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Southern Rail fails to obtain injunction to prevent strike

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Southern Rail’s parent company has failed in an attempt to obtain an injunction preventing strikes led by ASLEF by relying on breaches of freedom of movement principles under the Treaty for the Functioning of the EU (TFEU).

Govia GTR Railway is the franchise-holder for Southern Rail. ASLEF has disputed Govia’s plans to extend the use of driver-only operated trains, arguing that the new system for closing doors is less safe and more stressful for drivers. As a result, ASLEF announced a series of strikes in December 2016 and January 2017.

Govia applied to the High Court seeking an injunction to prevent the strikes from going ahead. Govia argued that the planned industrial action was unlawful on the basis that it interfered with the rights to freedom of establishment and freedom to provide services under the TFEU.

The Court of Appeal upheld the High Court’s decision to reject the application for an injunction. The Court did not accept Govia’s argument that the strikes were a deterrent to the freedom of establishment – whilst industrial action may discourage Govia’s French investors from doing further business, the law is not there to protect against that. Any strike, even if legal, could arguably have the same effect.

The Court also found that Govia was “free-wheeling in the slip stream of their passengers” in arguing that the strike impeded passengers’ freedom to give and receive services through Gatwick Airport and therefore breached TFEU rights. It was not possible in advance of the strike action to say that passengers’ ability to travel to and from the EU would be impeded. Even if there were such an impediment, relying on such an argument could undermine the right to strike. Previous EU authorities that found industrial action unlawful because they interfere with freedom of movement principles did so on the basis that this was the purpose or intention of the action, rather than a by-product.

Govia has announced that it will be appealing to the Supreme Court.

Govia GTR Railway Ltd v The Associated Society of Locomotive Engineers and Firemen [2016] EWCA Civ 1309

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New gender pay gap regulations due in April 2017

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A final draft of the new gender pay gap regulations has been published. Subject to receiving parliamentary approval, the regulations will come into force on 6 April 2017, with the first publications due in April 2018.

The new regulations will require employers with 250 workers or more to publish the mean and median gender pay gap for workers’ hourly pay (including a pro rata proportion of any bonuses) and the mean and median gaps in annual bonuses. The data must also show the percentages of men and women who received bonuses and the number of men and women in each pay quartile. The regulations cover all individuals providing personal services to the employer except those who are genuinely self-employed, LLP members and partners.

The figures (which a director or partner must certify for accuracy) will have to be published on the company’s website and be easily accessible to everyone – staff and the general public alike – for at least 3 years. The government will also set up its own central database to publish the figures aggregated by sector and it is anticipated that there will be widespread interest by the press and campaigning bodies in the information published.

Acas has published guidance to help employers to implement the changes and it is expected that the government will follow suit before the regulations come into force.

Information will be published as at a snapshot date and the first snapshot will be 6 April 2017. Employers are well advised to do a “dry-run” prior to that date, perhaps under cloak of legal privilege, to determine how the figures will look and how the information can be best presented. In some cases, swift corrective action will be needed to pre-empt employee complaints or even legal claims.

Equality Act 2010 (Gender Pay Gap Information) Regulations 2017

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When does workplace stress amount to a disability?

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Work-related stress which is the product of unhappiness with a particular situation may not of itself amount to a disability.

Mr Herry was employed as a design and technology teacher and part-time youth worker. From May 2010, Mr Herry was signed off work regularly and as of June 2011, he was signed off work entirely. Whilst the earlier absences were attributed to physical injuries, later GP certificates all referred to work-related stress.

He brought Employment Tribunal proceedings against Hillcrest School and Dudley Metropolitan Council relating to 90 allegations over a 4 year period. Among them were allegations that Mr Herry had been discriminated against on grounds of his disabilities, which he claimed were dyslexia and stress/depression.

The Employment Tribunal had made adjustments to take into account Mr Herry’s dyslexia, but found that he was not disabled at the time to which his allegations related. Neither his dyslexia nor his stress had substantial adverse effects on his ability to carry out day-to-day activities. The Tribunal took the view that Mr Herry’s stress was “very largely a result of his unhappiness about what he perceives to have been unfair treatment of him, and to that extent is clearly a reaction to life events”.

The Employment Appeal Tribunal similarly dismissed Mr Herry’s disability discrimination claims. The Tribunal’s decision to make adjustments had no bearing on whether either condition was a disability given how different long-running litigation is to Mr Herry’s ordinary professional life. Also, medical evidence from the relevant time showed Mr Herry was taking no medication for his stress and Occupational Health had ruled him fit to work.

The EAT ruled that, on the facts, stress caused by being unhappy with a decision or colleague was not a mental impairment; Mr Herry could not therefore be disabled. This follows an earlier case, which ruled that tribunals should take particular care before finding that a mental impairment exists if the only manifestation of work-related stress was an unwillingness to return to work until an issue is resolved to the employee’s satisfaction. This is a helpful decision for employers faced with the all-too-common problem of a prolonged employee absence prompted by the onset of a disciplinary or grievance process.

Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School UKEAT/0100/16 & UKEAT/0101/16

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Teacher’s dismissal for showing horror film to pupils was discriminatory

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An employer’s decision to dismiss a disabled employee for gross misconduct which was seemingly unrelated to the disability amounted to discrimination arising from disability.

Mr Grosset was Head of English at a school operated by the City of York Council. He suffered with cystic fibrosis, which the Council agreed amounted to a disability. As a result of his condition, Mr Grosset had to spend up to 3 hours a day doing gruelling physical exercise to clear his lungs.

