Under the Working Time Regulations 1998 (WTR), workers are entitled to an unpaid 20-minute rest break after working six hours. During this 20-minute break, workers must not be required to perform any duties.
We look at the recent case of Grange v Abellio London Ltd, where the EAT held that
(1) An employer acts unlawfully by even not accommodating (as opposed to refusing) the 20-minute rest break ; and
(2) ET’s can permitted to award personal injury compensation for this.
Mr Grange worked as a relief roadside controller. This role involved monitoring and regulating the bus services. He was to work 8 hours 30 minutes per day, with a 30-minute uninterrupted lunch break. However, because of the responsive nature of the position, he found it difficult to fit in his break. Therefore Abellio changed Mr Grange’s hours to a continuous 8 hours (without the 30-minute break). He filed a grievance, complaining that over the previous two and a half years, he had been made to work without a break, which adversely affected his health. Abellio rejected this grievance.
Mr Grange lodged a claim at the ET, alleging a breach of the WTR. The ET rejected the claim, concluding that ‘there had never been a refusal of a rest break’ by Abellio.
Mr Grange appealed to the Employment Appeal Tribunal (EAT).
The EAT allowed Mr Grange’s appeal in that they rejected the ET’s rationale that there had to be a explicit ‘refusal’ to win a claim. The EAT confirmed that ‘simply the denial of a right through the arrangement of the working day’, even if the worker didn’t request one could constitute a refusal and therefore a breach of the rest break requirements in the WTR.
The EAT also said that the ET can award personal injury damages for a failure in providing rest breaks under the WTR. The EAT’s rationale was that because the WTR is designed to protect the health and safety of a worker, naturally ET’s should be able to award personal injury damages for these breaches.
This case serves as a stark reminder for employers to ensure that arrangements are in place for workers to have an uninterrupted break of 20 minutes if they are working for more than six hours on a given day. Failure to do this may prove costly, especially now this case confirmed damages for personal injury can be awarded.
Case report: Grange v Abellio London Ltd.
By Zahid Reza
Image used under CC courtesy of BarkRead More
The Equality Act 2010 protects employees from being victimised. The employee must show that they were subjected to some negative treatment, as a result of a protected act (one of which is doing something for the purposes of discrimination).
Wrongful dismissal is essentially a claim for breach of contract, generally brought by employees who allege they weren’t paid their notice pay entitlement. If an employer legitimately dismisses an employee for gross misconduct, they don’t have to pay the notice period.
This article looks at the recent case of Francesca Carpos, who claimed she had been wrongly dismissed and victimised when she was dismissed on the spot for circulating a memo which allegedly brought her employer’s name into disrepute.
Dr Carpos was a bassoonist and lecturer at the Royal Academy of Music. Dr Carpos had done PhD research into discrimination in the classical music industry. One of her findings were that the term ‘gypos’ was often used for session violinists. She wrote a memo to students, advising them on how to fit in and get a job. The memo included:
“….Be discreet; what’s on tour stays on tour. Become familiar with shared understanding of anecdote, caricature, stereotype and jokes. Google them and look on YouTube, if this is not your culture. For example, you may hear terms like this: Pond life = (string players). Gypos (short for gypsies) = violinists specifically…”.
The memo was circulated to around 800 students, and as a result a letter was sent to the Student Union, accusing Dr Carpos of ‘encouraging the development of a toxic environment in which musicians are complicit in the harassment of and discrimination against colleagues’.
Dr Carpos was dismissed for gross misconduct, that is bringing the academy into disrepute.
Dr Carpos didn’t accept this and lodged a claim of wrongful dismissal and victimisation. Dr Carpos argued that the it couldn’t be true that she was dismissed because of the outpour of hysteria from the student body. She must have been victimised for a prior discrimination complaint.
Dr Carpos won her claims and was awarded over £180,000 in compensation. In relation to wrongful dismissal, the tribunal concluded that the academy’s decision to dismiss her on grounds of gross misconduct was wrong and so she was entitled to her notice period. In relation to victimisation, the tribunal concluded that the dismissal was so obviously trumed-up that it really had to do with her having brought a previous complaint about discrimination.
Curiously, the judge also indicated that if Dr Carpos was eligible to bring an unfair dismissal claim, she may well have succeeded in that, too.
