Employment Law Quiz

How much do you know about employment law? OGR Stock Denton has prepared this quiz to test your knowledge of various aspects of legislation relating to the workplace.  Why not take a couple of minutes to attempt the 5 questions and see how well you do? And remember, if you need any advice on any aspect of employment law, our team of expert lawyers is on hand to provide all the relevant support.

Questions & Answers:

Q1. I run a medium- sized firm of financial advisers. I am receiving an increasing number of requests from employees to work at home. I am open to the idea in principle, but I am concerned about the practicalities of establishing this arrangement and also would like advice about other issues that I should be aware of in home working situations.

A: If an employee makes a request for a home working arrangement it is a request to work flexibly and will be governed by the flexible working legislation.  The flexible working legislation does not give employees an automatic right to change their existing work arrangements. Instead, it gives qualifying employees the right to ‘request’ flexible working arrangements. In order to make a statutory request for flexible working, the individual must be an employee with 26 weeks’ continuous employment at the date the request is made. Employees can only make one request in any 12 month period. If the request is rejected and the employee makes an application to the Employment Tribunal, the penalties in respect of claims brought under the flexible working legislation are relatively low. However, employees seeking flexible working can also claim that a rejection of their request could amount to discrimination, where the penalties that the tribunal can award are far greater.

Once a request has been received you should hold a meeting with the employee to discuss the proposed arrangement unless there is no problem with the request.  Employers must have a sound business reason for rejecting any request.

If you are unsure as to whether home working is a going to work, one option is to offer a trial period to see how it goes.  The offer of a trial period could be helpful in the event of any subsequent discrimination claim.

A disabled employee may also have some protection in relation to a home working request.  In particular, the employer’s duty to make reasonable adjustments in relation to a disabled person is likely to be relevant.

Q2. Can an employer be vicariously liable for injury caused at an impromptu work after party?

A: The Court of Appeal held in Bellman v Northampton Recruitment  Limited  that it could.

Facts: Mr Bellman was a sales manager for Northampton Recruitment Limited (“the company”).  He was a longstanding friend of Mr Major, the company’s managing director. The company held a Christmas party at a golf club and when it ended, Mr Major arranged taxis to transport some of the staff to a hotel where they continued drinking, with drinks mainly paid for by the company.

After a couple of hours, an argument arose between Mr Bellman and Mr Major concerning a new employee’s placement and terms. Mr Major got cross and summoned staff to give them a long lecture on how he was in charge and would do what he wanted. When Mr Bellman verbally challenged this, Mr Major punched Mr Bellman, causing brain damage.

The court was asked to decide whether the company was vicariously liable for Mr Major’s actions. The judge at first instance said the essential issue for the court to address was the nature of Mr Major’s job and whether there was a sufficient connection between the position he was employed in and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice.  Since the assault was committed after a social event when the obligation to attend had ended, the drinks at the hotel were entirely optional and spontaneous.  Merely raising a work topic at a social event did not have the effect of changing the interaction between colleagues into something in the course of employment. There was an insufficient connection between the assault and the position in which Mr Major was employed to render the company vicariously liable and accordingly the claim was dismissed. Mr Bellman appealed.

Held:  The Court of Appeal upheld the appeal.  It confirmed that two key matters needed to be considered: (i) the nature of the employee’s job – to be construed broadly and objectively, and (ii) whether there was sufficient connection between his job and the wrongful conduct to render vicarious liability appropriate.  Mr Major’s functions were widely drawn.  Mr Major owned the company, was its most senior employee and directing mind, and had full control over how he conducted his role. As regards the connection between Mr Major’s job and his wrongful conduct, the Court of Appeal found that the drinks party was not a purely social event happening to involve colleagues but a follow-on from an organised work event attended by most of the company’s employees, where the company paid for taxis and drinks. When Mr Major’s managerial authority was challenged, he summoned his staff and decided to exercise his authority over them.  In those circumstances, there was a sufficient connection between Mr Major’s wrongful conduct and his role and accordingly the company was vicariously liable for his actions.

Conclusion: It should be noted that the Court of Appeal was quick to confirm that this case was not authority for the proposition that employers are insurers for the violent acts of their employees.  The facts of this case are rare but it is clear that the extent of Mr Major’s authority and his conduct in asserting it were critical factors that led to the success of Mr Bellman’s appeal.

Q3. If a worker does not apply for the minimum annual leave due under EU law (4 weeks) during a leave year, is the right to that leave automatically lost at the end of the year?

A: The European Court of Justice (“ECJ”) held in Max-Planck-Gesellschaft v Shimizu  that it is not lost unless the worker has been given an opportunity to take that leave and the employer can show that it encouraged the worker to do so.

Facts: Mr Shimizu worked at the Max Planck Institute, a private scientific support institution in Germany. Two months before the end of the employment relationship in 2013, the Institute invited Mr Shimizu to take his remaining leave (without forcing him to take it on the dates it had set). Mr Shimizu took only two days off and requested payment in lieu of his unused annual leave not taken in 2011 and 2012, which the Institute refused. Under German law (as in English law), he lost the right to carry over untaken leave from one year to the next. Mr Shimizu brought proceedings in the German labour courts. As the court was unsure whether EU law precludes national legislation from providing for the loss of paid annual leave which is not taken, and the loss of an allowance in lieu of that leave, where the worker has not applied for leave before the employment relationship ended, it asked the ECJ to give a  ruling on the interpretation of  Article 7(2) of the EU Working Time Directive which provides that “the minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship has ended”.

