This month’s case digest covers how to compare workers in cases of less favourable treatment, considering different aspects of unfair dismissal claims, the intricacies of holiday pay accrual, and when time spent doing something work-related is not actually working time for the purposes of pay and therefore the National Minimum Wage.
Worker Status: Less favourable treatment on ground of part-time working
Unfair Dismissal: Care workers’ vaccine preference can’t top residents’ safety
Unfair Dismissal: ET made inadequate findings on employer’s search for suitable alternative employment
Holiday Pay: EAT considers Coronavirus and Shimizu carry-over claims
National Minimum Wage: Time spent travelling on employer’s minibus to and from place of work is not ‘time work’
Worker Status: Less favourable treatment on ground of part-time working
In Augustine v Data Cars Ltd [2024] EAT 117, the EAT held that a part-time taxi driver was treated less favourably by the employer’s application of a £148 per week flat rate circuit fee because, applying the pro rata temporis principle, the claimant was:
paying a higher circuit fee than his full-time comparator when considered as a proportion of his hours worked, and/or
was taking home a lower hourly rate of pay.
The principle of pro rata temporis means whereby when a comparable permanent employee is employed with specific terms and conditions of employment, the fixed-term employee will be employed with the same terms and conditions of employment, based on a comparison of the period of employment of the comparable permanent employee and the fixed-term employee respectively.
However, because the part-time working was not the ‘sole’ reason for the less favourable treatment, the imposition of the flat rate fee did not breach the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551. While the EAT preferred the test on causation set out by the EAT (England) in Sharma v Manchester CC [2008] IRLR 336 and Carl v University of Sheffield [2009] IRLR 616 (that the part-time working has to be the ‘effective and predominant’ cause of the less favourable treatment) it nonetheless applied the test set out by the Inner House of the Court of Session (CSIH) (Scotland) in McMenemy v Capita Business Services Ltd [2007] IRLR 400 (that the part-time working has to be the sole cause of the less favourable treatment) because it recognised the legitimate public interest in having a consistent approach in cases both north and south of the Scotland/England border.
Unfair Dismissal: Care workers’ vaccine preference can’t top residents’ safety
In Masiero and Others v Barchester Healthcare Ltd [2024] EAT 112, the EAT has agreed that a healthcare provider’s mandatory coronavirus (COVID-19) vaccine policy did not infringe a group of care home workers’ human rights, ruling that they were fairly dismissed because the company had a right to protect its residents.
In particular, the EAT held that the employment tribunal had been entitled to find that:
the claimants’ dismissals were compatible with their rights under the European Convention on Human Rights and the Human Rights Act 1998;
the respondent’s policy did not involve the imposition of a mandatory requirement to submit to medical treatment in abrogation of the claimant’s right to free and informed consent;
the interference with the claimants’ Article 8 rights was justified in pursuit of the respondent’s aims of (among other things) protecting care home residents’ rights to life under Article 2.
Unfair Dismissal: ET made inadequate findings on employer’s search for suitable alternative employment
In Birkett v Integral UK [2024] EAT 107, the EAT held that the employment tribunal had made insufficient findings in respect of:
the respondent’s process of searching for alternative jobs, at the time of the claimant’s dismissal, and
the circumstances in which the claimant was unsuccessful for a specific vacancy, for which he had been interviewed.
Both issues were relevant to the fairness of the claimant’s dismissal for the purposes of section 98(4) of the Employment Rights Act 1996:
merely to state a conclusion on a disputed point that there were, for example, no vacancies, without any analysis of, and findings on, the respondent’s enquiries, was not sufficient;
if findings are not made about the basic fairness of the recruitment process, the risk is that it would be open to any employer to absolve itself of liability by offering an interview, without a wider analysis of the fairness for the purposes of Employment Rights Act 1996, s 98(4).
Holiday Pay: EAT considers Coronavirus and Shimizu carry-over claims
In Knight v Off Broadway Ltd [2024] EAT 109, the claimant, a bar manager, brought claims that, in addition to a payment in lieu of holiday accrued in the leave year in which his employment terminated, he was also entitled to carry-over unused holiday from previous years.
The EAT held that the employment tribunal had:
correctly found on the facts of the case that there were no Covid-related circumstances which entitled the claimant to carry-over unused holiday entitlement under the then in place (but now withdrawn) amendments to the Working Time Regulations 1998, SI 1998/1833 (WTR 1998);
erred in failing to consider whether the respondent had done sufficient to inform the claimant, in particular, that any unused holiday at the end of the holiday year could not be carried over (see Max-Planck-Gesellschaft zur Főrderung der Wissenschaffen e.V. v Shimizu [2018] All ER (D) 30 (Nov), the principles from which have now been incorporated into the WTR 1998).
