively said that she would not directly or indirectly engage or be concerned or interested in any business carried out in competition with her employer. And it's the word "interested in" that is focal in this point, because the question is: Does the word "interested in" go beyond the bound of reasonableness as such? So, for example, if Ms Tillman had decided to become a passive shareholder in a competitor company, that clause would offend against the reasonableness, and therefore theoretically, in principle, that clause wouldn't have been enforceable.

Knowing what the courts have said and using a very old traditional test called the blue pencil test, they can effectively excise or extract the offending form of words that doesn't impact on the rest of the clause and allows . . . So the courts aren't reconstructing the clause, they're just taking out the offending part of it.

Scott: In this bit here, she's got shares in another company. They can take that out and to say that doesn't mean interested in.

Mark: Yes.

Scott: But anything else in that clause is interested in, and that, you're not allowed to do that.

Mark: Well, it's specifically. So, you know, when you look at words that engage, etc., etc. would infer that they become an employee of a competitor, and those clauses have been seen to be enforceable in many contexts. The difficulty is and certainly my experience with post-termination restrictive trade practices clauses, there tends to be a bit of a cut-and-paste culture, whereupon, you know, lawyers will take a form of words and just drop it down into a contract and hope it will be enforceable if it's ever challenged.

The courts are very cautious about these because they are a restrictive trade practice clause, and they will not effectively allow a blanket bound as such that doesn't pass the reasonableness test and the genuine business interest test. So I think the lesson to be learned is when lawyers are constructing the, you know, senior executive contracts, they need to be very careful and tailor the wording of the termination clauses in the contracts.

Scott: Okay, thank you very much, Mark. That was a case of restrictive covenants. Not all employers, not all listeners would use those, but practically every listener, I would imagine, has dismissed an employee at some stage.

Concept of Vanishing Dismissal

In the next case on your list, Patel against Folkstone Nursing Home Ltd., the concept here is of the vanishing dismissal. So what happens when somebody gets their job back at the internal appeal process, where an appeal is successful, but where the earlier adjoined charges are not dealt with and are effectively "up in the air."

So a number of things. He's been dismissed for one reason, gets his job back, haven't dealt with all the issues, and the impact on the implied duty of trust and confidence. So a little bit more background about this case in point. It's important.

Mark: Yeah, I mean, this case was where an employee in a nursing home was effectively . . . had two charges. One was sleeping on duty, and the other was the falsification of medical records. Two pretty, pretty serious charges. And like you say, the internal appeal was held, and the appeal was upheld in terms of the sleeping on duty. So effectively, the employer said we're holding your appeal, we're allowing you back into employment, and the dismissal vanishes, which is a well-known common law construct. There's no problem with that.

But the difficulty is the employer did not address the issue and arguably a more significant issue of the falsification of patient records in the appeal process and was silent on it and effectively said, "Your appeal is upheld. Come back to work." It's as if you haven't been dismissed, and the employee, understandably, said, "Hold on a second. You know, what's happened to this other charge? Is it in the ether? Is it remain live? Is it on the books to use at the criminal law term?"

And the argument and the court recognised that the implied duty of trust and confidence owed to that employee could be fundamentally destroyed by the employer not addressing this. Now, we would see this happen regularly in discipline and dismissal cases, where there are a variety of unrelated charges, which cumulatively mean that the employee is, you know, facing a dismissal.

And the lesson to be learned in this particular case is you address all of the charges that the employee is facing in the discipline or a dismissal context, because if you don't, the argument is it could come back to bite you, where the employee says, "Well, look, you owe me a duty of trust and confidence." It's been fundamentally destroyed, because you've only addressed three of the five charges or what happens to be. And it's really difficult.

HR practitioners find it difficult when, you know, there's five charges on the discipline or dismissal, and three of them are upheld and two of them aren't. And, you know, what weight is lent to those? Do they aggregate? You know, how do you actually make a decision, a reasonable decision based on a partial upheld appeal? And it can be difficult.

