Sintons Employment Law E-Bulletin – Issue 64
- An employee on a zero hours contract could be an agency worker if his position was temporary rather than permanent- Brooknight Guarding Limited v Mr A Matei (UKEAT/0309/17/LA)
- A Claimant must act dishonestly for an allegation or evidence not to be a protected act under s27(3) Equality Act 2010 – Saad v Southampton University Hospitals NHS Trust (UKEAT/0276/17/JOJ)
- Employment Contracts – Brown & Anor v Neon Management Ltd & Anor  EWHC 2137 (QB)
- Catholic doctor’s dismissal for remarrying may constitute discrimination – IR v JQ (Case C-68/17 ECLI:EU:C:2018:696)
- TUPE: Five month gap does not prevent transfer – Colino Siguenza v Ayuntamiento de Valladolid  EUECJ C-472/16
- Tribunal wrong to find that transfer of public health team was not covered by TUPE – Nicholls v London Borough of Croydon and others (UKEAT/0003/18)
An employee on a zero hours contract could be an agency worker if his position was temporary rather than permanent- Brooknight Guarding Limited v Mr A Matei (UKEAT/0309/17/LA)
The Claimant, a security guard, was employed by the Respondent on a ‘zero hours contract’ and was assigned to different sites for different clients as and when required. However, during the time that he was employed, he worked predominantly for one particular client, Mitie. He was dismissed by the Respondent after 21 months.
The Claimant argued that he was an agency worker under the Regulations and therefore entitled to the same basic working and employment conditions as Mitie’s staff following the completion of 12 weeks of service. The Respondent argued that, as the Claimant had been sub-contracted to work at Mitie indefinitely, he was therefore a permanent employee.
The Employment Tribunal agreed with the Claimant and concluded that the Respondent was a ‘temporary work agency’ pursuant to the Regulations, and that the Claimant was supplied to work for Mitie on a temporary basis. Consequently, the Claimant was deemed to be an agency worked, rendering the Respondent liable for a breach of the Regulations.
Following an appeal by the Respondent, the EAT took the same view as the Tribunal. They considered the nature of the Claimant’s work to be key when determining his status as an agency worker; while the fact that he was on a zero hours contract and his length of service were relevant factors, they were not determinative.
The fact that the Claimant was employed as a “cover security guard”, and that the role was characterised by the Respondent as being on a “required only basis”, meant that he could not be deemed a permanent employee.
It is important for employers who supply individuals to other companies and businesses that engage contractors/freelance workers via other companies to take note of this case. Agency workers, after working for 12 weeks in the same job, are entitled to the same treatment as a comparable permanent employee in respect of pay and basic working conditions. Employers should review their existing arrangements and where there are any agency workers employed, ensure that they are being treated correctly.
A Claimant must act dishonestly for an allegation or evidence not to be a protected act under s27(3) Equality Act 2010 – Saad v Southampton University Hospitals NHS Trust (UKEAT/0276/17/JOJ)
The Claimant, a surgeon, raised a grievance relating to an alleged racist remark four years previously, with a view to having an assessment of his skills postponed. His subsequent claims for detriments for making a protected disclosure and victimisations, both arising from his grievance, were dismissed.
At first instance, when considering the victimisation element, the Employment Tribunal found that although the Claimant was of the belief that his allegations were true, he had acted in bad faith in making them with the hope of having an his skills assessment postponed.
The Claimant subsequently appealed. The EAT allowed this appeal, finding that although the Claimant had made his allegations in an attempt to postpone an assessment, he had made them honestly. The appeal was allowed and the Claimant’s complaint was upheld.
Employers should have regard to this decision when considering any grievances raised by employees. While they may be made with ulterior motives, providing they are made honestly, there may be potential for complaints of victimisation to be made.
Employment Contracts – Brown & Anor v Neon Management Ltd & Anor  EWHC 2137 (QB)
In this case, the High Court held that: resignation on a lengthy notice period can constitute affirmation of an employment contract, and that making unwarranted findings, alleging loss of trust and confidence and reporting an employee to a regulator can constitute repudiation of an employment contract.
There were three Claimants in this case, all of whom had their contracts of employment breached by the Defendants. As a result, they all resigned on notice alleging repudiatory breach of contract.
The Claimants had notice periods of six and twelve months, during which, the Defendants committed further repudiatory breaches. These included: making unjustified findings of misconduct, alleging loss of trust and confidence and reporting the alleged misconduct to the first and second Claimants’ regulator.
In response to the further repudiatory breaches, the first and second Claimants resigned with immediate effect and brought actions for wrongful dismissal and breach of contract. The third Claimant continued to serve out her notice period and brought an action for breach of contract.
There were two findings of importance made by the High Court here. Firstly, that resignation on notice where the notice period amounts to six months or more constitutes affirmation of the contract, thus, the contract survives save any further breaches. Secondly, it was found that making unwarranted findings, reporting an employee to a regulator without proper foundation and alleging loss of trust and confidence all without giving an employee the opportunity to respond, may constitute repudiation of a contract of employment.
