1. SEPTEMBER 2012
‘BREAKDOWN OF TRUST’ DISMISSALS
Can a ‘breakdown of trust’ always be a substantial and sufficient reason for dismissal? No, said the Court of
Appeal in Leach v OFCOM.
The Court of Appeal held that the employment tribunal considered all relevant facts and was entitled to find that
the breakdown of trust by the Claimant was a substantial and sufficient reason for his dismissal. The Court further
stated that although mutual trust and confidence is at the heart of employment relationship, breach of it is not
a ‘convenient label to stick on any situation’ to dismiss an employee in the absence of other lawful reasons. In
deciding the reason for dismissal and whether it was substantial and sufficient to justify the dismissal, an ET has
to examine all relevant circumstances.
The claimant also argued that the dismissal had breached his human rights under the European Convention on
Human Rights (ECHR). However, the Court of Appeal rejected these arguments.
DISABILITY DISCRIMINATION
Does the duty to make reasonable adjustments end when an employee goes on sick leave? Sometimes, but in
Olenloa v North West London Hospitals, the EAT emphasised that such a conclusion must be based on specific
facts.
The employee made a tribunal claim alleging that he was disabled and that his employer had failed in their
duty to make reasonable adjustments as required under the Disability Discrimination Act 1995 but the tribunal
decided that the employer no longer held that duty once the employee went off sick.
The employee appealed the decision and the Employment Appeal Tribunal found that the first tribunal had made
an error of law and that the duty to make reasonable adjustments does not end once an employee goes off sick.
The reason for this is that if the employer had made the reasonable adjustments, they may have prevented the
employee from going off sick or enabled him to return to work.
If an employee suffers from a disability that comes under the Equality Act 2010, they will have an obligation to
that employee to make reasonable adjustments. The question to ask is whether the adjustments will be effective,
affordable and practicable? Employers should also be aware that the duty to make reasonable adjustments does
not necessarily begin once you have hired a person, as you may be required to make reasonable adjustments
for recruitment and selection processes.

2. RACE DISCRIMINATION PAY-OUT
A former postal worker has been awarded undisclosed compensation after an employment tribunal
ruled he had faced discrimination in Mr A Musa v Royal Mail Group. Abdul Musa was supported by
the Equality and Human Rights Commission (EHRC) in his claim of victimisation after he complained
of racist behaviour among colleagues at a Royal Mail depot in Blackburn.
Mr Musa made complaints of race discrimination, which led to a worker being sacked, after which he
claimed he was “sent to Coventry” by other employees and when an internal investigation was held
into his complaints, it led to disciplinary cases being taken against a number of other workers. Mr
Musa was then dismissed in 2007 after being seen by Royal Mail as a “problem”.
The EHRC stated that: “The Equality Act protects people from being victimised for making complaints
about any form of discrimination in the workplace. It also says employers have a responsibility to
take complaints seriously and to put a stop to discrimination.”
TUPE: ORGANISED GROUPING OF EMPLOYEES
In a recent case with an Aberdeen company, Seawell Ltd v Ceva Freight (UK) Ltd & another, an EAT
ruled that just because an employee works 100% of his time for a single client, he is not necessarily
assigned to an organised grouping of employees for the purposes of a service provision change and
therefore his employment does not necessarily transfer under TUPE.
The claimant was employed by Ceva Freight (UK) Ltd, which provided logistics and freight forwarding
arrangements for Seawell. Seawell then terminated the arrangement and took the service back
in-house. Seawell was not the only client of Ceva, but Mr Moffat spent 100% of his time on their
contract, with other employees spending smaller percentages of time on the contract and the rest
of their time on other contracts. An ET found that either the claimant himself could comprise of an
organised grouping of employees or, alternatively, if the organised grouping of employees included
Mr Moffat and colleagues, Mr Moffat was assigned to that organised grouping of employees as he
spent 100% of his time on the service. On this basis they deemed he transferred under TUPE.
The EAT however disagreed. There was no basis for finding in this case that there was a group of
employees specifically organised for this particular contract. An organised grouping of employees
indicates a deliberate putting together of a group of employees for the purpose of the relevant client
work. There was no such conscious employee grouping on the facts of the case and as such there
was no service provision change and no relevant transfer.

3. REDUNDANCY SELECTION CRITERIA
In Mitchells of Lancaster (Brewers) Limited v Tattersall, Mr Tattersall was employed as a Property
Manager. The Senior Management Team (SMT) comprised of five people, including Mr Tattersall.
During the first half of 2010, the Company’s trading position deteriorated and the directors were
anxious to make savings. At a board meeting in June 2010, it was decided that a proposed restructure
was required. Each of the SMT roles was discussed and it was concluded that cutting the role of
property manager would have the least detrimental impact on the business because it was a role that
did not generate revenue. The business skills of each manager were also discussed.
Mr Tattersall was informed that his role was at risk, and after a series of individual consultation
meetings, was ultimately dismissed by reason of redundancy. His appeal was unsuccessful. He then
raised a claim and the tribunal found that he had been unfairly dismissed for a number of different
reasons. The tribunal held that the dismissal was for the potentially fair reason of redundancy; however
the tribunal concluded that the dismissal itself was unfair. The selection criteria were unacceptable
because they were entirely subjective and based on the views of the other directors; however, as
there was a one in five chance that Mr Tattersall would have been selected for redundancy anyway,
compensation was reduced by 20%.
Mr Tattersall appealed. The Employment Appeal Tribunal upheld the fairness of the dismissal and
disagreed that the selection criteria were unacceptable – just because the criteria were matters of
judgment, did not mean that they could not be assessed in an objective way. However, evidence
suggested that there was no process that gave Mr Tattersall the opportunity to persuade the company,
or them to consider, that any of the roles other than his should be selected for redundancy. The failure
to properly consider the other four managers for redundancy rendered the procedure unfair and a
reduction in compensation was also recommended as there must have been a significantly greater
likelihood of him being selected.
Employers should take care that they have robust and transparent criteria when selecting for redundancy
and keep records of decisions to show they have been applied consistently and objectively. If in
doubt, take specific advice (e.g. from Empire) before making the selection.
ZERO HOURS CONTRACTS
Companies are increasingly making use of zero hours contracts, not giving their employees guaranteed
hours but expecting them to be available to work with a few hours’ notice. They say they are being
fair and are providing valuable experience to staff, but unions, and some workers, are opposed. The
growth of these contracts seems to be connected to the recession, as employers seek new ways
to take on staff cheaply without any commitment. According to the Office of National Statistics, the
number of people on zero hours contracts has more than doubled since 2005 and now 161,000
people are employed in zero-hours jobs.