And the court in this particular case said it was really badly handled because effectively you just ignored the second and arguably more important charge of falsifying patient records, and that wasn't satisfactory. So the lesson is, if you're doing it, to address all of the issues in the appeal, despite the fact that, you know, the employee could have said, "Yeah, well, I've got my job back, it's fine." But the reality was that second charge was left hanging over them like a sword of Damocles.

Scott: Yeah. So go through all the processes. But what happens in this case here, because she got her job back, so how does she challenge it? Does she resign and say, "You haven't dealt with that"?

Mark: Yeah. I mean, ultimately, the court said, in this particular case, that there is the grounds for the breach of the implied duty of trust and confidence, allowing the employee to reasonably claim constructive dismissal. And, you know, that was the observation of the court, and that was a salutary lesson for the employer in that particular case to deal with all of the things in the appeal.

Scott: Okay, thank you very much. You're listening to Mark McAllister from the Labour Relations Agency. The LRA is kind of busy in the next week. Early conciliation comes in on the 27th of this month.

Early Conciliation

Mark: It does. Early conciliation comes in on Monday, and we're looking forward to it. We're excited to it. It's a vehicle really for change in dispute resolution culture in Northern Ireland, where we believe that it'll focus the minds of the parties before papers go to the tribunal, get the opportunity to keep that working relationship up and running, to repair it where necessary and avoid the need to go to litigation. So it gives the employee that necessary breathing space. There's less stress. There's some cost involved. It's an entirely voluntary process. And the conciliation officer obviously will move between the parties to try and get that issue resolved, the issue between them resolved.

Scott: So in effect, a claimant, they're not allowed to go at tribunal until they've approached the LRA?

Mark: Yeah.

Scott: They consider a conciliation. You contact the employer. If it resolves, brilliant. If not, it would go into tribunal if they want.

Mark: Yes, they're given an early conciliation certificate number. And when they have that in their possession, that's when the tribunal will allow the claim to proceed. So again, it's not a mandatory, it's not mandatory conciliation. It's mandatory consideration of conciliation, if you like. So it's a vehicle for cultural change. We're hoping that it'll change the culture and make people less litigious.

Scott: Well, it will be nice to see if the tribunal numbers fall down, or whether it's so popular, you end up with more complaints, it will be interesting to watch that one Mark. Hopefully, you're going to give us the stats at the end of the year for the annual review . . .

Mark: We will do.

Scott: . . . which will be in November.

Covert Recordings

The next case is Phoenix House against Stockman, the impact of secret recording of hearings and meetings in terms of classifying and categorising it as a form of misconduct and the EAT, Employment Appeal Tribunal considerations therein.

People can record. I've got my phone here watching the time, and I could be recording this. We are recording it anyway.

Mark: Yes.

Scott: You can listen back, folks.

Legitimately, everyone knows we're recording it. You can hear it back if you're a subscriber. There's no problem.

But people do take phones into meetings, secretly record, and then use them. So that's what this case was about.

Mark: It is. You know, anecdotally, this may become more commonplace because recording devices on your phones, as you've said, they're easy. You just hit the record button and away you go.

The question here is, is this surreptitious or unauthorised recording of a disciplinary hearing or other form of hearing in the workplace automatically considered to be an offence? And then, and the EAT turned its mind to this in the decision was, what was the actual reason, the underpinning reason for the recording and whether or not there was an issue of trust or vulnerability or whatever happened?

So, I mean, it's not new. I mean, the Punjab National Bank case against Gosain, which is a case that has been around for many years, does address the issue of this surreptitious recording and whether or not it could be admissible in an industrial tribunal, whether or not employers legislate for this.

So a lot of employers will have a sort of a standard indicative list of what constitutes forms of misconduct right, you know, for everything from persistent absenteeism right through to gross misconduct offences, like theft or arson or assault or whatever. The question is whether or not employers need to record specifically, in their disciplinary policies or procedures, that the surreptitious recording of a discipline or a grievance process is a misconduct offence, and at that, how reasonable is it to categorise it as a gross misconduct offence, which was central in this particular case.

And I think the difficultly is you run the risk of trying to legislate for every crime and misdemeanour in the workplace, and you have lists of, you know, 50 or 60 things that you can't do in the organisation, and you'll never legislate for everything.