A new Head Teacher was appointed who brought in various new initiatives at the school, leading to an increase in Mr Grosset’s workload. Given the time he had to spend exercising, the additional workload proved very stressful to Mr Grosset, and the stress in turn exacerbated his cystic fibrosis.

During this period, Mr Grosset showed ‘Halloween’, a violent horror film with a certificate of 18, to a group of vulnerable 15 and 16 year olds. The Council suspended Mr Grosset pending an investigation into potential gross misconduct. When interviewed, Mr Grosset agreed that he had made an error of judgment but explained that he had been under significant stress, contributed to by his cystic fibrosis. The medical evidence available to the Council at the time did not suggest any link between Mr Grosset’s disability and his decision to show the film. As a result, the Council took the decision to dismiss Mr Grosset.

Mr Grosset brought claims in the Employment Tribunal against the Council, including the allegation that his dismissal amounted to discrimination arising from his disability.

Medical evidence produced during the course of proceedings suggested that there may be a medical link between Mr Grosset’s behaviour and his disability. On that basis, the Employment Tribunal and the EAT found that the dismissal amounted to discrimination arising from disability. By contrast with the law on reasonable adjustments, it was held that discrimination of this nature only requires that the employer knows of the employee’s disability – it is not necessary for the employer to have knowledge of the specific consequences of the disability. Therefore, although it was reasonable for the Council to determine that the misconduct was not connected to Mr Grosset’s disability given the evidence it had at the time, the later evidence can still be relied on to show that the dismissal was discriminatory and was not objectively justified.

This is a rather scary case for employers, as the Council’s decision to dismiss Mr Grosset on the basis of the information it had at the time seems reasonable at first glance (and indeed, Mr Grosset’s unfair dismissal claim failed on that basis). The Council is seeking permission to appeal to the Court of Appeal; in the meantime, the best thing for employers to do in such a situation is to seek independent medical evidence before making a decision as to a disciplinary sanction.

City of York Council v Grosset UKEAT/00151/16

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Can employers take into account expired warnings in deciding to dismiss?

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In some cases, an employer can take into account an employee’s history of expired written warnings in deciding to dismiss them following a further instance of misconduct.

Mr Stratford worked for Auto Trail VR Ltd from November 2001. He had 17 items on his disciplinary record, the most recent of which was a 3-month warning received in January 2014. All of the written warnings he had received had expired.

In October 2014, Mr Stratford had his mobile phone in his hand on the shop floor, which was strictly prohibited according to Auto Trail’s handbook. Following a disciplinary hearing, Auto Trail decided to dismiss Mr Stratford with 12 weeks’ pay in lieu of notice. It reasoned that, whilst the mobile phone offence was not of itself an act of gross misconduct (particularly given that there were some extenuating circumstances), it was the eighteenth time his behaviour had attracted formal action. If it gave Mr Stratford another chance, there was nothing to suggest that there would not be a similar situation in future.

Mr Stratford brought a claim in the Employment Tribunal alleging unfair dismissal.

The Employment Appeal Tribunal held that the dismissal was fair. An employer (and an Employment Tribunal in determining the claim) need not always totally disregard expired warnings. It was open to them to take into account all of the relevant circumstances, given the broad wording of the legislation on unfair dismissal. An employee’s disciplinary record is among those circumstances – an employer need not disregard it simply because the respective written warnings have expired.

However, the facts of this case were quite extreme and circumstances where expired warnings can be relied on will continue to be the exception, not the rule. In general, expired warnings will not be relevant unless the act under consideration is already sufficient to justify dismissal and the employer is taking the older offence into account only in deciding whether to exercise leniency.

Stratford v Auto Trail VR Ltd UKEAT/0116/16

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Is an employer liable for an assault at the Christmas after-party?

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An employer was found not to be liable for an employee’s serious injury caused by an assault during drinks held after the office Christmas party.

Mr Major was the managing director of Northampton Recruitment Limited. He hired Mr Bellman, who was a childhood friend of his, as a sales manager. Northampton’s office Christmas party in 2011 was held at a golf club. After that, Mr Major, Mr Bellman and around half of the guests went back to the hotel in which some people were staying. Northampton paid for the taxi fares from the golf club to the hotel.

Many of the group at the hotel continued drinking into the early hours of the morning. Conversation turned to work-related matters at around 2:00am including, in particular, a controversial issue about which Mr Major lost his temper. Mr Bellman challenged him in a non-aggressive way. Nonetheless, Mr Major swore at Mr Bellman and punched him twice, despite the efforts of another colleague to restrain Mr Major.

The second punch caused Mr Bellman to fall and hit his head on the floor. He fractured his skull and fell unconscious. It later emerged that Mr Bellman had been severely brain damaged and would not be able to work again.

Mr Bellman brought a personal injury claim against Northampton, alleging that the company was vicariously liable for Mr Major’s actions.

The High Court dismissed Mr Bellman’s claim, holding that Northampton was not liable for the assault. It took into account that Mr Major ran the company with a wide remit, and it was ultimately at his discretion that Northampton paid for the party, drinks, taxis and accommodation. However, the Court held that the drinks at the hotel were ‘impromptu’ and not part of the Christmas party and Mr Major could not be said to be on duty at the time of the assault. The mere fact that the drinkers were colleagues and were talking about work at the time did not create enough of a connection to Mr Major’s employment to render Northampton liable.

This case is one of many which discuss the circumstances in which an employer will be vicariously liable for the harm caused by its employees’ wrongdoing. Whilst at first blush this may look like a very employer-friendly case, this decision does not mean that employers will never be liable for harm caused at an ‘after-party’, as each case will depend on its own facts.

Bellman v Northampton Recruitment Ltd [2016] EWHC 3104

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