This newsletter from Davies and Partners Solicitors discusses three recent employment law cases: 1) Bridgeman v Family Mosaic Housing Association, in which an employee was dismissed while on sick leave for misconduct. The tribunal found the dismissal unfair as the employer did not properly balance the employee's rights with the need to proceed with the disciplinary hearing in her absence. 2) Stringer v HMRC and Shultz-Hoff v Dutsche RB, which established that employees on sick leave continue to accrue holiday rights and may carry unused holidays over to the next year. 3) KHS AG v Schulte, where the European Court of Justice ruled there is a limit to how long unused

1. Davies and Partners Solicitors
SimplyHR
Summer 2012 www.daviesandpartners.com
W
hen drafting newsletters and ACAS resources would be severely
articles there is always concern challenged if the plan was implemented.
about whether or not they are The reaction to the article at least indicates
actually read and also whether to “play that there are some readers! As the
safe” or to “say it how you see it”. At the second element - well, I don’t think I’m
time of writing this edition of Simply HR, I doing my job if I don’t say it as I see it.
seem to have created something of a stir
in the Gloucestershire Media by suggesting I hope that you find something of interest
that the Government proposal that all in this edition of simply HR. If you would
claims will have to face compulsory ACAS like to explore any of the issues raised in
Nigel Tillott, Partner & Head of conciliation before they can be issued, anymore detail then any member of the
Employment could backfire and that already stretched team would be delighted to assist.
Protection for Whistleblowers!
O
ver recent years employers have colleague’s claims about his qualifications. of dealing with a dysfunctional situation.
been very careful in dealing After an investigation the management This was the reason for re-deployment
with whistleblowers given, in decided no action would be taken against rather than the disclosures themselves.
particular, the view that the law the colleague. The whistleblowers were
provides special protection for them. The not happy with the outcome and continued The Court of Appeal went on to decide
case of NHS Manchester v Fecitt in 2011 to pursue their concerns. As a result that so far as whistleblowing is concerned
would appear to show that protection for an unpleasant atmosphere developed the employer was not vicariously liable for
whistleblowers is not as great as might be and the whistleblowers were subjected the individual acts of its employees i.e. if
thought. to threats from colleagues. They raised an employee blows a whistle and a fellow
grievances which were investigated by an employee mistreats the whistleblower
The background legislation is Section outside consultant but only one of those without the involvement of the employer,
47b of the Employment Rights Act 1996. complaints was partially upheld. then under whistleblowing legislation there
This provides protection for a worker would not be a breach. This is because
from being subject to a detriment by NHS Manchester was concerned about under the legislation individuals cannot
his or her employer on the ground that the atmosphere, so sought to address this be liable for victimising whistleblowers. It
a protected disclosure has been made. by removing one of the whistleblowers therefore follows that their employer can’t
Where a worker can demonstrate that a from her managerial responsibilities and be liable for such actions.
protected disclosure has been made the then redeploying her. The second of the
employer has the burden of proving that the whistleblowers and the third, being a Bank The decision is perhaps a surprising one.
treatment which the employee complains of Nurse was not given any further work. The Court of Appeal said the tribunal
was not a result of the protected disclosure. should look critically and even sceptically at
Protected disclosures can apply to events The matter eventually found its way to whether an employer’s apparently innocent
that have happened, are happening or the Court of Appeal. It was found that explanation of treatment in this type of
are likely to happen which may involve a NHS Manchester was open to criticism for circumstances is in fact a genuine one. It
criminal offence, failure to comply with any not protecting the whistleblowers more appears that the Court of Appeal in this
legal obligation, such as breach of contract, effectively, but that its failure to act more case was concerned that if the decisions
miscarriage of justice, danger to health and robustly wasn’t a deliberate omission made by the Trust were regarded as a
safety and danger to the environment. and was not because the whistleblowers breach of the whistleblowing legislation
had made protected disclosures. The then employers would be very reticent to
In Fecitt, three nurses expressed concerns management had felt that the re- resolve a dysfunctional situation.
to their Line Manager about the truth of a deployment was the only feasible method
The Employment Team
Rebecca Byczok Simon Pressdee Jude Rodrigues Nigel Tillott Gareth Price Sarah Whittock

2. Davies and Partners Solicitor
SimplyHR
“Self Dismissal” – Not an Option
I
t is not that infrequent that employers failed to do this. The employer had to accept the breach
face a problem with an employee who In late June 2006 the company wrote the by actively dismissing the employee. The
has absented himself or herself and then standard “self dismissal” letter asking EAT went on to decide that it couldn’t
gone silent. It may be that the employee the employee to confirm his resignation realistically be said that Mr Zulhayir had
was initially absent for legitimate reasons, in writing if he no longer wished to be resigned, especially as the company was
for example sickness or a holiday but employed and stated “Please note that aware that he had not received the letter
had then gone silent. Alternatively the if you do not contact the company by 5 and that a personal injury claim was
employee may unexpectedly fail to turn up July 2006 the company would conclude ongoing. It went on to conclude that no
for work. After several attempts to contact that he no longer wished to work for the effective steps were taken by either Mr
the employee without success frustrated company and that he had terminated his Zulhayir or the company to terminate the
employers sometimes write to the employee employment by his own volition”. The letter employment contract until Mr Zulhayir was
indicating that if the employee hasn’t got was sent by some form of recorded delivery informed in May 2009 of the letter of June
back to the employer by a certain date they as it was returned to the company in that 2006 indicating that the company no longer
will assume that he has left and issue a no one had signed for it at Mr Zulhayir’s old wished to be bound by the contract.
