Insights

Nighat Sahi

Published 10 March 2023
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Employment Law Update 2023 (March)

As usual, employment law cracks on at a pace, and it can be difficult for employers, employees and HR departments alike to keep up with developments. With this in mind, and as part of our regular employment law updates, here are five recent decisions that you may find relevant.  

National Minimum Wage for term-time worker

In the case of Lloyd v Elmhurst School Limited, the EAT held that a term-time worker’s basic hours for National Minimum Wage (NMW) purposes should be determined by reference to her contract of employment and not by the hours she actually worked. The claimant was a part-time learning support assistant and was paid a monthly salary in equal instalments. Her employment contract stated 21 hours a week during term-time and the usual school holidays as holidays with pay. She claimed that paid school holidays should have counted for NMW purposes, so that her basic hours were 21 hours over 52 weeks.

The EAT held that the tribunal was wrong to find that only the hours the claimant in fact worked plus her statutory holiday entitlement counted as basic hours. What counts as basic hours for NMW purposes for a salaried hours worker can sometimes include certain non-working hours including notional hours attributable to periods of contractual paid holiday. The EAT has remitted the case to a different tribunal.

Redundancy

In the case of Teixeira v Zaika Restaurant Limited, the EAT found that whether a redundancy dismissal is fair depends on an employer carrying out a procedure that is fair and reasonable in the circumstances for that particular employer, and whether there was a fair selection process even if there is only one person in the redundancy pool. However, even if an employer does not carry out a fair process, a Tribunal can still decide that the compensation payable to an employee is nil because dismissal would have happened either way.

The moral of this decision is that in the case of a pool of one, it’s important not to foreshorten the consultation and selection process, even though a Tribunal will still need to carefully consider what the likely outcome would have been if a fair process had been followed.

Disability discrimination

In the case of McAllister v Commissioners of HMRC, the EAT upheld a finding that a decision to dismiss an employee on long-term sickness absence was objectively justified and did not, therefore, amount to disability discrimination. The claimant suffered from anxiety and depression and as a result, had prolonged periods of absence from work. The employment law tribunal accepted that the employer had a legitimate aim of ensuring that staff were capable of satisfactory attendance (which also comprised the aims of the maintenance of a fair, effective and transparent sickness management regime, and the efficient use of resources). In deciding whether or not the dismissal was a proportionate means of achieving that aim, the tribunal accepted that the claimant’s absence had an impact on the employer, particularly on management time and morale in the claimant’s team.

Automatic unfair dismissal and COVID-19

In the case of Rodgers v Leeds Laser Cutting Limited), the Court of Appeal found that an employee who refused to return to his workplace in April 2020 due to concerns about COVID-19 was not automatically unfairly dismissed. 
The tribunal accepted that the claimant had genuine concerns but taking into account all the circumstances of the workplace, the tribunal found that the claimant did not reasonably believe that there were circumstances of serious and imminent danger as claimed. The claimant was therefore not automatically unfairly dismissed and The Court of Appeal upheld the tribunal’s conclusion. This case is also a reminder that there is nothing in the statutory provisions that requires that the danger should be exclusive to the workplace.

Privacy

In the case of FKJ v RVT and Others, the court confirmed that just because private information is downloaded on a work laptop, does not necessarily mean the employee’s right to privacy can be ignored. If the information is clearly private then the employer should return it. The claimant had alleged sex discrimination and sexual harassment by the managing partner. In response, the respondent relied on private WhatsApp messages some of which were “of the most intimate kind” between the claimant, her partner and her best friend. The messages had been “obtained” after the claimant’s dismissal but before she brought a claim and she claimed her WhatsApp account had been hacked. The employer said that some had been obtained from her work laptop and others were received from an anonymous source.

This case is a reminder that a legitimate expectation of privacy will depend on the circumstances. However, in this case, the messages were clearly meant to be private, and this was the case even though they were on a work laptop. Therefore, the employer should have immediately notified the claimant and returned these messages to her.

If you have any employment law concerns or would like more information about any of the issues raised above, please get in touch.

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