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Employment Law Case Update – October 2022
A round-up of the most significant employment law cases to be published during October, which includes a look at how to carry out redundancy consultations, share transfer plans which need to transfer under TUPE, a consideration of how to carry out disciplinary action cases to avoid the appearance of bias, and an update on the latest drivers to pursue workers benefits claims.
- Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
- TUPE: Can the benefit of share incentive plans transfer under TUPE?
- Trade Unions: Appearance of bias in disciplinary action
- Workers: Bolt drivers pursue worker benefits claim
Redundancy: Consultation not meaningful if it takes place after decision to apply selection criterion that inevitably leads to a pool of one
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust [2022] EAT 139, the EAT has held that a tribunal erred in finding the redundancy dismissal of a nurse fair, where the sole selection criterion used was that her fixed-term contract ended before that of her colleague, putting her in a selection pool of one, where no consultation had taken place prior to that decision. Ms Mogane and another nurse in a similar role were employed on a series of fixed-term contracts. Ms Mogane was invited to a meeting at which she was told about the financial difficulties the Trust was facing. Shortly after this, a decision was taken that Ms Mogane should be dismissed for redundancy as her fixed-term contract expired first. A redundancy consultation process began, which included consultation regarding the possibility of alternative employment, although this was not possible and she was dismissed.
The EAT noted that, as established in Williams v Compair Maxam [1982] ICR 156 and Polkey v AE Dayton Services Ltd [1987] IRLR 503, consultation is a fundamental aspect of a fair redundancy procedure. This applies equally to individual as well as collective redundancy situations. In order that consultation is genuine and meaningful, consultation must take place at a formative stage when an employee can still potentially influence the outcome. Where the choice of selection criteria has the practical result that the selection for redundancy is made by that decision itself, consultation should take place before that decision is made. A failure to do so is not within the band of reasonable responses for the purposes of section 98(4) of the Employment Rights Act 1996. The implied term of trust and confidence requires that employers do not act arbitrarily towards employees in the methods of selection for redundancy. While a pool of one can be fair in appropriate circumstances, it should not be considered where there is more than one employee without prior consultation.
Here, the Trust’s decision to dismiss Ms Mogane as her contract was the first up for renewal immediately identified her as the person to be dismissed, before any meetings or consultation took place with her. The tribunal failed to explain why it was reasonable to make that decision without consultation. The selection of Ms Mogane was arbitrary, related solely to the date on which her fixed-term contract ended. Given that she was effectively chosen for dismissal before any consultation took place, the EAT substituted a finding that she was unfairly dismissed.
TUPE: Can the benefit of share incentive plans transfer under TUPE?
In Ponticelli UK Ltd v Gallagher [2022] EAT 140 the EAT had to consider whether the benefit of a share incentive plan could transfer under TUPE, if it was not in the employee’s contract. Mr Gallagher’s contract of employment transferred to Ponticelli under TUPE, 2006 on 1 May 2020. Prior to the transfer, he had been a member of a Share Incentive Plan operated by the transferor (Total Exploration and Production UK Limited) which he had joined in August 2018 pursuant to an agreement amongst Mr Gallagher, the transferor and the plan trustees (a voluntary scheme, not under his contract). Mr Gallagher having refused to provide an equivalent scheme, Mr Gallagher brought proceedings before the Employment Tribunal in terms of sections 11 and 12 of the Employment Rights Act 1996 (ERA). The Tribunal upheld his claims and found that he was entitled, after the transfer, to participate in a scheme of substantial equivalence to that operated by the transferor. Mr Gallagher contended that the obligations created when the respondent joined the transferor’s scheme did not arise either “under” the contract of employment or “in connection with” that contract. Accordingly, Regulation 4(2)(a) of TUPE did not apply. Mr Gallagher conceded that the obligations in question did not arise “under” the contract, but contended that they arose “in connection with” that contract. It was also argued that the Tribunal’s order was not competent. The tribunal found in favour of Mr Gallagher and Ponticelli appealed.
