Top HR & Employment cases for 2015
This article was first published on People Management online which you can read here. We take a look at some of the most significant employment law cases from 2015 that will be remembered by employers and HR practitioners alike, explaining why they are important and their implications for employers.
Chesterton Global Limited v Nurmohamed (EAT, April 2015)
In April 2015, the EAT for the first time considered whether an employee reasonably believed that his disclosure was “in the public interest” and concluded that a relatively small group may be affected to satisfy the new test.
In Chesterton, the employee made disclosures to the effect that the company accounts were being manipulated, which in turn had an adverse impact on the commission of 100 managers including his own. The ET concluded that this constituted a sufficient group for the matter disclosed to be "in the public interest". The EAT dismissed an appeal from the employer and concluded that although the employee's concerns regarding commission were primarily personal, it was inevitable that only a section of the public would be directly affected by any given disclosure, and the group of 100 was sufficient to satisfy the test.
As the case law currently stands, employers should be aware that whistleblowing complaints could still arise from disputes with employees over terms and conditions of employment, with allegations of victimisation or dismissal as a result. An appeal has been listed for late 2016.
Plumb v Duncan Print Group Ltd (EAT, July 2015)
In July 2015, Plumb resolved a long standing lack of clarity for employers in the treatment of the holiday entitlement of employees on long term sick leave, as it addressed the question of how far back employees could claim holiday entitlement where they had been unwilling or unable to take holiday whilst on sick leave.
In Plumb, the EAT settled the question by ruling that any carryover of holidays in the above circumstances should be limited to 18 months, bringing this in line with European case law.
This is an important decision for any employer with employees on long term sick leave as they can now be confident that any carryover will be limited to a period of 18 months after the end of the leave year in which the leave accrues.
Shrestha v Genesis Housing Association Ltd (Court of Appeal, February 2015) and Ramphal v Department for Transport (EAT, September 2015)
In February 2015, the employee in Shrestha argued that the tribunal had failed to consider whether his employer had carried out a reasonable investigation into the defences he raised in disciplinary proceedings against him, in which it was alleged that he had been over-claiming mileage expenses fraudulently. The Court of Appeal clarified that it was the reasonableness of the investigation as a whole that was relevant and that an employer may not need to investigate extensively every element of the employee’s defence in every case, as this would be too narrow an approach. However, employers should still ensure that a reasonable investigation is carried out as the legal test has not changed.
In September 2015, the EAT provided useful guidance on the role of HR in an investigation. In Ramphal, the EAT was critical of a HR department's intervention that appeared to change a manager's conclusions about the level of misconduct and applicable penalty from a final written warning to gross misconduct. HR practitioners should be aware that whereas they are able to advise on process, they must avoid straying into areas of culpability (except to ensure consistency within the business), as those findings are for the investigating officer to make.
Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL and another (ECJ, September 2015)
In September 2015, the Tyco case made legal headlines as the ECJ decided that for workers with no fixed base of work, employers would now have to count time spent on the first and last journey between home and appointments as 'working time'.
The implications for employers with many workers who have no fixed base are potentially significant, and may require employers to review whether each worker is receiving adequate daily and weekly rest entitlements. However, employers may be relieved to know that as travel time is treated differently under the National Minimum Wage Regulations 2015 (depending on the type of work and travel), such additional 'working time' may not necessarily need to be paid for. Nevertheless, employers should check the contractual position in each case, and from an employee relations perspective, this remains a potential area for negotiation.