Employment Law Newsletter – December 2019

Cases:

  • Sex discrimination: Direct discrimination not to pay a ‘London Allowance’ to police officer on maternity leave
  • Worker status: A substitution clause in a service contract may not automatically preclude ‘worker’ status
  • Unfair dismissal: Was it caused by hidden reason (whistle-blowing) or invented reason (capability)?
  • Unfair Dismissal: Automatically unfair if hidden reason is trade union activities
  • TUPE: Protection could extend to workers, not just employees

Other news:

  • ICO: Find out if you need to pay the data protection fee
  • ONS: Pay gap for disabled workers is 12.2%
  • Modern Slavery: 75% of global hotel companies in UK failing to meet minimum requirements

Cases:

Sex discrimination: Direct discrimination not to pay a ‘London Allowance’ to police officer on maternity leave

In City of London Police v Geldart UKEAT/0032/19/RN the EAT found in favour of a female claimant who was entitled to a ‘London Allowance’ payable to serving police officers in both the City of London and Metropolitan Police forces (pursuant to Part 6 of the Police Regulations 2003). This is a non-pensionable payment which is distinct from salary and ‘London Weighting’. The Police force had stopped paying her London Allowance when her maternity pay ceased during maternity leave.

Both the tribunal and the EAT found that there was nothing in the Police Regulations which meant the London Allowance should stop being payable during maternity leave, and cited the example that the allowance was also payable when an officer was suspended from duty. It was distinguished from certain allowances to cover expenses incurred when performing duties which were capable of being stopped. Failing to pay the London Allowance during maternity leave was therefore an act of direct sex discrimination contrary to section 39(2) of the Equality Act 2010.

In this matter, the claimant did not have to show that the Police force would have treated a male officer more favourably (i.e. used a comparator) because she was treated unfavourably on the ground of her pregnancy or maternity. As a result, she was the victim of sex discrimination and does not need to, and indeed cannot, prove that a man would have been treated differently (as set out in Webb v EMO Air Cargo (UK) Ltd [1994] ICR 770).

Worker status: A substitution clause in a service contract may not automatically preclude ‘worker’ status

In Stuart Delivery Ltd v Augustine UKEAT/0219/18/BA Mr Augustine was a delivery courier working for  Stuart Delivery in fixed hours ‘slots’ (typically around 3 hours). During the slot Mr Augustine was under the control of Stuart Delivery, he was not able to leave the zone he had agreed to operate in and was required to undertake the deliveries offered to him in return for a guaranteed hourly wage. He could not hold himself out as available to other delivery companies during the period of a slot. Mr Augustine could release a slot he had signed up to back into the pool of approved couriers via Stuart Delivery’s Staffomatic app.

The tribunal, and the EAT, found that the use of the Staffomatic app to release a slot, and therefore extricate himself from work, was not of the character of a substitution clause which would deny him ‘worker’ status. The EAT held that the tribunal had correctly found that Mr Augustine would only be released from the obligation of performing the slot himself if another courier signed up for it. Therefore, he had no control over whether, or who, picked up the slot he had released. This did not amount to a ‘right’ of substitution, or a provision that was inconsistent with limb (b) worker status (as set out in s.230(3)(b) ERA1996).

Unfair dismissal: Was it caused by hidden reason (whistle-blowing) or invented reason (capability)?

The case of Royal Mail Group v Jhuti [2019] UKSC 55 has been progressing for some time (we reported the decision of the EAT in July 2016, and the Court of Appeal in October 2017) and it has now been considered by the Supreme Court.

The facts are that having made a protected disclosure (whistleblowing) to her line manager, Ms Jhuti was dismissed due to capability (he had retaliated by scrutinizing her performance) following deliberate misleading of the investigating manager by the same line manager because of the disclosure. Ms Jhuti claimed unfair dismissal, which was rejected by the tribunal but on appeal, the EAT found in favour of the claimant on the basis that just because the HR department was ignorant of the full facts (the investigating manager didn’t know about the whistleblowing, so couldn’t have been motivated by it), the original line manager who had had the full facts had manipulated the decision by engineering the dismissal with the whistleblowing in mind. Given his position, that responsibility fell on the employer, and therefore she had been unfairly dismissed, even though the person with actual decision-making responsibility had been unaware of it.

The Court of Appeal reversed this decision but the Supreme Court agreed with the EAT, stating that “if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.

Unfair Dismissal: Automatically unfair if hidden reason is trade union activities

In Cadent Gas Limited v Singh [2019] UKEAT 0024_19_0810 Mr Singh was a gas engineer with 29 years’ service and an unblemished record. He was also a health and safety representative and trade union shop steward. He was required to respond to priority gas leaks without delay. One day, he was called out to a gas leak at 1.13am. He accepted the job despite having not slept or eaten much all day. Without informing dispatch he stopped for some food on the way to the call out, arriving at the premises 1 minute outside the hour stipulated in the service level agreement.