But some employers may find that this is so particularly important to them, that they record it. The easy way to get around the issue is for parties to agree from the outset that you record all your disciplinary hearings and meetings and give copies, digital copies to all parties so that there's no issues about minutes and who said what and what was meant by that and whatever, because it's recorded.

Recording meetings, there's nothing to fear. It provides you with a clear evidential audit trail of who said what, at what times, who was present, and allows to, you know, feed into whether or not the employer had been reasonable in the process.

The question in this case was whether or not it's a gross misconduct offence for the employee to surreptitiously record. And EAT said, "Well, why, what were the reasons for the employee recording it?" So, for example, what was the purpose of the recording and the blameworthiness of the employee and what actually has been recorded? These are sort of things that the EAT will take into consideration. And it's, you know, they'll look at it and say, "Is this a manipulative employee trying to entrap the employer? Or is it a vulnerable employee who just wants to keep a record and guard against being misrepresented in the tribunal?" So that's the sort of practicalities that the tribunal must take into consideration, the EAT guidance addresses . . .

Scott: It really depends if you've been warned I suppose. If somebody says, "Are you telling me you don't have a recording device, you don't have a phone switched on," and they do, that would be a factor.

Mark: It would.

Scott:: But it's also, if, you know, it's Harvey Weinstein and he's doing something and you're trying to record something there allegedly, then in that situation there, you may think, well, that's the only thing I have protection for. And it's that issue how vulnerable an employer, the power struggle might have an influence there.

Mark: Absolutely. And I mean, I think that the issue for an employer to look at it is to look at it from a governance, good governance perspective in terms of having your audit trail and your record keeping. And there's nothing to fear from recording. So, you know, if the culture is one of being open and say, "Look, we record all our meetings, and these are the rules," and you have it set down in the policy and you say any surreptitious recording is an offence and it will be treated as a disciplinary offence and, as you say, you give that advanced warning, I think that demonstrates the employer being reasonable in all the circumstances.

Scott: I suppose the difficulty is, and one of the one of the listeners has written in saying solicitors are still very much against records, and you can understand why. They've got to listen to the whole thing rather than looking at some statements, and that costs money for a start . . .

Mark: It does.

Scott: . . . to listen. It cost money to get them transcribed. And then, people will say, well, it's not properly transcribed or whatever, as opposed to . . . you know what I mean. And it does kind of elevate it to some extent.

Mark: It does.

Scott: It's a bit more formal. So it's that kind of balance. I mean, if you were having a straight meeting on absence or lateness with a supervisor and an employee, there's no need to record that, is there?

Mark: Well, I mean, again, it speaks to the culture in the organisation. Sometimes the organisation, if they've been, you know, if they got their fingers burnt in a particular case, they'll legislate for this sort of thing internally and they'll record everything so that they have, you know, everything's above board, etc.

I understand the point that it becomes very formal and there are costs involved in it. The question is, is worth it, you know, in terms of not having to worry about things like surreptitious recordings or misinterpretations or the endless backwards and forwards of trying to agree a set of minutes that have been taken shorthand by maybe a HR operative in the room?

So a lot of it's to do with the recording culture in the organisations. Many public sector organisations in Northern Ireland do record in order to be demonstrating reasonableness. And they bear the brunt of the cost, but it seems to work for them.

Scott: Yeah. Well, I suppose, you know, 40-odd years ago, when unfair dismissal legislation kicked in Northern Ireland, it wasn't easy to record, and it wasn't easy to surreptitiously record.

Mark: No.

Scott: So things have changed.

Mark: And the technology has moved on. And you're right. In days gone by, if it had been like an audio tape deck and you're pressing play and record at the same time, it had all the hallmarks of a…

Scott: …police interview…

Mark: …a police interview, exactly. And now less so, where you have a, you know, a small digital mic buried in the table and people are happy enough. Generally, what happens, in my experience, is people forget that it's on and you go ahead, but it's obviously being cautious about maybe saying something out of turn or something that could be misinterpreted or whatever. So there are. It's a cultural issue.