It would be worthwhile for employers to bear these findings in mind when receiving any resignations on notice and also when dealing with any concerns they have surrounding their employees.
Catholic doctor’s dismissal for remarrying may constitute discrimination – IR v JQ (Case C-68/17 ECLI:EU:C:2018:696)
In this case, JQ was a Catholic doctor who was dismissed from a managerial position in a Catholic hospital due to his remarriage after divorce, which was found to be a breach of his duty to act in good faith and with loyalty to the hospital’s religious ethos. It was held that this may constitute unlawful discrimination on the ground of religion.
It should be noted that Article 4(2) of the EU Equal Treatment Framework Directive (No.2000/78) grants organisations with a religious ethos a specific exemption from the prohibition of discrimination in the case of ‘genuine, legitimate and justified occupational requirements.’ In this instance, the Court held that a requirement for a Catholic doctor in a managerial position to respect the Catholic Church’s notion of marriage as sacred and indissoluble did not appear to fall within this category. However, the Court left this for the German Federal Labour Court to determine.
JQ divorced his first wife, who he had married in accordance with the Roman Catholic Rite and remarried in a civil ceremony without annulling the first marriage. IR then dismissed him, arguing that he had breached his duty of loyalty arising under his employment contract. There was reference in his contract to the Basic Regulations on employment relationships in the service of the Church (‘GrO 1993’), which state that a Catholic employee entering into a marriage that is invalid under canon law amounts to a serious breach of the duty of loyalty and justifies dismissal.
JQ argued that his dismissal was an infringement of the principle of equal treatment because under the GrO 1993m the remarriage of a head of department of Protestant or no faith would not have had any consequences for the employment relationship of an IR employee.
The ECJ held that Church or other organisations with an ethos based on religion or belief that manage a hospital (in the form of a private limited company), cannot subject managerial employees to a requirement to act in good faith and be loyal to that ethos, without the decision being subject to judicial review to ensure that it fulfils the criteria laid down in Article 4(2) of the Directive.
The relevant national court (here the German Federal Labour Court) must be satisfied, bearing in mind the nature of the occupational activities or the context in which they are carried out, that the religion or particular belief constitutes an occupational requirement that is genuine, and that it is proportionate. Here, the ECJ noted that it did not appear that adherence to the notion of marriage advocated by the Catholic Church was a genuine occupational requirement for JQ’s role, which involved the provision of medical advice and care in a hospital setting and the management of the internal medicine department. This was highlighted by the fact that similar roles were given to employees who were not Roman Catholic, and therefore did not have to adhere to the same requirements.
The Church or other organisations with an ethos based on religion or belief should bear this case in mind when dealing with their staff and determining the requirements that they ask their employees to meet.
TUPE: Five month gap does not prevent transfer
In this case, the CJEU held that a five month suspension of an undertaking’s activities did not preclude a TUPE transfer from taking place.
The Claimant, a music teacher, was employed at a school whose management had been assigned by the local authority to a contractor. Said contractor subsequently dismissed all staff on 27th March 2013 due to a dispute, and on 1st April 2013, ceased its activities. In August 2013, the local authority assigned the school’s management to a new contractor, whose activities commenced in early September 2013.
It was highlighted that while the school had not been carrying out any activities for five months, three of those months had been the school holidays. It was concluded that despite the five month period of inactivity, the possibility of a TUPE transfer was not precluded. It was passed back to the referring court to decide whether there had been such a transfer.
This case should be considered by potential employers who are contemplating acquiring an undertaking. However, they should note that this case was based on a very specific set of facts.
Tribunal wrong to find that transfer of public health team was not covered by TUPE – Nicholls v London Borough of Croydon and others (UKEAT/0003/18)
In this case the EAT had to consider the Tribunal’s finding that the transfer of a primary care trust’s public health team to a local authority fell within the TUPE regulation 3(5) “public administrative authorities” exclusion. At first instance, the Tribunal had held that the activities carried out by the public health team involved the exercise of public authority duties and so fell within the exemption.
While the EAT agreed with the Tribunal that the purchasing and commissioning of health services did not constitute an “economic activity”, they also held that almost all of the work carried out by the team were offered by “non-state actors operating in the same market”. As this is normally a good indicator that an “economic” activity is being carried on, therefore, the case was remitted to another tribunal to be reconsidered.
In addition, Croydon contended that if a relevant transfer had taken place, it could not be deemed to have terminated the contracts of their employees as their employment had been preserved by “safety net” provisions contained in their Staff Transfer Scheme.
The EAT rejected this argument, holding that Article 3(1) of the Acquired Rights Directive can still be applied when the words “which would otherwise be terminated by the transfer” are used. Those words do not prevent a transfer of