July 08, 2019

U.K. Employment Law Update: Recording Hours Worked, Vento Bands and Disability Discrimination

Must Employers Record All Hours Worked?

In Federacion de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE (Case C-55/18), the European Court of Justice (ECJ) considered whether the EU’s Working Time Directive (WTD) requires employers of EU-based employees to record the actual number of daily hours worked by its employees.

A Spanish trade union sought a declaration in the ECJ that Deutsche Bank was under an obligation to implement a system to record its employees’ actual daily working time. Deutsche Bank argued that its practice only to measure absence days, e.g. holidays, without measuring the exact number of hours worked, was compliant with WTD.

The ECJ however held that, absent a system that records the exact number of daily hours worked, it is almost impossible to determine objectively and reliably whether an employee’s daily working and rest hours comply with the limits set out in the WTD. In turn, absent such objective and reliable records, it would be excessively difficult, if not impossible, for workers to ensure that their rights under the WTD were being complied with.

Currently in the U.K., the WTD is implemented by the Working Time Regulations 1998 (WTR), which requires employers to keep adequate records of average working hours to demonstrate compliance with the WTD’s working time limits; it does not require actual hours worked to be recorded. The ECJ’s decision suggests that the WTR does not satisfactorily implement the WTD.

Given the current uncertainties around Brexit, it remains to be seen whether the U.K. government will address this discrepancy. In the meantime, employers should note that it will be difficult to defend a claim under the WTR if they cannot provide objective and reliable records of all hours worked.

Application of the Vento Bands in Discrimination Claims

In Base Childrenswear v Otshudi UKEAT/0267/18/JOJ, the Employment Appeal Tribunal (EAT) considered the correct injury to feelings award where the discrimination was a one-off act.

Awards for injury to feelings are determined in line with the so-called Vento bands. The lower band (between £900 and £8,800) is reserved for less serious cases, typically where there is an isolated incident of discrimination, and the top band (between £26,300 and £44,000) applies in the most serious cases involving, for example, a lengthy campaign of discrimination. The middle band (between £8,800 and £26,300) is typically reserved for cases which are serious but not serious enough to fall within the top band.

Miss Otshudi had worked as a photographer for Base Childrenswear Ltd (Base Ltd) for just three months before being dismissed by reason of redundancy (although Base Ltd changed the reason to misconduct later in the proceedings). Ms Otshudi brought an appeal and a grievance in connection with her dismissal, both of which were ignored by Base Ltd. The Employment Tribunal (ET) upheld Miss Otshudi’s claim that her dismissal was a discriminatory act and awarded £16,000 for injury to feelings, i.e. within the middle band. Base Ltd appealed, arguing that the award should have been in the lower Vento band as the act of discrimination had been a one-off.

The EAT ruled that whether the discrimination was a one-off event was a relevant factor, but not determinative of the appropriate Vento band. This was a fact sensitive issue and the ET had correctly focused on the key question, namely what was the effect of the discriminatory act on the claimant? On the facts, the EAT found that it had been permissible for the EAT to conclude that the effect of the discrimination on Ms Otshudi had been serious enough to justify an award in the middle Vento band.

This case serves as a useful reminder that employers should provide sound business justifications for dismissals, and address all appeals and grievances, even where the employees do not have sufficient service to bring unfair dismissal claims.

Disability Discrimination Where the Disability Was Unknown to the Employer

In Baldeh v Churches Housing Association of Dudley and District Ltd [2019] UKEAT/0290/18, the Employment Appeal Tribunal (EAT) considered whether a dismissal could be discriminatory on the grounds of disability where the disability was unknown to the employer at the time of the dismissal.

Mrs Baldeh worked for a housing association and was dismissed for reasons of performance and conduct at the end of her six months’ probationary period. Mrs Baldeh raised an appeal against her dismissal, during which she informed the housing association that she suffered from depression which sometimes impacted her behaviour and short-term memory. The housing association rejected Mrs Baldeh’s appeal and she brought a claim of disability discrimination.

At first instance, the Employment Tribunal (ET) accepted that Mrs Baldeh’s depression amounted to a disability but found that the housing association had no knowledge of the disability at the time the decision to dismiss was made. The EAT overturned this decision: it held that the outcome of an appeal process was “integral to the overall decision to dismiss” and the ET had failed to consider what the housing association knew of Mrs Baldeh’s disability at the time the appeal was rejected. The case was remitted to a freshly constituted ET to consider this issue.

This decision highlights the importance of employers fully investigating and addressing any claim that an employee is disabled, at any stage of their employment or its termination, including during their appeal against dismissal.

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