P45 (or words to that effect). address. No further attempts were made
to contact Mr Zulhayir. Mr Zulhayir then accepted this by
The recent judgment of the EAT in the case commencing tribunal proceedings in
of Zulhayir v JJ Food Service Limited throws Mr Zulhayir brought a personal injury claim July 2009! The logical conclusion of this
light upon the effectiveness of this practice. against the company in due course and the was that Mr Zulhayir’s employment had
company’s insurers provided Mr Zulhayir continued until May 2009 and on that basis
Mr Zulhayir (as I will call him) was employed with a copy of the “self dismissal” letter his claims were in time.
as a Delivery Driver. He was seriously in 2009. Various claims then followed on
injured in an accident at work in January in 2009 for unfair dismissal, disability The bottom line is “self dismissal”
2005 and went on long term sick leave. He discrimination and breach of contract. doesn’t work! If employers want to have
supplied medical certificates to start with certainty that the relationship with an
but these stopped after five months and Based upon previous case law the absent employee has come to an end, the
Statutory Sick Pay ceased in July 2005. employment appeal tribunal took the view employer needs to end the employment
Mr Zulhayir was evicted from his home in that whilst Mr Zulhayir’s failure to notify contract. It would be well advised to do this
January 2006 and moved to a nearby flat. the company of his change of address was by calling the employee to a formal hearing,
Whilst his contract required him to notify a serious breach of contract, that didn’t prior to terminating the contract.
the company of a change of address he in itself bring his employment to an end.
Two Headline Age Discrimination Cases Decided
The Supreme Court has handed down of employees or training requirements of a Homer v Chief Constable of West
decisions in two important cases relating particular job. In this case Clarkson Wright Yorkshire Police
to age discrimination. The first - Seldon v and Jakes stated that they could justify the Mr Homer, 62, worked for the Police
Clarkson Wright and Jakes, focuses on the retirement age because it: National Legal Database. When he joined
test for justifying retirement age and the there was no requirement for a law degree,
second case of Homer v Chief Constable of 1. ensured associates had an opportunity just sufficient skills and experience.
West Yorkshire Police focuses on indirect of partnership
age discrimination and whether someone 2. facilitated planning of the partnership A new grading structure was introduced
was put at a disadvantage. and the workforce requiring an individual to hold a law degree.
3. limited the need to expel partners Unless Mr Homer undertook a 4 year part-
Seldon v Clarkson Wright and Jakes by way of performance management time law degree, he couldn’t achieve this
Mr Seldon, a partner in a law firm was, leading to a congenial and supportive grading. Further as he was required to retire
on his 65th birthday, compulsorily retired culture. at 65 there was no way of achieving the
from the partnership in accordance with grading before he left. He claimed indirect
the partnership deed. Mr Seldon claimed The Supreme Court held that although age discrimination as he felt his age group
direct discrimination on the grounds the compulsory retirement age was a would suffer a particular disadvantage.
of age. Although this case deals with discriminatory measure it was capable The Supreme Court held that Mr Homer
partnerships and not employee relations, of being objectively justified because the had been put at a disadvantage because
what is important is how the Supreme Court three reasons set out above complied with of his impending retirement which directly
determined how objective justification of a social policy. related to his age. Although he had been
retirement age should be applied. put at a disadvantage it is still open for
For any organisation retaining its retirement the employer to justify the discriminatory
Any retirement age implemented by age, it’s important to have good evidence position taken and so the case has been
an organization is now potentially to support why they wish to retain a remitted to the employment tribunal for
discriminatory unless it is objectively retirement age and show there is not a less their consideration. It will be interesting to
justified. Such justifications can include or non discriminatory way of achieving the see if the employer can indeed objectively
economic factors, health safety and welfare same result. justify its decision making process.

3. Davies and Partners Solicitor
R SimplyHR
rs Holidays &
Disciplinary Hearings
Sickness
This issue has been one of the most contro-
versial aspects of employment law in recent
years and has caused significant practi-
cal problems to employers. For example
should holiday not taken in one holiday
year because of sickness absence be lost
or carried over? If it is carried over for how
many years can the sick employee carry on
accumulating holiday?
