May 2022 - MLP Law

What Constitutes The Last Straw In Constructive Dismissal Claims?

Constructive dismissal 
Claims of constructive dismissal rarely take employers by surprise, as the employee’s unhappiness is often signaled well in advance.  In a recent case, however, which focused on an employee who relied upon late payment of back pay as the ‘last straw’ to justify his resignation, the employer could have been forgiven for thinking that the situation had been resolved. (Craig v Abellio [2022])
 
Julie Sabba, an associate in MLP’s Employment Team, analyses what employers can learn from this case.
 
Facts
The Claimant had worked for the Respondent as a bus driver since 2014.  He had experienced a number of issues with his hours and pay, including an underpayment of sick pay during a period of absence due to ill health.  He had shared his concerns with his employer informally before then raising a grievance, which was only upheld on appeal.
 
The outcome of the appeal was that the Respondent agreed to pay the Claimant £6,000, to remedy the shortfalls in his pay.  Due to a processing error, the payment was late.  The Claimant therefore resigned and claimed constructive dismissal, citing the late payment as the ‘last straw’ in a series of problematic issues, which he said amounted to a fundamental breach of his employment contract.
 
Law
To prove constructive dismissal, an employee needs to be able to show that the employer was in fundamental breach of contract entitling the employee to resign and treat him/herself as having been dismissed.
 
For a fundamental breach there usually has to have been something serious that goes to the heart of the employment contract, although a series of smaller breaches which lead to a final ‘last straw’ can also be enough to amount to a material breach of contract.
 
Decision
Initially, the Employment Tribunal dismissed the Claimant’s case, holding that the late payment was not sufficient to amount to a last straw.  The Employment Appeal Tribunal (the EAT), however, disagreed.  Here, the Judge found that the wrong tests had been applied when considering whether the late payment amounted to the last straw and remitted the case to a different Employment Tribunal, to allow those tests to be applied.  In so doing, the EAT produced guidance in relation to the salient points, regarding what constitutes a last straw, namely:
 
· The last straw must add something to the alleged breach of contract, even if it is something fairly insignificant, although it must not be completely trivial.
· The last straw can be a different type of breach to the other breaches that preceded it.
· An innocuous action by the employer will not be capable of amounting to a last straw, even if the employee feels that it has damaged the relationship of trust and confidence.
· The question of whether the relationship of trust and confidence between employer and employee has been damaged is to be considered objectively rather than subjectively.
· Even where the last straw does not refer to blameworthy conduct (such as an unintentional administrative error), it may still amount to the last straw.
 
Comment
Cases such as this are always fact-specific but what it does serve to demonstrate is that employers should be particularly careful when dealing with aggrieved employees, even where it appears that their concerns have been resolved.  Often, such employees cite the lack of communication as causing or exacerbating an already difficult situation, so employers who provide clear and frequent communication can minimise this risk. 
 
If you would like to advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUKWoman

Samantha Kennedy receives national accredited award

Samantha has received the Older Client Care in Practice (OCCP) Award, which distinguishes lawyers who provide specialist legal care and support to older and vulnerable clients, their families and careers.
 
It also grants full accredited membership to SFE (Solicitors for the Elderly), an independent, national organisation of professionals, such as solicitors, barristers, and chartered legal executives, committed to providing the highest quality legal advice on specialist areas, such as wills, powers of attorney and elder abuse.
 
To achieve the award, all applicants are required to undertake an assessment, to demonstrate good understanding of the specific needs and considerations required when safeguarding and protecting older clients’ interests.
 
Samantha Kennedy said:
“I am delighted and proud to be recognised by Solicitors for the Elderly as it is an area that I have specialised in for most of my career. The qualification demonstrates my specialist client care skills that enable me to advise and support older and vulnerable clients. I am honored to be a member of an organisation dedicated to making a difference and going beyond simply providing legal advice”.
 
