Welcome back to our case of the week, Last week we looked at the employment status of taxi driver, a regular issue on this blog. This week we’re asking: “Do employers have to pay their staff when they’re changing clothes?”.

The Claimant, Leslie Butler, had worked for the Respondent, Synergy Health UK Limited, as a technician for around 9 years. Throughout this time the Claimant provided sterilisation and decontamination services for medical equipment. 

 

As you would expect of someone working with biohazardous materials, they were required to wear specialist protective equipment to ensure that they were not contaminating the equipment and that the equipment wasn’t going to cause harm to them. It was usual for the Claimant to clock in at work, change into their PPE, then go about their day. 

 

The same applies for leaving, as the Claimant would cease work a few minutes before close to change and then clock out at 5.

After surviving a dismissal between 2018 and 2019 on appeal, a feat that very few employees manage to do, the Claimant returned to work after a year long absence. On his return the Claimant was informed that there were no changes to his terms and conditions of employment.

The issue arose around whether each employee was required to change in and out of their PPE while clocked in or whether they were required to work their contracted hours and change beforehand. Continuing on as he had before, believing that this arrangement formed part of his contractual terms, the Claimant was disciplined and later dismissed.

The Employment Tribunal held that the change of changing time terms had only occurred during the gap in employment during his appeal.

However, emphasising the lack of compliance with reasonable instructions and the Respondent’s written warnings, the Tribunal held the dismissal was fair. The judge stated: I conclude by the time he was dismissed in February 2018, the Claimant had become accustomed to act in that way at the end of his shift and erroneously but genuinely believed that he was contractually entitled to do so and the Respondent was not allowed to change this without his agreement or giving notice of the change.

An appeal was brought to the EAT on five grounds.

These were:

1.The tribunal erred in finding that there was no unilateral change to implied terms of the Claimants contract

2.The tribunal erred in finding that the management instruction was reasonable 3.The tribunal’s finding that the management instruction given by the Respondent to the Claimant was reasonable was perverse

4.The tribunal’s finding that the disciplinary procedure adopted was perverse

5.The tribunal’s finding that the dismissal was within the range of reasonable responses was perverse.

The first grounds of appeal was dismissed, finding that simply having a custom of changing prior to clocking out did not give the Claimant a legal right for him to do so. Grounds two and three were considered together; that the instruction the Claimant should change in and out of his equipment outside of work hours was a reasonable management request. Finally, grounds 4 and 5, also considered together, was looked on much more favourably, The EAT criticised the procedure the Respondent used and how they had failed to consider the Claimant’s perspective in understanding why he would be acting in the manner that he was.

Giving an employee who had only recently returned to work from a years absence, a final written warning was considered unreasonable, especially considering that this was standard practice for him for almost 8 years prior. The appeal was granted on these grounds.

Takeaway Points

This case is a good example of how poor procedure can turn a reasonable instruction and disciplinary into a loss in front of a tribunal. As always in contentious discussions, understanding the other side’s position is crucial. Had the company’s HR team understood the issues, communicated in a clear way, and gone into their meetings with the Claimant with an open mind this situation could have been avoided.

There is a point in here about unilaterally changing the terms in an employment contract, as well as contractual vs non-contractual policies. Ensuring clear wording and understanding of policies and relevant training is always vital. If you or someone you know needs assistance with the issues raised above, please contact a member of our team who will be able to assist you.

To answer the question I posed to you at the start – do employers have to pay their staff when they’re changing clothes?’ we can that the answer is: no, but make it clear to the people it applies to!