Employment Bulletin – September 2017

Overtime ruling in Veolia case could impact all employers

A group of refuse collectors have won an overtime claim that could have an impact on employers across the UK.

The workers were employed in the Bromley and Camden council areas by the French owned company, Veolia Environmental Services.

Their union, Unite, brought a test case relating to overtime payments. The Employment Tribunal found that voluntary overtime worked by the refuse collectors was part of their normal pay because there was an intrinsic link between that overtime and their role in the company.

In addition, the overtime was carried out with sufficient regularity to be part of their normal pay.

The effect is that the voluntary overtime must be included when calculating the first 20 days of holiday pay in accordance with EU law.

In addition, contractually agreed overtime must be included for the first 28 days' holiday in accordance with UK law.

Initially, Veolia said it had not included the overtime pay in holiday calculations because of uncertainty over Brexit, but it didn't pursue this during the hearing.

Unite's national officer for local government, Fiona Farmer, said: "This is a significant landmark case. This judgment will have widespread implications for the several thousand members we have working for Veolia Environmental Services across the UK, who should be getting average holiday pay and could be in line for backdated payments.

A Veolia spokesperson said: "We will examine our position further and continue to be in dialogue with Unite. We remain committed to complying with all of our legal obligations toward our employees."

The Employment Appeal Tribunal reached a similar conclusion in a case involving Dudley Council and 56 of its employees. It held that payment for voluntary overtime that was carried out regularly was "normal remuneration" for the purposes of calculating holiday pay, irrespective of whether the obligation to perform the work was in the employment contract or not.

Director in whistleblowing case was unfairly dismissed

The Court of Appeal has ruled that a director was unfairly dismissed after raising concerns about company practices in a whistleblowing case.

The director worked for a firm of estate agents. He alleged that the employer was manipulating the accounts to reduce the level of commission payable. He claimed that it affected 100 senior managers' earnings, including his own, and that the manipulation involved misstating between £2m and £3m.

The Employment Tribunal considered whether the director had made the disclosure in the reasonable belief that it was in the public interest, making it a qualifying disclosure within the Employment Rights Act 1996.

It found that the employee had reasonably believed that it was in the interests of the 100 senior managers, which constituted a sufficient group of the public for it to be a matter in the public interest.

The employer argued that the tribunal had erred in holding that a disclosure which was in the private interest of the worker making it was in the public interest simply because it served the private interests of other workers as well.

The case went to the Court of Appeal, which upheld the tribunal's decision. It held that the phrase "in the public interest" was not a clearly defined term. In assessing the case, the tribunal had accepted that there could be more than one reasonable view as to whether a disclosure was in the public interest.

The necessary belief was simply that the disclosure was in the public interest; the reasons why the worker believed that to be so were not of the essence.

While the worker had to have a genuine belief that the disclosure was in the public interest, that did not have to be the predominant motive in making it. There was not much value in providing a general gloss on the phrase "in the public interest".

Parliament had chosen not to define it and the intention must have been to leave it to tribunals to apply it as a matter of educated impression. The firm's appeal was dismissed.

Courts throw out employee's wrongful dismissal claim against BA

Claims by employees of wrongful dismissal and victimisation should be taken seriously but that did not mean that tribunals should be afraid to throw out unworthy claims without having to go to a full hearing.

That was the advice from the Court of Appeal in a case involving British Airways and one of its ground staff who had been given airside security clearance.

BA's human resources department received an anonymous letter claiming that the employee had lied on his CV about the reason for him leaving his former employment, and that he had, in fact, been dismissed for misconduct.

Following disciplinary hearings, he was dismissed for misconduct by BA because of the dishonesty involved in his false CV.

He then issued various claims against BA, complaining of victimisation, discrimination, unfair dismissal and wrongful dismissal. He admitted that he had lied on his CV, but contended that BA had already been aware of the circumstances of his departure from his previous employer, and that it had concocted the anonymous letter as part of a plan to get rid of him as a troublemaker.

The tribunal struck out the dismissal claims, having found that his case was founded on baseless and unlikely assertions and had no reasonable prospect of success. Other claims proceeded to a full hearing before a different tribunal, but were ultimately dismissed.

The employee appealed against the strike out decision.

The Employment Appeal Tribunal held that the employee's case was fanciful, and that the tribunal had been entitled to strike out the claims.

The Court of Appeal has upheld that decision. It held that claims should be struck out by the tribunal if it was persuaded that they had no reasonable prospect of success at trial. The tribunal's time should not be taken up by such cases.

Company protects itself after ex-employee copies client list

A company has been granted the right to examine a former employee's computer and electronic devices after he admitted taking a copy of its list of clients.

The employee had been the managing director of the company, which specialised in maritime insurance claims.

The company's case was that he had asked his assistant via email to forward to him a list of its business contacts. The following day he was called into a meeting and told that disciplinary action was to be taken against him. He was also asked to leave the premises.

He resigned the following week.

Shortly afterwards, the company wrote to him asking whether he had used the list, copied it, or disclosed it to third parties. He denied this at first but later accepted that he had copied the list on to a home computer and had made a secondary list.

The company found emails which suggested that he was being lined-up to join another insurance group. It sought an order for the delivery up of any computers, hard drives, phones or documents containing confidential information to be examined by an independent expert.

The High Court found in favour of the company. It held there was a real issue to be tried as to whether the employee had copied confidential information to help himself post-termination.

The court was not satisfied that he could be assumed to have come clean. It might turn out that he had, but he had not initially volunteered that he had taken the list at all. There was a real possibility that he had taken the list to use the information, which he must have known was confidential, and still had it on one or both machines.

A full examination should therefore be carried out.