Employment Bulletin – June 2017

When should workers be paid if on call or sleeping on site?

The issue of whether workers should be paid the National Minimum Wage when they're on call or required to sleep on site has been addressed by the Employment Appeal Tribunal (EAT).

It said there was no definitive answer as each case would depend on its individual circumstances. However, it did highlight some of the factors that would be relevant when making a judgment.

Reason for engaging the worker
This would examine the regulatory or contractual obligation for the worker to be present on the site while on call or sleeping.

Restrictions of the worker's activity
It would be important to ascertain whether the worker was required to remain on the premises during the period in question or had restrictions been placed on his movements. If they were to leave the premises, would they face disciplinary action?

Worker's responsibility
The degree or responsibility would need to be considered. A case involving a worker who was required to sleep at the premises to deal with emergencies such as a break-in or a fire might be treated differently to one where the worker might have more regular or routine duties to perform.

Primary or secondary responder in an emergency
A case involving a person who is woken in an emergency and has to respond to the issue himself may be treated differently to someone who is only woken when needed by someone who has already assessed the situation.

The guidance was given by the EAT after it considered three similar cases that were heard together.

Employee can claim damages for stigma of unfair dismissal

An employee can claim damages for the stigma of an unfair dismissal that made it highly unlikely he would ever find similar work again.

That was the decision of the Court of Appeal in a case involving a project manager with an NHS Trust.

The manager had worked for the trust on a short-term basis, although he claimed that he would have been offered permanent employment until his retirement in 2022.

He was dismissed after trying to get the trust to notify previous occupiers of its property about potential asbestos exposure. He brought a claim to the employment tribunal, which found that the dismissal was unlawful.

He submitted a schedule of loss setting out the earnings he would have received under permanent employment until 2022. He also submitted a witness statement explaining that in his industry, it was impossible to obtain a new contract without a reference from the previous employer, which he was not able to obtain, and that despite applying for over 600 jobs, the stigma of his dismissal and claim meant that he would not be hired.

The Employment Tribunal awarded compensation for future loss of earnings to November 2013, as well as injury to feelings and aggravated damages. It rejected the submission that he would have been given permanent employment.

He appealed on the basis that he had incurred losses beyond November 2013 because of the disadvantage suffered in the labour market due to the stigma of the claim against his employer.

The case went all the way to the Court of Appeal, which found in his favour.

It held that the tribunal had accepted that the consequences of the dismissal were career-ending. In those circumstances, the question of whether he should receive compensation for the losses after November 2013 should have been considered.

The claim was remitted to the tribunal to consider the stigma issue. However, the compensation already awarded, and the finding that the manager would not have been employed by the trust after November 2013, would stand.

Recruitment test discriminated against candidate with Asperger's

A special psychometric test discriminated against a job applicant with Asperger's Syndrome because it put her at a disadvantage to other candidates.

That was the decision of the Employment Appeal Tribunal (EAT) in the case of Ms Terri Brookes who applied for a job with the Government Legal Service (GLS).

The recruitment process was described as "fiendishly difficult" by the EAT and involved a multiple choice Situational Judgment Test.

The EAT was told that the test was efficient in the sense that there are objectively right or wrong answers to each question, which means marking can be done by a computer without human intervention or judgment.

Ms Brookes argued that because of her Asperger's, she was unlawfully disadvantaged by the multiple choice method of testing and that the GLS should have granted her request to be allowed to answer the questions in the form of short narrative written answers.

Her psychiatrist had recommended, when Ms Brookes was at university, that multiple choice questions would not be appropriate for her.

At the first hearing, the Employment Tribunal hearing concluded that the test was a "provision, criterion or practice" (PCP) that put Ms Brookes at a disadvantage. It held that Ms Brookes' had been subjected to indirect discrimination and that GLS had failed to make reasonable adjustments for her.

The EAT upheld those decisions. It accepted that GLS needed to test the ability of candidates to make effective decisions but there were other ways to do that without the need for multiple choice tests.

Company prevents former employee working for competitor

A company has succeeded in preventing a former employee from working for a competitor for a set period and obliging her to return confidential documents.

The employee had worked as an office, accounts and recruitment manager and her written terms of service included confidentiality obligations.

During a review, the company identified accounting errors and it was thought that the employee was possibly responsible. An investigation took place and shortly afterwards the employee called in sick.

The company suspected that she was not unwell and had begun to work for a competitor. It hired a private detective and it emerged that she had attended a meeting with a colleague and the competitor, and that her car had been parked outside the competitor's office over two days.

She resigned and she brought a claim of sexual harassment, victimisation, sex discrimination and constructive dismissal.

The company applied for an injunction requiring her to comply with the terms of her service agreement. It contended that she had breached her contract by soliciting a colleague to work for the competitor and by working for the competitor while still employed by the company.

The employee denied working for the competitor and submitted that it had broken off all contact with her. She argued that she had offered undertakings and that the proceedings were being used to place pressure on her to settle her employment tribunal claim.

The High Court held that the company's evidence that the employee had solicited a colleague to work for the competitor was sufficient to disclose a serious issue to be tried. She might ultimately win at trial, but it could not be said that the company's case had no prospect of success.

The court granted an interim injunction, saying it would not increase the pressure on her to settle her claim.