Tag Archive: CJRS

Employment Law Newsletter – May 2021

Cases:

• Worker Status: Court of Appeal refuses permission to appeal against finding that Addison Lee Drivers were workers
• Worker Status: Does worker status require a minimum degree of obligation or commitment?
• Disability Discrimination: Mental health of gym trainer not properly accounted for
• Collective Agreements: Despite being incorporated into individual contracts collectively agreed terms may not confer individual rights
• Contract: Directors jointly and severally liable for aggravated damages and unpaid wages after inducing breaches of contract
• COVID-19: Dismissal of employee who left workplace over concerns about infecting his children not automatically unfair

Other news:

• COVID-19: Regulations on calculating a week’s pay for furloughed employees extended to 30 September 2021
• COVID-19: Updated HMRC guidance to address operation of CJRS from May 2021
• COVID-19: Adjusted right to work check measures extended to 20 June 2021
• National Minimum Wage: Low Pay Commission publishes fourth NMW non-compliance and enforcement report
• National Minimum Wage: BEIS updates guidance on calculating NMW for sleep-in workers
• Parental Leave: Campaigners push for reform of “deeply flawed” shared parental leave scheme

Cases:

Worker Status: Does worker status require a minimum degree of obligation or commitment?

In Nursing & Midwifery Council v Somerville [2021] UKEAT 0258_20_0505 the EAT has dismissed the Nursing & Midwifery Council’s (NMC) appeal against a tribunal’s finding that Mr Somerville was a worker. Somerville was a panel member chair of its Fitness to Practice Committee, and he made a claim against the NMC for unpaid statutory holiday pay, contending that he was either an employee or worker.

At first instance, the tribunal judge found that:

1. there were a series of individual contracts between the parties each time Mr Somerville agreed to sit on a hearing, for which the NMC agreed to pay him a fee, and also an overarching contract between them in relation to the provision of his services as a panel member chair;
2. these written materials correctly represented the parties’ true agreement;
3. there was no contractual obligation on Mr Somerville to offer / accept a minimum amount of sitting dates and he was free to withdraw from dates he had accepted;
4. Mr Somerville agreed to provide his services personally to the NMC and there was no right of substitution;
5. the NMC was not a client or customer of a profession or business carried on by Mr Somerville.

Accordingly, there was insufficient mutuality of obligation to give rise to an overarching employment contract or an employment contract in relation to individual assignments that he accepted. Therefore, in rejecting this alternative contention that he was an employee, the tribunal decided that there was no irreducible minimum of obligation, as Mr Somerville was not obliged to offer a minimum amount of sitting dates and he was free to withdraw from dates he had accepted. In light of the contract that existed between the parties, the personal service involved and the client/customer finding, the tribunal instead found Mr Somerville to be a worker within the meaning of section 230 Employment Rights Act 1996 (ERA) and regulation 2(1) Working Time Regulations 1998 (WTR).

The NMC appealed this conclusion on the basis that: (i) the tribunal had misdirected itself in law, since an absence of mutuality of obligation in the sense of an absence of an irreducible minimum of obligation as identified in the employee caselaw was incompatible with a finding of worker status; and (ii) in finding the NMC was not a client or customer of a business carried on by Mr Somerville, the tribunal had failed to consider relevant factors and had taken into account irrelevant considerations.

The EAT dismissed the appeal holding thata review of the authorities (including the Supreme Court’s decision in the recent Uber case) and the statutory language indicated that an irreducible minimum of obligation in the sense relied upon by the NMC was not a prerequisite for satisfying the ERA and WTR definitions of worker status, in circumstances where, as here, an overarching contract existed between the parties under which the individual agreed to perform services personally to the NMC and had done so in respect of a series of separate contracts. The absence of an irreducible minimum of obligation could be relevant to the question of whether the client/customer exception applied, but it was not necessarily fatal to a conclusion of worker status. Further, that in considering the client/customer exception in this case, the tribunal had made no error of law; the weight that it attached to particular factors was a matter for its evaluation.

