Gordons Legal Employment Update – 7 July 2017

Whistleblowing

In Small v Shrewsbury and Telford Hospitals NHS Trust, the Claimant was engaged by the Respondent on a temporary assignment through an agency, but it was understood that there was a prospect that he could be offered full-time employment in due course.

It was his case that he was then not offered the permanent post because he tried, unsuccessfully, to get the Trust to notify the previous occupiers of a group of properties owned by it that they might have been exposed to asbestos. He brought a whistleblowing claim and succeeded in showing that the detriment (not being offered the permanent post) was on the grounds that he had made a protected disclosure.

The Claimant claimed an award of compensation for, amongst other things, loss of earnings up to his anticipated retirement date in 2022.  This was on the basis that his employment would have been made permanent if he had not been unlawfully dismissed and that he was unable to obtain new employment in the same field.  He also alleged that his job search had been seriously affected by the fact that he was dismissed and by the lack of a reference from the Respondent.

The Employment Tribunal made an award for loss of earnings, which was calculated on the basis that he would not have been given permanent employment, but would have been retained by the Respondent, until November 2013 for a further 16 months.  This date was chosen because it was the date that his replacement was retained.  No future losses were awarded, despite the Tribunal making a finding that the Claimant’s dismissal appeared to be “career ending”.

The Claimant appealed to the EAT, where his appeal was dismissed.  He then further appealed to the Court of Appeal who held:

• In the circumstances, the Tribunal should have considered whether the Claimant had a claim in respect of losses after November 2013, which would include a “stigma” loss on the basis that he had suffered in the labour market because he had been dismissed by his previous employer and had brought a claim against it;
• The Claimant’s evidence to the Tribunal made it clear that he was suffering a loss which extended into “the indefinite and probably long-term future” and the Tribunal had identified the “career ending” consequences for the Claimant;
• The fact that the Claimant had put his claim for future loss based upon continued long-term employment with the Respondent was irrelevant, and did not mean that other methods of calculating future loss could not be used.

Comment:  Businesses should be aware that their potential liability in whistleblowing / discrimination claims can by significant as there is no statutory cap, and compensation can, in some cases, be awarded for long term losses.

Working Time Directive

In Maio Marques de Rosa v Varzim Sol, the ECJ considered an employer’s allocation of mandatory weekly rest periods. Advocate General Saugmandsgaard Øe found that under Article 5 of the Working Time Directive (WTD), employers are free to choose, for each seven day period, the weekly rest period.  Particularly, there is no requirement within Article 5 for a rest period to be granted at the latest on the seventh day following six consecutive working days, but only requires such a period to be granted within each seven-day period.

Comment: In theory, a worker could be required to work up to 12 consecutive days, provided the other requirements of the WTD are complied with (for example workers are given weekly rest of 24 hours for each seven day period).

Equal Pay Claims

In Farmah & ors v Birmingham City Council & ors, the EAT held that Claimants doing different work cannot bring equal pay claims on the same ET1 claim form.

This appeal concerned a single ET1 claiming equal pay used by a number of Claimants who performed different work from other Claimants within the same ET1.  In consideration of Rule 9 of the ET Rules that states “two or more Claimants may make their claims on the same claim form if their claims are based on the same set of facts”, the EAT found that Claimants performing different work or comparing themselves with a different comparator to other Claimants in the same ET1 breached Rule 9 as they are not bringing claims on the same set of facts. The EAT held that if they do not fall within Rule 9 then they are an irregularity under Rule 6 and may be struck out.

The EAT provided certain principles on whether claims in breach should be struck out and how Employment Tribunals should assess the following:

• The seriousness of the breach;
• Whether there would be any prejudice to the parties in striking out the claim; and
• Any other relevant factors.

Comment: This case is important because it makes clear that representatives bringing multiple equal pay claims must carefully assess which claims are based on the same set of facts and it will also lead to higher overall cost in respect of tribunal fees (for example in the Asda Stores v Brierley case the Respondent estimated that fees of approximately £650,000 had been lost as a result of Claimants inappropriately bringing claims together).

National Minimum Wage Audits

The HMRC are continuing to increase the number of audits of the National Minimum Wage and are publically ‘naming and shaming’ businesses for failing to comply with the rules. It appears that there are some very specific areas where businesses are being caught out including the areas below:

• Uniform and clothing;
• Deductions;
• Calculating hours worked;
• Accurate time recording;
• Spread over pay/term time pay;
• Younger workers; and
• Elements of pay.

If you would like any assistance with dealing with this or any other issue then please contact a member of the Employment Team.

If you require any further information on the above developments then please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.