Wednesday, 7 February 2018
Friday, 2 February 2018
Not necessarily, held the EAT in Royal Surrey County NHS Foundation Trust v Drzymala.
A locum consultant doctor had been employed on a series of fixed-term contracts. A permanent vacancy arose before her contract was due to expire. She was interviewed, along with another candidate, but not appointed. Subsequently she was given notice that her fixed term contract would not be extended. The employer's letter made no mention of a right of appeal or any alternative employment with the Trust.
The Claimant lodged a grievance and was eventually allowed an appeal. An appeal panel concluded that an earlier appeal would have made no substantive difference as to the outcome.
A tribunal found that her dismissal was unfair and the employer appealed. It relied in particular on its contention that it had complied with the non-discrimination regime in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. Therefore the employment tribunal was wrong to conclude that the employee was unfairly dismissed.
The EAT rejected this proposition. The general law on unfair dismissal applies to dismissals which arise from non-renewal of a fixed-term contract. The question of fairness of a dismissal depends in the normal way on the facts of the case and the application of the fairness test in section 98(4) of the ERA 1996.
Dismissals by non-renewal of a fixed-term contract are often potentially fair for "some other substantial reason." But they are not a special case attracting different considerations from those normally considered under section 98(4).
In this case, the tribunal was right to consider that the Claimant had been poorly treated by the employer when it failed to pursue a discussion about alternative roles and to provide the Claimant with a timely right of appeal. The finding of unfair dismissal was therefore upheld.
Working Time: Rest Breaks
Is an employer entitled to meet the 20 minute rest break requirement for workers under the Working Time Regulations by aggregating breaks of a shorter duration?
No, held the EAT in Crawford v Network Rail Infrastructure Ltd.
Regulation 12 of the Working Time Regulations 1998 provides for a rest break of not less than 20 minutes if a worker's daily working time is more than 6 hours. Regulation 21(f) provides that a worker in Railway Transport does not enjoy the protection of Regulation 12. Instead, under Regulation 24(a), the worker is entitled to an equivalent period of compensatory rest.
Mr Crawford worked as a relief cover signalman at various signal boxes in the South East. All (save one) boxes were single manned. Although Mr Crawford was not always busy, he was required to continuously to monitor and to be on call to do things when trains were going through.
He could in practice, if he wished, take short 5 minute breaks from his workstation which would amount together to well in excess of 20 minutes over the shift as a whole. But on day shifts it was not possible to have a continuous 20 minute break. The employer argued it could aggregate these shorter periods in order to meet the 20 minute break requirement. Indeed, it argued, this was more beneficial, from a health and safety point of view.
Relying on Hughes v The Corps of Commissionaires Management Ltd, the EAT held that the employer's system was not compliant. In Hughes the Court of Appeal held that there should be a proper uninterrupted break from work during a rest period and, so far as possible, that break should last at least 20 minutes. Otherwise it would not be an equivalent period of compensatory rest. It was important that, during the rest period, the worker was free from work.
Accordingly, as there was no opportunity on Mr Crawford's shifts for a single continuous break from work of 20 minutes, Network Rail were in breach of their obligations under the Working Time Regulations.
My Comment: my grateful thanks to the Daniel Barnett site for this piece.
Friday, 1 December 2017
Working Time: Workers can work 12 consecutive days without a Weekly Rest Break
Yes, held the European Court of Justice in Maio Marques da Rosa v Varzim Sol. The case arose from a redundant casino worker in Portugal, who claimed his employer had not given him a weekly rest period of 24 hours at the appropriate time, and it should have been given at the latest after six consecutive working days. The casino operated 12 hours a day, 364 days of the year.
The CJEU held that there was no requirement for weekly rest to be provided after six consecutive days of work, it can be provided within each 7-day period. Therefore, the Directive allows a working pattern with a rest day at the start of one 7-day period and another rest day at the end of the following 7-day period, so working 12 consecutive days is permissible under the Working Time Directive.
My Comment : My thanks to the excellent Daniel Barnett site for this interesting piece. It is a small item that almost escaped everyone's attention, but it is a whole new way of interpreting the regulations. So, according to this judgement, it is technically possible to have an employee work a continuous 12 consecutive days without a weekly break ! No one has ever though of trying this! (mind you, why would you?)
The two committees, which have based their draft Bill on recommendations made in the Taylor Review, have also recommended companies be fined if they falsely classify people and deny them benefits. It suggested ‘a significant increase in fines for offending employers’, as well as ‘an obligation on employment tribunals to consider the increased use of higher, punitive fines and costs orders if an employer has already lost a similar case’.
The draft Bill stated that: ‘The current situation puts an unacceptable burden on workers to address poor practice through an expensive and risky court case while the companies themselves operate with relative impunity.’
The Bill also proposes setting a wage premium for workers without contracted hours that is above the national minimum (£4.05 to £7.05 depending on age) and living wage (currently £7.50 an hour). It argues this could prompt employers to offer more stable work and ensures agency workers are not paid less than permanent employees doing the same job.
The committees have also called for ‘concentrated deep dives' in sectors and areas where there is evidence of frequent exploitation.
“The Bill would put good business on a level playing field, not being undercut by bad business,” said Frank Field, the Labour chair of the Work and Pensions Committee. “It is time to close the loopholes that allow irresponsible companies to underpay workers, avoid taxes and free-ride on our welfare system."
Frances O'Grady, general secretary of the TUC, welcomed the proposals. "Employment status is complex and can deprive people of their rights at work,” she said. “So the committees are right to call for reform and wide consultation. The time has come for a Royal Commission, including trade unions and employers."
But Neil Carberry, managing director for people and infrastructure at the CBI, said the recommendations risk limiting flexibility for businesses. “Based on a very limited review of the evidence the committees have brought forward proposals that close off flexibility for firms to grow and create jobs, when the issues that have been raised can be addressed by more effective enforcement action and more targeted changes to the law," he said.
The GMB union said it was disappointed at the limited ambition of the report. “If these plans go ahead they may make a small difference,” said Tim Roache, GMB general secretary. “However, the fact remains that without real investment in HMRC and a political will to get tough on rogue employers who are cheating the British taxpayer out of millions and reaping profits out of worker exploitation, then there will be no significant change.”
He added: “We need proper legislation to stop unscrupulous bosses exploiting workers by ensuring employment rights from day one, abolishing zero-hours contracts, and restricting those who make temporary and agency work a permanent feature of their business model by employing them on lower rates than the rest of the workforce.”
The joint draft Bill comes in the wake of a recent test case ruling by the Central Arbitration Committee (CAC) that Deliveroo riders are correctly classified as self-employed. It also closely follows Uber losing an employment appeal tribunal against an earlier decision to grant its drivers workers' rights.
my thanks to HR magazine for this article see them at :