Worker Status: Court of Appeal refuses permission to appeal against finding that Addison Lee Drivers were workers

The Court of Appeal has refused permission to appeal from the EAT (Addison Lee Ltd v Lange and others [2021] EWCA Civ 594) against a finding that Addison Lee minicab drivers were “limb (b)” workers*, and that time in which drivers were logged onto the Addison Lee portal, and had not notified the company that they were taking a rest break, was working time under the Working Time Regulations 1998 (WTR 1998). The court had previously given permission on the papers, but had stayed the appeal pending the Supreme Court’s decision in Uber BV and others v Aslam and others [2019] ICR 845. Following the Uber decision, the court had set aside its original grant of permission and held an oral hearing to re-consider the matter. It held, in the light of Uber, that the appeal in this case has no reasonable prospect of success.

The employer sought to distinguish Uber on the basis of differences in the contractual documentation (specifically, that there was an express contract between Addison Lee and its drivers that negated any mutuality of obligation). However, the Supreme Court in Uber had re-affirmed the principle in Autoclenz Ltd v Belcher and others [2011] IRLR 820 (SC) that, in deciding limb (b) worker status, the tribunal is interpreting the statute rather than interpreting the contract, and should disregard any contractual provisions that do not reflect reality. The tribunal’s factual finding that, when a driver was logged on, they were undertaking to accept jobs allocated to them, was, in the court’s view, “unappealable”.

The court also held that, following Uber, there was no arguable error of law in the employment tribunal’s conclusion that when drivers were logged on, this satisfied the definition of working time as they were at the employer’s disposal.

(* “Limb b” means working under any other contract (other than a contract of employment) where the person agrees to do the work personally, and the relationship between the parties to the contract is not akin to a client or customer of any profession or business relationship.)

Disability Discrimination: Mental health of gym trainer not properly accounted for

A case from London South employment tribunal (Burton v Nuffield Health V 2300147/2019) has recently hit the headlines because the judge found in favour of the claimant, Ali Burton, who claimed disability discrimination and victimisation against her employer Nuffield Health. Burton worked at a branch of the fitness chain Nuffield Health.

The tribunal heard that Burton disclosed her mental health condition (generalised anxiety disorder (GAD) and a phobia of coming into contact with bodily fluids) at the interview stage, and again to Nuffield’s in-house occupational health team during her induction. Occupational health passed her as fit to do the job with agreed modifications (such as avoiding hygiene-related tasks which could trigger her GAD; exempt from undertaking health appointments involving blood tests; and that her shift hours should be reduced and consecutive to ensure “ample time off” to manage her condition).

It began with a senior general manager who, unaware of Burton’s condition, asked her to pick up used towels from the floor in the gym. She refused, explaining it was due to her mental health, and was told “we all have to do things that are unpleasant” and advised to use gloves. The manager apparently made mocking remarks and questioned how this might affect her working in the gym, making her feel pressured and embarrassed.

What followed was a series of different managers, who clearly demonstrated they had been given no training in how to either have appropriate discussions with her or simply be able to deal with such a condition, treating her in such a way as to upset her to the point where she raised a grievance. She was questioned over her reduced hours, asked to explain her condition, and asked to provide her medical notes to show her latest diagnosis. Following a meeting, the grievance was not upheld and again she was asked to provide her GP notes and medical history. Following a protracted process of trying to challenge the grievance, it was still not upheld and so Burton lodged a tribunal claim alleging direct discrimination and victimisation.

Her claim of victimisation was not successful but the complaint of direct discrimination succeeded in part, as did her complaint of discrimination because of something arising in consequence of disability; of harassment; and of failure to make reasonable adjustments. The tribunal found Nuffield Health lacked “adequate arrangements” for communicating important information about Burton’s condition, and that this formed part of an “ongoing discriminatory state of affairs”. There was clearly a limited understanding of her condition and a failure to appropriately train managers to deal with such conditions.

Collective Agreements: Despite being incorporated into individual contracts collectively agreed terms may not confer individual rights

In Hamilton v Fife Council UKEATS/0006/20/SS (V) the claimant was a teacher whose department had surplus staff. She was told that as the member of staff with the shortest length of service she could be transferred to another school as a result of a collective agreement, meanwhile the school advertised a vacancy for a full-time position in her department. The relevant term of the collective agreement said that where a teacher has been designated surplus, a permanent post would not be advertised. The claimant resigned, claiming (among other things) constructive unfair dismissal on the basis that the school was in repudiatory breach of this term. The tribunal disagreed, finding on the facts that the events said to constitute breaches of the underlying contract either had not been proved to have happened or, to the extent that they had been proved to have happened, did not constitute breaches of the contract. Where there had been one single breach the tribunal found, however, that such breach had not caused the her resignation. The claimant appealed. 

