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have the effect of changing a conversation between colleagues to something in the course of employment as this would make possible liability for employers so wide. There was insufficient connection between the assault and the position of the employee so the defendant was not liable for damages. Grange v Abellio London Ltd The Working Time Regulations 1998 entitles workers to an uninterrupted rest break of at least twenty minutes if they are working more than six hours a day. They are entitled to spend this time away from the workstation and this has to be a break from working. A previous employment appeal tribunal (EAT) decision declared that a worker must request their break to give rise to employer liability for refusing a request to exercise the right. Another case on this issue has been heard. The claimant was employed from 2009 as a bus driver before becoming a relief roadside controller from June 2011. This role required him to monitor the arrival and departure times of buses including regulating the frequency of the service. Originally, his working hours were eight and a half hours a day, with half an hour as an unpaid lunch break. Due to the responsiveness required by his role, he found it difficult to take this break. The respondent recognised this and amended his working day, from July 2012, so it was eight hours long with the break being taken after the working day. An email communicated this change and expressed an expectation that the claimant would work eight hours without a break. The claimant submitted a grievance regarding being forced to work without a break and also lodged a claim at the employment tribunal. The employment tribunal followed previous case law and decided that the employer’s expectation of working without a break was not a refusal of a request to take a break. The claimant appealed on the basis of whether there needs to be an express refusal to be denied their entitlement. The EAT found that there were conflicting approaches under previous case law and laid down the approach to take on this issue. The EAT reiterated that the entitlement to a break should be actively respected by employers; they should not only permit rest breaks but
service opened. Disciplinary proceedings were brought against the claimant in August 2013 for using abusive behaviour, failing to follow a reasonable managerial request and breaching editorial guidelines. The allegations were upheld as gross misconduct and a final written warning was imposed in November 2013. Further investigations then took place against the claimant for a number of charges. A disciplinary hearing was held in May 2014 and he was summarily dismissed in August 2014. A number of charges were found against the claimant including: applying pressure on managers to drop disciplinary proceedings; incidents of behaving in a bullying and intimidating matter and creating a ‘culture of fear’ within the service. The letter of dismissal mentioned the live final written warning as being taken in to consideration, though it was not referred to in the concluding paragraph of the dismissal letter. The claimant brought claims for discrimination and unfair dismissal. The employment tribunal judged that the dismissing officer had taken the warning in to account when dismissing for gross misconduct. They went on to find that the warning was manifestly inappropriate because of the delay and only a written warning should have been given in these circumstances. When considering the reasonableness of the decision, they felt the use of the final written warning meant the dismissal was outside the range of reasonable responses as the claimant would not have been dismissed if he was on a written warning. On appeal, the EAT judged the tribunal was correct to decide the sanction should not have been imposed; they were entitled to decide that the misconduct did not amount to gross misconduct. However, they then incorrectly focused on what would have happened if a written warning was given. Instead, the tribunal needed to examine the reasoning of the employer and see whether, in their reason for dismissal, they attached significant weight to the manifestly inappropriate warning or if they treated the warning as a background factor and dismissed for the new alleged misconduct. If the employer attaches significant weight to the inappropriate warning and dismisses because they are subject to this warning, only then will the decision be unreasonable. n
should be taking proactive steps to allow workers to take breaks. The EAT decided that putting in place working arrangements which don’t take in to account a break will refuse the entitlement. If the employer has taken active steps to ensure arrangements allow the worker to take a rest break they will have met their obligations; they cannot force workers to take a rest break but must give them the opportunity to take it. The case was remitted back to the employment tribunal to determine whether there had been a failure to allow the claimant his entitlement to a break during the different stages of his employment. ...tribunal needed to examine the reasoning of the employer... Bandara v British Broadcasting Corporation Tribunals should not revisit previous disciplinary warnings unless there are allegations of bad faith, absence of any grounds for the sanction or something which makes the warning manifestly inappropriate. A decision of the EAT looks at whether a fair dismissal can be built on the back of a manifestly inappropriate warning. The claimant was employed as a producer from 1995. Around five years later he was promoted to senior producer on the Sinhala Service. Up to 2013, the claimant had a clean disciplinary record of nearly eighteen years. On 18 March 2013, the claimant was asked by a senior manager to book training for his team. The claimant refused responsibility for this and there was an argument, during which the claimant shouted at the senior manager. The claimant apologised by email the next day and the matter was reported to human resources but no action taken. On July 2013 the claimant failed to prioritise the story about Prince George’s birth because this date was the thirtieth anniversary of Black July; a tragic date in Sri Lankan history. The claimant’s manager disagreed with this decision because of the international reporting of the birth and the story was published two hours after the
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Issue 27 | February 2017
| Professional in Payroll, Pensions and Reward |
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