Employment Law Newsletter – September 2019
- Unfair Dismissal: Employee Shareholder Status not altered by subsequent service agreement
- Holiday pay: Part-year workers not subject to pro rata reduction
- Worker status: Out of hours GP is a worker despite using limited company
- Disability Discrimination: Tribunal must address all four limbs of the definition of disability
- Harassment: Conduct that creates an offensive or humiliating environment
- Legal Advice Privilege: Waiving privilege does not mean you can cherry-pick what you disclose
- Information Commissioner’s Office: Brexit hub
- Data Protection: Subject Access Requests and Individual Rights – timescales changed
- Modern Slavery: Updated guidance, referral and assessment forms available from Home Office
- Non-Disclosure Agreements: Law Society publishes new guidance
- Upskilling: Give me the chance to save my job
Unfair Dismissal: Employee Shareholder Status not altered by subsequent service agreement
In Barrasso v New Look Retailers Limited UKEAT/0079/19 the EAT had to consider how ‘employee shareholder status’ is terminated, as it is not provided for under the Employment Rights Act 1996 (‘ERA’). The concept of ‘employee shareholder status’ was introduced in 2013. It applies to those who are employed by a company in which they are issued £2,000 worth of fully paid up shares, having first agreed to be an employee shareholder and received information about the status, its rights and independent legal advice. Having the status means they retain some key employment rights but give up others (in return for the shares), such as the right to claim unfair dismissal or receive a statutory redundancy payment. S.205A of the ERA prescribes how one achieves this status but it silent on how it is terminated.
Mr Barrasso was employed as UK Managing Director by New Look until it was sold to another company and he was offered 7,000 shares in the parent company if he signed an Employee Shareholder Agreement (and met the criteria under the ERA), which he did. He was reassured by side letter (signed as a deed between the parties) that he would receive contractual benefits equal to the statutory employment rights he was giving up. He subsequently signed a new director’s service agreement (to standardise terms for all the directors) as a deed. This agreement contained a ‘complete agreement clause’ which purported to preserve the effect of the side letter (not mentioning the Employee shareholder agreement), whilst superseding all other agreements.
Believing that his employee shareholder status had been terminated by the service agreement when Mr Barrasso’s employment was terminated he brought a claim for unfair dismissal. The tribunal dismissed his claim on the basis that the service agreement made no reference to the employee shareholder status – therefore did not supersede it – and the side letter meant the statutory rights had been removed in favour of his contractual rights. He appealed to the EAT, who agreed with the tribunal’s findings. They also looked at how the status could have been terminated practically-speaking, given that the ERA is silent on this, citing examples such as: a new contradictory contract, or an agreement to sell back the shares. It was clear to the EAT however, that the intention of the parties was not to alter Mr Basrrasso’s employee shareholder status by signing his service agreement.
Holiday pay: Part-year workers not subject to pro rata reduction
The Court of Appeal has overturned the decision of an employment tribunal (Harpur Trust v Brazel  EWCA Civ 1402), finding that it should not have read words into reg.16 of the Working Time Regulations 1998. The tribunal had been wrong to read it as if it meant the annual leave entitlement of ‘part-year workers’ (people who work only part of the year) on permanent contracts should be capped at 12.07% of the annualised hours. The Court accepted that ECJ rulings may allow employers to use the Working Time Directive to pro rate the annual leave entitlements of part-year workers to that of full-year workers, but member states may implement better arrangements. There is no requirement in the Working Time Regulations to pro rate holiday pay for part-time employees to ensure that full-time employees were not treated less favourably, it is simply a protection for part-time workers to not to be treated less favourably than full-time workers.
There is a lesson here: employers who employ the 12.07% approach to pay holiday to staff on zero hours permanent contracts should consider their potential exposure and their options. The calculation exercise required by regulation 16 of the WTR 1998, which involves identifying a week’s pay and multiplying it by 5.6 weeks, is straightforward and should be followed, even if it results in part-year workers receiving a higher proportion of their annual earnings as holiday pay (in this case, 17.5%). How the 5.6 weeks’ holiday entitlement itself should be calculated for part-year workers remains unclear, however. As a direct result of this case, BEIS has removed its holiday pay calculator from its holiday pay guidance for workers without fixed hours or pay. BEIS are currently reviewing this.
Worker status: Out of hours GP is a worker despite using limited company
In Community Based Care Health Ltd v Narayan UKEAT/0162/18, Community Based Care Health Ltd (‘CBCH’) provided out of hours GPs to the NHS (each of whom had to be fully qualified and competent), and Dr Narayan provided her services as a GP through CBCH for a number of years. She worked a regular shift pattern but did not need CBCH’s permission to take leave or work elsewhere so there was no mutuality of obligation. She did provide her own equipment and indemnity insurance, and had to work personally for the company and could not send a preferred substitute instead. CBCH audited the services of the GPs it provided to comply with its NHS contracts. Dr Narayan began to use a limited company of her own to receive her payments but never informed CBCH of this fact, merely updated her bank details.
