RMT Legal Update

April 12, 2019

Circular No: NP/067/19

 

Our Ref: LEG/04/19

 

8th April 2019

 

To: Branches, Regional Councils & Regional Offices

 

Dear Colleague

 

SPRING LEGAL UPDATE

 

1. Hargreaves v Governing Body of Manchester Grammar School

In cases of misconduct, employers have to have reasonable grounds for believing that their employee was guilty of misconduct and have to carry out a reasonable investigation. The Employment Appeal Tribunal (EAT) held that it was not unfair for the school to withhold witness statements from the claimant and the disciplinary panel which dismissed him.

 

Mr Hargreaves, a teacher with over ten years’ experience and a clean disciplinary record, was alleged to have grabbed a pupil, shoved him up against a wall and put two forefingers against his throat.

 

As part of its investigation, the school interviewed a number of witnesses three of whom had been present at the time of the incident, but who said that they had seen nothing untoward. Although there were other potential witnesses, the school decided not to formally interview them in order to prevent speculation and gossip. The information from the three witnesses were not disclosed to Mr Hargreaves or the disciplinary panel at the disciplinary hearing.

 

Following the hearing, he was dismissed. His appeal against the decision was unsuccessful.

 

Rejecting Mr Hargreaves’ argument that the investigation had been biased against him, the tribunal held that the decision taken by the school about who should be interviewed and who should not had fallen within the band of reasonable responses. It also found that it was within the reasonable range of responses for the school to decide not to inform Mr Hargreaves or the panel about interviews with people who said they had seen nothing.

According to the tribunal it did not follow that nothing had happened just because those individuals had seen nothing. The tribunal therefore concluded that, as the school had carried out a reasonable investigation, the dismissal was fair.

 

Mr Hargreaves appealed, arguing that given the career-changing impact of the allegations, the school’s investigation was inadequate. In particular, he argued that the tribunal was wrong about the school’s failure to disclose specific evidence from potential witnesses who all said they had seen nothing.

 

Dismissing the appeal, the EAT held that the tribunal had not lost sight of the potentially career-changing nature of the allegations against Mr Hargreaves and, in determining that the investigation met the requirements of the band of reasonable responses test, the tribunal had reached a permissible conclusion.

 

The EAT agreed with the tribunal’s finding that the three witnesses were unable to assist – although they had been present at the time of the incident, they had not seen anything untoward. The EAT noted that the area where the incident took place was crowded and that witnesses had spoken of over 100 pupils pushing and shoving their way through. The EAT also commented that this was not a case in which the claimant was unaware of the evidence in question, it was clear that he knew that the three individuals had been present in the area but he had not asked for statements to be obtained from them.

 

The facts of this case were unusual and it should not be regarded as establishing any general principle. It remains the case that any decision by an employer to withhold relevant evidence is likely to make a dismissal unfair. In this particular case, both the tribunal and the EAT were satisfied that the evidence of the three witnesses was not relevant. The case underlines the importance, for those representing members facing disciplinary hearings, of considering with the member whether or not there are any other witnesses the employer should interview and, if so, formally requesting that statements are taken from those witnesses.

 

2. British Airways v Pinaud

 

The law says that part-time workers cannot be treated less favorably than full-timers. The Court of Appeal held that it was clearly less favorable treatment for an employer to require a part-timer to work more than half of the hours of a full-timer but only pay them half of the salary.

 

Ms Pinaud started working full time for BA in 1985. On her return from maternity leave in 2005 she went part time until she took voluntary redundancy in 2015. On the same date she submitted a written grievance complaining that she had been discriminated against as a part-time worker, because although she was paid exactly 50 per cent of a full-time salary, she was required to be available to work 53.5 per cent of the time.

 

After her grievance was rejected, she brought a tribunal complaint arguing that she had been treated less favourably contrary to regulation 5(1)(a) of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. BA argued that as both full-time and part-time crew members had to “bid” for work such that actual hours worked could fluctuate, the annual basic salary of both part timers and full timers did not vary with the number of duty hours.