Lakshmi Turner, Chief Executive of SFE, said:
“We recommend people always use specialist legal advice when planning for later life, and SFE is the gold standard for solicitors and chartered legal executives advising on older client law.
 
“The OCCP Award ensures lawyers provide the best advice to older people and their families, guiding them through the different legal processes sensitively.”
 
For more information on MLP Law please contact 0161 926 9969 or WTP@mlplaw.co.uk
 
For more information about SFE or our members, please visit www.sfe.legal

Remote and Hybrid Working and Changes to Working Practices

Remote and Hybrid Working
As we have all come to know, remote working occurs where employees conduct their role from an alternative location to the traditional primary workplace, such as the office.  This is usually the employee’s home but can also include shared workspaces or even the local café.  Hybrid working is where a business adopts working practices that allow employees to engage in a mix of remote working and time in the office.
 
Reports in the media have highlighted some of the practical changes that have been implemented by employers recently to harness the benefits of remote and hybrid working. It seems that changed ways of working, introducing following lockdown restrictions, have pushed employers to become more imaginative in their offering to their workforce, particularly in relation to issues like work location and working hours.  Gareth Matthews, Head of Employment at MLP Law, considers some recent examples.
 
Remote Working
One London-based law firm has given its employees the option to work remotely full time, in exchange for a 20% reduction in pay.  The law firm’s rationale is that employees no longer working in the city centre of London – with all the associated costs linked to working in the capital – do not need to be paid at London market rates. 
 
The firm was keen to stress that employees have the option of whether or not to take up the offer and are not mandated to do so by the firm, which also offers hybrid working.  Apart from the obvious cost benefit, the firm hoped that it would also allow them to explore a wider talent pool, without the geographical limitations that working from a particular location demands. 
 
Contrast this approach, however, with Airbnb where employees will be able to work from almost anywhere they want, without having their pay docked if they move outside metropolitan areas. 
 
Yet, allowing full time remote working can mean that employees are not only located all over the UK but may also decide to live abroad. Naturally, such arrangements have caused employers to raise concerns over the potential risks.
 
The implications for employers who have employees working remotely from abroad differ in each case and will depend on various factors, including the type of role undertaken, the country in question and what has been agreed between the parties, but some general points to bear in mind are as follows:
 
· Employers should ensure the employee has the right to work in the chosen country, in order to avoid the risk of breaching immigration rules in the country in which the employee is working. 
 
· Consider the implications for any regulated role in respect of local laws that may pertain to the type of job being undertaken.
 
· Social security obligations and tax – from a UK perspective, if the employee continues to be employed by the UK entity, National Insurance contributions (NICs) will continue to be due for the first 52 weeks abroad.  The issue of income tax should also be considered, as it is likely that there will be significant implications if an employee is working outside the UK.
 
Reduced Hours
We have also seen accountancy firm, PwC, offering shorter working hours on Fridays for its employees, over the summer months. The rationale for the firm was that the summer period was a traditionally quieter time, as many take annual leave to coincide with the school holiday period and that the time off was shown in trials to significantly boost morale, loyalty, and employee wellbeing. It added that whilst not all employees would be able to take the time off due to work commitments it still meant that they benefited from less email traffic and quieter offices, reducing work pressures. 
 
The reduced working hours have been offered, in part, as a result of the changing culture in the modern workplace, with increased emphasis on flexibility and employee autonomy and choice.
 
Yet, not every employer is embracing such innovation in working practices, with Lord Alan Sugar calling employees at PwC ‘lazy’ and questioning the notion that the plan to reduce working hours would not negatively affect employee productivity.
 
Comment
Whilst the approach taken by different employers will obviously differ from business to business, there can be advantages for both employers and employees in taking a flexible and open approach to the issues of working location and hours for employees. The key is to ensure that you are clear with employees as to what your organisation’s approach is, what all the options are and, crucially, any financial or contractual changes that are associated with that option. It also almost goes without saying, that any changes to the employee’s working location or hours should be agreed in writing or, where the employee is new, outlined in the contract of employment.
 
