Unfortunately, summer is officially over here in Northern Ireland. Temperatures are dropping, kids are back to school and the post-holiday blues are starting to kick in. If you have been in and out of the office this month, don’t panic, as we have plenty of useful articles and case law summaries on the Northern Ireland Employment Law Hub to keep you apprised of all the employment law and HR developments which have taken place over the summer months.

In case you missed it… here is a quick recap of some of the topics that featured in August 2018, including:

• Chris Fullerton of Arthur Cox provides answers to some of your questions on grievances, references, workplace temperatures and redundancy;
• Kevin McVeigh, Partner and Head of the Corporate and Commercial Department in EDG Solicitors, considers the CJEU case of Gardenia Vernaza Ayovi v Consorci Sanitari de Terrassa  Case C-96/17 flagging the dangers of using fixed-term contracts;
• Rob Tubman, Solicitor in the Employment & Incentives team at A&L Goodbody in Belfast, provides a quick, high-level talk on what bullying and harassment constitutes, what to look for as an employer and how you can go about dealing with it;
• Jack Balmer, Associate in Tughans Solicitors in Belfast, considers a problem scenario in our How Do I Handle It? feature in light of the recent Irish Labour Court decision of Kepak Convenience Foods Unlimited Company v Grainne O’Hara, an interesting case involving employees emailing outside of offices hours that is sure to have profound ramifications in that jurisdiction; and
• on a similar note, Ruth McAdam of Think People Consulting provides a comprehensive overview for employers on the pitfalls of the Working Time Directive.

First Tuesday Q&A: Grievances; References; Workplace Temperatures; and Redundancy

In this month’s First Tuesday Q&A Chris Fullerton of Arthur Cox provides answers on grievances, references, workplace temperatures and redundancy:

• What if an employee who has submitted a grievance then submits a tribunal claim before the grievance has been dealt with?
• Are we obliged to provide a reference for an employee and do we need consent under GDPR?
• Is there a maximum workplace temperature beyond which employees should work?
• Can we interview external candidates during a redundancy consultation process?

Commercial Law for Employers: Non- Discrimination of Fixed Term Workers

In this month’s ‘Commercial Law for Employers’ article, Kevin McVeigh, Partner and Head of the Corporate and Commercial Department in EDG Solicitors, considers the CJEU case of Gardenia Vernaza Ayovi v Consorci Sanitari de Terrassa  Case C-96/17.

The claimant, a nurse, worked under a fixed-term temporary replacement contract. She went on leave of absence for personal reasons only to return to a different role based on part-time hours. Kevin outlines the background facts of this case and concludes the article by summarising some of the key lessons from it, stressing employers should exercise caution when using fixed term contracts, particularly when treating workers differently on the basis of their permanent and temporary status.

How to Deal with a Bullying and Harassment Claim

As part of our video series in partnership with A&L Goodbody, Rob Tubman, Solicitor in the Employment & Incentives team, provides a brief summary on bullying and harassment in the workplace.

Rob offers a quick, high-level talk on what bullying and harassment constitutes, what to look for as an employer and how you can go about dealing with it. He explains employers can be held vicariously liable for the harassment of an employee by a third party and why it is important to have a separate bullying and harassment policy in place.

This step by step guide is certainly worth a watch if you are faced with a bullying and harassment claim or if bullying is an issue in your workplace.

Emailing Outside of Office Hours: How Do I Handle It?

In this month’s How Do I Handle It? article Jack Balmer, Associate in Tughans Solicitors in Belfast, considers the problem scenario below relating to employees emailing outside of working hours, in light of the recent Irish Labour Court decision of Kepak Convenience Foods Unlimited Company v Grainne O’Hara, WTC/18/18:

I am the HR Manager at a large organisation. All our senior employees are issued mobile phones for work use. One senior employee has complained about regularly having to answer emails outside of his contracted hours in the office and that it’s becoming part of his job – how do I handle it?

Jack refers to the applicable legislation in NI, outlines the important considerations employers should take into account when addressing a complaint of this nature, and considers how regular out-of-hours work can impact on an employee’s working time, health and remuneration.

The Pitfalls of the Working Time Directive

More and more issues are being raised by employees regarding the working time regulations and it can be a minefield for employers to navigate and ensure they are compliant in this area. This article, by Ruth McAdam of Think People Consulting, provides an overview for employers and answers to frequently asked questions on the the Working Time Directive.