Dismissal for Asserting Working Time Rights

Scott: Okay. Let's move on to number six, Pazur against Lexington Catering Ltd. A working time related detriment case whereupon the threat of dismissal linked to a refusal to return to work because rest breaks were not given.

Mark: Yeah. The Working Time Regulations are a strange animal. I mean, they have been the most fertile breeding ground for litigation since they were introduced in 1998. A lot of people forget that it's primarily about rest and health and safety. Most people now associate the Working Time Regulations with holiday pay and the miscalculation thereof, but the reality was, it was always about rest.

And in this particular case, the employee was successful in complaining that he'd suffered a detriment by virtue of the fact that he was threatened with dismissal for not for not coming into work on the grounds that he had been not given a break, a relevant break after six hours, which is standard. Six-hour period you get a 20-minute break . . .

Scott: Twenty minutes.

Mark; . . . under the Working Time Regulations. And detriment, again, is something that we see case law developing on, because it's some form of disadvantage, and the threat of dismissal in this particular case was the nature of that disadvantage.

But interestingly in the legislation, it shows that the employee has to either propose to refuse or refuse to do something on the grounds that there is some form of breach of the Working Time Regulations. And earlier in the case, the employee did make this clear or the worker did make this clear, that that's the reason why they weren't coming back to work, and the employer then threatened with dismissal.

It's not enough not just to turn up because you didn't get your rest break the last time you were working there. You need to communicate or refuse or propose to refuse to work on the grounds that you'd been denied a right. Now you don't have to cite the specific section of the Working Time Regulations. You can just simply say, "I'm entitled to a break, after 6 hours, of 20 minutes. I'm not being given it, so I'm not coming back." And if you suffered the treatment as a result of that, that's the connection.

We don't see many of these cases, so that's why it was an interesting one to see, because most of the preoccupation with the Working Time Regulations has been about incorrectly calculated holiday pay, whereas this one is a straightforward, it's about rest and the denial of rest, and the employee or the worker refusing to return because they'd been denied that rest break.

Scott: And you don't need the one year's continuous service for the working time?

Mark: No, you don't. It's an interesting case, because the Working Time Regulations, a lot of people are unaware of the fact that it's regulated by both the Health and Safety Executive and local councils. It's, you know, they have that regulatory authority for it, and it's split quite evenly between them. And you just rarely see these cases coming up because a lot of people have sort of signed opt-out agreements. But the opt-out agreement is about the maximum cap on the hours. It's not about rest, you know.

So an interesting one. Those sort of cases don't come along very often, so that's the reason I picked it.

Scott: We've got a question just on the last one, the Phoenix House one. Just for a bit of clarification, what's the potential outcome of secretly recording? Can it be reasonably seen as a disciplinary matter? And the answer is yes and no, isn't it?

Mark: The answer is yes and no, because, I mean, I have seen cases, physically witnessed cases were the surreptitious recording has been admitted as evidence in the tribunal if it's rebuttal evidence. And there have been situations where the recording has actually been left or the recording device has been left on when the employee leaves the room and records private discussions, which happen between, you know, HR and senior management, which have been inadmissible. And so that's going to be a consideration of EAT.

Scott: But that's on admissibility. But, I mean, if you did that to an employer, it does go to the contract. They're not going to trust somebody that does that. Particularly if you say, I would never, you know, I'm not recording anything and you do record it. I mean, that does go to the trust.

Mark: Absolutely. It does go to the trust and confidence. But the question is, if you're silent on it from the outset, is it reasonable to imply that it's going to be a misconduct offence if you do record? And that's central here. So you need to be able to be upfront in advance to say it's an offence or we consider it to be a misconduct offence if you surreptitiously or secretly record this.

Rolanda: Perhaps rather than saying it's gross misconduct or major misconduct or minor misconduct, you have a general statement about that secret or covert recording will be dealt with in line with a disciplinary procedure, and the outcome will be dependent upon the circumstances, something general.

