Employment Law Digest August – Case Law Update

Redundancy – selection pools and meaningful consultation

In Valimulla v Al-Khair Foundation:

• Mr Valimulla was a liaison officer, based in the North West of England.
• Four other employees performed the same or similar roles in different geographic locations.
• During the Covid pandemic, Mr Valimulla was dismissed as redundant. For the purposes of redundancy selection, Mr Valimulla was placed in a pool of one. There were three consultation meetings with him but no consultation about the appropriateness of the pool.

Mr Valimulla brought a claim for unfair dismissal and an Employment Tribunal (ET) found that his dismissal was fair, accepting the employer’s case that his role was ‘unique.’

Mr Valimulla appealed and contended that the ET had made insufficient findings of fact relevant to the fairness of the employer’s approach to pooling for the purposes of redundancy selection, and, because the ET failed to address a material issue, namely, Mr Valimulla’s complaint that he was not consulted in relation to being placed in a pool on his own.

The appeal was allowed by the Employment Appeal Tribunal:

• The ET appeared to have accepted, at face value, the employer’s case that Mr Valimulla’s role was unique, even though the evidence was that other employees performed the same role, albeit at other geographical locations.
• The ET did not appear to have considered whether the employer had genuinely applied its mind to the question of pooling, nor the reasonableness of the approach taken in this particular case.
• On the question of consultation, the ET did not address this issue. Consultation is a key aspect of a fair redundancy process. Consultation only appeared to have taken place after what was the key decision had been made, namely the identification of the pool of one. What was required was that consultation should be meaningful. To be meaningful it must take place at a time where it can potentially make a difference, and in such a way that responses to a proposal are considered and reflected upon, prior to a decision being made.

What was lacking is consultation about the key issue in this case: consultation about why Mr Valimulla, alone, was placed in a pool of one and selected as being at risk despite the other liaison officers performing similar work at different locations; why he, in Bolton, was selected for redundancy, and others were not.

As a result of the timing of the key decisions, the consultation that did take place, took place after the time Mr Valimulla could make meaningful proposals about him being placed in a pool of one. It took place after the decision had been made for him to be considered alone. Consequently, it is difficult to see how consultation could be meaningful in respect of that important issue.

In view of the lack of any meaningful consultation regarding this key issue in this case, the dismissal was procedurally unfair.

Travel time and National Minimum Wage

In Taylors Service Ltd and Others v HMRC:

• The company engaged workers on zero hours contracts in the poultry industry.
• They provided transport by minibus for workers to and from their home addresses to farms around the country where they provided poultry services.
• Sometimes, the journeys could be very long, up to about 4 hours each way so that the workers could be travelling for up to 8 hours on top of a ‘normal’ working day.
• HMRC decided, in 2020, that the time spent travelling to and from farms was time that should be paid to the workers at the National Minimum Wage (NMW) and issued notices of underpayment.
• The company’s appeal to the Employment Tribunal (ET) was dismissed as the ET held that the time spent travelling was “time work” as defined in the National Minimum Wage Regulations 2015.
• The company appealed to the Employment Appeal Tribunal (EAT).

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The EAT allowed the appeal:

• Time spent ‘just’ travelling is not “time work” unless it is deemed to be such by regulation 34. (In brief, regulation 34 provides that the hours when a worker is travelling for the purposes of time work, where the worker would otherwise be working, are treated as hours of time work (for example, someone employed as a bus driver or someone undertaking business meetings or working on documents while on a train) unless the travelling is between the worker’s home and a place of work.
• As the ET in this case had found that the workers were not working in the ordinary sense when on the minibus, and were not deemed to be engaged in “time work” by virtue of regulation 34, the only conclusion open to the ET on the facts as it found them to be was that the workers were not engaged in “time work”.
• The EAT noted that the decision would have been different if the workers were required to attend the company’s premises first rather than being picked up from their home addresses as in that situation, the subsequent travel would be deemed to be “time work” and NMW payable.

Fixed-term contracts

In Lobo v University College London Hospitals NHS Foundation Trust:

• Ms Lobo was employed as a locum consultant breast surgeon under a series of fixed-term contracts.
• She acquired 4 years’ continuous service on 22 February 2020.
• By 2021, the Trust had decided that it would appoint a “substantive” consultant breast surgeon.
• The Trust chose to follow the National Health Service (Appointment of Consultants) Regulations 1996 for this process, which requires that: a specific and approved job description is drafted; the post is advertised nationally; the interview is conducted by a specifically selected panel; and the interview is conducted in an equitable manner, such that the strongest candidate is appointed.
• Ms Lobo was interviewed for the role but she was unsuccessful.

Under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2022 (the Regulations), employees who have been continuously employed for four years or more on a series of successive fixed-term contracts are automatically deemed to be permanent employees (that is, employed on an indefinite contract) unless the continued use of a fixed-term contract can be objectively justified.

Ms Lobo sought a declaration under the Regulations that she had become a permanent employee of the Trust.

In the circumstances of this case, the Employment Tribunal (ET) considered that the relevant question to determine whether a declaration should be made that Ms Lobo had become a permanent employee, was whether at the time of the most recent renewal of her employment under a fixed-term contract, that decision was justified on objective grounds.

The ET concluded that the renewal of the most recent fixed-term contract was justified on objective grounds.

Ms Lobo’s appeal to the Employment Appeal Tribunal was unsuccessful. The EAT found:

• The ET had correctly concluded that the continued use of a fixed-term contract was justified on objective grounds.
• While it is for the respondent to identify the legitimate aim and to explain the means it adopted to achieve that aim, it is for the ET to assess what circumstances are relevant to the assessment of objective justification.
• The ET had analysed the extent of the differences between the locum and substantive roles and concluded that they were sufficiently different roles that the new role was not a continuation of Ms Lobo’s locum role. The new role required a greater level of management, teaching and liaison with other NHS Trusts than the role Ms Lobo undertook. That was a factual determination the ET was entitled to make.
• The Trust had decided to move away from using fixed-term contracts to appoint a permanent employee, but to a different role to that of Ms Lobo. The decision to appoint to a different permanent role was accepted by the ET to provide the context in which a decision was taken to renew Ms Lobo’s fixed term contract to ensure it continued to meet its legitimate aim, of providing a safe, efficient, and fully functioning breast service in the intervening period while it went through its recruitment selection process. There genuinely was a time-limited requirement that was appropriately filled by extending Ms Lobo’s fixed-term contract.