The EAT dismissed the appeal. It held that whilst collectively agreed terms may be incorporated into individual employment contracts, tribunals must consider whether

“any particular part of the collective agreement founded upon is apt to be a part of an individual contract of employment or whether, alternatively, it is essentially collective in nature between the employer and the relevant union”.

(para. 28)

The judge went on to say that collectively agreed terms incorporated into individual contracts which regulate certain matters such as pay, holiday entitlement and hours of work, etc, are all capable, of giving rise to enforceable individual rights on the part of employees. On the other hand, collectively agreed terms which are truly collective in their nature are not (e.g. redundancy procedures). The term in question was vague and lacked specification as to when it could be invoked demonstrating that it was not intended to confer individual rights, but simply a broad statement of agreement about what was expected to happen in a surplus situation. Therefore, there was no breach of contract and the appeal failed.

Contract: Directors jointly and severally liable for aggravated damages and unpaid wages after inducing breaches of contract

The High Court in Antuzis and others v DJ Houghton Catching Services Ltd and others [2021] EWHC 971 (QB) has ordered two company directors to pay aggravated damages to a group of exploited migrant workers whose employer failed to pay them overtime, holiday pay and the applicable minimum wage under the Agricultural Wages Act 1948 and associated Orders.

The claimants had been employed as chicken catchers by DJ Houghton Catching Services Ltd. They brought High Court claims against the company for breach of contract relating to unpaid wages, unlawful deductions from wages and unpaid holiday pay. They also claimed against the company directors for the tort of inducing the breaches of their employment contracts by the company. In 2019, the court upheld the claims and ordered the assessment of damages at a separate quantum trial.

Following the quantum trial, the court awarded damages of the full amounts claimed by the employees for wages, overtime and holiday pay. However, since the claims against the directors were based in tort, the employees also asked the court to award aggravated and exemplary damages.

The court noted that aggravated damages are compensatory in nature. In this case, the court accepted that recovery of the monies due under the employment contracts would not compensate the employees for the exploitation, manipulation and abuse carried out by the employer and its directors that had been inflicted by the systematic denial of the employees’ statutory righ

ts. In respect of aggregated damages, the court therefore uplifted by 20% the damages awarded to the employees. Conversely, the court noted that exemplary damages are punitive in nature. Given the substantial aggravated damages already awarded and the lack of evidence that the profit made by the directors had exceeded this sum, the court declined to award exemplary damages.

This case is an interesting example of how employees could use tort claims to seek redress for breach of contract or certain statutory rights from the directors of their employer and to achieve compensation exceeding their actual financial loss. However, the underlying facts of this case are extreme and the circumstances in which such a claim may be brought are therefore likely to be limited.

COVID-19: Dismissal of employee who left workplace over concerns about infecting his children not automatically unfair

In Rodgers v Leeds Laser Cutting Ltd ET1803829/2020, an employment tribunal found that the dismissal of an employee who told his manager he would not return to work until after lockdown because he feared he would infect his children with COVID-19, was not automatically unfair.

An employment tribunal has considered a COVID-19 related claim under sections 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA) which provide employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger.

Mr Rodgers messaged his manager on 29 March 2020 to state that he would be staying away from his workplace “until the lockdown has eased” because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with COVID-19. A month later, he was dismissed.

Mr Rodgers did not have sufficient service to claim ordinary unfair dismissal. Instead, he alleged that he had been automatically unfairly dismissed for exercising his rights under sections 100(1)(d) and (e) of the ERA.

The tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known when the relevant acts took place. On the facts, such a belief could not be established, so sections 100(1)(d) and (e) were not engaged and the claim failed. In particular:

• Despite Mr Rodgers’ concern about COVID-19, he had breached self-isolation guidance to drive a friend to hospital on 30 March 2020 (the day after leaving work).
• Mr Rodgers’ message to his boss did not mention concerns about workplace danger and he could not show there had been any such danger. In March 2020, government safety guidance advised hand washing and social distancing. The employer had implemented both precautions.
• Mr Rodgers had not taken any steps to avert danger or raised concerns with his manager before absenting himself from work. This was not appropriate.

The tribunal rejected Mr Rodgers’ argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer’s safety precautions. It found that accepting this submission could lead to any employee being able to rely on sections 100(1)(d) and (e) to leave the workplace, simply by virtue of the pandemic.

This decision is not binding and turned on the specific facts. However, it demonstrates the importance of implementing appropriate COVID-19 secure measures. Employers who do so may reduce the risk of successful claims under sections 100(1)(d) and (e) by making it harder for employees to establish that the workplace is dangerous.

Other News:

COVID-19: Regulations on calculating a week’s pay for furloughed employees extended to 30 September 2021

On 31 July 2020, the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (SI 2020/814) (Week’s Pay Regulations) came into force, requiring employers to calculate various statutory payments, including redundancy and notice pay, with reference to a furloughed employee’s normal week’s pay.

The Week’s Pay Regulations were amended in November 2020 and February 2021 to extend their duration to reflect subsequent extensions of the Coronavirus Job Retention Scheme.

On 20 April 2021, the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) (Amendment) (No 2) Regulations 2021 (SI 2021/487) were made. They came into force on 30 April 2021 and ensure that the Week’s Pay Regulations will continue to operate until 30 September 2021, reflecting the further extension of the CJRS announced in the Spring 2021 Budget.

COVID-19: Updated HMRC guidance to address operation of CJRS from May 2021

HMRC has updated various guidance notes, in particular in relation to the calculation of furlough pay for non-fixed rate employees with a relevant reference day of 2 March 2021.

On 8 April 2021, HMRC made minor changes to various guidance notes relating to the Coronavirus Job Retention Scheme (CJRS). Some notable changes include:

• New guidance on how to identify whether an employee’s relevant reference day is 19 March 2020, 30 October 2020 or 2 March 2021.
• New guidance and worked examples on calculating usual working hours and 80% of wages for non-fixed rate employees with a relevant reference day of 2 March 2021. As with non-fixed rate employees with a relevant reference day of 30 October 2020, only the averaging method may be used where an employee has a relevant reference day of 2 March 2021.

• When using the averaging method to calculate average wages for non-fixed rate employees for claim periods starting on or after 1 May 2021, days spent on family-related statutory leave, “statutory sick pay leave” or “reduced rate paid leave” following the leave, and related wages, should not be taken into account. The exception to this rule is where an employee was on one of these types of leave throughout the entire period used to calculate their average wages. In this case, such days and related wages should be included.
• Multipliers for use when calculating grant amounts for July, August and September 2021, when the government contribution reduces. In addition, daily maximum wage amounts are provided for May 2021 to September 2021 inclusive.

The updated guidance also notes that, in the event of a TUPE transfer, employers should ensure that information needed for future claims under the CJRS is passed on to the new employer (including an employee’s relevant reference day and details of 80% of the employee’s wages).

COVID-19: Adjusted right to work check measures extended to 20 June 2021

The temporary COVID-19 adjusted right to work check measures will now end on 20 June 2021, not 16 May 2021 as previously announced by the Home Office (Home Office and Immigration Enforcement: Coronavirus (COVID-19): right to work checks (updated 12 May 2021).) This new date is the planned date for bringing in step four of the government’s roadmap out of lockdown and allows employers to continue with digital right to work checks while social distancing is still in place.

The temporary changes, in place since 30 March 2020, have allowed right to work checks to be carried out over video calls and for job applicants and existing workers to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals.

From 21 June 2021, employers must once again either:

• Check the applicant’s original documents.
• Check the applicant’s right to work online, if they have provided the employer with their share code.

Employers will maintain a statutory defence against a civil penalty if the right to work check undertaken was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance. No further retrospective checks on employees who had a COVID-19 adjusted check will be required.