At appeal, the ETA held that even if the obligations created by the August 2018 Partnership Share Agreement did not arise “under” the contract of employment, they plainly arose “in connection with” that contract for the purposes of Regulation 4(2)(a) of TUPE, and the right to a plan of substantial equivalence transferred under TUPE. The order pronounced by the Tribunal was competent but should have referred to the statutory statement of particulars of employment rather than to “terms and conditions of employment” to which Mr Gallagher was entitled, which should have set out that right as ‘any other benefit’ (s.1(4)(da) ERA). Subject to that minor adjustment to paragraph 2 of the Tribunal’s Judgment, the appeal was refused.
Trade Unions: Appearance of bias in disciplinary action
In Simpson v Unite the Union [2022] EAT 154 the EAT had to consider whether the Certification Officer had erred by failing to consider correctly and apply the relevant law to the question of whether the disciplinary process of a Trade Union gave rise to an appearance of bias by way of pre-determination. Mr Simpson was a trade union member who had been expelled. He had raised some concerns about other members but following an investigation it was found that there was no evidence to substantiate these claims, but there was evidence that Mr Simpson had made the claims vexatiously, resulting in his disciplinary action and subsequent expulsion. He applied to the Certification Officer for a declaration under s.108A Trade Union and Labour Relations (Consolidation) Act 1992 on the basis that the process adopted was in breach of natural justice, as it gave rise to an appearance of bias by way of pre-determination, seeking a declaration that he had been disciplined in breach of the Union’s rules.
The Certification Officer refused his application resulting in a further appeal, this time to the EAT. It held that the Certification Officer had erred by failing to consider and apply the relevant law when determining if the disciplinary process gave rise to an appearance of bias where the chairman of the disciplinary panel had also acted as the chairman of the committee which had commissioned and accepted a report into Mr Simpson’s own complaints of harassment, and then rejected the complaints and commissioned a further investigation into whether they were malicious or vexatious whilst suspending Mr Simpson.
The same person (the chairman) had also acted as the chairman of the committee which had accepted the recommendation that there be a disciplinary hearing and which had appointed him as chairman of the disciplinary panel. In addition, when Mr Simpson had written to him and requested that he not be on the disciplinary panel, he had not replied to the letter or shared it with the other members of the panel. The EAT therefore found in favour of the appellant that the Certification Officer had erred by failing to correctly consider whether the disciplinary process of the trade union had given rise to an appearance of bias.
Workers: Bolt drivers pursue worker benefits claim
According to the Guardian (6 October 2022) more than 1,600 UK drivers for Bolt, a ride-hailing app, claim they have been wrongly classified as self-employed contractors. The drivers are seeking compensation for missed holiday and minimum wage payments to which they would be entitled if deemed to be workers. Lawyers for the claimants have contacted ACAS in the first stage of lodging the claim. A driver from Bolt previously brought a test case to an employment tribunal after he was expelled from the platform.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
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Employment News – Case Update May 2022
A round-up of the most significant employment law cases to be published over the last month largely centred around dismissal. We have a harassment case that looks at how employers should provide for breastfeeding mothers returning to work, and some interesting cases of dismissals showing that common sense ultimately steers the tribunals.
- Harassment: Tribunal finds school harassed teacher who was forced to express breast milk in ‘dirty’ toilets
- Unfair Dismissal & Disability Discrimination: Failing to make a reasonable adjustment for a disabled employee does not render dismissal unfair
- Unfair Dismissal: It was not automatically unfair to dismiss an employee who refused to go to work because of concerns over COVID-19 risk to his vulnerable children
- Indirect Sex Discrimination & Constructive Unfair Dismissal: Shop assistant was unfairly dismissed after being made to work Saturdays despite childcare issues
Harassment: Tribunal finds school harassed teacher who was forced to express breast milk in ‘dirty’ toilets
In the case of Mellor v The MFG Academies Trust [2022] ET/1802133/2021, the tribunal had to consider the effect of how a teacher had been treated in respect of expressing breastmilk while at school. Ms Mellor had been a teacher of Citizenship at Mirfield Free Grammar School. In July 2020, she returned to work from maternity leave and before returning to work, made a flexible working request and informed her employer she required a room in which to she would be able to express milk or possibly feed her baby during lunchtimes while at school. Having been told that due to COVID-19 restrictions, her partner was not allowed onto school premises to bring the baby to her to breastfeed, Ms Mellor again requested somewhere to express. Having had nowhere suitable she raised the matter with her line manager, as her breasts were becoming uncomfortable from being prevented from expressing the milk and she was afraid of developing mastitis again. Through a series of requests which were not followed up properly, Ms Mellor ended up expressing regularly at lunchtimes either in her car where she might be seen by students, or whilst sitting on the floor in the dirty toilets, and trying to eat her lunch at the same time.
