Case round up

Our resident experts at Pinsent Curtis Biddle bring you a comprehensive
update on all the latest decisions that could affect your organisation, and
advice on what to do about them

O’Flynn v Airlinks the Airport Coach Company Limited, EAT
Ruling on Human Rights implications of drugs screening

* * * * Airlinks introduced a drugs and alcohol policy which included a
‘zero tolerance’ policy on drugs. It also introduced random drugs screening of
10 per cent of its workforce per year. Miss O’Flynn was screened, tested
positive for cannabis, and was dismissed.

The EAT upheld the tribunal’s decision to reject her unfair dismissal

Key points

Miss O’Flynn claimed her dismissal was unfair because by introducing the
drugs and alcohol policy, carrying out screening and dismissing her for taking
cannabis outside of work, Airlinks had infringed her rights under Article 8 of
the European Convention on Human Rights, incorporated into UK law by the Human
Rights Act 1998, which affords everyone the right to a private life.

The EAT rejected this argument. The relevant acts took place before 2
October 2000, when the HRA came into force, and the Act does not have
retrospective effect.

However, the EAT did express tentative views on what the merits of the argument
would have been had the Act been in force. As Airlinks was not a public
authority, the Act would not have been directly enforceable against it,
although the tribunal would have had to consider it in reaching its decision.
Also, the EAT stated the only effects on the employee’s private life were that
she had to provide a urine sample and that she could not take detectable drugs
without jeopardising her employment. Even if this did constitute a prima facie
infringement of her Article 8 rights, employers can justify interference with
private life where this is necessary to protect public safety.

The EAT indicated if there was a prima facie infringement then the testing
system, and the employer’s response to an adverse test result, would have to be
proportionate to the risks posed by the drug use. An employer should bear in
mind the drug taken, the amount taken and the threat to safety this posed
having regard to the employee’s duties.

What you should do

– Consider whether health and safety considerations justify alcohol and/or
drugs screening, and whether any screening should be random or targeted.

– Set out any screening process in a drugs and alcohol policy. The right to
subject employees to screening should, where possible, be included in contracts
of employment, and will normally require employees’ consent.

– Clearly state potential consequences of any adverse test result in the
policy. Ensure any action taken is proportionate to the risk posed by the
employee and the drug levels found.

– Watch out for the fourth section of the Information Commissioner’s
Employment Code of Practice, which will deal with the data protection
implications of drug screening.

Coxall v Goodyear Great Britain Limited, Court of Appeal
Employers can be under a duty to dismiss employees at risk of injury

* * * * Mr Coxall was employed to spray tyres with lubricant paint. His
employer had complied with its health and safety obligations in setting up a
safe place of work. Nevertheless, the exposure to paint caused Mr Coxall to
suffer with asthma.

He brought a claim against his employer alleging it had been negligent in
allowing him to continue to work once he had been diagnosed with asthma, even
though he had insisted.

Key points

The Court of Appeal held that an employer may be under a duty to stop an
employee doing a job (whether by finding alternative employment or even
dismissing him) regardless of the employee’s own wishes, where he is at risk of
injury if he continues in it. Whether or not that duty arises depends on the
magnitude of the risk to the employee’s health.

On the facts, Lord Justice Simon Brown found the employer had been negligent
in permitting Mr Coxall to continue working (although Mr Coxall’s contributory
negligence in doing so would have been relevant had it been raised). However,
Lord Justice Brook held the employer had acted negligently only in failing to
discuss all of the possible options with Mr Coxall. He suggested any duty to
prevent an employee from willingly taking a risk would apply only where there
was "a very significant risk of [the employee] being exposed to harm of a
considerable magnitude".

What you should do

– If such circumstances arise, medical advice should be sought. Consultation
should take place with the employee, but the employee’s views will not be
conclusive. If the medical advice indicates there is a significant health risk,
look at alternative employment.

– In cases where the employee’s condition amounts to a disability, remember
the duty to make reasonable adjustments under the Disability Discrimination

– Consider dismissal only as a last resort and after full consultation with
medical advisers and the employee, as even where the duty applies a dismissal
may still be unfair.

Fairchild v Glenhaven Funeral Services Ltd, House of Lords
Important personal injury test case

* * * * This case dealt with issues of major importance for personal injury
claimants. The question was whether an employee may recover damages for
personal injury caused during employment with more than one employer where both
or all employers have breached their duty of care towards him but the employee
cannot show at what point his injury was sustained.