Mr Singh had previously had problems with Mr Huckerby, a senior manager, in relation to his trade union activities. Mr Huckerby noted that Mr Singh had been late, then played a leading role in the investigation, although this was not the norm, and told others that he wanted to keep the trade union activities “on the radar”. He also gave incorrect information to HR and to the dismissing officer in the course of the investigation. The disciplinary hearing was conducted by another manager, who had not had any prior involvement. He decided to dismiss Mr Singh for gross misconduct. Mr Singh claimed unfair dismissal on the ground of his trade union activities contrary to s.152 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The Tribunal upheld his claim, concluding that the managers who conducted the disciplinary hearing and appeal were not motivated by prejudice against Mr Singh for his trade union activities, although Mr Huckerby was. The employer appealed but the EAT dismissed the appeal, holding that the investigation was inadequate and the dismissal automatically unfair. On the basis that even though the other managers were not motivated by prejudice, it did not preclude a finding that trade union activities played a part in their reasoning, following the decision in Royal Mail Group v Jhuti (see previous case review above) whereby the motivation and knowledge of someone who is not a decision-maker may be attributed to the employer if (as here) that person is engaged in and had manipulated the investigatory process.

TUPE: Protection could extend to workers, not just employees

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), the definition of employee is given as “an individual who works for another person whether under a contract of service or apprenticeship or otherwise”. In the case of Dewhurst v Revisecatch Ltd t/a Ecourier [2019] UKET 2201909/2018, Judge Joffe has interpreted the ‘or otherwise’ part to include workers, citing the Acquired Rights Directive which states that TUPE should be interpreted liberally.

Workers affected by a TUPE transfer have the right to be informed about and consulted on it, under the regulations, and failure to do so can result in compensation of up to 13 weeks’ pay per person. Transferor employers have to include details of the workers on the Employee Liability Information. Currently, only traditional employees benefit from the provisions on automatic unfair dismissal as a consequence of a TUPE transfer. However, whilst this is first instance case, and therefore not currently binding, it is likely to be appealed and could therefore impact future decisions if this interpretation is upheld. Employers are therefore warned to be alert to this case and if involved in a TUPE transfer may consider  including any workers in order to minimise risk or may wish to seek additional indemnities from other parties to a transaction to deal with this potential risk.

Other News:

ICO: Find out if you need to pay the data protection fee

The Information Commissioner has recently announced that it is contacting all UK registered companies reminding them of their legal responsibility to pay a data protection fee. Organisations processing personal information are required to pay a data protection fee unless they are exempt. Check their website (link above) to see if you need to pay or if you are exempt, and how you can contact them to pay or complete their exemption form.

ONS: Pay gap for disabled workers is 12.2%

The Office for National Statistics (ONS) recently published a report entitled ‘Disability pay gaps in the UK: 2018’. Using data from 2018, the report presents the first analysis of disability pay gaps in the UK using newly reweighted earnings data from the Annual Population Survey. The main points are these:

  • Median pay was consistently higher for non-disabled employees than for disabled employees; median pay for non-disabled employees was £12.11 an hour whilst for disabled employees it was £10.63 an hour, resulting in a pay gap of 12.2%.
  • The disability pay gap was wider for men than for women.
  • London had the widest disability pay gap at 15.3% and the narrowest pay gap was in Scotland, at 8.3%.
  • Disabled employees with a mental impairment had the largest pay gap at 18.6%, while for those with a physical impairment the pay gap was 9.7% and those with other impairments had the narrowest gap, at 7.4%.
  • Around a quarter of the difference in mean pay can be accounted for by factors such as occupation and qualification.
Modern Slavery: 75% of global hotel companies in UK failing to meet minimum requirements

In a shocking report produced by a collaborative partnership of philanthropic organisations and campaigners, a study of 71 global hotel companies in the UK shows that four years after the introduction of the Act, only 18 have met the minimum requirements of the UK Modern Slavery Act 2015. These requirements include publishing a modern slavery statement which should include information on the following:

  • disclose their structure, business and supply chains providing information about risks in supply chains and in direct operations,
  • having policies in relation to slavery and human trafficking,
  • due diligence processes undertaken, assessing actual and potential human rights impacts,
  • risk assessment and management.

Whilst this report highlights the problems with enforcement by the government, another issue in such a high-risk sector, is the threshold of a £36m annual turnover set by the Act, which means that most hotels in the UK are not even subject to the law. With such a vulnerable workforce, the report has made a number of recommendations. One of which is the creation of a monitoring body to survey corporate compliance with the Act.

Further information on Modern Slavery can be found on the government website: https://www.gov.uk/government/collections/modern-slavery.

Further Information

If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: advice@dixcartlegal.com

The data contained within this document is for general information only. No responsibility can be accepted for inaccuracies. Readers are also advised that the law and practice may change from time to time. This document is provided for information purposes only and does not constitute accounting, legal or tax advice. Professional advice should be obtained before taking or refraining from any action as a result of the contents of this document.