Mark: I think that's right. I think that's right. I think the issue is of proportionality, whether or not surreptitious recording of an internal process constitutes or is on the same par as, you know, theft in the organisation, because that's effectively what you're saying.

To categorise it as a gross misconduct offence, you know, the tribunal won't substitute its own view, but the tribunal will say, "Would it fall within that bound of reasonable responses?" And we know that investigations and meetings, etc., etc., etc. are subject to that bound of reasonable responses test in the same way as the decision to dismiss is subject to the bound of reasonable responses. So you're quite right. I think it falls within that remit of what's reasonable, and proportionality is a component part of reasonable.

Scott: Okay, and it's also linked to the LRA Code of Practice, which is silent on it, so…

Mark: Well, we won't legislate for every event, Scott. We don't legislate for every event.

Challenges with Employment Investigations

Scott: Hargreaves and Manchester Grammar is number five, an employment investigation case based upon one word against another, where evidence that did not have a material effect on the decision emanating from the investigation was withheld from the claimant and the impact therein. So this is you've got one word against another. Did you share all of that evidence? That's what this is about.

Mark: Yes, essentially, that's it. And very often HR practitioners are very conscious of the fact that they're faced with situations where one employer and one employee say two opposing things, so it's one word against the other. In this case, it was particular . . . it was a teacher against a pupil, so there was an uneven relationship in terms of the power imbalance there. And it was potentially job ending because there was a dismissal here. So it's important to get the context right here.

In essence, what happened was there was an accusation that the teacher had been physical with and used unreasonable force against a pupil. The teacher denied it, and said it didn't happen, and the pupil said it did happen. But at the initial outset, there didn't seem to be any witnesses to that effect, so effectively the employer had to take on the balance of probabilities whose story that they believed, taking into consideration that power imbalance. You know, was this a student who was effectively trying to get rid of a teacher? Or was this a teacher who's trying to cover up some form of misconduct.

These are notoriously difficult cases, because when you're investigating it and you just have two sets of opposing facts, he said/he said or he said/she said, the employer is left with, you know, the balance of probabilities, whose side do we believe, and the reality is pretty often you may tend to veer on the side of the weaker party there because of that imbalance.

But the unusual thing about this particular case was the employer, as part of the investigation, based on part of the evidence that the teacher given, went further and did some more investigative interviews based on what he had said in the initial interview and interviewed two other witnesses who effectively said they saw nothing. So their evidence didn't corroborate what the teacher said. So effectively, the employer didn't disclose the fact that these two investigative interviews had taken place subsequently to the initial hearing, but they didn't make any material difference to the outcome. So therefore, it wasn't deemed to be unreasonable for the employer to withhold it.

Now, we would say it's bad practice not to disclose everything because obviously, but it didn't have an effect on the outcome of the case and what didn't offend the bound of reasonable responses. But these are particularly difficult because if it's in a teaching context, if someone is effectively dismissed on this ground, it may not just be job ending, it may be career ending and they may not be able to practice their profession again.

So the employer did go the extra mile but didn't disclose the fact that they did because it didn't materially influence the outcome. I have say that the HR practitioners and employment lawyers, that I'd speak to, are constantly trying to keep on top of the organic nature of the common law regarding investigations. Employment investigations is really, really subject to the developments in the common law.

Scott: Okay, so pretty difficult to work out. There may be circumstantial evidence you can look at. You can see if there's somebody else been, you know, some kind of theme that's going on there. You might be asking even others has been any kind of, you know, issues between that pupil and that teacher before, track records and other issues. But at the end of the day, it's very difficult because if you do nothing, you're going to end up, in this case, with the students and their parents shouting at you, and there's a breach there, or you're going to end up getting rid of a teacher who could lose their career.

Mark: Yes. There are no winners.

Scott: You're damned if you do and you're damned if you don't.

Mark: No. No, winners there. No winners there.

Vicarious Liability and Christmas Parties

Scott: Shelbourne and Cancer Research, which was the Christmas party one. Here we go, here we go. We can't get better than that. The employer liability cases we are demonstrate a slightly more nuanced approach to vicarious liability by examining and looking at the close connection, the field of activities, and now social justice. So this was the dropping of the employee case was it?

