- Minimum Wage: Is being on-call considered ‘time-work’, and therefore minimum wage applies?
- Contract of Employment: Variation of a discretionary bonus
- Vicarious liability: Employer not liable for Christmas party injury
- Tribunal Procedure: List of issues not pursued by claimant
- Long-term disability: Employee PHI benefits apply to returning to same job
- Unfair Dismissal: Not unfair to dismiss after tribunal and disciplinary
- TUC Survey: Britons work longer than rest of Europe
- HMRC: New guidance published regarding change to IR35 rules
- Mental Health at Work: New CIPD report shows workers increasingly absent from work due to stress
- Tribunals: Modernisation plan from 2019-20 to reform tribunals
- Equality: New GPG figures show gap is actually widening in favour of men
Minimum Wage: Is being on-call considered ‘time-work’, and therefore minimum wage applies?
This was the question before the EAT in Frudd & Frudd v The Partington Group Ltd UKEAT/0240/18/OO. The Claimants, Mr and Mrs Frudd, were a warden/receptionist team who worked at a caravan site. During the open season they worked shifts which finished between 4.30pm and 8pm and were expected to be on-call afterwards on two or three nights a week until 8am the following morning. The Claimants argued that whilst on-call they were working on “time work” and so entitled to be paid the National Minimum Wage. According to the legislation, workers paid according to the number of hours they are at work are classed as doing ‘time work’. For these workers, the average hourly pay has to be at least the National Minimum Wage, worked out over the period each pay packet covers – so for a worker who gets paid once a month, this period will be 1 month. (The sleep-in exception in the Mencap case did not apply because this was not a sleep-in situation.)
Although the Claimants had sought a finding in respect of the whole time on call, the Employment Judge made a distinction. He found that the night period (10pm – 7am) was not time work. The Claimants appealed the rest of the time (from the end of the shift until 10pm). The Employment Judge found that for this period they were working on time work because their responsibilities included showing round prospective customers and welcoming late arrivals. They were therefore entitled to be paid the NMW for that period.
The Claimants were not, however, required to carry out that work after 10pm, unless they were called out for an emergency for which they were paid. After 10pm, they were therefore not working on time work unless called out, and so were merely available for work, and were not entitled to be paid whilst merely on-call.
Contract of Employment: Variation of a discretionary bonus
In Bluestones Medical Recruitment Ltd v Swinnerton UKEAT/0197/18/BA Mr Swinnerton made a claim for unlawful deduction from wages after he was not paid a bonus he claimed was due to him. His contract stated any bonus was discretionary but he claimed that when he had been promoted to General Manager there had been a further agreement. He was to be paid a monthly bonus based on the company’s profits and he would become a shareholder. Bluestones argued that the bonus remained discretionary as once Mr Swinnerton became a shareholding director he was to be paid the money by way of a dividend. This had not yet occurred and so the money was to be advanced by way of Director’s loan, which he was to repay from his dividends. However, Mr Swinnerton was suspended, Bluestones stopped paying his bonuses and he was then dismissed, all prior to him becoming a shareholder.
At first instance the tribunal concluded this was an unlawful deduction of wages. However, the EAT found the tribunal hadn’t adequately identified the legal mechanism through which the contract was changed or what the new contract required. This failure also meant it was not possible to conclude whether the payments should be classified as loans rather than deductions from wages. The EAT therefore remitted the case to a fresh tribunal.
Vicarious liability: Employer not liable for Christmas party injury
In Shelbourne v Cancer Research UK  EWHC 842 (QB), whilst at a work Christmas party, one attendee had attempted to lift another (the Claimant, an employee) on the dance floor but dropped her, causing her a serious back injury. The Claimant took the matter to the County Court, claiming the employer (CRUK) was vicariously liable for the actions of the attendee (Robert Beilik, a visiting scientist)because it was a work event. The person who had organised the event for the employer was Mr Hadfield, and he had carried out a risk assessment to cover all the foreseeable hazards of holding an event at the premises (which included laboratories). Mr Beilik had picked up several women that night, prior to this incident, but had put them down again straight away and no one had reported any concerns about him.
The County Court held that the employer was not negligent and not vicariously liable for the actions of Mr Beilik. The Claimant appealed. The High Court considered the nature of the occasion and agreed with the County Court Recorder. It was not wrong to find that CRUK took reasonable steps in the planning and operation of the party. No duty of care was breached. The claim for negligence was, accordingly, not made out. Furthermore, he was right to find that Mr Beilik’s field of activities was his research work at CRUK and that this field was not sufficiently connected with what happened at the party as to give rise to vicarious liability.
