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Range of Reasonable Responses Newsletter: March 2020

It was great to see a full house at the Local Government Association's Employment Law Conference back in February. As well as hearing from me going on about employment law, delegates also heard the latest news on the Government's proposal for a cap on exit payments in the public sector. This is a saga that has been going on since 2015 and it is still not entirely clear when - or even if - the new rules will come into force. 

The headline that this policy creates - public sector employers prevented from making a pay-off of more than paying more than £95,000 to departing employees - sounds fair enough. The private sector might choose to throw their money around rewarding failure and preventing their unfair practices from being exposed in a Tribunal - but public money should be handled more carefully. The problem is that the substance of the law that is being proposed does not match the headline. Crucially, the payments affected by the proposed cap include pension strain. This is the sum paid by a public sector employer to the relevant pension fund to cover the additional costs of making an employee redundant in circumstances where they will be entitled to an enhanced pension.

In local government, for example, an employee who is made redundancy aged 55 or more will be entitled to enhanced pension benefits. The sum that a council has to pay to the pension fund to cover this varies from fund to fund - but can easily top £95,000 on its own, even for middle ranking employees. Strangely the Government never describes its policy as cutting the pension entitlement of older workers who are made redundant - but that is the primary effect of the law that is being proposed. 

The current draft of the Regulations, however, has some problems and we are expecting a new final version to come out later this year. One issue that needs to be sorted out is how the provisions on pension strain interact with the rules of pension schemes. The Local Government Scheme gives 55 year old members a right to certain benefits when they are made redundant. It is no good preventing employers from funding the benefit without changing the benefit itself - otherwise chaos ensues. So we will need to see a reform of the pension scheme rules themselves before the £95K cap can be imposed. Current betting seems to be that the cap could apply from this autumn - but we have heard that before. We'll just have to wait and see where the reform sits in the new Chancellor's list of priorities. 

Coronavirus and employment law


OK, I give in. On Twitter I've been a bit sarcastic about employment lawyers jumping on the Coronavirus bandwagon and spinning articles about the employment law implications. But it is starting to look like this might actually be a 'thing'. So let's look at some of the issues.

Obviously if someone is actually ill and unable to come into work then their legal entitlement is clear. The employer will have an established approach to sick pay and if there is no contractual sick pay scheme then the employee will be entitled to SSP.

The problem with relying on SSP is of course that it is a very limited right. It is not payable for the first three days of absence and when it is payable it is at the incredibly low rate of £94.25 per week. This is not going to encourage someone who is developing symptoms to stay at home in case they pass their infection on to others. But unless the Government comes up with some emergency legislation then there is no way of requiring employers to be more generous. 

When it comes to self-isolation the legal position is pretty unclear. The generally accepted view is that someone in that position is not actually ill and therefore would not qualify for sick pay. There are provisions in the Statutory Sick Pay Regulations 1982 which provide for someone placed in quarantine to be deemed as incapable of work - but that requires medical supervision. It doesn't extend to someone who has had no medical supervision but who is simply following Government guidelines based on their movements or contact with others. 

If we took a contractual analysis we would say that a worker who is unable to come into work, but who is not technically ill, is generally not entitled to be paid. In the absence of an established practice of allowing paid time off in such circumstances you cannot assume that there is an implied term that the employee will be entitled to any particular level of payment.

But if I were an employee in that situation I think I would seek to turn the tables on the employer. If I phoned in and said 'Government advice says that I should self-isolate but I feel well enough to work. Would you like me to come in or do you want me to stay at home?' then what could the employer do? Instructing me to come into work would seem reckless and negligent. But if the employer instructed me to stay at home then I would have a much stronger argument that I was entitled to pay. I, after all, would be ready willing and able to come into work and would only be prevented from doing so by my employer.  

The fact is that we don't have clear case law looking at absences of this kind. The sums of money involved in any individual case are so small that it really isn't worth an employer litigating the point. This is why so much of the guidance we have seen so far talks about 'good practice' - always an indicator that the law is not entirely clear. 

If things really get out of hand then we might see whole workplaces closing - either because of the risk of spreading the virus or because of an interruption in the supply chain. If that happens then employees who would otherwise be ready and willing to work will generally be entitled to be paid as normal. The exception would be a case in which the employee has a contractual right to lay-off employees without pay.  In that case the statutory right to a guarantee payment would kick in. Now that's a subject that I haven't thought about at all since the fuel protests back in 2000.  

If people being excluded from work becomes a widespread problem then it may well require emergency legislation from the Government. The irony is that if we do reach the stage when the employment law implications of Coronavirus become an actual problem rather than just a potential one then employment law will actually be the least of our concerns. 

Sleeping at work and the Minimum Wage


The Supreme Court has now heard the cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad. The issues are pretty complex and I explain them in some detail in this blogpost. Essentially the question is whether an employee can be 'working' despite being allowed or even encouraged by the employer to sleep through most of his or her shift. In my blogpost I said that the main problem with the argument for the employees  - that there is a difference between being allowed to sleep when merely 'avaiblabe for work' and cases where you are actually working while aslpee because your presence is the key service that the employer requires of you - was that it sounded too clever and ingenious. What you want as an advocate is for your argument to sound like plain common sense. Well - if you watch the first 10 minutes of the opening speech by Sean Jones QC for Ms Tomlinson Blake you will see how a top flight barrister approaches that problem, Sean framed the question as being whether a Tribunal should be entitled to find that a worker who was allowed to sleep might nevertheless be said to be working, or whether it should never be allowed to reach that conclusion. It seems unreasonable to limit a Tribunal's ability to make a finding on what the reality of a situation is, so at a stroke the employee is put on the side of common sense. That is pretty clever advocacy.