Following an issue with some telephone advice Dr Narayan had provided and a claim that she had unjustifiably swapped duties on short notice, CBCH decided it was no longer going to offer her work. Dr Narayan brought claims of unfair dismissal, race and sex discrimination, breach of contract and unpaid holiday pay. CBCH claimed she was self-employed and neither an employee nor a “worker”. The tribunal disagreed.
The judge found that Dr Narayan was a worker under s.230(3)(b) of the Employment Rights Act 1996, despite the fact that she had used a limited company to receive payments for over a year without CBCH’s knowledge. CBCH had tried to argue that this had led it to unwittingly become one Dr Narayan’s company’s clients under the ‘undisclosed principal’ doctrine (i.e. if A makes a contract with Z in A’s own name, it is open to B at a later date to assert that the contract was made by A on B’s behalf and that B is the contracting party. This means that the resulting contract is between B and Z.) CBCH claimed that therefore it was contracting with Dr Narayan’s company, and not her. This was dismissed from the appeal because it had not been argued at first hand, but in any event the fact that the contract required a competent and suitably qualified doctor precluded a company from being the contracting party. Further, the judge found that the decision in Suhail v Herts Urgent Care UKEAT/0416/11 was not a good precedent he was bound to follow in this case, distinguishing it on the basis that Dr Suhail positively marketed his services to other clients. Dr Narayan, on the other hand, worked for one provider for a number of years on a regular shift pattern. The judge also found the evidence suggested Dr Narayan had been integrated into CBCH’s business. The EAT upheld the tribunal judge’s decisions and found no error of law.
Disability Discrimination: Tribunal must address all four limbs of the definition of disability
In Parnaby v Leicester City Council UKEAT/0025/19/BA Mr Parnaby suffered depression brought about by work-related stress and was dismissed because of his long-term sickness absence due to work related stress (a capability issue). Mr Parnaby claimed this dismissal was in fact disability discrimination and/or potentially unfair. The tribunal found him not to be a disabled person for the purposes of the Equality Act 2010 (“the Act”) though it did accept that he suffered an impairment that had a substantial adverse effect on his ability to carry out normal day to day activities but held this was not long-term. In particular, the tribunal noted that Mr Parnaby had suffered work related stress for six months, but that it had ceased following his dismissal, therefore the effect was not ‘long-term’ (i.e. 12 months or more) for the purposes of paragraph 2 Schedule 1 of the Act. Mr Parnaby appealed.
The EAT allowed the appeal. It held that the tribunal had erred in not addressed all four limbs of the definition of disability contained in the Act. Mr Parnaby had suffered depression brought about by work-related stress which affected his ability to carry out his day-to-day activities – his impairment. The act of discrimination claimed was the dismissal. At that time, his impairment had not lasted for 12 months (s.2(1)(a) of Sch1 to the Act) and was therefore not ‘long-term’. However, the tribunal considered that by removing the source of his impairment (his job) then the likely future impairment and its impacts would cease. The EAT held that the tribunal should have looked at whether it was likely to last twelve months or might recur in the future (i.e. could well happen = more probable than not). It was not for the tribunal to make assumptions about the time-limited nature of his impairment. On this basis the claim was remitted back to tribunal to be reheard.
Harassment: Conduct that creates an offensive or humiliating environment
In Raj v Capita Business Services Limited & Ward EAT0074/19/LA the EAT considered the first tribunal’s dismissal of Mr Raj’s claims of unwanted conduct either of a sexual nature or unwanted conduct relating to his sex, pursuant to s.26 of the Equality Act 2010 (the “Act”). The issue was that the claimant had felt uncomfortable when his female manager massaged his shoulders in their open plan office. Whilst the tribunal found this to be unwanted conduct which created an offensive environment for him, it found that on balance, the evidence provided brought them to the conclusion that whilst the conduct was unwise and uncomfortable but not related to gender, but more likely due to misguided encouragement. This part of the claim failed.
On appeal, the EAT considered the two-stage burden of proof test set out by s.136 of the Act and explained in Igen v Wong  ICR 931. The first stage is that the claimant prove facts from which the tribunal could decide, in the absence of any other explanation, that the respondent committed an unlawful act of discrimination. The second part is only applicable if the first stage is met, and then puts the burden of proof onto the respondent who must prove he/she did not commit that unlawful act. The EAT agreed with the tribunal’s finding that in this case, the claimant fulfilled stage one – it was agreed that there was conduct that was unwanted, thereby producing “an intimidating, hostile, degrading, humiliating, or offensive environment for him”. However, the remaining issue for stage two was whether this conduct related to the claimant’s gender. The tribunal found the evidence to show a prima facie case that this conduct related to his gender to be very limited. The appeal was on the basis that the tribunal had erred in law by not approaching the test properly but the EAT did not agree; the burden of proof had not shifted to the respondent and, in any event, the explanation given by the respondent had been accepted.