Mark: This was the dropping of the employee on the dance floor case, yes. And it's interesting. The law of vicarious liability is fascinating. It's developing on a month-by-month, year-by-year basis, and it's hard for practitioners to keep an eye on it, especially with big cases like the Morrisons data breach case pending, the decision pending from the Supreme Court, because years ago, if you talked about vicarious liability for the actions of an employee, you would have asked the question was he or she on a frolic of their own, and if they were, that severed their liability, and the employer wouldn't be held vicariously liable.

Now there is a much more nuanced approach. So the employer, what the court will take into consideration is, you know, the close connection test with the field of activities test, and particularly in this case, in the Shelbourne case, this notion of social justice, which is a new development and the courts haven't really sort of fleshed that out in terms of what that means. But the question is, is it reasonable in all the circumstances for someone who does something at a work-related event, that the default position will be that the employer will always be held by vicariously liable?

And in this particular case, the research, the external research, Mr Beilik, individual, the field of activities that he was addressed, as far as the courts were concerned, was the research he did. It wasn't the field of activities in terms of what he was doing on the dance floor, and so the question about how much control the employers expected to exercise. It was interesting that MsShellbourne, the applicant in this case, was saying that there should have been a risk assessment and there should have been a written declaration by attendees that they wouldn't behave inappropriately and a whole litany of sort of risk assess based sort of preventative measures. And the court said, look, there's no requirement of an employer to do that, you know. There were some preventative measures taken in place in terms of moving between physical locations, etc., but there was no need to engage in that.

So a bit of relief for an employer, because we've looked at employer vicarious liability cases over the years and they wax and wane and in terms of whether the employer is liable or not liable. I think the Morrisons case with the Mohamud Morrisons case, year before last, and now the Morrisons again, the data breach case will really set the tone for vicarious liability for the future. We're waiting for that Supreme Court decision to come out to see issues of close connectivity, field of activities, and again now, with this case, more nuanced social justice whether it's reasonable to hold the employer vicariously liable.

Scott: Yeah. If it hadn't been a charity, there might have been a different outcome in that particular case.

Mark: Couldn’t possibly comment.

Industrial Action Ballots

Scott: But let's move on. British Airways v British Airline Pilots' Association, an industrial action ballot case. They're often technical and can turn on a simple set of facts or indeed the interpretation of a word, in this case "categories" of workers for the purpose of a ballot notice and how far a trade union needs to go in terms of explanatory detail of who will be going on strike. And that's a requirement under the law. The trade unions, you don't just ballot the entire workforce. You can take pockets . . .

Mark: That's right.

Scott: . . . and you've got to identify them. And you've got to make sure you get the right people within those pockets.

Mark: Absolutely. And it's the identification issue which is central here. This is effectively a 60 paragraph decision from the Court of Appeal on the word "categories." So in the requirement of the law on the ballot notices for the trade union to notify the employer of the categories of workers. And in this particular case, the notice provided a table of categories of employees and the number within each category. And these categories were like captain, training captains, training standards captain, training co-pilot, and senior first officer, director of safety, and that was all that was given.

And BA had argued, no, you must . . . you have to give us a much more detail in order to allow us to make provision for cover and provision of our services. So you should be giving us short haul, long haul, and effectively drilling down into the detail.

And what the Court of Appeal said in a very long-winded and technical decision said, well, no, there's no requirement for the trade union to drill down into that level of detail. It's not about helping you overcome the obstacles that the strike action will create. It's about the trade union complying with the law. And categories simply means categories of workers, so they don't have to drilled down into that sort of detail.

A really fascinating decision given that this was the winter of our discontent. There's lots of industrial action going on in Northern Ireland and across the water. And we've seen cases, for example, with the Communication Workers Union and Royal Mail, where these technical issues and the interpretation of words like, for example, secret ballot or, you know, at home, that they have to be sent to their home address, the ballot paper. These cases will turn on these individual facts.

I mean, if you take our health dispute recently with regard to the derogations that they were agreed by the trade unions and management said that's not a requirement of the law because, technically, all the health unions have to give were those general categories.

