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claim of direct discrimination on the grounds of a perceived disability succeeded. Crawford v Network Rail Infrastructure Ltd The Working Time Regulations 1998 (‘the Regulations’) state adult workers are entitled to an uninterrupted minimum rest break of twenty minutes if their daily working time is more than six hours. Workers in railway transport roles who carry out activities concerning the continuity and regularity of train timetables are exempt from this entitlement, although they are entitled to an equivalent period of compensatory rest under the Regulations. The EAT has examined whether employers can satisfy a worker’s entitlement to a rest break by totalling shorter breaks taken throughout a shift. An employee worked as a relief cover signalman for signal boxes in the south east. The majority of these signal boxes were single-manned and the employee was required to continuously monitor trains during eight-hour shifts. In addition to monitoring duties, the employee was on-call throughout the shift to carry out any additional activities as required. There were times when the employee was not very busy which allowed him to take a number of short breaks away from his workstation; over an eight-hour shift these short breaks would total more than twenty minutes. During day shifts, however, the employee was unable to take a continuous twenty-minute break. Within the organisation’s internal policies, there was a document for signalling and crossing keeper employees concerning rest breaks. The document said employees would have opportunities for “naturally occurring breaks” at single-manned locations. It also stated that twenty-minute rest breaks could be made up of shorter breaks over a period of three to four hours with this including at least one longer break to allow workers to meet their personal needs and take refreshments. The employee brought an internal grievance regarding the employer’s failure to allow him to exercise his entitlement to a continuous twenty-minute rest break under the Regulations. The grievance was dismissed and a subsequent appeal was unsuccessful. The employee brought a tribunal claim for his entitlement to a rest break or compensatory rest under the Regulations. The tribunal dismissed the claim. They
employee three-months’ net salary as a financial settlement to leave the business on agreed terms, rather than commence the disciplinary process. The employee sent an email on 3 March 2016 which indicated his acceptance of the financial settlement subject to contract and stated “today will be the last day at bjss”. The employee did not attend work again but a settlement agreement was not signed because the employee attempted to negotiate a higher financial settlement. Letters were exchanged between the parties, including a letter sent on 15 March by the business which stated the employee had offered his resignation and his employment had ended immediately, by agreement, on 3 March. The employee later brought a claim for unfair and wrongful dismissal, arguing the dismissal date was the 15 March 2016. The employer contended that his employment had been terminated by mutual agreement on 3 March. The tribunal dismissed the employee’s claim, finding he had resigned and not been dismissed by his employer. When considering the admissibility of the employee’s email as evidence of the method of termination of employment, the tribunal judged section 111A did not apply to the email because this only applies to negotiations which occur before the termination of employment. In this case, all negotiations had concluded and ceased once the employee had accepted the offer, therefore, the inadmissibility provisions did not apply to the email. The employee appealed this decision. The EAT highlighted that, as protection under section 111A applies to evidence of pre-termination negotiations, the date on which the contract is terminated is important to determine whether the protection applies or not. Where there is a dispute about the termination date, as in this case, a tribunal will be unable to say whether evidence is admissible or inadmissible until the dispute has concluded. Therefore, the EAT explained that when the effective date of termination is disputed, a tribunal should examine all evidence relevant to the dispute, including any evidence regarding termination negotiations, as a preliminary issue. Once this has been resolved, and the effective date of termination has been determined, the tribunal will go on to consider the question of fairness and should exclude pre-termination negotiation evidence from this point. n
found the employee was exempt from the entitlement to a minimum rest break and the employer had met its obligation to provide compensatory rest by encouraging, and allowing, the employee to take rest breaks throughout his shifts. The employee appealed this decision. ...effective date of termination is in dispute between the parties The EAT determined the employer’s policy of aggregating shorter breaks to total twenty minutes was inconsistent with the Regulations. Following previous decisions, the EAT explained that compensatory rest for on-call workers must be a break from work lasting a minimum of twenty minutes for this to be deemed an equivalent period. As the overall length of the break has to total a continuous period of twenty minutes to meet the worker’s rights under the Regulations, employers are unable to aggregate shorter breaks to meet their obligations. The EAT allowed the appeal. Basra v BJSS Ltd Under section 111A of the Employment Rights Act 1996, pre-termination negotiations between employers and employees which seek to agree terms to terminate employment are inadmissible in tribunal proceedings relating to complaints of unfair dismissal. The EAT has examined whether inadmissibility of pre-termination negotiations applies when the effective date of termination is in dispute between the parties. September 2013. Throughout the early years of his employment he was highly regarded as an employee; however, complaints and comments from clients led to performance concerns in early 2016. A meeting was held with the employee in February 2016 where he suggested resigning. The employer told him he was under no pressure to resign from the company but they could discuss this step if he wished to do so. An invite letter to a disciplinary hearing to discuss the concerns was received by the employee on 1 March 2016. A second letter, marked ‘without prejudice subject to contract’, was also sent to the employee on the same date. This letter offered the The employee began working as a technical architect for the business in
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Issue 38 | March 2018
| Professional in Payroll, Pensions and Reward |
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