Legal Advice Privilege: Waiving privilege does not mean you can cherry-pick what you disclose
This is a warning case to employers involved in litigation. In Kasongo v Humanscale UK Ltd UKEAT/0129/19 the claimant brought claims of unfair dismissal and discrimination related to pregnancy and maternity. Part of the employer’s strategy was to waive its legal advice privilege (i.e. communications between a client and their solicitor which are confidential and come into existence for the purpose or giving or receiving advice about what should prudently or sensibly be done in the relevant legal context) because certain documents arguably demonstrated that it did not know about the claimant’s pregnancy at the time it was considering dismissing her. The documents comprised a draft dismissal letter prepared by the solicitors from which the solicitors notes and comments had been redacted (it was agreed that the letter itself was not legally privileged, but the redacted parts were) and two earlier documents. The issue was whether the disclosure of the two earlier documents meant that the redacted parts were no longer protected by privilege, and therefore if the tribunal had erred in its decision as to which documents were protected by legal advice privilege.
The EAT held that the tribunal had erred in failing to address or rule on one of the three documents. All three documents were part of the same transaction of providing legal advice about the dismissal of the claimant and, given the nature and purpose of the disclosure, the EAT held that fairness required that the redacted part of the letter concerning the reason for the claimant’s dismissal also be disclosed. The reason being that it would be unfair to allow the respondent who had waived privilege in relation to the other two documents not to reveal those redacted parts of the dismissal letter which related to the reason for dismissal. Cherry-picking the parts one discloses is therefore impermissible. The appeal was allowed and the EAT ordered that the redactions be removed and the full letter be included in the trial bundle for evidence at the hearing.
Information Commissioner’s Office: Brexit hub
The ICO has put together a ‘Brexit hub’ containing checklists, FAQs and guidance to help organisations of every size in case prepare for a no-deal Brexit. A good place to stay up to date with how your business manages its data protection duties. You can also sign up to their service to receive regular emails which will let you know about any updates to the guidance.
Data Protection: Subject Access Requests and Individual Rights – timescales changed
In August, the Court of Justice of the European Union ruled on a Dutch case which considered timescales under Regulation No 1182/71. Following this ruling, the Information Commissioner’s Office has updated their guidance on timescales for responding to subject access requests (SAR), and other individual rights requests.
The effect of the ruling is that the timescale has now changed to reflect the day of receipt as ‘day one’, as opposed to the day after receipt. For example, a SAR received on 3 September should be responded to by 3 October.
Modern Slavery: Updated guidance, referral and assessment forms available from Home Office
Following recent reforms made to the National Referral Mechanism (NRM) (a government framework for identifying and referring potential victims of modern slavery and ensuring they receive the appropriate support), the Home Office issued new Modern slavery victims: referral and assessment forms. The forms allow staff at designated First Responders Organisations to refer potential victims of modern slavery or human trafficking to the NRM.
The recent reforms to the NRM include:
- The Home Office created a single, expert unit to handle all cases referred to it to handle decision making about whether somebody is a victim of modern slavery. This replaces (and is completely separate from) the case management units in the National Crime Agency and UK Visas and Immigration.
- All negative Conclusive Grounds decisions will now be reviewed by an independent panel of experts, to increase the scrutiny such cases receive.
- The NRM process will be supported by a new digital system, enabling easier referrals, data capture and analysis, aimed at improving prevention and law enforcement.
For more details on which organisations form part of the First Responders list, see the government website.
Non-Disclosure Agreements: Law Society publishes new guidance
Following our reporting of the Women and Equalities Committee’s review of the use of Non-Disclosure Agreements in discrimination cases, the Law Society has now published a brief guidance leaflet called ‘Non-disclosure agreements: what you need to know as a worker’. This is just as helpful to employers as it summarises both the things employers cannot stop workers from doing and explains the restrictions commonly imposed on workers prior to signing the NDA.
This has been published as part of the Law Society’s new legal education initiative to assist the public understand their rights.
Upskilling: Give me the chance to save my job
PwC has recently published a new study called ‘Upskilling Hopes and Fears’, based on a survey of 22,000 people globally, of whom 2,004 were UK adults in the age range 18-65 (retirees were not included). Their findings show that 73% of workers would welcome the opportunity to expand their knowledge of new workplace technology while 54% of those questioned said they would be happy to learn new skills or completely retrain in order to improve their future employability. But many UK workers say their employers are not offering opportunities to upskill. People fear automation in a growing digital world will lead to fewer jobs and this lack of investment in the workforce is breeding mistrust of employers among workers.
The research also highlights disparities in upskilling opportunities by gender, education, and age:
- Over half (54%) of men surveyed say their employer is giving them the chance to learn new skills, as opposed to only 45% of women. Over half of women (55%) say they are offered no opportunities at all.
- 56% of university graduates say they are offered them, whereas only 41% of those educated to school leaver level say the same.
- 64% of workers aged 18-34 say they are offered opportunities, compared with 48% of 35-54 year olds and 41% of ages 55 and over.
These results highlight the need for organisations to look seriously at offering upskilling opportunities for staff – particularly in the UK where three-quarters (73%) of workers would take the opportunity to better understand or use technology if they were given the option by their employer.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org.