The very nature of healthcare is that it is highly labour intensive and so issues and disputes between employer and employee occur with regularity. With this in mind, the authors discuss three recent cases related to community nurses, who may be employed by social enterprises, voluntary organisations, independent companies, as well as NHS organisations.
Disability discrimination
The first case the authors discuss is United First Partners Research v Carreras, in which the Court of Appeal held that an employer's expectation and ‘long hours culture’ could amount to a provision, criterion or practice (PCP) under disability discrimination legislation. In this situation, an employer must make reasonable adjustments if a PCP risks putting a disabled person at a substantial disadvantage.
Facts of the case
Mr Carreras was an analyst for United First Partners, a special situations investment and advisory Group. He suffered severe injuries in a cycling accident that led to him becoming disabled. After some time off, he agreed with his employer that he would return to work with shorter hours. Over time, he gradually began to work more hours than originally agreed, and his employer did not query this.
He bought a claim in the Employment Tribunal on the basis that his employer's actions in not preventing him from working longer hours amounted to a ‘provision, criterion, or practice’ (PCP) and that his employer should have made reasonable adjustments to prevent this from putting him at a disadvantage. The Employment Appeal Tribunal (EAT) upheld his claim, and the employer appealed. Many legal commentators believed that the EAT's decision was harsh given that Mr Carreras had worked the extra hours on a voluntary basis and his employer had not asked him to do so (although this had not stopped him from working them either).
The Court of Appeal held that the EAT had been correct in its judgment because the behaviour of Mr. Carreras' employer amounted to an expectation or assumption that he would work long hours, even if there was no actual compulsion involved. It took into account the fact that the employer had not asked Mr Carreras how he was getting on or showed concern. The employer also did not remind him that he did not have to work the long hours that he was working. The Court held that if the employer had been proactive and reiterated that he only needed to work the shorter hours, his claim may not have been successful.
Points to take away
Employers should be proactive when dealing with disabled employees who have returned to work on a modified working arrangement. If they are not and the employee begins to work over and above the agreed hours on a regular basis, there is a risk that a PCP will arise, and this could lead to a disability discrimination claim. If the employee seems to feel able to do more because they are consistently choosing to work more hours, then it would be advisable to have a conversation with the employee to discuss the concerns. If the employee says that they are genuinely happy to do more hours and are feeling able to do so, then proper steps can be taken to formalise this arrangement.
Calculating holiday pay
The second case, Brazel v The Harpur Trust, involves calculating holiday pay for part-time employees. This case is helpful for nursing sector employers who engage part-time employees and workers on irregular hours, perhaps as casual or bank staff or on zero-hours contracts. Calculating holiday pay for such staff can be very difficult. The EAT has confirmed that the established practice of paying 12.07% of annualised hours for such staff is not appropriate.
Facts of the case
Mrs Brazel was employed by The Harpur Trust as a part-time music teacher. She worked primarily during term time and under a zero-hours contract. Her contract of employment entitled her to 5.6 weeks annual leave (in line with her statutory entitlement), which she was required to take outside of term time.
The Trust paid her 12.07% of her annualised hours for periods of annual leave in three instalments at the end of each term. Mrs Brazel complained that this was incorrect and that she was being underpaid during her holiday periods.
The Employment Tribunal found that adopting any calculation approach would give Mrs Brazel an unfair windfall because she did not work for the standard 46.4 week working year (i.e. 52 weeks less 5.6 weeks statutory leave). The Trust had relied on guidance from the Advisory, Conciliation and Arbitration Service (Acas, 2019b) that supported the principle of paying 12.07% (5.6 weeks divided by 46.4 weeks) of annual hours for casual employees, and the Employment Tribunal agreed this was the correct approach. It commented that to do otherwise would result in Mrs Brazel receiving around 17.5% annualised hours as holiday pay, which was more than what a comparable full-time employee received.
The EAT disagreed with the Employment Tribunal and found in Mrs Brazel's favour. It found that the correct procedure for someone who has no normal working hours is to apply section 224 of the Employment Rights Act 1996 and work out their normal week's pay based on the pay received in the 12-week period prior to taking annual leave. On the point of this resulting in an unfair windfall that effectively meant that employee might receive more than a comparable full-timer, the EAT recognised that this was the case but, nonetheless, the legislation was unambiguous.
Points to take away
For irregular workers, many employers currently adopt the approach of paying 12.07% annualised hours as holiday or increasing hourly rates by 12.07% to include an element for holiday pay. This case confirms that the correct approach is to work out the average pay in the 12-week period prior to the holiday being taken.
The EAT's decision means that this approach could leave employers open to claims for unlawful deductions from wages covering the previous 2 years, although of course, any holiday pay that has been given will be set off against any claimed amount.
