HR Matters, July

Precautionary suspension

Following a recent High Court decision on an interlocutory application for an injunction, employers may wish to review the drafting of disciplinary clauses in their contracts of employment to see whether they give employees the right to remain in situ pending appeal against an adverse disciplinary decision. The plaintiff employee in Regina Wallace v Irish Aviation Authority [2012] IEHC 178 appealed a decision to dismiss her. When the employer proposed to place her on administrative leave with full pay pending the outcome of her appeal, she sought an interlocutory injunction restraining her employer from doing so. The employment agreement provided in relation to appeals that:

"Disciplinary action will not be taken pending the outcome of the appeal... The outcome of the appeal will be notified to the employee in writing and if it is decided to take disciplinary action it will be implemented at this stage [emphasis supplied]."

The key question for the High Court was whether placing the plaintiff on administrative leave amounted to "disciplinary action". The Court regarded the distinction in caselaw between suspension as disciplinary as opposed to precautionary as of "much lesser relevance" in the case before it in view of the terms in the employee's contract of employment that no disciplinary action would be taken pending the outcome of the appeal:

"The entire tenor of these words – reinforced by the context in which they appear – is that an employee has a contractual entitlement to remain in position pending the outcome of any appeal against a disciplinary decision."

Having regard to the "very special circumstances" the employee was granted an interlocutory injunction restraining the employer from placing her on administrative leave pending the outcome of her appeal.

Collective redundancies: when obligation to consult arises

The Advocate General has issued an Opinion in the important EU case of United States of America v Nolan Case C-583/10 which concerns when the employer's obligation to consult arises in the event of collective redundancies under the EU Collective Redundancies Directive 98/59/EC. Ms Nolan was one of around 200 civilians employed at a US army base in the UK. In March 2006, the US decided to close the base by the end of September 2006. On 24 April 2006, the employees were informed of the closure and, in June, their representatives were told that all employees were at risk of redundancy. Collective consultation on the redundancies began on 5 June 2006. On 30 June 2006, the US gave the employees notices of dismissal, to take effect at the end of September 2006. Ms Nolan, who represented the employees during the collective consultation, brought a claim on behalf of those employees alleging that the US had failed to comply with its collective consultation obligations by not consulting on the decision to close the base or consulting prior to 5 June 2006.

The Advocate General's opinion on the UK Court of Appeal's reference was that the EU Collective Redundancies Directive must be interpreted as meaning that the obligation on an employer to consult on collective redundancies is triggered "when a strategic or commercial decision that compels it to contemplate or plan for collective redundancies is made by a body or entity that controls the employer". It was for the Court of Appeal to identify which of the events prior to 5 June 2006 amounted to a strategic decision that exerted compelling force on the US for the purpose of giving effect to the consultation obligation, and the date on which that decision was made. It remains now to be seen whether the Court of Justice of the EU will endorse this Opinion.

TUPE: change of work location

A change of work location following a TUPE transfer can give rise to constructive dismissal. In Abellio London Ltd (Formerly Travel London Ltd) v Musse and others; Centrewest London Buses Ltd v Musse and Others UKEAT 0283/11 and 063/11 the claimant employees worked as bus drivers for Centrewest London Buses Ltd (the transferor), mostly on a bus route operated by the transferor under a contract with Transport for London (TfL). The employees were based at the transferor's garage in West London. On 21 November 2009, the TfL contract to run this route was transferred to Abellio London Ltd (the transferee). The transfer meant that the transferee would run the bus route from its garage in South-West London and thus the employees' place of work would change. The employees asserted that the change in work location was not acceptable to them and estimated that this change would extend their working day by up to an additional two hours. They claimed, amongst other things, unfair dismissal against both the transferor and transferee.

The UK EAT found that the Employment Tribunal's conclusion that an extension of the working day of around two hours, taking both travel to and from work into account, was material, and was not a conclusion the Tribunal was "disentitled to reach". The UK EAT...