Case round up

first_imgOur resident experts at Pinsent Curtis Biddle bring you a comprehensiveupdate on all the latest decisions that could affect your organisation, andadvice on what to do about themO’Flynn v Airlinks the Airport Coach Company Limited, EAT Ruling on Human Rights implications of drugs screening * * * * Airlinks introduced a drugs and alcohol policy which included a‘zero tolerance’ policy on drugs. It also introduced random drugs screening of10 per cent of its workforce per year. Miss O’Flynn was screened, testedpositive for cannabis, and was dismissed. The EAT upheld the tribunal’s decision to reject her unfair dismissalcomplaint. Key points Miss O’Flynn claimed her dismissal was unfair because by introducing thedrugs and alcohol policy, carrying out screening and dismissing her for takingcannabis outside of work, Airlinks had infringed her rights under Article 8 ofthe European Convention on Human Rights, incorporated into UK law by the HumanRights Act 1998, which affords everyone the right to a private life. The EAT rejected this argument. The relevant acts took place before 2October 2000, when the HRA came into force, and the Act does not haveretrospective effect. However, the EAT did express tentative views on what the merits of the argumentwould have been had the Act been in force. As Airlinks was not a publicauthority, the Act would not have been directly enforceable against it,although the tribunal would have had to consider it in reaching its decision.Also, the EAT stated the only effects on the employee’s private life were thatshe had to provide a urine sample and that she could not take detectable drugswithout jeopardising her employment. Even if this did constitute a prima facieinfringement of her Article 8 rights, employers can justify interference withprivate life where this is necessary to protect public safety. The EAT indicated if there was a prima facie infringement then the testingsystem, and the employer’s response to an adverse test result, would have to beproportionate to the risks posed by the drug use. An employer should bear inmind the drug taken, the amount taken and the threat to safety this posedhaving regard to the employee’s duties. What you should do – Consider whether health and safety considerations justify alcohol and/ordrugs screening, and whether any screening should be random or targeted. – Set out any screening process in a drugs and alcohol policy. The right tosubject employees to screening should, where possible, be included in contractsof employment, and will normally require employees’ consent. – Clearly state potential consequences of any adverse test result in thepolicy. Ensure any action taken is proportionate to the risk posed by theemployee and the drug levels found. – Watch out for the fourth section of the Information Commissioner’sEmployment Code of Practice, which will deal with the data protectionimplications of drug screening. Coxall v Goodyear Great Britain Limited, Court of Appeal Employers can be under a duty to dismiss employees at risk of injury * * * * Mr Coxall was employed to spray tyres with lubricant paint. Hisemployer had complied with its health and safety obligations in setting up asafe place of work. Nevertheless, the exposure to paint caused Mr Coxall tosuffer with asthma. He brought a claim against his employer alleging it had been negligent inallowing him to continue to work once he had been diagnosed with asthma, eventhough he had insisted. Key pointsThe Court of Appeal held that an employer may be under a duty to stop anemployee doing a job (whether by finding alternative employment or evendismissing him) regardless of the employee’s own wishes, where he is at risk ofinjury if he continues in it. Whether or not that duty arises depends on themagnitude of the risk to the employee’s health. On the facts, Lord Justice Simon Brown found the employer had been negligentin permitting Mr Coxall to continue working (although Mr Coxall’s contributorynegligence in doing so would have been relevant had it been raised). However,Lord Justice Brook held the employer had acted negligently only in failing todiscuss all of the possible options with Mr Coxall. He suggested any duty toprevent an employee from willingly taking a risk would apply only where therewas “a very significant risk of [the employee] being exposed to harm of aconsiderable magnitude”. What you should do – If such circumstances arise, medical advice should be sought. Consultationshould take place with the employee, but the employee’s views will not beconclusive. If the medical advice indicates there is a significant health risk,look at alternative employment. – In cases where the employee’s condition amounts to a disability, rememberthe duty to make reasonable adjustments under the Disability DiscriminationAct. – Consider dismissal only as a last resort and after full consultation withmedical advisers and the employee, as even where the duty applies a dismissalmay still be unfair. Fairchild v Glenhaven Funeral Services Ltd, House of Lords Important personal injury test case * * * * This case dealt with issues of major importance for personal injuryclaimants. The question was whether an employee may recover damages forpersonal injury caused during employment with more than one employer where bothor all employers have breached their duty of care towards him but the employeecannot show at what point his injury was sustained. Key pointsMr Fairchild was suffering with mesothelioma, caused by the inhalation ofasbestos dust. He worked consecutively for two employers, both of whichbreached their duty of care with the result that during his employment withboth