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Our Monthly Employment & HR Updates provide a summary of some of the most important cases, helping our clients and contacts to stay up-to-date on recent case law developments.

Employment & HR Updates

No, held the Employment Appeal Tribunal (EAT) in Jagex Ltd v McCambridge.

In unfair dismissal claims (as well as some others), Tribunals have the discretion to reduce any compensation awarded by up to 100% to where the claimant’s conduct has contributed to the dismissal, commonly referred to as “contributory conduct” or “contributory fault”. A reduction for contributory fault can affect the basic award and/or the compensatory award.

In the above case, the Claimant was dismissed after finding a document on a communal printer with a senior employee’s pay on it. He pointed out the document to a colleague as they were passing later on and someone, not identified in the judgment, began a guessing game at lunch as to what the senior employee’s pay was. The Claimant was uninvolved in that game but was dismissed for gross misconduct for disclosing pay details.

The EAT dismissed the Claimant’s appeals against the Tribunal’s finding that there was no gross misconduct under the contract and that there should be no Polkey reduction.

However, the EAT allowed the Respondent’s appeal against the Tribunal’s finding that there should be no reduction in compensation for contributory fault as the disclosure was not gross misconduct. Allowing the employer’s appeal on the last point, HHJ Stacey said:

“By misdirecting itself that only gross misconduct would open the door to a contributory fault percentage reduction, having decided that there had been no gross misconduct, the Tribunal failed to consider the matter further. It should have gone on to consider if the Claimant’s conduct was blameworthy or culpable, and if so, followed the statutory wording of s. 122(2) and s.123(6) [Employment Rights Act 1996] to determine whether any reduction should be made…”

That issue was remitted to the same Tribunal.

Note for employers: Whilst an employer should always look to undertake any dismissal fairly, it should be remembered that in certain circumstances employers have arguments to reduce any compensation awarded, such as POLKEY (i.e. a reduction by a judge to reflect the likelihood that dismissal would still have been the outcome despite procedural unfairness), contributory conduct by the employee (as above) and mitigation (i.e. how quickly the employee has obtained a new job).

Employment & HR Updates

Not any in excess of the 4 weeks provided for in the Working Time Directive, held the Court of Justice of European Union (CJEU) in TSN v Hyvinvointialan.

The Working Time Regulations 1998 implement the Working Time Directive (EU legislation) into UK law.  The EU Directive only provides for a minimum of 4 weeks annual leave per year whereas the UK Regulations provides for a minimum of 5.6 weeks annual leave per year, therefore over and above the EU minimum.

In the above case, the CJEU considered aspects of Finnish law and collective agreements that provided for more paid holiday than the 4 weeks minimum under the Working Time Directive. Both employees were unable to take all their leave in one year due to sickness absence. There were a number of matters referred to the CJEU, but of most importance was whether national rules preventing carry over of more than 4 weeks’ leave were permissible.

The Grand Chamber of the CJEU said:

“In such a situation, the rights to paid annual leave thus granted beyond the minimum required by [the Working Time Directive] are governed not by that directive, but by national law, outside the regime established by that directive…In the light of the foregoing considerations, the answer is that [the Working Time Directive] must be interpreted as not precluding national rules or collective agreements which provide for the granting of days of paid annual leave which exceed the minimum period of 4 weeks…and yet exclude the carrying over of those days of leave on the grounds of illness.”

Note for Employers: This case confirms that the Employment Appeal Tribunal’s (EAT) decision in Sood Enterprises Ltd v Healey was correct and that in the absence of contractual agreement, there is no right to carry over any more than 4 weeks’ statutory leave under the law of Great Britain (i.e. the Working Time Regulations 1998) when a worker is on long-term sick leave. If an employee seeks to carry over holidays in excess of 4 weeks in any holiday year which he/ she has been unable to take due to sickness, an employer should first check the employees contract see establish the contractual entitlement to carry over the full 5.6 weeks, however in the absence of the contractual right, the employer may restrict carry over of holiday to the 4 weeks under the EU Directive.

Employment & HR Updates

No, held the European Court of Human Rights (ECHR) in López Ribalda and others v Spain.

The case concerned installation of covert video surveillance in a Spanish supermarket where there was a high level of theft and a significant discrepancy between actual and expected stock levels – sometimes as much as €20,000. The surveillance covered two weeks in the supermarket and the recordings were viewed by a small group of individuals. Footage captured five employees stealing from the store and helping customers do the same. The employees admitted the theft and were dismissed, but later brought unfair dismissal claims in the Spanish courts.

It was held by a majority of 13 to 4 that there was no abuse of Article 8 because of the nature of the employment, e.g. working on a supermarket shop floor, the employees should have expected limited privacy and that the employers had taken steps to confine the recordings. Due to the way in which the investigation had taken place, the extreme level of theft and the efforts that had been taken to ensure fairness, it was regarded as adequate and did not affect the employees right to private life.

Note for employers: Article 8 (right to respect for private life) of the European Convention on Human Rights applies to all EU citizens and this right must be protected. This right is often raised in defence to claims involving use of CCTV.  This case highlights that covert CCTV use is whilst a potential invasion of privacy, it can in certain circumstances be permissible, in particular where very strict steps are taken to ensure fairness if investigating employees. Employers ultimately still need to be wary where using covert recording and take legal advice before doing so.

Employment & HR Updates

For more information on our November Employment & HR update, please contact Tom Evans via the contact form below.

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