Judge Miller found that Ms Mellor “genuinely and reasonably had no choice but to use the toilets or her car to express” and had made the school aware on numerous occasions but not only was no suitable room provided. “The alternative was that the claimant would experience an embarrassing leakage in the afternoon,” Judge Miller explained. “It is obvious that this is unacceptable.” Ms Mellor was also keen to avoid developing mastitis again and was under the impression this would be avoided by expressing during the day.
Judge Miller therefore found in favour of Ms Mellor, expressing the sentiment that the conduct did have the effect of creating a degrading or humiliating environment for the claimant on the basis that “a woman who has recently given birth should not be subjected to these circumstances solely because she has done so.” The judge also concluded that “As the claimant reasonably and genuinely felt compelled to act in a way that she did not want to, she was we find forced to do so”, therefore interpreting the meaning of ‘forcing’ to include leaving someone with no realistic choice but to take a particular course of action and must be read in conjunction with ‘unwanted’ – such as expressing milk in the toilets while eating lunch and /or in the claimant’s car with the risk of being seen by pupils and others.
The claim of harassment succeeded, but the claim of direct discrimination was dismissed as the failure to provide a suitable room was more due to administrative incompetence rather than on the basis of her sex, and in any event, the same detriment could not be relied upon to make out both claims. The claim of indirect discrimination failed because the provision, criterion or practice (PCP) must place women at a particular disadvantage compared to men. Given that expressing breastmilk is a sex specific practice in which biological men can have no interest this PCP cannot be meaningfully applied to both men and women and therefore there is no comparative disadvantage that can arise.
Unfair Dismissal & Disability Discrimination: Failing to make a reasonable adjustment for a disabled employee does not render dismissal unfair
In Knightley v Chelsea & Westminster Hospital NHS Foundation Trust [2022] EAT 63 the EAT considered the question of if an employer dismisses a disabled employee, but fails to make a reasonable adjustment during that process, must that render the dismissal unfair?
At first instance, the Employment Tribunal found that the employer had failed to make a reasonable adjustment to its procedure when dismissing the employee on grounds of capability in that it had not allowed her an extension of time to lodge an appeal against her dismissal. It therefore upheld her claim under section 20 of the Equality Act 2010 (duty to make reasonable adjustments). However, it found that her dismissal was fair and proportionate, and therefore dismissed her claims for unfair dismissal and discrimination arising out of disability, contrary to section 15 of the Equality Act 2010.
The employee’s appeal was on the basis that the Tribunal’s finding, for the purposes of the duty to make reasonable adjustments, that the employee was unreasonably denied an opportunity to appeal against her dismissal ought to have led to her other claims succeeding and/or that the Tribunal had not sufficiently explained how her dismissal could be fair or proportionate given this finding and/or that the Tribunal had wrongly relied on its finding that the employee’s appeal would not have been successful in any event and had thereby committed the Polkey heresy. The ‘Polkey Deduction’ is a very well established principle that, if a dismissal is unfair on procedural grounds, the fact that the employee would have been dismissed in any event, even if a fairer procedure was followed, only impacts the remedy rather than the question of liability.
The EAT dismissed the appeal, noting that it was obvious that the legal tests involved in the three claims before the tribunal were different, and just because an employer might fail on one of the claims does not mean that the others will also fail. What matters to the tribunal is drawing conclusions under each test from the facts which the tribunal has found. The legal principles applicable to each claim should be separately applied to the findings of fact because the elements of each part of the Act are different. Here, the conclusion on the reasonable adjustment claim did not depend on or reflect, the merits of the case for dismissal or the dismissal itself or whether the appeal would have made any difference to the outcome.