Tribunal Procedure: List of issues not pursued by claimant
In Kouchalieva v London Borough of Tower Hamlets UKEAT/0188/18/JOJ the EAT had to consider whether the tribunal had made an error or not. The Claimant, representing herself, had brought claims against her former employers, the London Borough of Tower Hamlets, of unfair dismissal and disability discrimination. In some cases, the employment tribunal will order that a preliminary hearing takes place before the main employment tribunal hearing, as a way of helping the judge understand the case and make arrangements for the main hearing. These are usually used when the case is complicated or involves discrimination, as it was here. At the Preliminary Hearing a list of issues was agreed between the parties but, at the final hearing, the unrepresented Claimant did not lead any evidence in relation to a number of issues in that list. In the judgment, the tribunal noted that they had not been pursued, and on finding they were now out of time, declined to extend time.
At appeal, the Claimant’s counsel argued that the tribunal erred in law in failing to address the agreed list of issues because the tribunal has as its overriding objective to ensure that the parties were on an equal footing, so far as is practicable. He suggested that if the tribunal realises that an unrepresented Claimant has failed to address a particular issue, the ET should raise the matter with the Claimant and ask them whether they intend to abandon the claim. He also suggested that if the unrepresented Claimant has failed to address a particular issue then the Respondent should also bring the matter to the Claimant’s attention, and to the ET’s if the matter has not been remedied satisfactorily.However, the Respondent argued that the list of issues is a case management tool, not a pleading, and the tribunal was under no duty to raise specifically with a litigant every issue which the litigant has not pursued during the hearing.
The EAT concluded that the tribunal was not under a duty to draw the neglected issues to the Claimant’s attention. It could not treat the issues as having been withdrawn, but it could take the failure to actively pursue the issues into account in exercising its discretion as to whether to extend the time limit. It found the issues the Claimant had not actively pursued to have been out of time.
Long-term disability: Employee PHI benefits apply to returning to same job
In ICTS (UK) Limited v Visram UKEAT/0133/18 Mr Visram worked as an International Security Co-ordinator but went on sick leave with work-related stress and depression. The Claimant became entitled to Long Term Disability Benefit (“LTDB” aka permanent health insurance) under his employment after 26 weeks absence. The term of the insurance booklet stated the LTDB would be paid “…until the earlier date of your return to work, death or retirement”. After being absent from work for nearly two years the Respondent dismissed him with pay in lieu of notice, and continued to pay the LTDB until the situation had been clarified.
The issue at hand was whether construction of the phrase “return to work” meant return to work in the Claimant’s former role with the Respondent or whether it meant any suitable work which the Claimant was able to carry out whether for the Respondent or otherwise. The EAT ruled that the words “return to work” in the policy did not mean return to full-time work with any employer, but specifically the employer that he had worked for prior to going on sick leave and doing the same work. Had he not been dismissed he would have continued to be entitled to receive the benefits since he was unable to return to the same work he had been doing when he became unwell. It also upheld the tribunal’s finding that the dismissal constituted discrimination arising from disability and was unfair. Therefore he was entitled to be compensated for loss of benefits until death or retirement. The claim remitted to the tribunal for determining compensation for loss of long term and associated benefits and the issue of mitigation. (His claim for aggravated damages also remitted for determination.)
Unfair Dismissal: Not unfair to dismiss after tribunal and disciplinary
In Radia v Jeffries International Ltd UKEAT/0123/18/JOJ, a Managing Director of a FCA-regulated financial services company had taken his employer to tribunal over two claims – one for disability discrimination and a later claim of victimisation. The first tribunal found that “in several areas of his evidence the Claimant had not told the truth or had misled the tribunal and had given untrue evidence”, and additionally, they had also noted that “the Claimant’s behaviour as a regulated person would be a matter of grave concern”. Furthermore they found the employer’s witnesses credible but did not think the same of the Claimant. On receiving the judgment, the employer suspended him on full pay pending a disciplinary, but without holding an investigation. The Claimant did not appeal this judgment.At the disciplinary meeting, the Claimant disputed the tribunal’s findings against him but did not deal with the allegations themselves. For all these reasons, combined with his behaviour being “not compatible with his being a fit and proper person for the purposes of the FCA rules”, the Respondent dismissed the Claimant.
The second tribunal found in favour of the employer – it had acted reasonably in treating the findings of the first tribunal as a starting point without further investigation at that stage and then seeking the Claimant’s representations about those findings.
The Claimant issued his third claim to the tribunal complaining that his suspension, dismissal, and the Respondent’s refusal to hold the hearing of his appeal against his dismissal amounted to whistleblowing detriment, victimisation and unfair dismissal. The tribunal found in favour of the employer, that the dismissal had been fair.