National Minimum Wage: Low Pay Commission publishes fourth NMW non-compliance and enforcement report

The Low Pay Commission (LPC) has published its fourth standalone report, Non-compliance and enforcement of the National Minimum Wage 2021. The LPC has adapted its approach to reflect the existence of the Coronavirus Job Retention Scheme (CJRS), which has prevented it from carrying out its usual analysis. In addition, the data it would normally consider only covers the period up to April 2020. Rather than looking at flawed data, the report attempts to assess the immediate challenges for National Minimum Wage (NMW) enforcement. It also considers the likely challenges that will affect enforcement over the coming year.

The report does not, on the whole, make new recommendations. It instead reviews progress in key areas identified in previous years. The following points may be of particular interest:

• The LPC notes that the government consulted in 2019 on proposals to create a single enforcement body. While the report mentions that legislation is expected to be brought forward in an Employment Bill, there is no current timetable for this. The Queen’s Speech of 11 May 2021 did not mention an Employment Bill.
• The LPC will continue to monitor emerging case law (noting, in particular, the Supreme Court’s decisions in Uber and Mencap) and their implications for NMW enforcement.

• As the CJRS is phased out, the LPC anticipates that shifts in the economy and labour market will make it more important than ever to ensure NMW compliance. The report notes that the complexity of the CJRS, coupled with a refocusing of HMRC’s targeted enforcement regime, is likely to have increased the risk of underpayment. HMRC has advised the LPC that complaints from workers have declined since April 2020, although the precise reasons for this are unknown.

The LPC anticipates that the impact of the CJRS on workers’ hours and pay will be a recurring feature for many years, noting that the low volume of complaints represents a serious barrier to an effective enforcement system. Consequently, it recommends a pro-active approach from the government to build confidence in the complaints process. It also considers that HMRC’s limited resources must be targeted effectively.

National Minimum Wage: BEIS updates guidance on calculating NMW for sleep-in workers

On 23 April 2021, the Department for Business, Energy and Industrial Strategy (BEIS) updated its guidance on calculating the national minimum wage (NMW) to clarify the position for sleep-in workers in light of the Supreme Court’s decision in Royal Mencap Society v Tomlinson-Blake and others [2021] UKSC 8.

The revised guidance on ‘Sleep-in’ shifts (which appears under the heading Special situations in the section entitled Working hours for which the minimum wage must be paid) confirms that, following Royal Mencap, sleep-in workers are only entitled to the NMW when they are awake for the purposes of working and not when they are permitted to sleep. However, the guidance explains that the position is different for workers who are expected to perform activities for all or most of a shift, and are only permitted to sleep between tasks where possible. In such cases, it is likely that the NMW must be paid for the whole of the shift, including for any time spent asleep, on the basis that the worker is in effect working all of that time. The guidance also confirms that the NMW will be payable for time spent asleep if the employer does not provide workers with suitable sleeping facilities.

To illustrate how the principles outlined by the Supreme Court in Royal Mencap may apply to particular scenarios, the guidance now includes five short examples which explain whether a worker would be entitled to the NMW if:

• They spend time awake but are woken only occasionally to perform tasks.
• They take night calls on a nightshift.
• They are permitted to nap during a work shift.
• They are woken to deal with an emergency but not required.
• They are woken frequently, contrary to original expectation.

The updated guidance and examples are a helpful starting point for employers grappling with the recent changes to this complex area of law. Nevertheless, as the guidance itself reiterates, to determine whether the NMW should be paid to sleep-in workers, employers will need to apply the relevant principles to the specific facts of the situation they are dealing with.

Parental Leave: Campaigners push for reform of “deeply flawed” shared parental leave scheme

The Guardian reports that campaign groups including the TUC, Maternity Action and the Fawcett Society have joined forces in a bid for governmental reform of the “deeply flawed” and underused shared parental leave (SPL) scheme introduced in 2015. The campaigners are urging the government to reform SPL in its long-awaited Employment Bill, and to replace it with a new model of parental leave which would give both parents non-transferable paid leave to care for their child, encouraging fathers to share the burden of childcare which still falls largely on new mothers.

The groups also pushed for the publication of the government’s evaluation of the SPL scheme, which was due in 2019 and is now scheduled to be published in late 2021.

Further Information:

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