Unfair Dismissal: It was not automatically unfair to dismiss an employee who refused to go to work because of concerns over COVID-19 risk to his vulnerable children
In Rodgers v Leeds Laser Cutting Ltd [2002] EAT 69 the EAT considered the case of Mr Rodgers who had refused to go into work during the first national lockdown, despite his work remaining open, because he was concerned that if his children caught COVID-19 they would become very ill. As a result of this refusal, Mr Rodgers was dismissed. He claimed unfair dismissal on the basis that he had exercised his right not to return to work in order to protect himself from circumstances of danger, which he had reasonably believed to be a serious and imminent threat, and which he could not have been expected to avoid (section 100(1)(d) or (e) Employment Rights Act 1999).
However, the EAT found that the employment judge had accepted that the Coronavirus pandemic could, in principle, give rise to circumstances of danger that an employee could reasonably believe to be serious and imminent, but this case failed on the facts. The circumstances of the workplace (it was large and few people worked in it, he could generally maintain social distance at work, masks were available, the tribunal rejected the claimant’s contention that he was forced to go out on deliveries) combined with Mr Rodgers’ actions (he had remained at work from the date of the announcement of the lockdown on 24 March 2020 until he left at his normal time on 27 March 2020, he had not asked for a mask, he did not say that he would not be returning when he left on 27 March 2020, he drove his friend to hospital while he was meant to be self-isolating, he worked in a pub during the lockdown) did not support his argument that there were circumstances of danger which he believed were serious and imminent. Even if the tribunal had been wrong about this, it had been entitled to find that Mr Rodgers could have been expected to take reasonable steps to avoid such danger, such as wearing a mask, observing social distancing, and sanitising his hands. The appeal was dismissed.
Indirect Sex Discrimination & Constructive Unfair Dismissal: Shop assistant was unfairly dismissed after being made to work Saturdays despite childcare issues
The case of Keating v WH Smith Retail Holdings Ltd ET/2300631/2019 has recently been published, which relates to a single mother working at the large retail chain. Following a drop in sales and the reduction of Saturday staff, the manager instated a rota for Saturday working – where sales assistants would have to work 1 in every 4 Saturdays. Although Ms Keating’s contract stated she would work 20 hours a week, flexible to the needs of the business, and could be required to work up to eight hours extra per week where trading patterns required it, and further, she may be required to work Saturdays. Sundays or bank holidays. Ms Keating did not normally work weekends and explained she was unable to work Saturdays as she had no childcare for her eight year old daughter. The manager, Mr Cruikshank, told her she should arrange to swap with one of her colleagues. He also admitted to saying to Ms Keating that if he permitted her not to work the Saturday rota, everyone else would want the same. Otherwise he had not dealt with the issue nor discussed it further with her. On the first Saturday Ms Keating was rostered to work, she had to bring her daughter to work with her. She was then off sick for four weeks and resigned, giving four weeks’ notice.
Ms Keating claimed indirect sex discrimination and constructive unfair dismissal. Ms Keating was put at a disadvantage: as a woman, with a dependent child, as a single mother and who could not afford childcare and had no family or other network she could call upon. The Judge found that while there was a legitimate business aim to introduce the Saturday rota, there was ‘no consideration’ by Mr Cruikshank of any less discriminatory ways to carry out his legitimate aim (i.e. to meet weekend staffing needs). Ms Keating was found to have resigned in response to this breach of the implied term of trust and confidence, and no potentially fair reason was advanced by the employer. The Judge held both claims to be well founded and both claims succeeded.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com
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Employment News – Case Update March 2022
A round-up of the most significant employment law cases to be published over the last month including how to establish worker status, the use of PILON clauses, privacy regarding email at work and what test to use to determine detriment in victimisation cases.
- Worker Status: “Irreducible minimum of obligation” is not a prerequisite for establishing worker status
- Contract: No dismissal where employer invokes contractual PILON after employee’s resignation to bring forward termination date
- Privacy: Appeal dismissed against judgment that personal emails sent from business account were not private or confidential
- Victimisation: What test should be applied when determining if a Claimant has suffered a detriment under a victimisation claim?