Key points

Mr Fairchild was suffering with mesothelioma, caused by the inhalation of
asbestos dust. He worked consecutively for two employers, both of which
breached their duty of care with the result that during his employment with
both parties he inhaled excessive quantities of asbestos dust. However, Mr
Fairchild could not prove, on the balance of probabilities, that his condition
was a result of his inhaling asbestos dust while with his first or second
employer or occurred during his employment by both employers taken together.

The House of Lords broke new ground by unanimously holding both employers
liable for the injury, although the Law Lords were not unanimous in their
reasons for reaching that result. The scope of the principle will be developed
incrementally on a case-by-case basis.

What you should do

– Identify those jobs where employees are at risk of industrial industry
through cumulative exposure to the job.

– Consider carefully whether to adopt the practice growing in the US of
testing recruits for diseases to which people in the job in question are
susceptible. While such tests may assist in demonstrating that responsibility
for any illness or injury lies with a previous employer, equally if test
results are clear it will be harder to argue you are not responsible for it.
The data protection and human rights implications of testing, and the potential
for disability discrimination complaints from applicants rejected on the basis
of adverse results, must also be borne in mind.

McNiffe v Redcar and Cleveland Borough Council, EAT
Capability dismissal fair despite imminent transfer to less demanding

* * * Ms McNiffe was dismissed for capability reasons. She complained her
dismissal was unfair because, among other things, she had been about to
transfer to a less demanding role which she had previously performed
adequately, and she had not been expressly warned that she would be dismissed
if her performance did not improve. The tribunal rejected her complaint and the
EAT rejected her appeal.

Key points

Ms McNiffe’s transfer had been deferred to enable her to ensure her reports were
up to date. She had not done so, and had shown no willingness or capability to
do so. As a social worker, reporting adequately was a fundamental part of her
role, and it was also a requirement of her new role. She had been told on
numerous occasions her performance was deficient in this area and been given a
great deal of assistance to improve it.

In relation to the imminent transfer, the EAT stated the most reliable guide
to the employee’s capability was her performance recently, not that in her previous
role over two years ago. The tribunal had concluded the employer had acted
reasonably in not taking that past performance into account.

On the warning issue, the EAT stated that although only one formal warning
had been given, and no express threat of dismissal had been made, Ms McNiffe
was fully aware that reporting was a fundamental part of her role, and that her
employers were very unhappy with the way she was carrying out that task.

On this basis, the EAT thought Ms McNiffe was sufficiently intelligent to
realise what the consequences of her failure to improve would be.

What you should do

It would be unwise to rely on this case when dealing with capability
dismissals. Best practice is to set clear objectives and to give clear written
warnings as to the potential consequences of failing to meet them.

Blackburn v Gridquest Ltdt/a Select Employment, Court of Appeal
Court fails to make general ruling on validity of paying workers a
rolled-up rate

* * * * * This is the latest of an ever-increasing number of decisions
concerning workers who are paid at a rolled-up rate, which is intended to
incorporate an element of holiday pay into regular pay packets.

The Court of Appeal’s decision had been eagerly awaited given the apparent
conflict between various divisions of the EAT on this issue. For example, in
this case the EAT had directed that the employment tribunal should give credit
for any holiday pay included in the rolled-up rate when calculating what sums
the workers were owed. But in MPB Structures Ltd v Munro (EAT/1257/01) – see
Case Round-up, July/August – the EAT held such payments were an unlawful
attempt to contract out of a worker’s entitlement under the Working Time
Regulations 1998, and accordingly no credit should be given for them.

Key points

On the facts of this case, the Court of Appeal held there was no agreement
that payments to workers included an element of holiday pay. The Court made it
clear that it was not for employers unilaterally to decide that a proportion of
weekly pay represents holiday pay – without the worker’s agreement on this the
sum paid will simply represent contractual remuneration for the week’s work.

There was therefore no need for the Court to consider the wider issue of
whether such an agreement would have been enforceable, and it declined to do

Regrettably, this leaves employers in a quandary. If the decision in Munro
is followed then payment of the agreed rolled-up rate will not discharge their
obligation to pay holiday pay. This means employees who have been paid a
rolled-up rate could potentially claim arrears of holiday pay going back to 1
October 1998, when the Working Time Regulations came into force.

What you should do

– If you pay at a rolled-up rate, check there is an express term of the
contract specifying what part of that payment represents holiday pay.

– Given the continued uncertainty, consider whether there is a practical
alternative to a rolled-up rate. Best practice is to pay workers at the correct
weekly rate as and when they take their annual leave.

Any other arrangement may not meet your obligations under the Working Time

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