If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Baldness – The New Frontier in Workplace Harassment?


Facts
Tony Finn (TF), had worked for a manufacturing firm, The British Bung Company, for 24 years before being dismissed last May. TF raised various claims in the Employment Tribunal, including one of harassment, which related to the fact that his lack of hair had been commented on during an argument at work.
 
He stated that during an altercation with his supervisor he was threatened with being ‘decked’, sworn at and called ‘bald’. TF claimed that the use of the word bald amounted to harassment on the grounds of his sex.
 
Law
In essence, harassment under the Equality Act 2010 is where unwanted conduct has the purpose or effect of:
 
· violating the victim’s dignity; or
· creating an environment that is intimidating, hostile, degrading, humiliating or offensive to the victim.
 
The conduct must also be related to a protected characteristic, such as sex, race or age.
 
Decision
In arriving at his decision the Judge determined that calling someone bald is an insult that amounted to harassment. He found that there is a connection between the word ‘bald’ on the one hand and the protected characteristic of sex on the other, due to the fact that baldness is much more prevalent in men than women.
 
The Judge concluded that baldness is inherently related to sex and that the derogatory comments in relation to TF’s appearance had been intended to hurt his feelings, and therefore amounted to harassment. The Judge continued by stating that commenting on a man’s baldness in the workplace is equivalent to remarking on the size of a woman’s breasts. 
 
Comment
It is important to ensure that staff are aware that unpleasant or negative behavior or comments towards colleagues are completely forbidden, whether they relate to appearance or to any other factor (such as mimicking the way someone talks). Policies promoting equality and diversity, underpinned by training, provide employers with the means to challenge accusations of discrimination between members of staff, in addition to encouraging a kind and collegiate atmosphere in the workplace.
 
If you would like advice from the Employment team at MLP Law, in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.

Are Employees Entitled to an Extra Day of Holiday for Jubilee?

This year, it has been decided that the Spring bank holiday (normally due to take place on the last Monday in May) will be moved to Thursday 2 June.  An additional bank holiday will then take place on Friday 3 June.  With this in mind, employers want to understand if they must provide the additional day of annual leave to staff.
 
Essentially, UK law requires that all full time employees are entitled to a minimum of 28 days (or 5.6 weeks) of annual leave in each holiday year.  A business can determine when that leave year should commence and end.
 
This right is reflected in the employee’s contract of employment but can be expressed in a variety of ways.  Whether or not an employer will be contractually obligated to give an employee an extra day of annual leave, in respect of the Platinum Jubilee, will depend on that wording.
 
Certainty in Contractual Clauses
Some clauses will be clear, for example, a contractual term entitling the employee to ‘20 days holiday per annum plus bank holidays’ will mean that the employer will be required to allow an employee an additional day of leave.  Conversely, a term providing for ‘28 days holiday per annum, including all bank and public holidays’ will not.
 
Similarly, a contract that lists the bank holidays that are included in the employee’s entitlement (for instance, Christmas Day, Easter Monday etc), will mean that the employee will not be entitled to an extra day for this unique bank holiday.  The same rationale applies to a contractual term entitling the employee to the bank holidays usually observed in England and Wales, as the bank holiday is not one that is usually observed.
 
Element of Choice for Employee
If, however, the clause reads 20 days annual leave per year, plus 8 bank holidays, then the employee will be able to choose to take the Jubilee bank holiday but it will be instead of another bank holiday at some other point in the year – the employee will not receive an extra day of leave.
 
That element of choice will also apply if the contract simply states that the employee is entitled to ’28 days annual leave per annum’.  The employee can determine if they want to use one of their 28 days to enjoy the bank holiday scheduled for 3 June.
 
Of course, nothing in the contract will prevent employers from generously adding an extra day of annual leave entitlement in honour of Her Majesty, although if this approach is adopted, employers should clarify in writing that the extra day is for 2022 only.
 
If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.