Worker Status: “Irreducible minimum of obligation” is not a prerequisite for establishing worker status
In, Nursing and Midwifery Council v Somerville [2022] EWCA Civ 229, the Court of Appeal has confirmed that an “irreducible minimum of obligation” is not needed to establish worker status under the Working Time Regulations 1998 (WTR 1998). Mr Somerville, a panel member chair of the Nursing and Midwifery Council’s Fitness to Practice Committee, worked under an overarching contract. This contract did not oblige the Nursing and Midwifery Council (the Council) to offer hearing dates to him, and he was under no obligation to accept any dates offered to him. Applying Uber BV and others v Aslam and others [2021] UKSC 5, the court found that the fact that the overarching contract did not impose an obligation to work did not preclude a finding that he was a worker when he was actually working.
In addition, the fact that Mr Somerville could withdraw from an individual agreement to attend a hearing even after he had accepted a particular date did not change the Court of Appeal’s view. He entered into an individual contract for an individual assignment which existed until terminated and had to be read alongside the overarching contract. If an individual contract was not terminated and he chaired a hearing, he would, in the language of section 2(1)(b) of the WTR 1998, have worked under a contract personally to perform services. There is no indication that there must be a distinct, super-added obligation to provide services independent from the provision of the services on a particular occasion. When deciding whether a specific agreement to provide services on a particular occasion amounted to a worker’s contract, the fact that the parties were not obliged to offer, or accept, any future work was irrelevant.
The Court of Appeal’s decision confirms what was previously understood to be the position, that an “irreducible minimum of obligation” is not an essential requirement for worker status. The analysis of the Uber Supreme Court decision also adds to the often-fraught discussion of what it means to be a worker. That said, the Court of Appeal’s decision is clear: where an individual is, in fact, working or providing services personally under a contract, a finding of worker status can be made even where no overarching contract imposing an obligation to provide and accept work exists.
Contract: No dismissal where employer invokes contractual PILON after employee’s resignation to bring forward termination date
In Fentem v Outform EMEA Ltd [2022] EAT 36, the EAT has held that is bound by the decision in Marshall (Cambridge) v Hamblin [1994] ICR 362. Accordingly, where an employer invokes a clause in an employee’s contract enabling it, following the employee’s resignation, to terminate their employment immediately by making a prescribed payment calculated by reference to the unexpired period of the employee’s notice, there is no dismissal under section 95(1)(a) of the Employment Rights Act 1996.
Despite reaching this conclusion, the EAT expressed misgivings about the decision in Marshall. It was strongly inclined to view Marshall as wrong and could see nothing in the reasoning that supported the conclusion that there was no dismissal in that case.
However, the EAT could only depart from its own decisions in the narrow circumstances set out in British Gas Trading v Lock [2016] ICR 503. These include where the earlier decision was not merely wrong, but manifestly wrong. It was the outcome or proposition of law for which the decision stood that had to be the focus of consideration. If there is an argument that can reasonably be advanced in defence of the outcome that is itself not manifestly wrong, then the legal outcome could not be said to be manifestly wrong.
In this case, the employer relied on authorities concerning a scenario in which an employee’s termination date was brought forward with their agreement following their dismissal. The employee argued that these were not relevant because he had not agreed to his termination date being brought forward. The EAT accepted that these authorities may not inform the approach to the issue, but it could not say that they obviously would not. Further, it might be arguable that a contractual provision could have the legal effect that, following a resignation, the employer could cause the employment to end sooner than the date given by the employee, even without the employee’s agreement, by making a contractually-prescribed payment by reference to the unexpired notice period, in a way that only alters how and when the resignation takes effect.
Since these points could not be said to be obviously unarguable, the decision in Marshall could not be said to be manifestly wrong. Therefore, the EAT could not depart from it.
Privacy: Appeal dismissed against judgment that personal emails sent from business account were not private or confidential
In Brake and another v Guy and others [2022] EWCA Civ 235, the Court of Appeal has dismissed an appeal in unsuccessful proceedings for misuse of private information and breach of confidence which arose in relation to a former employee’s personal emails that were sent from a business email account. The email account was used to receive enquiries about the employer’s services.
Baker LJ’s leading judgment emphasised that the success of privacy and confidentiality claims turned on the specific facts, and considered that it had been open to the judge at first instance, HHJ Paul Matthews, to find as he did. In particular, he said that it was telling that the former employee (who was the claimant in the proceedings) had shared access to the email account with two colleagues, and that her employer had set up personal accounts in the names of each of the employees at the same time as it created the business account. Baker LJ also agreed with the first instance judge that, had there been a reasonable expectation of privacy or circumstances of confidence, disclosure of the emails by the defendants for the purpose of obtaining professional advice would not have breached privacy or confidence and, even if it had, damages would have been limited.
