Northern Ireland Employment Law In Brief: Case Law Special (April 2022)

Posted in : Supplementary Articles NI on 29 April 2022
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Issues covered: Discrimination & Equality; Discipline & Grievance; Working Time

This month’s 'In Brief' is a case law catch up. We’ve handpicked some of the most recent decisions and grouped them by category, so you don’t miss an important decision. 

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 judgement online. 

The decisions highlighted in this article cover the issues of discrimination & equality, discipline and grievance and a lesson from Europe on working time. 

Discrimination & Equality 

This is an interesting case relating to the need to provide facilities for a breastfeeding woman.   The difficulty arising here was that the respondent had assumed that the claimant would be aware of roomswhere she could feed/pump, when this was not the caseThe claimant raised the need for a room on multiple occasions yet there was no real plan put in placeEmployers should be mindful of women returning from maternity leave and the facilities that may be required to accommodate those who are still breastfeeding.   A private, sanitary place was not provided in this case, and it amounted to harassment considering the steps that the claimant felt forced to take. 

This case gives a good insight into the make-up of a pool when it comes to comparators in a discrimination claim.  The difficulty in this case was that there was a distinction to be drawn between actually working the shift and guaranteed availability.  This was clear with the two males who were seen to have an implied entitlement, so they were not treated as being available for the shift. This did skew the pool that was used.  

Indeed, as the respondent operated these terms on a company wide basis it was at least possible to widen the pool to see the real effect of the policy.   The extent of the pool and the logical basis in its use must be considered by the parties in a discrimination case of this kind. 

This has been the second case in which the claimant has brought a claim relating to his unsuccessful job application (the first reported case being Wilson v Mark Mason Employment Law Ltd).   In advertising and running the process for hiring employers must be conscious of ensuring that it is a fair process.  There was nothing to suggest in this case that it was an unfair process. The case does provide a lesson when it comes to time limits and that a suspicion of some element of discrimination will mean that the time begins to run from that point.  That worked against the claimant in this instance but was the only sensible solution as to allow for some later date based upon when it ‘crystallised’ in the claimant’s mind as argued would be too flexible and too favourable for claimants. 

Discipline & Grievance 

The claimant, as a trade union representative, had been involved in organising a series of strikesDuring a strike period the claimant was suspended from work and disciplinary proceedings were brought against herThe respondent suggested the claimant had twice abandoned her shift without permission and spoke to the press about strike action without any permission or authorisationThe disciplinary action took its course, and the claimant was given a written warningThe claimant subsequently brought proceedings under Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 which relates to detriment suffered because of trade union membership or activities. 

This case demonstrates the difficulties that can arise in ensuring domestic law is compliant with the ECHR.   The EAT sought to use the powers under Section 3 to widely interpret domestic legislation yet the Court of Appeal shied away from this suggesting that it would be making judicial legislation.  When it comes to the 1992 Act it does leave the law in a place where an individual taking part in industrial action can be subject to detriment short of dismissal without recourse in domestic proceedings.  The idea that it is a mere ‘lacuna’ seems to be odd considering that it has a real-life effect on those who have suffered a detriment and does seem at odds with the jurisprudence of the European Court of Human Rights. 

The decision of the Tribunal at first instance was, at some points, vagueThis led to difficulties with the reduction in the award based upon ‘conduct’.   The need for judgments to examine all aspects was clear in this judgment where it led to difficulties for the respondent in the appealThe application of the stages/tests must be set out and with the Polkey reduction this led to the appeal being successfulThere were also issues with the fact that the claimant was allowed to continue working during the investigation even though the line manager stated that he had lost trust in the employeeThis must be borne in mind in deciding to suspend an employee during the investigation/disciplinary process. 

Working Timea lesson from Europe 

NOTE: The Working Time Regulations (NI) 1998 form part of “Retained Law” for the purposes of the European Union (Withdrawal) Act 2018 (“the Act”). By section 6 of the Act, UK courts and tribunals are not bound by decisions of the CJEU made after “exit day”. However, a UK court or tribunal may have regard to any such decision of the CJEU as far as it is relevant to any matter before the court or tribunal. 

The CJEU held thatArticle 2(1) of Directive 2003/88/EC must be interpreted as meaning that a period of stand-by time of a firefighter, during which that worker, with the permission of his or her employer, carries out a professional activity on his or her own account but must, in the event of an emergency call, reach his or her assigned fire station within 10 minutes, does not necessarily constitute ‘working time’.If it follows from an overall assessment of all the facts of the casethat the constraints imposed on the worker during that period are not of such a nature as to constrain objectively and very significantly the ability that he or she has freely to managethe time during which his or her services as a retained firefighter are not required. 

Every employer in Northern Ireland, who requires an employee to be on “stand-by”, will have to make an assessment as to whether such “stand-by time” is actually “working time” for the purposes of the Working Time Regulations. As can be seen from this judgment, the particular facts applying to each relevant employee will need to be considered. A failure to make the correct assessment could prove costly. 

These cases and many more can be found in the Case Law section on the Hub.

This article is correct at 29/04/2022

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.

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