But in order to, because it was such a contentious issue with health, the trade unions sat down voluntarily with management and said, "Here are the derogations." So here, counsellor services are going to be covered, etc., etc., which is a ray of hope in regard to that working relationship between trade unions and management side. They saw the issues there.

But a very technical array law, very contentious. Trade unions have argued for years that effectively the law is much too technical and acts as an obstruction.

Scott: Okay, thank you very much. You're listening to Mark McAllister from the LRA. I'm Scott Alexander from Legal-Island. We're going through Mark's top 10 cases of 2019. We have 10 minutes left of the broadcast.

Mark: Okay.

Scott: We have two cases left. We're going to look at, just maybe highlight one or two things that are coming up next week. So I'm going to stop talking, after I've read out this case.

Sex Based Harassment

Your number two case, Raj against Capita Management Business Services. When a line manager gives on an unwanted shoulder massage in an open plan office, is it automatically sex-based harassment? And Rolanda just gave me a shoulder massage in a joking way . . .

Mark: In an unsolicited way.

Scott: I'm now going to take a complaint.

Mark: But Rolanda didn't do it on the on the grounds of your gender, Scott,and this is what this case turned upon. This was deemed by the court to be a form of misguided encouragement and motivation by the female supervisor, it has to be said, on a male employee within the organisation. But it didn't meet the threshold of sex-based harassment. It did create a hostile, intimidating, degrading, and offensive environment for it, but it wasn't related to the employee's gender. So that part of the component part to prove sex-based harassment fell away, and therefore they didn't have a jurisdictional complaint. It wasn't sexual in nature. It was sex based. So it was the gender, and he couldn't establish the fact that the female staff supervisor had given the unsolicited shoulder massage on the grounds or related to the employee's gender. That's the case.

Scott: Not many people would agree with this, because I think if a male supervisor went up to a female subordinate and gave them a neck massage, they would be disciplined on the grounds of sexual harassment.

Mark: That's why this case is in here, because it does raise a question that had the gender roles being reversed, would it have been a penalty kick for a sexual harassment, if it was a female staff member suffering an unsolicited shoulder massage in an open plan office on the grounds of being some form of encouragement or misguided motivation technique. So that's why it's there. It failed on the technical hurdle, but ultimately it's in there because had the gender roles been reversed, would it have been the same decision?

Rolanda: I seem to recall there was something in the case that referred to the shoulders being a gender, kind of, neutral area, and I kind of thought that was a bit strange, because, you know, your body is your body.

Mark: Your body is your body and your personal space is your personal space. And the reality is the stereotypes associated with sexual harassment mean a man touching a woman in any area is effectively a no-go. What seems to be suggested here was because the shoulders, and it was done on an open plan so it wasn't, you know, hidden as such, they seem to be the differences on which it turned. It is a strange decision, I have to say, and primarily because of the gender roles.

Scott: It's a bit like John Travolta in Pulp Fiction. "I've given a million women a million foot massages, and every one of them meant something." So we'll find out about the shoulder massage and whether they all mean something.

Calculation of Holiday Pay for Term Time Workers

But anyway, the final case is Harpur Trust against Brazel. It's a holiday pay calculation for term-time, zero hours workers based on a 12 week back referencing averaging system and not what we call the normal 12.07% of annual earnings.

Mark: Yes.

Scott: So why is that so important?

Mark: It's important. This is a Court of Appeal decision that effectively upheld the EAT decision last year. This was in my top 10 last year, and the reason why . . . now, it's obviously at superior court. And it's effectively saying for workers who have irregular hours, when you're calculating holiday pay, you use the domestic employment rights legislation based on the preceding 12 weeks from the time they're taking their holiday as a base of the calculation for their holiday pay. So if they have done lots of hours and overtime in that preceding 12 weeks, then that has to be factored into the calculation.

