This week’s case round-up by Eversheds 020 7919 4500
Don’t want to talk about it?
X v Y, EAT,765/02, [11 June 2003]
The extent to which a person’s private life spills over into their working
life has always been a difficult issue for employers.
X, whose identity was protected, worked for a charitable organisation
assisting young offenders. Outside of work he was arrested for an offence of
gross indecency, but did not disclose the incident or his subsequent caution to
his employer. When his employer found out about the incident, X was suspended
and then dismissed from work altogether for gross misconduct.
His employer claimed X was in breach of his duty of trust and confidence by
failing to disclose the incident, and that his conduct had fundamentally
damaged the employment relationship and might bring the employer into serious
disrepute.
X’s claim for unfair dismissal and for breach of his right to respect for
his private and family life under Article 8 Human Rights Act 1998 was dismissed
by the EAT, as was his appeal.
The employment appeal tribunal considered the inter-relationship between unfair
dismissal law and the effect of the Human Rights Act. It held that Article 8
would only apply to incidents that could properly be described as ‘private’,
whereas this offence had taken place in public.
It also found that the employer’s decision to dismiss X was reasonable in
all the circumstances, given the nature of X’s job and the fact that he had not
disclosed the incident. In this case, his conduct in his private life could not
be ignored in the workplace.
Reasonable time off for public duties
C Riley-Williams v Argos Ltd, EAT, 29 [May 2003]
Ms Riley-Williams, employed by Argos, was appointed as a magistrate. In that
capacity, she was required to sit for 13 days each year.
Section 50 Employment Rights Act (ERA) 1996 provides a statutory right to
time off work for the performance of public duties.
Having asked Argos about taking unpaid time off work, however,
Riley-Williams was told she could take five days’ unpaid leave. The remaining
eight days of her duties would have to be taken out of her annual holiday
entitlement. She resigned, claiming constructive unfair dismissal and breach of
statutory rights.
The tribunal held that Argos had allowed Riley-Williams a reasonable amount
of time off working during work hours for the performance of her duties as a
magistrate. Accordingly, it held that she had not been constructively dismissed
by reason of asserting a statutory right to time off (section 50 ERA 1996).
Riley-Williams successfully appealed.
The EAT found that by looking at whether Ms Riley-Williams was in fact
prevented from taking time off work, the tribunal had asked itself the wrong
question.
It had failed to have proper regard for Section 50(4) ERA 1996, which sets
out relevant considerations such as what a particular office or role might
reasonably require, and the needs of the employer’s business. What was a
reasonable amount of time off work for public duties should be assessed
objectively with reference to these factors.
