Employment Law E-Bulletin Issue 48

• Bellman v Northampton Recruitment Limited [2016] EWHC 3104 (QB) – Company not vicariously liable for assault following Christmas Party
• Grange v Abellio London Ltd UKEAT 0130/16/1611 – Right to rest break under WTR is infringed even where there has been no explicit request and refusal
• McFarlane and anor v easyJet Airline Company Ltd ET/1401496/15 & ET/3401933/15 – Refusal to tailor shifts to facilitate breastfeeding was discriminatory
• R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) – Article 50 appeal hearing

Bellman v Northampton Recruitment Limited [2016] EWHC 3104 (QB) – Company not vicariously liable for assault following Christmas Party

In common law an employer will be vicariously liable for the wrongful (tortious) acts of its employees if they are carried out “in the course of employment”. The test is whether the acts are “so closely connected with [the] employment that it would be fair and just to hold the employers vicariously liable”.

The High Court has held that an employer was not vicariously liable for an assault by a Managing Director on another employee after a work Christmas party. It drew a distinction between the Christmas party and an entirely independent and voluntary early hours drinking session that followed.

M was Managing Director of NR Ltd and B, a childhood friend of his, was employed as a Sales Manager. After NR Ltd’s Christmas party in 2011, half of the guests, including M and B, went on to a hotel where some NR Ltd employees were staying. A heated discussion took place which culminated in M punching B, causing him to fall and suffer severe brain damage. B brought a claim for damages against NR Ltd on the basis that it was vicariously liable for M's conduct.

The High Court rejected the claim. It was noted that the boundaries of vicarious liability have often proved difficult to identify. However, it was not accepted that the wide range of M’s duties meant that he should always have been considered to be on duty solely because he was in the company of other employees. It was held that a line could be drawn between NR Ltd’s Christmas party and the 'impromptu drink' at the hotel. Any increased risk of confrontation arising from the additional alcohol at the hotel, purchased by NR Ltd, could not properly be treated as supporting a finding of vicarious liability, as it was so far removed from employment.

Despite the decision, this case is a timely reminder that employers can be held responsible for the improper behaviour of their employees at work events, especially where alcohol is involved.

Grange v Abellio London Ltd UKEAT 0130/16/1611 – Right to rest break under WTR is infringed even where there has been no explicit request and refusal

Where a worker’s daily working time is more than 6 hours they are entitled to a 20 minute rest break under the Working Time Regulations 1998 (“WTR”). If a worker is refused such a right they can bring a claim in the Employment Tribunal seeking ‘just and equitable’ compensation.

The EAT has held that an employer has a duty to afford a worker the right to a rest break regardless of whether one has been expressly requested. It concluded that there can be a “denial” of the right simply through the arrangement of the working day.

Mr Grange was an employee of Abellio London Ltd whose hours of work changed from 8 and a half hours (including a half hour unpaid rest break) to 8 hours, with the idea that a break would not be taken and workers would leave earlier. After raising a grievance about the impact of this on his health, Mr Grange eventually submitted a claim in the Employment Tribunal, claiming that he had been denied his entitlement to a rest break at different times during his employment, including when time for a break had been built into his working day but he had been too busy to take it.

The Tribunal held that Mr Grange had never asked for a rest break and it had therefore never been refused. The Employment Appeal Tribunal (“EAT”) overturned this decision and remitted the case back to the Tribunal on the grounds that the instruction to work without a rest break could be construed as a refusal, even without an explicit request.

Employers are reminded that where a worker’s daily working time is more than 6 hours, they are entitled to a rest break of at least 20 minutes. In reality, many workers do not take rest breaks and will not complain that the right has been denied to them. Their perception may be that it is their choice not to take a break. However, employers should proactively ensure that working arrangements allow for workers to take breaks if they wish. This case highlights that putting arrangements in place that fail to allow workers to take a break will amount to a refusal.

McFarlane and anor v easyJet Airline Company Ltd ET/1401496/15 & ET/3401933/15 – Refusal to tailor shifts to facilitate breastfeeding was discriminatory

There is no statutory right to time off for breastfeeding but breastfeeding mothers are afforded certain legal protection, including the right to be offered suitable alternative work if any risk to the mother is identified and the right to paid suspension if no suitable alternative is available. Employers also have a duty under the Management of Health and Safety at Work Regulations 1999 to carry out a workplace risk assessment in relation to a breastfeeding employee, and may be required to make changes to accommodate the employee’s needs.

The Claimants were crew members employed by easyJet who were both still breastfeeding when they returned from maternity leave. Upon their return to work they made flexible working requests not to be rostered for shifts longer than 8 hours in order to manage the length of time between opportunities to express milk. The requests were rejected and they were ultimately given ground duties.

The Claimants claimed indirect sex discrimination and unpaid remuneration for the time they were unable to work due to a delay in suitable groundwork being offered as an alternative to rostered flights. They provided medical evidence that their health had been put at risk by having to work more than 8 hours without the opportunity to express milk.

It was accepted that the ‘provision, criterion or practice’ (“PCP”) of imposing collectively-rostered flying times which could be longer than 8 hours was indirectly discriminatory to breastfeeding employees. The tribunal was not persuaded that the PCP was a proportionate means of achieving the legitimate aims of avoiding flight delays, cancellations and complying with legal and regulatory requirements. EasyJet’s defence was not assisted by their ‘very damning admission’ that a low volume of bespoke rosters had existed for some time within their organisation, without detriment.

In addition the tribunal found that the Claimants were entitled to full pay for the period they were unable to work due to the delay in providing alternative work. However, a separate award was not made in respect of this finding, having regard to the sums already awarded for their successful discrimination claims.

This case highlights the need to carry out an early, effective risk assessment in relation to both new and expectant mothers. There may be a requirement to change some aspect of an employee’s working conditions, hours of work, offer her suitable alternative employment, or (as a last resort) suspend her with full pay, and all employers should be mindful of this.

R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) – Article 50 appeal hearing

Earlier this month the Supreme Court heard the Government’s appeal against the High Court ruling that MPs must vote on triggering Article 50, being the procedure for withdrawal from the EU.

The four day hearing heard submissions from James Eadie QC on behalf of the Government, and Lord Pannick QC and Dominic Chambers QC on behalf of Gina Miller, the lead challenger. The court also heard from Lord Keen the Advocate General for Scotland and John Larkin the Attorney General for Northern Ireland. David Schoffield QC and Ronan Lavery QC raised points from Northern Ireland, and Lord Advocate James Wolffe QC made submissions on behalf of the Scottish government.

Sources from inside the court room suggest “that it is unlikely to be a slam dunk either way; even if a majority agree with Gina Miller there will be a sizeable minority who don’t. It will potentially be a split decision”.

The judgement is expected to be delivered in the New Year.