 

The tribunal found that as Ms Pinaud had to be available for 53.5 per cent of the days on which her comparator had to be available but was only paid 50 per cent of her salary, she had been treated less favourably. Although it agreed that BA had a legitimate aim, it held the less favourable treatment was not a necessary or appropriate means to achieve it. In other words, it could not justify the difference in treatment as all it had to do to remove the anomaly was to pay an annual salary of 53.5 per cent of the full-time salary.

 

BA appealed, arguing that the tribunal was wrong to ignore its statistical evidence showing that in practice Ms. Pinaud and her comparator worked more or less the same number of hours. The EAT agreed that the tribunal was correct that Ms. Pinaud had been subject to less favorable treatment but remitted the issue of justification to a newly constituted tribunal. BA appealed the finding of less favorable treatment.

 

Rejecting the appeal, the Court held that requiring Ms Pinaud to be available for 130 days rather than 121.5 days for a full-time worker clearly constituted less favorable treatment of a part timer.

 

The case now goes back to the tribunal again to hear BA’s justification defense. If that is rejected, then the tribunal will have to consider the issue of compensation. The Court of Appeal has already said, however, that it would “be a very surprising conclusion” if the tribunal then went on to award compensation of 3.5 per cent of her total remuneration over the ten-year period if it turns out that she actually worked fewer pro rata days than her comparator.

 

3. Immigration Matters

 

Increasingly, members have been contacting our helpline about their status as EU Nationals as a consequence of Brexit. Issues of Immigration can be complex which is why we refer members to specialist lawyers HOWE & Co.

 

They have advised us of the following:

 

  • EU Nationals and dependant family members residing and exercising treaty rights in the UK for over 5 years are eligible for Permanent Residence on being able to provide evidence of employment/self-employment/student with health insurance/self-sufficient – cost of application £65 per applicant.
  • EU National and dependant family members with Permanent Residence for over 1yr can apply to Naturalise as a British Citizen – cost of application is £1330 per applicant.
  • EU Nationals and dependant family members residing and exercising treaty rights in the UK for under 5 yrs are eligible for a Residence Card on being able to provide evidence of employment/self-employment/student with health insurance/self-sufficient – cost of application is £65 per applicant.

 

AFTER 30 March 2019

 

A new scheme has been introduced by government whereby an EU National and their dependant family members can apply online for Settled Status (if they have been residing for over 5yrs in the UK – no fee is applicable following a Ministerial U-Turn after 30 March 2019.

 

The fundamental difference between Settled Status and Permanent Residence is that the evidence required for Settled Status relies on utility bills supporting a residency test rather than employment documents proving treaty rights being engaged for Permanent Residence.

 

Members will need to act on the above points in order to allay employers’ concerns that they are legally entitled to work in the UK.

 

The same is true of members who are in the UK on Leave To Remain visas (i.e. within the British Immigration Rules) as the Home Office have now moved the majority of applications online and fees for extensions of Leave to Remain continue to rise (a typical extension application costs £2033 per applicant).

 

Our lawyers have seen evidence of Employers becoming more nervous of employing workers who have expiry dates on their visas and thus the need to ensure that appropriate and timely immigration applications are being made by members.

 

RMT representatives or Regional Office staff and Officers and Branch Secretaries are not able to advise on immigration matters, this includes for example assisting in the filling in of application forms, as it is a criminal offence to provide such advice unless the advisor is registered as an accredited person able to provide immigration advice. Negligent advice would leave an advisor open to both criminal and civil liabilities. Therefore the giving of any immigration advice by non-accredited advisors is not permitted.

 

Should any member have any questions regarding their Immigration status whether EN or Non EU National they are advised to seek advice from a professional. The RMT work with Howe and Co who are a specialist law firm specialising in Immigration Issues. Whilst Immigration advice falls outside the Unions Discretionary Legal Assistance Scheme, eligible members are free to contact the Howe helpline number on 020 8840 4688

 

Please bring these matters to the attention of members and activists

 

Yours sincerely

Mick Cash
General Secretary

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