The decision underlines the care that employers need to take when working out holiday pay for part-time workers and others receiving bonus, commission and overtime payments.
What is a resignation?
The final case, East Kent Hospitals University NHS Foundation Trust v Levy, describes a decision of the EAT that a letter giving 1 month's notice should not automatically be interpreted as a letter of resignation.
Facts of the case
Ms Levy had worked in the hospital's records department since 2006. She had become unhappy after experiencing problems with a colleague and having been spoken to by managers about her absence record. In June 2016, she applied for and was offered a new job in the hospital's radiology department. She subsequently submitted a letter to her manager stating: ‘please accept 1 month's notice from the above date’.
Her manager replied the same day saying: ‘Thank you for your letter in which you tendered your notice of resignation. It is with sincere regret and disappointment that I accept your notice of resignation. I can confirm that your last day of work within Health Records will be Friday 8 [July] 2016. I would like to [take] this opportunity in thanking you for your hard work, dedication and contributions to a highly successful team over the years, and I wish you every success with your future employment’.
However, on 16 June 2016, the offer to Ms Levy to work in the radiology department was withdrawn. There was evidence to suggest that this was because of her absence record. Ms Levy tried to retract her notice, but the hospital refused, writing to her to confirm the date of termination as 10 July 2016.
Ms Levy brought a claim of unfair dismissal. The Employment Tribunal held that she had been unfairly dismissed by the Trust. The Trust argued that the words used by Ms Levy in her letter giving notice were unambiguous and that she had clearly resigned. The Tribunal did not agree with this. It held that the letter could have been either a notice of intended transfer to another department within the hospital or a notice of termination. It found that a ‘reasonable observer’ would view the letter as the claimant not terminating her employment but notifying her manager of her intention to accept the offer to transfer to another department.
The Tribunal was influenced by the context of the situation in that Ms Levy had been unaware that her absence record might affect her offer to transfer to the radiology department and that she needed to work to support herself and her family.
The Trust appealed but unsuccessfully. The EAT held: ‘Once it became apparent that the offer of a position in the radiology department had been withdrawn, and the claimant was seeking to withdraw her notice of departure from Records, the respondent's position was that the claimant's employment must come to an end…..Given its findings of fact, however, I do not consider the [Employment Tribunal] erred in finding that this, in context, amounted to a dismissal and not simply the acceptance of a resignation’.
Points to take away
It is not uncommon for an employee to seek to withdraw their resignation, perhaps because their new job offer falls through or they have a change of heart. This decision illustrates the importance of ensuring that resignation letters and any correspondence around a resignation are clearly worded and unambiguous. Where the new role is within the same employing body (as in this case), additional thought may need to be given. Employers should always find out why the employee wishes to resign and make sure that the amount of notice and the effective date of termination are clarified in writing. If in doubt, advice should be sought from human resources or professional advisors.
Acas advice
The government's independent conciliation service, Acas, publishes a number of guides to help employer and employee alike. One that is titled ‘Disability discrimination: key points for the workplace’ (Acas, 2017a) highlights the ways in which disability discrimination can occur in the workplace, how it should be dealt with and how to prevent or reduce the chance of future discrimination.
The guide not only explains what terms such as ‘disability’, ‘impairment’ and ‘reasonable adjustments’ mean in law but also summarises the different types of disability discrimination and where they can happen in the employment landscape. There is further guidance in this area through a suite of publications available via the Acas ‘Equality and discrimination’ webpage (Acas, 2017b).
It is also worth noting that there is no limit on the compensation that can be awarded in a discrimination claim. Where a claim is successful, the respondent can be ordered to pay compensation to the claimant of an amount corresponding to the damages that could have been ordered in the county court for a claim for breach of statutory duty. The aim is to put the claimant into the position in which they would have been but for the unlawful discriminatory conduct. The damages awarded should cover all harm that arises directly from the act or acts of unlawful discrimination. This can include both financial loss and compensation for personal injury, whether physical or psychiatric. Damages can also include compensation for injury to feelings, regardless of whether or not the employee has suffered any direct financial loss as a result of the discrimination.
In terms of giving notice, Acas states that both employee and employer are normally entitled to a minimum period of notice on termination of employment. From an employee's perspective, notice should be included in their written statement. Acas offers an online tool for those with questions in this area on the ‘Terminating employment — notice periods and pay’ webpage (Acas, 2019a).
Lastly, with regard to holiday entitlements and pay, the law in this area has been fast moving, and a number of cases have moved the goalposts; the advice of a lawyer in this area may be helpful. Nevertheless, Acas has information on this, too, on its ‘Holiday entitlement’ webpage (Acas, 2019b) where it has shown how much holiday an individual is entitled too, how it is calculated and when holiday can be taken.