Hamilton -v- Fyfe Council
In Hamilton -v- Fyfe Council, the EAT looked at the effect of a clause in a Collective Agreement with the recognised trade union that was designed to ensure that the Employer did not go out and recruit new staff where there were already ‘surplus’ staff looking for work in the organisation.
Ms Hamilton was a teacher who was designated surplus to requirements.
The School advertised a role in her department externally, notwithstanding a provision in the Collective Agreement negotiated between the School and her Union that specifically required that permanent posts ought not to be advertised where existing surplus teachers were ready, willing and able to take over such roles.
The Claimant resigned and claimed constructive unfair dismissal.
In the Employment Tribunal, the Claimant failed. She appealed to the EAT and lost again.
The EAT looked at the decided cases in this area. It is now well established that not every provision in a Collective Agreement will be enforceable between Employee and Employer as if it were expressly included in the Employee’s contract. Only terms that are ‘apt’ for incorporation will be enforceable in this way.
The EAT said that the Agreement in relation to advertisement of roles was ‘truly collective in nature and did not give rise to enforceable individual rights on the part of the Employee’.
The EAT contrasted this sort of term to collectively agreed terms regulating ‘matters such as pay, holiday entitlement and hours of work’.
In our experience, cases relating to the incorporation of collectively agreed terms are often difficult. Whilst it is often possible to show that a collective term about pay can be enforced by an employee, more “aspirational” terms – what EAT refer to here as “truly collective” terms – might be meaningless in practice. And Unions generally cannot enforce compliance either, since collective agreements tend not to be legally enforceable as between Union and employer.
Rodgers -v- Leeds Laser Cutting Limited
In Rodgers -v- Leeds Laser Cutting Limited an Employment Tribunal considered a case where the Claimant refused to return to the workplace until after lockdown because of worries about his vulnerable children.
Mr Rodgers was dismissed but, not having 2 years’ continuous service, he was not entitled to bring an ordinary claim for unfair dismissal.
Not for the first time since the pandemic began, an Employee was forced to look at the protections offered by Section 100 of the Employment Rights Act 1996, which creates a right for Employees to absent themselves from work in circumstances of ‘serious and imminent danger’.
Mr Rodgers’ claim failed. As with most of these cases, the Tribunal’s findings were very much fact-specific, but among them were: (a) that the Claimant had failed on another occasion to self-isolate despite his apparent concerns; (b) that he did not communicate his concerns about workplace danger when he contacted work; (c) that the Employer had implemented anti-covid measures; and (d) that the Claimant had failed to take steps to avoid such danger as he perceived.
The Tribunal was not going to create a rule where any Employee was free to leave a workplace simply by asserting that they were in danger by virtue of the pandemic.
There are now a number of these cases progressing through the Tribunals and we have heard reports of various outcomes in first instance Tribunals. Unsurprisingly, the Tribunals are taking a less than sympathetic view with Employees who are either flouting pandemic-related health and safety requirements or failing (as in this case) to work collaboratively with those Employers who are taking sensible measures to combat Covid 19.
Equally, more than one Employer has been guilty of acting hastily (recklessly, indeed) where Employees have sensibly and lawfully caused themselves to be absent from the workplace. All these cases turn on their own facts.
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