Legal Update Winter 2016

Circular No: NCP/290/16
Our Ref: LA/12/16
15th December 2016

To: Branches, Regional Councils & Regional Offices

Dear colleague,


1.    Changes in notifying Branches and NEC of Members Legal Cases – Legal Privilege

We have an in-house legal team of qualified solicitors. They advise in all cases as to whether or not a case has reasonable prospects of success. Depending upon their advice we either support or decline a case. Please note that due to updates on legal privilege the procedure for disclosure of these advices will be as follows:

1.    Members will still receive a full advice and a covering letter from me either declining representation or accepting the case. A copy of the covering letter only will be sent to the Branch. The advice will not be sent. The member will be advised in the normal way that the Branch has to right to appeal my decision and that should they wish to discuss this with the Branch then they should attend the Branch and show them the Advice. However it must be stressed that if the advice is disclosed at the Branch it could lose the legal privilege protection.

2.    Regional Officers will continue to receive copies of the advices on the basis that they do not disclose this to anyone else; disclosure is necessary to them since they represent the member at ACAS and need to know the legal aspects of the case in order to conciliate on members behalf.  They must not disclose the advice unless directed to do so by the member. Again the member must be advised that he/she could lose the protection of legal privilege.

3.    In the case of appeals, the NEC need to see the full advice in order to make an informed decision. The full write up for the appeal is legally privileged and the document will be marked as such. The write up is for the NEC only and cannot be distributed outside the NEC. The write up will not appear in the minutes of the meetings, and only the title will be reported, so that Branches will know that it has been discussed on the agenda; and only the decision will be reported and recorded in the minutes.

 I’d be grateful if you could bring the following information to the attention of your members.

2.    Discrimination – Rostering demands put woman at a particular disadvantage.
This case concerned a female train driver in Newcastle, a single parent with three children who had recently split with her husband and requested flexible working arrangements. The employers rarely granted applications for flexible working preferring to make “accommodations” which usually involved a temporary variation of contract. Only 17 out of a total 559 train drivers in the Company were women and at Newcastle where the claimant was based there were 4 women drivers out of a total of 21 train drivers. The claimant had had “accommodations” offered to her which she has continued to work under to this day but one of her requests was refused on the grounds of additional costs, inability to meet customer needs and inability to reorganise work requirements. The claimant was informed that her colleagues had stated that they would not work anymore contractual Saturdays or Sundays to accommodate her request. She pursued a claim of indirect sex discrimination against her employer. Indirect discrimination takes place when a “provision criterion or practice” (PCP) is applied that puts someone at a particular disadvantage because of their sex and cannot be justified as a proportionate means of achieving a legitimate aim. The Tribunal held that the Company had applied a PCP, which was the requirement to work over 50% of rosters and also on Saturdays. The tribunal decided that this caused a particular disadvantage to women as their caring commitments would mean that they were less likely to be able to comply with the PCP. The tribunal adopted the view that women tend to have to adopt more caring responsibilities for children than men. It concluded that the claimant had been placed at a particular disadvantage by the PCP as she was a single mum with 3 children of pre-school age. Even with employed childcare she had been unable to fulfil the PCP without additional help from her mother. The Company appealed the decision. The EAT found that the tribunal had been correct to hold that the PCP requirement for drivers to work 50% of rosters and also work Saturdays did put women at a particular disadvantage. They also found that the Tribunal had adopted the correct approach by looking at the numbers of female and male drivers for whom it was possible to comply with the PCP and the claimant had suffered a disadvantage. However they found that the Tribunal had made an error in not taking into account the Company’s legitimate aims, such as carrying out their contractual obligations to provide a train service and the requirements of the rest of the workforce, while weighing this against the effect of implementing the PCP. The case was sent back to a tribunal to look into the question of justification.  (XC Trains Ltd v CD & Ors UKEAT/0031/15/LA)

3.    Company not vicariously liable for a Christmas party fight
In Bellman v Northampton Recruitment Ltd, the High Court has held that a company was not vicariously liable for the assault by one of its directors on an employee following a company Christmas party. Although the assault was provoked by a heated discussion about a work matter, and occurred in the presence of employees in a hotel bar to which they had gone after the party, the High Court was satisfied that a line could be drawn between the work party and the ‘impromptu drinks’, such that the latter did not occur in the course of the employment.

4.    Refusal to tailor shifts to facilitate breastfeeding was discriminatory
In McFarlane & anor v Easy Jet Airline Company the Bristol ET held that 2 female cabin crew members suffered indirect sex discrimination when their airline refused to accommodate their requests for a bespoke roster while breast feeding because this did not fit with its busy flight schedule. The normal roster which included shifts of more than 8 hours posed a health and safety risk to crew members because it significantly increased the likelihood of mastitis, a painful condition that can only occur if breastfeeding women go for prolonged periods without expressing milk. The refusal could not be objectively justified because there was no convincing evidence that creating bespoke rosters for 2 employees would cause the employer excessive difficulties.

Employers have a duty under the Management of Health and Safety at Work Regs 1999 SI 1999/3242 to carry out a workplace risk assessment in relation to breastfeeding employees and may be required to change some aspects of her working conditions or hours of work; offer her suitable alternative employment or as a last resort to suspend on pay – ss67 & 68 Employment Rights Act 1996. In addition a new mother who wishes to continue breastfeeding upon her return to work might seek to rely on the protection in the Equalities Act 2010. If the employee seeks flexible working arrangements in order to accommodate her breastfeeding commitments and her request is refused this may give rise to a claim of indirect sex discrimination under s19 EqA.
In this case the airline failed to carry out a risk assessment which was fatal for the employers in this case, which provides a useful example of how not to deal with expectant and new mothers in the workplace. (Bristol ET 4.10.16 Case number 141496/15)

5.    Failure to make provision for rest breaks can amount to a “refusal” to permit them

In Grange v Abellio London the EAT held that an employer's failure to make provision for rest breaks can amount to a ‘refusal' to permit them, even in the absence of an express request by the worker. In the EAT's view, it was clear from the ECJ's decision in Commission of the European Communities v United Kingdom  that the entitlement to rest breaks under the Working Time Directive was intended to be actively respected by employers for the protection of workers' health and safety. In light of the language and purpose of the Directive, and applying a common sense construction to Reg 30(1), the EAT considered that the approach in the Truslove case was to be preferred to that in the Miles case. Thus, employers have an obligation to afford rest breaks, and that entitlement will be ‘refused' if they put into place working arrangements that fail to allow such breaks. If, on the other hand, employers have taken active steps to ensure working arrangements that enable workers to take rest breaks, they will have met their obligation: workers cannot be forced to take rest breaks but they are to be positively enabled to do so. (EAT 0130/16)

Yours sincerely
Mick Cash
General Secretary