Held: The ECJ was of the view that it would not be compliant with Article 7 for national law to prescribe an automatic loss of rights in such circumstances without first verifying that the worker had an effective opportunity to take the annual leave owing them.  The ECJ pointed out that the worker is the weaker party in such a situation and so it is incumbent on the relevant court to ensure that the employer does not restrict the worker’s rights. It therefore cannot be left solely up to the worker to ensure they are able to exercise their rights effectively. Although this does not mean that Article 7 should require the employer to force workers to take their holidays, it must ensure the worker has the opportunity to do so.  This means the employer must encourage the worker to take their holiday, while informing them, accurately and in good time, of the risk of losing that leave at the end of the applicable reference period.  Furthermore, the onus is on the employer to prove to the court it has done so.  It will be up to the referring court to decide whether the national law in question complies with this requirement.

Comment:  Firstly, it should be noted that this case only relates to the four weeks’ annual leave required by the Directive and not to the additional 1.6 weeks’ annual holiday entitlement imposed by English law under the WTR but subject to that, it would appear from this judgement that accrued, untaken holiday cannot automatically lapse at the end of a holiday year and therefore carries over to the next year. If the employment then terminates, the right to payment in lieu under Article7(2) is to the total accrued, untaken entitlement. This was what Mr Shimizu was seeking – 51 days, attributable to 2011 and 2012. An employer would now need to be able to show that it had enabled the worker to take their holiday entitlement in order for the entitlement to lapse at the end of the holiday year.

The Working Time Regulations 1998 (“WTR”), which implement the Working Time Directive, state that the four week entitlement imposed by the Directive may only be taken in the leave year in respect of which it is due. The ECJ judgement would appear to say that the WTR would need to be read as being subject to the proviso that the employer had informed the worker accurately and in good time of their right to take the leave.  We have yet to see how the UK courts will interpret the ECJ judgement and whether a limit on carry over, of say 15 months, would be permissible provided the employer has not unlawfully prevented the worker from taking holiday.  In the meantime, employers should consider whether they take sufficient steps to encourage their staff to take their leave.

Q4. Can a dismissal without warning for ‘serious’ misconduct, as opposed to gross misconduct, be fair?

A: The Employment Appeal Tribunal (“EAT”) in Quintiles Commercial UK Limited v Barongo held that it could.

Facts: Mr Barongo was employed by Quintiles Commercial UK Limited (“the company”) as a medical sales representative. He was put through a disciplinary process for two acts of misconduct (i) failing to complete an online compliance training course by the deadline and (ii) failing to attend a compulsory training course.  Mr Barongo accepted that he was guilty of misconduct and argued, in mitigation, that he had not intentionally failed to engage with the training but had prioritised other work commitments.  He had been placed on a performance improvement plan a few months earlier.  At the disciplinary hearing, the manager conducting it did not accept that Mr Barongo’s mitigation plea was sufficient and concluded that trust and confidence had been destroyed. He decided that Mr Barongo should be dismissed on notice for gross misconduct.  When Mr Barongo appealed, the director of the company who heard the appeal took the view that Mr Barongo was guilty of serious misconduct rather than gross misconduct but upheld the decision to dismiss on notice. Mr Barongo brought a claim of unfair dismissal in the employment tribunal, which upheld his claim on the ground that when misconduct is characterised as serious rather than gross, it means that warnings are to apply and the failure in this case to give warnings rendered the dismissal unfair.  The company appealed to the EAT.

Held:  The EAT allowed the company’s appeal. It pointed out that under the relevant legislation in the Employment Rights Act 1996, an employment tribunal should consider two basic stages to determine whether a dismissal is unfair:

  1. The employer must show what was the reason for the dismissal.    A dismissal is capable of being fair if it is for a reason which ‘relates to the conduct of the employee’. The dismissal will not be rendered automatically unfair if the conduct properly falls to be categorised as something less than gross misconduct.
  2. The tribunal must then decide whether the employer acted reasonably in dismissing the employee for that reason. The tribunal must take into account a number of considerations in deciding the fairness of a dismissal but the real question is not whether the tribunal would itself have chosen to dismiss the employee in the circumstances, but whether the decision to dismiss fell within ‘the band of reasonable responses’ open to a reasonable employer. There is no rule that, absent of any earlier disciplinary warnings (as in Mr Barongo’s case) a conduct dismissal for something less than gross misconduct must be unfair. In many cases, a tribunal will find a dismissal in such circumstances falls outside the band of reasonable responses but it should not assume this is so. Accordingly, the EAT held that the employment tribunal’s approach was flawed. It had unduly limited the potential range of reasonable responses by applying a general rule as to when a dismissal might be fair in cases of conduct falling short of gross misconduct and had substituted its own view as to the appropriate sanction rather than assessing the employer’s decision against the band of reasonable responses.

Comment: It should be noted that the EAT also considered it relevant that the company’s decision to dismiss was not just based on the acts of serious misconduct but also that it could no longer trust Mr Barongo to meet the standards required of him for his work. The EAT stressed that it was not suggesting that the tribunal would not be entitled to find the dismissal still fell outside the band of reasonable responses but it needed to make its decision in the correct way.  The case is to be remitted to a different tribunal to be heard afresh.

Q5. Real Living Wage to rise to £9 an hour

A: The real living wage is to see a 2.8% rise to £9 an hour and a 3.4% rise to £10.55 an hour in London.  The rate, which is calculated independently by the Living Wage Foundation is different from the National Living Wage as employers voluntarily sign up to it.  Companies, who do, are required to pay the Real Living Wage to all staff and sub-contractors.  The rise will affect around 180,000 employees.

The National Living Wage (applicable to workers aged 25 and over) is currently £7.83 an hour and is to increase to £8.21 an hour from April 2019.