The argument that the employer tried to put up at EAT and in the Court of Appeal decision was, well, if that happened, then the part-time worker or the zero-hours worker in this case would have received somewhere in the region 17.5% rather than 12.07% and effectively getting more holiday pay than a comparative full-timer. And the argument came back from court said the legislation isn't there to protect full-timers against part-timers in terms of holiday pay calculation. There's no requirement in the legislation for prorating. Therefore, the domestic legislation applies, so the 12-week referencing period is the appropriate period and has to factor in while on voluntary, regularly worked, regularly achieved overtime, and all of the things that we've seen happening.

Scott: And it discounts days where there's no work.

Mark: That's right. It doesn't take it into consideration. It skips those and goes to the 12 weeks. So it's a very important case because in GB, the employment referencing period for holiday pay calculation in April is going to change to 52 weeks. In Northern Ireland, we are still at the mercy, if you like, of the common law. So the Court of Appeal decision here will have relevance in the Northern Ireland context.

And it really is probably a matter that's sitting in the minister's desk now because the context here is that zero-hours workers were in the New Decade, New Approach agreement. There's an agreement to bound zero-hours work. So it feeds into a variety of issues with regard to holiday pay calculation, zero-hours workers, the potential for a bound on zero-hours work, and the divergence between Northern Ireland and GB because the legislation is about to change in April. So it is easily the hottest topic, and with somewhere in the region of 34,500 holiday pay cases sitting around in the Tribunal office, it is still and has been the hottest topic.

Scott: Okay.

Rolanda: Can I just clarify because I read something the other day that seemed to contradict this. There's no point in putting too much emphasis on this, said it was a term-time worker. Is the rule generically it can be applied to any kind of work relationship.

Mark: Yeah, its workers. The term time is irrelevant here. The term used by the Court of Appeal was a part-year worker, and effectively that's someone who may work irregular hours, but the key issue is being a worker. And that's the focal issue.

Scott: Okay, Mark, just before we finish, just before everyone checks off, there's a few cases coming up this year that we want to watch out for. The big one in Northern Ireland has been Agnew and PSNI. That hasn't been decided whether it's coming forward.

Mark: No, we understand that Agnew is in the queue to go before the Supreme Court, so we're waiting to see what the outcome is of that. There's no indicative timetable for that. So we're not sure where that will be.

But also in the background, and I mean, HR practitioners and employment lawyers will be aware of these. These are sort of saga based cases that have been going on. So we look out for the Uber decision with regard to the workers in regard to their status. Look out for the Mencap, the sleep-in and the national minimum wage and entitlement to that. The Morrisons case, the vicarious liability, the data breach case that we looked at, and another case called Dewhurst against Revisecatch, which infers that TUPE will apply not simply to employees but also to workers. These are cases that are sitting within the wings, and they have been gestating for a long time, and maybe 2020 is the year that we'll get a superior enough court decision on.

Scott: Yeah. We'll also get stolen. They can save the unemployment matters.

Mark: As a devolved matter.

Scott: Tribunal things coming forward, all the good work plans, all that good stuff.

Excuse me, folks. I've got the coronavirus, I think. I don't know. I've got a bad cough, put it that way. A million times, Mark's told me not to exaggerate.

The next webinar that we have is on the 7th of February. It's O'Reilly Stewart. You can ask questions.

You can see on your screen there, we've got an offer till next Friday. If you want to come along to our Absence event that we're doing with Worthingtons. So there's an offer there. You can get in touch with Vanessa. We'll follow on with, but for now, thank you, everybody, for listening, and thank you particularly to Mark McAllister . . .

Mark: Thank you.

Scott: . . . from the Labour Relations Agency for coming and dealing with those issues.

You can listen back if you're a subscriber. We'll have the transcript up sometime next week, so you can read those things as well.

If you want to get in touch with any questions for O'Reilly Stewart on the 7th of February, send them in to us or send them into rolanda@legal-island.com. So for now, thank you very much. Hope to see you soon, folks. Bye.


This article is correct at 22/01/2020

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Mark McAllister
Labour Relations Agency

The main content of this article was provided by Mark McAllister. Contact telephone number is 028 9033 7403 or email Mark.McAllister@lra.org.uk

View all articles by Mark McAllister