Case Law Reviews

We had a number of interesting case law reviews this month…

In the R (AR) v Chief Constable of Greater Manchester Police & Anor [2018] UKSC 47 case the appellant sought to challenge the inclusion of certain information contained in an Enhanced Criminal Record Certificate before the UK Supreme Court arguing it violated his Article 8 right to privacy and adversely affected his employability.

Delivering judgment Lord Carnwath held “the information about the charge and acquittal was in no way secret. It was a matter of public record, and might have come to a potential employer’s knowledge from other sources.”

In the Mr A Haydar v Pennine Acute NHS Trust [2018] EWCA Civ 1435 case, the key question was whether a tribunal ought to refuse an extension of time to appeal if the 'Notice of Appeal' has been lost in the post and the appellant has not promptly followed it up… the outcome of which, in England and Wales at least, is now clearly yes. In our detailed case note John Taggart BL explains, however, that the position in NI is different as the Explanatory Notes contain no equivalent obligation on the potential appellant to contact the OITFET to ensure the appeal has been received.

The Office Equipment Systems Ltd v Hughes [2018] EWCA Civ 1842 case, in the Court of Appeal decision, the judge held that only in exceptional circumstances could exclusion of the respondent from an oral tribunal hearing be justified, and that it should be rarer still for a tribunal to refuse to allow the respondent to make written representations on remedy.

Mr M S Doy v Clays Ltd [2018] UKEAT/0034/18/DA concerned disciplinary dismissal and disparity of treatment amongst employees. It highlights how employers must be objective and consider how previous incidents were dealt with at the disciplinary stage.

In the case X v. Y Ltd [2018] UKEAT 0261_17_0908, the EAT ruled an email between a lawyer and a lawyer assigned to the respondent company detailing how to allegedly commit unlawful victimisation by using a redundancy programme to cloak dismissal of the claimant was a ‘strong prima facie case of iniquity’, resulting in the exclusion of legal advice privilege.

In ordinary circumstances, a lawyer’s communication to a client would attract legal advice privilege and would not be admissible as evidence in legal proceedings, yet this case demonstrates that such protection is not absolute.

In the case of Geraldine Ann O’Hanlon v Leann Nicholson, t/a Sheer Glamour [2018] NIIT 7382/17 the respondent had unilaterally varied the claimant's contract by inserting a shortage of work clause, resulting in constructive dismissal.

The case highlights that unilaterally imposing short-term working on employees is risky and employers are better off being up-front with employees. A lot of redundancy policies will outline the employer’s responsibility to consider short-time working first as an alternative to redundancies and this may assist in securing the consent of affected employees.

The claimants were dismissed for gross misconduct for the unauthorised use of a company vehicle in the Mr M Genus and Mr M Kelly v Fortem Solutions Limited [2018] ET Case No: 1304270/2017  case. The tribunal had to determine whether the respondent had carried out as much investigation as was reasonable in the circumstances.

The case highlights the significance of the long-standing Burchell test and the need to conduct a thorough investigation before arriving at a decision.

Talon Engineering Ltd v Smith [2018] UKEAT/0236/17/BA  case shows how an employer followed the rules on postponement of disciplinary hearings but still fell foul of unfair dismissal laws.

The case Brown & Anor v Neon Management Services Ltd & Anor [2018] EWHC 2137 (QB) was an interesting constructive dismissal case, upholding the principle established in Western Excavating v Sharp [1978] QB 761 that in the face of a repudiatory breach of contract the employee must not leave it too long before resigning, otherwise he will be taken to have affirmed the contractual change.

News Stories of the Month…

A postal worker in India has been suspended after he was found to not have delivered thousands of letters for more than 10 years. The stash of old letters and packages were discovered by chance when a group of school children played in the recently abandoned post office after the branch had moved to a new location. It is thought there are some 6,000 letters and packages with the oldest dating back as far as 2004. Read the full article on the BBC website. 

A worker in Australia has been paid more than 100 times their normal salary because of a decimal point in the wrong place. The mistake was reported by the territory's auditor-general who put it down to human error. But the worker, based in a remote area of the Northern Territory, resisted temptation and returned the money. Read the full article on the BBC website. 

A former BrewDog employee who was sacked because he was going blind has won £12,000 in compensation. BrewDog, recently valued at £1.8bn, suspended warehouse worker James Ross after he reported his eyesight was deteriorating. The 47-year-old was later dismissed, despite experts saying he could continue to work if adjustments were made to his job. It was held BrewDog unlawfully discriminated against Mr Ross and treated him unfavourably because of his blindness. Read the full article on the STV website.