Employment Law Update – March 2019

Mar 7, 2019

We are pleased to provide you with the Herrington Carmichael LLP employment law update for March 2019.

This is a key note summary of some of the main developments in employment law in the last month.

  1. Working Time Regulations
    The Advocate General of the European Court of Justice (ECJ) has provided his opinion in the case of Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE. They considered whether it was necessary for an employer to keep records of actual hours worked to fulfil their obligations under the Working Time Directive.

Deutsche Bank used an absence calendar which only permitted the recording of absences for full working days. This meant that any actual hours worked on a particular day were not recorded.  The CCOO, a Spanish trade union, brought action against Deutsche Bank, seeking a declaration that the bank was under an obligation to record the daily working time of its employees. The Advocate General was of the opinion that in order to comply with duties under the Working Time Directive, national law must require employers to keep records of actual time worked.  The rationale behind this being that without recording actual hours it may be difficult for workers to obtain protection under the Directive.

While the Advocate General’s opinion is not binding, it is likely to be followed.  In the UK, Regulation 9 of the Working Time Regulations 1998 requires employers to keep ‘adequate records’ to ensure working time limits are being complied with. However, the Advocate General’s opinion is important in the event that the ECJ agrees with his rationale, as it may raise the question as to whether our national law properly complies with the Directive’s requirements and whether employer’s are going far enough in recording working time.

  1. TUPE and Unfair Dismissal
    The case of Hare Wines v Kaur considered whether, in a TUPE transfer, a dismissal relating to purely ‘personal’ reasons would be considered unfair because of the transfer.  The Court of Appeal held that it could.

The Claimant worked for a wine wholesale business and the business she worked for was to transfer to Hares Wines Ltd. On the day of the transfer, the Claimant was dismissed and she claimed automatic unfair dismissal. Hare Wines alleged she was dismissed because of difficulties she had with a colleague, who was to become a director of Hare Wines Ltd.  Despite this allegation, the Employment Tribunal concluded that the transfer was the sole or principal reason for the dismissal and so the Claimant was automatically unfairly dismissed.  The Employment Appeal Tribunal (EAT) upheld this decision and so did the Court of Appeal in their latest judgment. The rationale behind the Court of Appeal’s decision was that the dismissal happened on the day of the transfer, and the relationship with the colleague had been an issue for some time and that the Claimant would probably not have been dismissed, if the transfer was not happening.

It is important, when purchasing a business or being involved in a transfer of a business or service, to consider the consequences of the seller dismissing employees. There must always be a reason unconnected with the transfer or an economic, technical or organisational reason entailing a change in the workforce.  Personal reasons, alone, are not sufficient. 

  1. Religious Discrimination
    The recent case of Gan Menachem v de Groen considered whether dismissing an employee from an ultra-orthodox nursery because she refused to lie about her cohabitation, amounted to discrimination on the grounds of religion or belief.  The EAT decided that it did not.

    Mrs De Groen was a Jewish teacher who worked at an ultra-orthodox nursery. Mrs De Groen lived with her boyfriend, which the nursery said was a contravention to the beliefs of ultra-orthodox Jews.  The nursery asked Mrs De Groen to confirm to them that she no longer lived with her boyfriend, even though she did, so they could tell parents of the children that this is what they had been informed.  Mrs De Groen did not want to lie to her employer and was subsequently dismissed.  By applying Lady Hale’s judgment in Lee v Ashers Baking Company ltd, the EAT found that Mrs De Groen was not directly discriminated on the grounds of her religion or belief.  It was found Mrs De Groen had been treated less favourably by reason of the nursery’s religious belief, rather than Mrs De Groen’s own beliefs, and less favourable treatment by an employer on the basis of its own religion or belief does not establish direct discrimination under the Equality Act 2010.

This case did however uphold judgment on the findings of sex discrimination and harassment. This case is an important reminder to carefully consider the protected characteristics relied upon in relation to discrimination claims. 

  1. Infringement of Statutory Rights
    In the recent case of Spaceman v ISS Mediclean Ltd, the EAT held that when claiming dismissal on grounds of asserting a statutory right, there must be an actual infringement by the employer rather than just a mere intention or threat of infringement.

The Claimant in this case was a porter and was subject to an allegation of sexual harassment against him.  He underwent a disciplinary investigation and was dismissed as a result of the investigation.  The Claimant had less than two years’ service and so did not have the right to claim for ordinary unfair dismissal.  He therefore alleged his employer had infringed a statutory right, namely his right to not be unfairly dismissed. During a disciplinary hearing, the Claimant was told that he was going to be ‘sacked anyway’ and the Claimant sought to rely on this statement as the sole reason for his dismissal.  The Employment Tribunal struck out the Claimant’s claim as the requirements contained in statute for infringement of a statutory right is written in the past tense.  This means that an assertion of a statutory right could only be made after his dismissal, not just on a mere threat of infringement. The Claimant appealed this decision, however the EAT upheld the original decision.

The Claimant here tried to get around the established principle of needing two years’ service in order to bring a claim for unfair dismissal.  The finding in this case makes it clear that there is no loophole in this area and if an employee is to rely on a statutory right infringement there must actually be that infringement.

For further information, or to discuss the issues raised by this update, please contact Herrington Carmichael’s Employment Department on 0118 977 4045 or employment@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.