In Ms Tomlinson Blake's case the Tribunal has already found the facts in her favour. The other case - Shannon - is frankly less attractive. The employee is claiming more than £200K in backpay against an employer who acquired him under TUPE and was not responsible for the rather odd arrangement under which he had lived on the premises for many years and was only occasionally called upon to actually help with a resident. The Tribunal found that he was not working when he spent the night in his flat - even though he was technically required to remain there overnight. I would be pretty surprised if the Supreme Court reversed that finding.  

On Daniel Barnett's recent podcast I predicted a win for the employee in the Tomlinson Blake case but a win for the employer in Shannon. Having watched the argument I think I will stick with that - but it's not something I would actually put money on. We'll just have to wait for the result - which should be with us before the summer break.
 

Constructive dismissal at the Home Office


Everyone is getting very excited at the prospect of Sir Philip Rutman, the now former Permanent Secretary at the Home Office, bringing a claim for unfair constructive dismissal. The consensus in my liberal media bubble is that a Tribunal hearing will almost inevitably involve evidence that will be embarrassing or even damaging to the Home Secretary Priti Patel.

That may well be so but it is worth bearing in mind that nowadays the wheels of the tribunal system grind slowly. The hearing will undoubtedly need to be heard over several days and I would imagine it will be well into 2021 before any hearing takes place. Whether we still care about what sort of boss the Home Secretary is (or was) by then remains to be seen.

In a constructive dismissal claim the employee has to show that the employer has acted in fundamental breach of contract. Bullying from a line manager can certainly reach that threshold as it can amount to a breach of the implied term of trust and confidence. The bar is set quite high however and a Tribunal might well expect an employee as senior as Sir Philip to display a fair degree of resliance in the face of unreasonable conduct from a cabinet minister.

Normally we would expect a case like this to settle quite quickly. Unfair dismissal compensation is capped at well below the annual salary of a Permanent Secretary. It seems however that offers of a substantial settlement have already been declined and that Sir Philip wants to 'have his day' in court and expose the wider problems he thinks the government has in the way it treats civil servants.

When I represented claimants I frankly always preferred it when they were mainly concerned with the money. Compensating employees whose rights have been infringed is something Tribunals are designed to do. They are not really a reliable way of establishing a principle or exploring wider issues. Often the issue that the employee is most concerned with is not the issue that the Tribunal ends up focussing on. There is always a risk of the case backfiring and the Tribunal simply not seeing things your way. If there is a good offer on the table then it is usually a better idea to just take it and move on.  When push comes to shove, I don't think we'll see this one making it all the way to a final hearing. 

 

Vegans and discrimination


In the last newsletter I talked about the case of Casamitjana Costa v League Against Cruel Sports in which a Tribunal held that an ethical vegans beliefs were protected by the Equality Act. At first I was sceptical that the employee would be able to show that he was dismissed because of his beliefs, but I changed my mind after seeing that the dismissal letter described him as a being 'biased because of [his] ethical principles' when he complained about the investment strategy of his employer's pension scheme. 

It has now emerged that the case settled before the hearing was finished. The financial terms are confidential as you would imagine, but part of the deal was also the inclusion in the Tribunal's judgment of rather remarkable statement from the employer. The statement says that 'having revisited the issue' they accept that Mr Casamitjana 'did nothing wrong'. Rather unconvincingly, perhaps, they also claim to be grateful to Mr Casamitjana for raising issues about their pension scheme which has allowed them to change their arrangements. It is very unusual to see such a full-throated endorsement of the employee's position in a settlement. This definitely counts as a clear win for the employee.

Equal Pay and the BBC


Another clear win for the employee comes in the case of Samira Ahmed, whose equal pay claim I also talked about in the last issue. It has emerged that this case too has settled with the BBC deciding not to pursue an appeal. This was a wise move as (apart from my objection based on the way in which Ms Ahmed was employed) the BBC really lost the case comprehensively on the facts. An appeal to the EAT was never actually a reasonable prospect. 

Parish Notices


I'm really looking forward to speaking at another Industrial Law Society event - this time in Leeds on the evening of 18 March.  ILS events (and membership) are open to all of those with an interest in employment law. You don't have to be a practicing lawyer or academic and students, HR professionals and Trade unionists are all welcome. At the end of the month I am then chairing a conference marking the 10 year anniversary of the Equality Act 2010 for D&I Leaders which has some really top flight speakers. 

Looking further ahead, those with an interest in employment law in education might want to come along to the annual conference organised by the Local Government Association where I will be giving an employment law update. The programme is still being finalised but We are currently looking at 3rd June in York and 23rd June in London. Check the LGA events page for details.

That's all for this month. Thanks for subscribing.

Darren 
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