The only point of disagreement with the earlier judgments related to HHJ Paul Matthews’ decision to split out the issue of the “iniquity defence” (that is, the public interest defence, which the judge had held was available in relation to privacy and breach of confidence claims where the defendant accessed the information unlawfully), leaving it until after his trial of other matters. Baker LJ considered that any fraudulent conduct on the part of the claimant was likely to be relevant to whether there was a reasonable expectation of privacy or duty of confidence and, if there was, whether they had been breached. He concluded, however, that this had not been determinative in the present case.
This judgment provides some guidance on ensuring that an employer will have full access to emails sent via a business account. In particular, it may be advisable to create individual email accounts for each employee who operates from the central business email address and to require them to limit private emails to the account set up in their name.
Victimisation: What test should be applied when determining if a Claimant has suffered a detriment under a victimisation claim?
In Warburton v The Chief Constable of Northamptonshire Police [2022] EAT 42, the EAT was had to consider whether the tribunal had asked itself the correct question when deciding whether or not the claimant had suffered a detriment, and if not, which was the correct test to use.
The claimant had applied to be a police officer with the Northamptonshire Police force. In his application email he referred to what was accepted as being a protected act, namely, proceedings he was bringing in another employment tribunal against another police force (Hertfordshire Constabulary) alleging unlawful discrimination on the grounds of disability. He had made an application to join that force, which resulted in an offer which was subsequently withdrawn. The claimant was later told by the respondent that his application form had not been accepted.
The claimant pursued a claim for victimisation. The respondent’s argument for why the claimant’s application had not been successful was not due to the protected act but owing to the failure of another force (Avon and Somerset Constabulary) to provide information to allow the vetting procedure to proceed. The tribunal found in favour of the respondent and the claimant appealed.
The appeal was predicated on the basis that the employment tribunal had erred in law by misstating the test for victimisation, and the four other claims flowed from this.
The EAT held that the tribunal had not asked itself the correct question when deciding that the claimant had suffered no detriment. The key test is from the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary[2003] ICR 337: “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” The EAT concluded that detriment is to be interpreted widely in this context and it is what a reasonable worker might think, not just the view of a tribunal, to satisfy the test. Therefore, it was not particularly difficult to establish a detriment for these purposes and but the EAT also found that the tribunal had also not applied the correct legal test to the causation or “reason why” question. The appeal was allowed and the victimisation claim was remitted for rehearing.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.com.
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Employment Law Case Review – February 2022
A round-up of the most significant employment law cases to be published over the last month including a Covid-19 dismissal, worker status, business owner liability, fire and rehire injunction and misclassified worker’s right to holiday pay.
- COVID-19: Dismissal for refusing to be vaccinated was fair
- Worker Status: London cabbie also working through Mytaxi app was not a worker of the app-operator
- Liability: Dental practice owner liable for alleged negligence of self-employed dentists
- Contracts: High Court grants in junction to stop Tesco firing and rehiring employees
- Holiday Pay: Misclassified worker’s right to holiday pay for whole period of employment crystallised on termination
COVID-19: Dismissal for refusing to be vaccinated was fair
In Allette v Scarsdale Grange Nursing Home Ltd ET/1803699/2021 an employment tribunal has held that the summary dismissal of a care assistant employed in a nursing home for unreasonably refusing to be vaccinated against COVID-19 was fair.
In the context of the state of the pandemic in January 2021, a small nursing home’s decision to make vaccination mandatory for staff who were providing close personal care to vulnerable residents was a reasonable management instruction. The care assistant’s refusal to be vaccinated due to concerns about the safety of the vaccine was not reasonable in circumstances where there had been a very recent outbreak and deaths of residents at the nursing home, the pandemic was growing nationally and there was widespread publicity and advice about vaccine safety.