This case serves as a stark reminder that employers shouldn’t be pressured into making knee-jerk reactions because they may inadvertently (1) wrongfully (or unfairly) dismiss; and (2) discriminate against or victimise the employee.
By Zahid Reza
Image used under CC courtesy of Becs @ Catching SundustRead More
In light of news of this remarkable birth we highlight that recent press reports have highlighted that new fathers of premature babies have inadequate paternity rights. They have to return to work after just 2 weeks’ leave. Their tiny babies may be hospital for long periods of time with life-threatening complications. The current paternity leave laws make no provision for this scenario.
How do new dads cope?
All they can do is hope they have an understanding employer, enhanced contractual paternity rights or be signed off sick so they can support their partner and baby (not always a clever move). They could use parental leave but this is usually unpaid and unaffordable for many .
Current paternity rights
Statutory paternity leave is is limited to one or two weeks’ paid leave to be taken after the birth and completed within 56 days of the birth – just 8 weeks. The medical definition of a premature baby is at 37 weeks or earlier. Most are born between eight and three weeks early, but some babies can survive if born up to 16 weeks early. Eight weeks is clearly insufficient time. Babies born prematurely are also more likely to have a disability.
Over 60,000 babies are premature in the UK which is 7% of all births; a number that will affect many new fathers. Not surprisingly, lobby groups are urging the government to do more to support these families by enhancing paternity rights when premature babies need more support from both parents.
What can employers do?
Employers might consider offering enhanced contractual paternity rights. Helpful additions might include
- Additional paid leave
- Allowing leave to be taken beyond the 56 days deadline if needed
- Allowing temporary flexible working arrangements including part-time hours to allow for hospital visits
- Varied start/finish times
- Home working.
Alternatively, employers could introduce compassionate leave provision that could be used or even paid parental leave for certain circumstances. Ensuring line managers understand the complexities of this scenario will also help them to navigate this successfully by supporting employees and balancing this with the needs of their business.
Employees who keep their employers informed of their situation will find most are supportive – many problems arise through lack of communication or miscommunication. At a difficult time, they might even consider nominating a relative to speak for them.
Whether you are an employee or employer, we encourage you to talk to each other openly about the difficulties faced and agree practical ways to cope with this stressful time.
By Jenny Summers
Image courtesy of César RinconRead More
If an employer doesn’t follow the correct procedure with notice of dismissal then it gives rise to legal claims. Except in cases of gross misconduct, an dismissed employee has the right to their statutory or contractual notice period (whichever is greater).
An employer can give notice of dismissal by email, letter or in person (but writing is best, to avoid dispute about when it happened). The notice only period starts when the employee is aware of it, not for example, when the letter is posted.
A recent case took the view that notice of dismissal sent by post is only effective once the employee has had a reasonable time to read it.
A letter giving notice of dismissal to a Mrs Haywood dropped through her letterbox while she was away on holiday. She read it on her return and the issue was when the notice period began. This was important, as she would get enhanced pension if dismissed after her 50th birthday, which she celebrated whilst on holiday. The employer argued that the notice period ran from the delivery date (which was before Mrs Haywood turned 50) and that they didn’t need to pay the enhanced pension.
The Supreme Court (formerly the House of Lords) upheld Mrs Haywood’s claim, stating that the notice period began when she had the opportunity to read the letter, not when it was delivered. This creates uncertainty for employers, as they cannot always predict when a letter will be read. As a result, the date of dismissal may not be that which was intended. However, the court ruled that only a reasonable amount of time would be afforded to an employee and wilful delay will not be considered.
To avoid this confusion, the contract can set out how notice of dismissal is served, then this ruling will not apply. It is also sensible to plan giving the notice to ensure the employee will not be away on leave or off ill, which can delay the process. If notice is to be served by post then it should be followed up by email or telephone call to make sure it has been received. Also, asking the employee to confirm receipt of the letter could be useful.
Finally, it is best practice to give notice at a face-to-face meeting as it guarantees clarity for both the employee and the employer.
Case report: Newcastle Upon Tyne Hospital NHS Foundation Trust v Haywood
Reporting by our intern Maliha
Image used under CC courtesy of Garry Knight.Read More