4. NUMBER WORKING BEYOND THE STATE PENSION AGE DOUBLES
The number of older workers working beyond State Pension Age (SPA) has almost doubled in the
last two decades to 1.4 million. With an ageing population and the post-World War II ‘baby boom’
generation reaching SPA, the population of older people and older people in employment has
increased, resulting in the number of workers above SPA rising at a faster rate than the population.
There may be a number of factors influencing the decision for more people to work past SPA such
as improved health and well-being, financial pressures, people living longer and wanting to remain
active, and workers over SPA are more likely to be self-employed or work part-time.
This shows that those who remain in employment work fewer hours, possibly helped by the financial
support of their state pension and/or other pension arrangements, which allows them to fit work
around other activities. Older workers are also more likely to stay on in smaller firms and tend to
remain with the same employer. 62% had worked with the same employer for ten years or more, with
8 out of 10 working for the same employer for five years or more.
There may be many reasons for these differences such as the fact that smaller firms are less likely to
offer a workplace pension which may result in individuals having to work longer for financial reasons.
With the changes in pension legislation, this may start to change over the next few years.
LEGISLATIVE CHANGES FROM 1 OCTOBER 2012
National Minimum Wage New Rates:
21 and over: Increase to £6.19
18-20 years: £4.98 – no increase
16-17 years: £3.68 – no increase
Apprentices: Increase to £2.65
Pensions auto-enrolment begins: From 1 October until February 2014, employers with 250 or
more employees will have to enrol eligible employees automatically, and make mandatory employer
contributions, into a qualifying workplace pension scheme or the National Employment Savings Trust
(Nest).
Health and Safety (Miscellaneous Revocations) Regulations 2012 come into force: The
Regulations revoke seven statutory instruments relating to health and safety.

5. HEALTH & SAFETY
MANUAL HANDLING
Lifting bags of cash might seem to most as an enjoyable activity however in her workplace, the Nat
West Bank in Cheriton, Kent, the need to lift two cash bags, each containing £500 in £1 coins (11kg)
caused a bank cashier to injure her back.
The cashier claimed Nat West had not given her health and safety training after doctors found two
spinal discs had moved out of line and aggravation of a previously undiagnosed spinal condition.
The cashier was awarded £18,500 in compensation and stated all the pain and time off work could
have been avoided if she’d been trained to lift heavy items correctly.
CARE HOME RESIDENT SUFFERED FATAL INJURIES
A Care Home in Shropshire has been fined £100,000 and ordered to pay £5,479 in costs at Shrewsbury
Crown Court after the court heard how a resident fell while on a shopping trip resulting in head injuries
which proved fatal.
The 79 year old resident walked to the shop using a wheeled walking frame with the help of a carer
but she fell and sustained head injuries. After being admitted to hospital she died four days later from
complications arising from her injuries.
The subsequent investigation into the accident discovered the care staff had been required to use a
wheelchair for the resident when she was taken outside the home and a documented care plan was
available with the detailed instructions however, carers were accustomed to receiving only verbal
instructions from senior management relating to the care requirements of residents.
Steve Charmley, Shropshire Council cabinet member for health and safety said: “This fatal accident
should never have happened. This is a tragic case of the death of an elderly lady, which was entirely
preventable”, he added “this case shows that there can be tragic consequences if employers do not
meet health and safety standards, carry out the necessary precautions and communicate effectively
with their employees”.
ROOF WORK
Whether your business involves carrying out roof work or you simply engage contractors to do so on
your work premises, revised HSE Guidance is available and is free to download from their website
(HSG33).
The Guidance is aimed at anyone planning, undertaking or supervising roof work which includes
Directors of companies who are not involved in roof work themselves. Engaging contractors to
undertake roof work for you gives you a responsibility to assess the suitability of the contractor before
the work commences and to monitor the activity during the works to ensure safety standards are
maintained. The Guidance is essential reading, not just for those in the construction industry but for
the management of this high risk activity where the main risks are identified as falls through fragile
materials and as a result of unprotected roof edges.

6. TRAINING AND DEVELOPMENT
We will be running the following courses over the next few weeks:
Lunch and Learn Sessions - 12pm to 2pm
Introduction to Mediation: Wednesday 3rd October, Inverness
Introduction to Mediation: Tuesday 23rd October, Aberdeen
Witness Familiarisation Training: Wednesday 31st October, Aberdeen
To book a place or for further details, please visit www.empirehr.com. Alternatively, you can
email: bookings@empirehr.com or talk to the team on 01224 701383.