An employer’s instruction that an employee must be vaccinated, unless they have a reasonable excuse, interferes with the employee’s physical integrity in a manner capable of engaging Article 8 of the European Convention on Human Rights. The employer’s aims, of protecting the health and safety of the residents, staff and visitors to the care home during the pandemic and protecting itself against the increased likelihood of claims due to the withdrawal of insurance cover if staff members were unvaccinated, were legitimate.
An unvaccinated staff member would pose a significant and unjustified interference with the Article 8 rights of the residents and the other staff and visitors to the home, such that the requirement for the care assistant to be vaccinated and the dismissal for unreasonably refusing vaccination was justified. Less draconian means could not have been used.
It was within the range of reasonable responses for the employer to conclude that the refusal was due to scepticism of the vaccine and not due to religious beliefs, as had been raised at the disciplinary hearing. In the context of the recent outbreak and deaths at the nursing home, and the urgency with which measures to protect the vulnerable residents needed to be put in place, refusing to comply with the management instruction to be vaccinated amounted to gross misconduct and the dismissal was neither unfair nor wrongful.
Worker Status: London cabbie also working through Mytaxi app was not a worker of the app-operator
In Johnson v Transopco UK Ltd [2022] EAT 6, the EAT has upheld an employment tribunal’s decision that a taxi driver working through an app was not a worker, under section 230(3)(b) of the Employment Rights Act 1996.
Mr Johnson worked as a self-employed London black-cab driver. He also registered with Mytaxi, an app operated by Transopco UK Ltd (TUK). During one year, he completed 282 trips via the app at a total value of £4,560.48. In the same period, he earned £30,472.45 as a self-employed driver. Employment tribunal complaints brought against TUK failed because the tribunal found Mr Johnson was not TUK’s worker. The tribunal observed that Mr Johnson could provide his services as infrequently or as often as he wanted, could dictate the timing of those services and was not subject to control by TUK. It also took into account the small proportion of work done through the app.
The EAT held that the tribunal was entitled to analyse the split of time between income earned as a self-employed cab driver and income earned via the Mytaxi app, when considering whether Mr Johnson’s work for TUK formed part of his own business, and as pointing towards its conclusion that this was not a dependent work relationship. It was not the case that the tribunal’s analysis amounted to a “numbers game” or introduced a minimum hours threshold for worker status.
The tribunal was entitled to take the view that the essence of Mr Johnson’s business was picking up passengers and driving them to where they wanted to go, however they were obtained. This was so having regard also to the tribunal’s findings on the simultaneous nature of the activities, subordination, dependency, control and integration.
The fact that some incentives and risk-sharing were offered by TUK to reflect the risks associated with using its platform (such as the risk of fraud or cancelled jobs), in order to enhance its financial attractiveness as an option, this did not point inevitably to worker status and the tribunal did not err in holding otherwise. The tribunal’s conclusions were soundly reasoned. It followed that although the driver had an obligation of personal service, the tribunal had correctly concluded that TUK was a client or customer of Mr Johnson’s taxi-driving business.
Liability: Dental practice owner liable for alleged negligence of self-employed dentists
In Hughes v Rattan [2022] EWCA Civ 107, the Court of Appeal has held, as a preliminary issue, that a dental practice owner owed a patient a non-delegable duty of care in respect of the treatment she received from self-employed dentists who worked at the practice.
Non-delegable duties put primary liability on a person to avoid harm, to take reasonable care to avoid harm or to see that care is taken by others, rather than imposing secondary liability for the wrongdoing of another person, as with vicarious liability. While the two are conceptually distinct from each other, they may achieve a similar outcome and liability can arise as a result of negligence of an independent contractor, but with a non-delegable duty there is no defence to show that performance was delegated to a person reasonably believed to be competent.
Ms Hughes was, in law, a patient of the practice and the dental practice owner, Dr Rattan, was named as the treatment provider in the treatment plans she had signed. Patients were described as “patients of the practice” in the agreements between the practice owner and the self-employed dentists, and the dentists were subject to stringent restrictive covenants prohibiting them from treating those patients outside the dental practice.
The factors set out in the leading case, Woodland v Essex County Council [2013] UKSC 66, were satisfied:
1. A “patient” included anyone receiving treatment from a dentist; they did not need to be especially vulnerable to qualify.
2. An antecedent relationship between the patient and the dental practice owner was established at the latest on each occasion when the patient signed the relevant treatment plan, which placed her in the practice owner’s actual care.