There are numerous recent decisions upon
this topic including the cases of:
1. Stringer v HMRC and Shultz-Hoff v
Dutsche RB. In 2009 the European
M
ost employers will be familiar with The employment tribunal took the view Court of Justice confirmed that work-
the scenario - An employee is that the organisation had genuine and ers on sick leave continued to accrue
under performing or accused of reasonable grounds for dismissal but that holiday rights and if necessary they will
misconduct. He or she then goes off sick it failed to undertake a proper balance be allowed to carry it over to the next
– probably receives full pay based on the between the needs of the association and leave year; and
company’s sick pay scheme – and is not fit Ms Bridgeman’s own rights. The decision 2. Pereda v Madrid Movielidad also in
to attend any disciplinary or performance to go ahead with the hearing on the first 2009 the European Court of Justice
related hearing. occasion when Ms Bridgeman couldn’t decided that if a worker’s pre-arranged
attend was too hasty and therefore the holiday coincided with a period of sick
A tribunal recently grappled with this issue dismissal was unfair. leave the worker had the option of des-
when an employer was brave enough to ignating an alternative period for the
carry on with the process in the employee’s The tribunal looked at the ACAS Code of exercise of the holiday entitlement.
absence. In Bridgeman v Family Mosaic Practice on disciplinary and grievance
Housing Association, Ms Bridgeman was which suggests that where an employee is The latest case on this subject is that of
employed in a role supporting vulnerable persistently unable or unwilling to attend KHS AG v Schulte, a 2010 European Court
adults. In April 2010 a serious incident a disciplinary hearing without good cause of Justice decision. This held that there
arose as a result of which shortcomings in the employer should make a decision on was a limit to the length of time an em-
Ms Bridgeman’s performance came to light the evidence available. The tribunal in this ployee on long term sick leave could con-
which lead to her being issued with a final case decided that the employer didn’t have tinue to carry over untaken annual leave.
written warning. She was moved to a new sufficient information to decide whether or Mr Schulte, a German employee, was on
team and placed on a work plan to allow not Ms Bridgeman was abusing the system long term sick leave for six and a half years
performance monitoring. and holding a hearing was very important and tried to claim holiday for each of those
to the integrity of the process. It also took years. A Collective Agreement had been
Issues continued to arise with Ms account of the size of the employer in entered into which said that any holiday not
Bridgeman’s performance, particularly in coming to its conclusion – the organisation taken within fifteen months of the end of
relation to risk assessments for vulnerable was sizeable. the relevant holiday year would be lost. The
adults in her care. ECJ took the view that there must come a
So what can be learned from the case? point when the purpose of the leave (health
A senior Manager prepared a report in • Employers should be slow to proceed and safety/giving a break from work) can
January 2011 in which she concluded that following a first failure to attend. no longer be met and took the view that a
there was a risk of a serious incident due • One “safe” option is to obtain fifteen month period was reasonable.
to lack of competency. In the meantime Ms independent medical advice as to the
Bridgeman was off work with a virus. Whilst employee’s fitness to attend a hearing It doesn’t seem that a period of less than
still off sick she was invited to a disciplinary (as opposed to attend at normal work). fifteen months to take the carried over
hearing. She informed the organisation • The impact of a delay in the hearing leave will be permissible. The International
that she was trying to get another sick note should be considered. Where it Labour Organisation convention referred to
to cover continuing absence but didn’t would have an impact on others – for an eighteen month period and the Advocate
actually provide one at the time. On the example in a redundancy situation General in the Schulte case recommended
day of the hearing she telephoned to say or if there are serious financial eighteen months as a guideline. Therefore
that she wasn’t well enough to attend. consequences for the organisation - it it would be a brave employer to provide for
The decision was made to go ahead with may be easier to justify a hearing than a period less than fifteen months.
the hearing in her absence on the basis in other circumstances.
that she was being unco-operative and • The case gave an interesting example It was also suggested in the Schulte case
the organisation did not see a reason of a situation where there was a that any carry over period must take into
to postpone the hearing. At the hearing technical finding in favour of the account the specific circumstances of the
the view was taken that she should be employee, but a moral victory for the sick worker which might allow for the peri-
dismissed and that if Ms Bridgeman had employer as a result of the reduction ods of leave to be staggered and planned
been present the result would have been of the compensatory award to zero. in advance.
the same.

4. Davies and Partners Solicitor
SimplyHR
Total Legal Care - TLC Touch™
W
e are aware that many clients Protection for your workforce
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Our employment team has worked closely the process so providing peace of mind to
with Straight Solutions Ltd (an FSA senior employees.
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disqualifications, FSA compliance
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We will not be operating a call centre
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You can also read an interesting
one of the specialist employment solicitors
article by Nigel Tillott one of our team
in our team will be assigned to look after
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Welcome back to Sarah Whittock
Sarah Whittock, a member of our director disqualification, FSA compliance
employment team in our Bristol office has and Care Home compliance. Sarah said,
returned from maternity leave. “It’s good to be back and I am looking
Sarah had her second child; a little girl forward to reconnecting with everyone
called Phoebe last September and is now again and getting back to work.”
settling back into work again! When not playing Mum, Sarah has several
Sarah advises on all areas of employment interests including karate and golf although
law for employers and employees as well the latter has been somewhat curtailed
as dealing with regulatory issues such as since becomming a mum!
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