employment case law
the discrimination had taken place. Before the EAT the employer argued that a prima facie case of discrimination was not appropriate as it could not be shown that O was aware of Millar’s absences and therefore this could not have influenced her. Although Millar’s line manager was aware of her condition the person who was in charge of redundancy was not and therefore the claim was unsuccessful.
Governing Body of Limington House School & Anor v Smith An unfair dismissal finding was overturned by the EAT which found that the original tribunal had substituted its own view for that of the employer and had not focused on the test of whether the employer held a reasonable belief in the employee’s conduct. It had instead allowed their findings of fact to influence their decision and this is not their role. The claimant, Smith, at the time of employment was a deputy head of the primary school of Limington House School, a school for children with severe learning disabilities. Smith was employed at the school from September 1996 and dismissed in September 2011. The dismissal was due to two incidents with children which took place on the 10th/11th May 2011. The first incident involved the claimant leaving a child unattended in the playground for approximately three minutes whilst having to deal with other children. Whilst unattended the child soiled himself. During this period the claimant maintained that the child was in her view and therefore not in any danger; however, other evidence suggested that this would not have been possible. It was suggested by the investigation that the child was left in a dangerous situation and could have potentially fled the playground if any gates had been left open. The second incident involved the claimant allegedly forcing a child to eat an apple unpeeled and uncut as a form of punishment as she knew the child disliked eating apples in this way. The claimant stated that the choice of fruit or manner of eating was not an intentional punishment. Following the incidents, Smith was suspended after which a governor’s disciplinary committee hearing took place, followed by a nine page decision letter dated 14 September 2011. An appeal
...CLAIMED THAT SHE HAD NOT BEEN PAID NATIONAL MINIMUM WAGE
hearing took place; however, the decision for dismissal was upheld. Though there was no dispute that the governors who carried out the investigation had an honest belief in her gross misconduct, the investigation was led by the headmistress who apparently had a difficult relationship with the claimant. This relationship concerned the tribunal as it was felt it could have potentially impacted decisions made and influenced the decisions of others. Smith claimed unfair dismissal. The tribunal had found that the school had carried out an investigation due to an honest belief that the claimant had committed gross misconduct. The tribunal decided on their own findings of fact that no misconduct had occurred and there was no circumstance in which any employer could reasonably believe there to have been. The ruling was that Smith had been unfairly and wrongly dismissed. The School appealed. The appeal was allowed by the EAT as the tribunal had not discussed the long decision letter provided in evidence, described by the EAT as a “careful and full job”. They also had not put themselves in the place of the School in order to decide whether they did have reasonable grounds for their beliefs and had replaced the findings of the School with their own.
Whittlestone v BJP Home Support Ltd The EAT has decided, in a far-reaching judgment particularly for the care industry, that a worker must be paid national minimum wage for time they spend sleeping when their mere presence at the workplace means that they are working. Up until now, it had been taken that, during the time that a person is permitted to sleep as part of their job e.g. a sleepover in a care home, only those hours where the person is awake for the purposes of working attract the payment of national minimum wage. The claimant, Whittlestone, was employed by BJP Home Support Ltd to provide care services to clients, so called ‘service users’. She was paid £6.35 per hour under her contract for the time which she spent actually giving care. It was common ground that there were
no fixed hours, but she was required to undertake shifts from 11p.m. to 7a.m. which were termed ‘sleepovers’. This was to provide potential physical care for three young adults who suffered from Downs Syndrome. Whittlestone was provided with a camp bed and bedding which she could use to sleep overnight in the living room of the house occupied by the three young adults. Although she could be called up, there was no evidence that she ever woke from her sleep to provide any specific care. She received £40 per week in respect of these sleepovers, which would be plainly below national minimum wage if calculated on an hourly basis. Whittlestone claimed that she had not been paid national minimum wage because she should have been paid the minimum rate for all sleeping hours. The tribunal dismissed the claim that sleeping hours should attract the payment of minimum wage. It stated that there is a difference between an employee who is merely working by being present at the employer’s premises and an employee who is simply on call. Whittlestone, it decided, was on call during her sleeping time. The EAT reversed the decision. It did not
agree with the reasoning of the original tribunal and decided that a different test should apply. It said the distinction should be drawn between an employee whose mere presence means that they are working and those whose mere presence does not mean that they are working. An example of the latter might be where a person is required to live at or near a particular place but it is not necessary for them to spend designated hours there for the better performance of the contractual duties. Where specific hours are required at a particular place, upon pain of discipline if they are not spent at that place, and the worker is at the disposal of the employer during that period, it will normally constitute ‘time work’. National minimum wage must be paid for each hour of time work. The employer had therefore breached national minimum wage obligations and Whittlestone was entitled to be paid at the minimum rate for all hours spent sleeping.
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