On appeal, the EAT held that there was no error of law in the tribunal finding the dismissal fair – for dismissing him without holding an investigation meeting. The question was whether the decision was within the range of reasonable responses. The two stages of investigation and disciplinary meetings are not required by statute or even the ACAS Code, and therefore the tribunal was entitled to reach this conclusion in this case. However, the employer not offering him an appeal did make the dismissal unfair – the tribunal had not made sufficient findings to justify its decision that having no appeal would have made no difference.
TUC Survey: Britons work longer than rest of Europe
The TUC has recently published results of a survey they have conducted into working hours in 2018. The interesting results are that the British work an average of 42 hours a week (which equates to two and half weeks a year), and this is almost two hours longer than the European average (40.2) and five hours more than the Danes, who racked up a mere 37.7 hours a week.
Britain’s “long-hours culture” is not having a positive impact on productivity. In similar economies to ours, workers are much more productive for each hour they work.” And that “the long hours worked by Britons are depriving them of a fulfilled personal life,says the TUC.
Can this be true? With the Danes dominating the World Happiness Report rankings year after year, perhaps this is food for thought?
HMRC: New guidance published regarding change to IR35 rules
IR35 is the name given to tax legislation that is aimed at identifying individuals who supply services to clients via their own company and who are avoiding paying the full amount of tax that they should be. The rules have been changing for a while, with the most recent changes concerning those working in the public sector, but new rules regarding off-payroll working in the private sector are due to come into effect on 6 April 2020.
HMRC has published new guidance, which contains four key steps, to assist organisations in dealing with this as it will be responsibility of the organisations receiving the individual’s services to decide whether the amended off-payroll working rules apply or not.
Tribunals: Modernisation plan from 2019-20 to reform tribunals
In January 2019, Sir Ernest Ryder, Senior President of the Tribunals, published a report entitled ‘The Modernisation of Tribunals 2018’ setting out his proposed strategy for the reform of the whole tribunal system, including the immigration and employment tribunals. Following on from that, he has now published his Innovation Plan for 2019-2020, which sets out various aims and objectives to reform the employment tribunals. It includes the introduction of digital case management, recording of hearings and digital evidence presentation and the ability to use live video evidence.
Mental Health at Work: New CIPD report shows workers increasingly absent from work due to stress
The CIPD and Simplyhealth recently published the results of their nineteenth annual survey which shows that nearly two-fifths of UK businesses (37%) have seen an increase in stress-related absence over the last year. The survey is designed to explore the trends and practices in health, well-being and absence management in UK workplaces. The survey was completed in November 2018 by more than 1,000 professionals, covering 3.2 million employees across the UK. According to the report, heavy workloads and poor management style are to blame.
Overall, the findings reflect employers’ growing recognition of their critical role in improving the health of the workforce. But the survey highlights some cause for concern, including an increase in stress-related absence and a lack of support for managers, who are increasingly expected to take responsibility for their team’s well-beingreports the CIPD.
CIPD are trying to bring this to the attention of employers so that they invest in more training and development for managers. To this end they have published some top tips to support managers to minimise stress in their teams and also have a useful management development factsheet for developing people management skills.
Equality: New GPG figures show gap is actually widening in favour of men
The deadline for large private sector organisations to publish their gender pay gap figures recently passed and it seems that producing this information is, so far, not having the desired effect. Nearly ten and a half thousand companies filed their data on time, but a worrying 45% of these show an increase in the gap between the pay of men and women in the last year.
The way the figures are reported is important to understand – the median pay gap and mean pay gap are ways of expressing two different data sets. The median pay gap is the difference in pay between the middle-ranking woman and the middle-ranking man whereas the mean pay gap is the difference between a company’s total wage spend-per-woman and its total spend-per-man. Whilst gender pay gap (GPG) is not the same as unequal pay (which is illegal) this is certainly a matter of inequality. There are other matters which influence the GPG such as having fewer women in senior or highly paid roles, more women in part-time jobs or lower paid roles, fewer women generally in certain industries (particularly where STEM subjects are necessary).
Some of the biggest offenders where the women’s median hourly wage was lower than the men’s were Easyjet (47.9 %) and Independent Vetcare (48.3%), whilst Kwik Fit, Interserve FS and car retailer Inchape showed the biggest increases in their pay gaps. Overall, the figures tells us that the median GPG has reduced marginally by 0.1% to 9.6% in favour of men. There is clearly plenty more to be done. Frances O’Grady, General Secretary of the TUC, said that employers are not making significant changes to tackle the disparity that exists. Indeed, there is concern about the attitude of employers who may be treating the government’s requirement to publish gender pay gap figures as an exercise in compliance, or even as a marketing strategy. There has been a suggestion that employers should publish action plans meaning they will have to explain their figures and examine and target where the inequalities exist in order to make meaningful change.
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