3. The patient had no control over whether the dental practice owner chose to perform his obligations personally or through employees or third parties.
Although the court was not required to decide whether the dental practice owner was also vicariously liable for the acts and omissions of the self-employed dentists, it expressed a view that he would not be vicariously liable because the test in Barclays Bank Plc v Various Claimants [2020] UKSC 13 was not met.
Contracts: High Court grants in junction to stop Tesco firing and rehiring employees
In USDAW and others v Tesco Stores Ltd [2022] EWHC 201 (QB), the High Court has granted an injunction to restrain Tesco from terminating and re-engaging a group of warehouse operatives in order to remove a contractual entitlement to enhanced pay, which had been incorporated as a result of collective bargaining. The entitlement had been negotiated as a retention incentive at a time when Tesco was reorganising its distribution centres, which involved some major relocations. A collective agreement reached in 2010 stated that the enhanced pay would be a “permanent feature” of each affected employee’s contractual entitlement, and could only be changed through mutual consent, or on promotion to a new role.
In these unusual circumstances, the court granted declaratory relief, setting out the precise contractual term relating to enhanced pay that was incorporated into the contracts of employment, and held that it was appropriate to imply a term preventing Tesco from exercising its right to terminate on notice for the purpose of removing or diminishing the right of each employee to receive the enhanced pay. The court noted that Tesco’s intention to terminate and re-engage on inferior terms would operate to remove a significant proportion of the remuneration currently payable to the affected employees, causing significant injury to their legal rights. Since damages would not have provided an adequate remedy, the court granted an injunction to restrain dismissal in breach of the implied term.
Holiday Pay: Misclassified worker’s right to holiday pay for whole period of employment crystallised on termination
In Smith v Pimlico Plumbers Ltd [2022] EWCA Civ 70, the Court of Appeal has held that a worker who took unpaid leave, having been wrongly told that he was an independent contractor with no right to paid leave, could bring a claim in respect of his entire accrued holiday entitlement under Article 7(1) of the Working Time Directive (2003/88/EC), whether taken or untaken, going back to the start of his contract.
Following the principle in King v Sash Window Workshop Ltd (Case C-214/16), annual leave under the Directive is a “single composite right” to paid leave, rather than a right to leave and a separate right to payment for that leave. As the employer had refused to grant that right, the worker’s full leave entitlement under the Directive accumulated from year to year without limitation, and his right to claim a payment in lieu of that entitlement crystallised on termination of his contract. He did not need to rely on establishing a “series of deductions” under section 23(3) of the ERA 1996, and the time limit for bringing the claim ran from the date of termination, rather than the date of the last non-payment of holiday pay. It was also not necessary for the worker to specify whether the leave in question was untaken or taken but unpaid.
Although the court did not strictly need to deal with this point, it also expressed a “strong provisional view” that the EAT’s decision in Bear Scotland Ltd v Fulton [2015] ICR 221, that a series of deductions is broken by a gap of three months or more between deductions, was wrong.
A few days later the Court of Appeal added a postscript and an appendix.
The earlier judgment of the EAT had included suggested wording to be read into the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998) in order to reflect holiday pay case law under the Working Time Directive (2003/88/EC), including King v Sash Window Workshop and another (C-214/16) EU:C:2017:914. In light of the Court of Appeal’s decision that the EAT had wrongly interpreted King, it invited further submissions from the parties as to the appropriate course to adopt.
Although the court acknowledged that it had “no power to draft regulations” it suggested a form of words that would best reflect EU law, as an appendix to its earlier judgment. It includes the following additional wording to be read into the WTR 1998 at regulation 13(16):
“Where in any leave year an employer (i) fails to recognise a worker’s right to paid annual leave and (ii) cannot show that it provides a facility for the taking of such leave, the worker shall be entitled to carry forward any leave which is taken but unpaid, and/or which is not taken, into subsequent leave years.”
The case has important implications for the way time limits work in holiday pay claims, particularly for workers who have been misclassified as self-employed and therefore denied any paid holiday rights. Such workers may now be able to claim holiday pay back to the start of their employment, without having to rely on the “series of deductions” rules which would otherwise limit the value of historical claims.
Further Information:
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