A round up of the latest HR and Employment Law updates and related stories.  

IS TRAVELLING TIME WORKING TIME?

The European working time directive, as incorporated in UK law, lays down the guidelines, including maximum working week and breaks, for employees. As practice managers will be aware, normally employees should work at most a 48 hour week (averaged over 17 weeks) unless they “opt-out”.

A European Court of Justice (ECJ) decision Federación de Servicios Privados del sindicato Comisiones Obreras (CC.OO.) v Tyco Integrated Security SL & Anor Case C-266/14 has clarified that time that travelling time for an employee who has no “fixed place” of work must be taken into account as part of their working time/week.

In this case employers had determined that the employees “working day” started when the employee arrived at their first appointment whereas previously the day had started when they arrived at the local depot to pick up a vehicle to travel to the appointment. In these proceedings the Spanish courts found that such time could not be considered rest time for health and safety purposes but neither was it time “during which the worker is, strictly speaking, at his employer’s disposal so that he can be assigned work other than the travelling itself”. They therefore adjourned proceedings and referred to the ECJ.

The ECJ clearly stated that “the time that peripatetic workers, that is to say workers who are not assigned to a fixed or habitual place of work, spend travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes constitutes ‘working time’, within the meaning of that provision”

This clearly impacts on any practice members who regularly travel to appointments outside the practice, for example to a satellite surgery, and managers must ensure that clear records are retained as to opting out as well as hours worked. Where employees do opt out they should acknowledge that they should not work excessive hours where efficiency may be impaired or people/property (as relevant) are placed at risk.

There may also be some minor impact on the availability of district nurses in areas where the Buurtzorg Nederland model is adopted – see more about this here.

CLEAR REASONS FOR DISMISSING AN EMPLOYEE

In the case of Beaumont v Costco Wholesale UK Limited UKEAT/0080/15/DA, Mr Beaumont been in dispute with a colleague which culminated in an incident outside the workplace and Mr Beaumont was subsequently convicted of criminal assault.

Mr Beaumont had previously mentioned the assault charge (pre-conviction) to his Assistant Warehouse Manager. However when his conviction appeared in the local press Mr Beaumont was suspended and the matter proceeded to a disciplinary hearing. Mr Beaumont provided “evidence” but did not tell Mr McManamon, the person conducting the hearing, that the dispute involved a colleague. Mr McManamon found that the assault:

• itself reflected on Mr Beaumont’s suitability for his employment and/or
• brought the company into disrepute

Mr Beaumont was dismissed.

An Employment Tribunal (ET) found the dismissal to be fair. However, they found it crucial that the assault had involved a colleague, even though this did not form part of Mr McManamon’s decision making process.

The subsequent Employment Appeal Tribunal held that the ET had been wrong to focus on the fact that the assault involved a colleague so Mr Beaumont’s Tribunal will be reheard.

Although the matter hinges on what the Employment Tribunal itself took into account, what is clear for practice managers is that before an employee is dismissed it is wise to always carry out a thorough investigation so that you are clear about all the facts before a decision is made and that these are fully recorded.