parties he inhaled excessive quantities of asbestos dust. However, MrFairchild could not prove, on the balance of probabilities, that his conditionwas a result of his inhaling asbestos dust while with his first or secondemployer or occurred during his employment by both employers taken together. The House of Lords broke new ground by unanimously holding both employersliable for the injury, although the Law Lords were not unanimous in theirreasons for reaching that result. The scope of the principle will be developedincrementally on a case-by-case basis. What you should do – Identify those jobs where employees are at risk of industrial industrythrough cumulative exposure to the job. – Consider carefully whether to adopt the practice growing in the US oftesting recruits for diseases to which people in the job in question aresusceptible. While such tests may assist in demonstrating that responsibilityfor any illness or injury lies with a previous employer, equally if testresults are clear it will be harder to argue you are not responsible for it.The data protection and human rights implications of testing, and the potentialfor disability discrimination complaints from applicants rejected on the basisof adverse results, must also be borne in mind. McNiffe v Redcar and Cleveland Borough Council, EAT Capability dismissal fair despite imminent transfer to less demandingjob * * * Ms McNiffe was dismissed for capability reasons. She complained herdismissal was unfair because, among other things, she had been about totransfer to a less demanding role which she had previously performedadequately, and she had not been expressly warned that she would be dismissedif her performance did not improve. The tribunal rejected her complaint and theEAT rejected her appeal. Key pointsMs McNiffe’s transfer had been deferred to enable her to ensure her reports wereup to date. She had not done so, and had shown no willingness or capability todo so. As a social worker, reporting adequately was a fundamental part of herrole, and it was also a requirement of her new role. She had been told onnumerous occasions her performance was deficient in this area and been given agreat deal of assistance to improve it. In relation to the imminent transfer, the EAT stated the most reliable guideto the employee’s capability was her performance recently, not that in her previousrole over two years ago. The tribunal had concluded the employer had actedreasonably in not taking that past performance into account. On the warning issue, the EAT stated that although only one formal warninghad been given, and no express threat of dismissal had been made, Ms McNiffewas fully aware that reporting was a fundamental part of her role, and that heremployers were very unhappy with the way she was carrying out that task. On this basis, the EAT thought Ms McNiffe was sufficiently intelligent torealise what the consequences of her failure to improve would be. What you should do It would be unwise to rely on this case when dealing with capabilitydismissals. Best practice is to set clear objectives and to give clear writtenwarnings as to the potential consequences of failing to meet them. Blackburn v Gridquest Ltdt/a Select Employment, Court of Appeal Court fails to make general ruling on validity of paying workers arolled-up rate * * * * * This is the latest of an ever-increasing number of decisionsconcerning workers who are paid at a rolled-up rate, which is intended toincorporate an element of holiday pay into regular pay packets. The Court of Appeal’s decision had been eagerly awaited given the apparentconflict between various divisions of the EAT on this issue. For example, inthis case the EAT had directed that the employment tribunal should give creditfor any holiday pay included in the rolled-up rate when calculating what sumsthe workers were owed. But in MPB Structures Ltd v Munro (EAT/1257/01) – seeCase Round-up, July/August – the EAT held such payments were an unlawfulattempt to contract out of a worker’s entitlement under the Working TimeRegulations 1998, and accordingly no credit should be given for them. Key pointsOn the facts of this case, the Court of Appeal held there was no agreementthat payments to workers included an element of holiday pay. The Court made itclear that it was not for employers unilaterally to decide that a proportion ofweekly pay represents holiday pay – without the worker’s agreement on this thesum paid will simply represent contractual remuneration for the week’s work. There was therefore no need for the Court to consider the wider issue ofwhether such an agreement would have been enforceable, and it declined to doso. Regrettably, this leaves employers in a quandary. If the decision in Munrois followed then payment of the agreed rolled-up rate will not discharge theirobligation to pay holiday pay. This means employees who have been paid arolled-up rate could potentially claim arrears of holiday pay going back to 1October 1998, when the Working Time Regulations came into force. What you should do – If you pay at a rolled-up rate, check there is an express term of thecontract specifying what part of that payment represents holiday pay. – Given the continued uncertainty, consider whether there is a practicalalternative to a rolled-up rate. Best practice is to pay workers at the correctweekly rate as and when they take their annual leave. Any other arrangement may not meet your obligations under the Working TimeRegulations. Previous Article Next Article Related posts:No related photos. Comments are closed. Case round upOn 1 Sep 2002 in Personnel Todaylast_img

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