HHJ Auerbach noted that in Shimizu the Court of Justice of the European Union referred to the employer being required to ensure that the worker is actually in a position to take the paid annual leave to which he is entitled by encouraging him ‘formally if need be’ to do so, while ‘informing’ him in good time that leave not taken during the holiday year will be lost. He said that would be sufficient in the given case to satisfy that obligation will be a fact-sensitive matter for the tribunal.
National Minimum Wage: Time spent travelling on employer’s minibus to and from place of work is not ‘time work’
In Taylors Service Ltd v Commissioners for HM Revenue and Customs [2024] EAT 102, HMRC issued the respondent (a company providing labour to poultry farms around the country) with a notices of underpayment of the national minimum wage because it did not pay its workers on zero hours contracts for time spent travelling on its minibuses from their home addresses to and from farms. The respondent appealed, first to the employment tribunal which dismissed the appeal, and then to the EAT.
The EAT allowing the appeal, holding that:
the approach taken by the Supreme Court in Royal Mencap Society v Tomlinson-Blake [2021] IRLR 466 to the interpretation of the National Minimum Wage Regulations 2015 (NMW 2015), SI 2015/621, regs 30 and 32 also applies to regs 30 and 34 and, accordingly, time spent ‘just’ travelling is not ‘time work’ for the purposes of reg 30 unless it is deemed to be such by reg 34;
as the tribunal in this case had found that the workers were not working in the ordinary sense when on the minibus, and were not deemed to be engaged in time work by virtue of reg 34, the only conclusion open to the tribunal on the facts as it found them to be was that the workers were not engaged in ‘time work’ for the purposes of NMW 2015, SI 2015/621, reg 30.
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.
This month we bring you a range of employment law updates. A CIPD survey revealed...
News & Views
Employment Law Case Update – December 2023
Employment,
15th December 2023
Employment Law
As the year draws to a close we delve into some technical cases – an update on the case that just keeps on giving (Deliveroo), a look at how “heat of the moment” resignations play out and when they might be considered to have in fact been an unfair or wrongful dismissal, and how a tribunal got it wrong in not calling out a respondent’s alleged dishonesty.
Worker Status: Supreme Court unanimously agrees that Deliveroo riders were not in an employment relationship
Termination:No ‘special circumstances exception’ when assessing resignation or dismissal
Tribunals: Tribunal’s failure to allege dishonesty amounted to a serious procedural irregularity
Worker Status: Supreme Court unanimously agrees that Deliveroo riders were not in an employment relationship
On 21 November 2023, the Supreme Court handed down its judgment in Independent Workers Union of Great Britain v Central Arbitration Committee [2023] UKSC 43. The issues at stake were, did the Central Arbitration Committee’s refusal to accept the Union’s application to be recognised by Deliveroo for collective bargaining interfere with the rights of Deliveroo riders to form and join a trade union under Article 11 of the European Convention on Human Rights? If so, was this interference justified? Should the courts below have construed section 296(1)(b) of the 1992 Act so as to give effect to Article 11?
This appeal concerns collective bargaining rights in respect of Deliveroo riders. The appellant, the Independent Workers Union of Great Britain (“the Union”) is an independent trade union whose members include Deliveroo riders. The second respondent, Roofoods Ltd (“Deliveroo”) operates the Deliveroo food and drinks delivery service.
On 28 November 2016, the Union submitted an application to the first respondent, the Central Arbitration Committee (“the CAC”), that the Union should be recognised by Deliveroo for collective bargaining in respect of a group of Deliveroo riders in the Camden zone. Applications are considered by the CAC in accordance with Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”). The CAC refused to accept the Union’s application on the basis that the riders were not “workers” within the meaning of the 1992 Act. This was because Deliveroo did not require them to provide delivery services personally, but permitted the use of substitutes, i.e. they did not provide “personal service”.
Both the High Court and the Court of Appeal dismissed the Union’s claim for judicial review of the CAC’s decision. The Union then appealed to the Supreme Court.
In a unanimous decision delivered by Lord Lloyd-Jones and Lady Rose in a joint judgment, the Supreme Court agreed with the previous decisions of the lower courts that the Deliveroo riders in question did not have an employment relationship with Deliveroo for the purposes of article 11 of the European Convention on Human Rights (ECHR) (i.e. the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions), and therefore the provisions of that article did not apply to them.
Termination: No ‘special circumstances exception’ when assessing resignation or dismissal
In Omar v Epping Forest District Citizens Advice [2023] EAT 132 the EAT had to consider the position of a claimant who had resigned ‘in the heat of the moment’ and then sought to retract the resignation. The claimant had contended that he should not be treated as having resigned as the situation fell within the so-called ‘special circumstances exception’ recognised in Sothern v Frank Charlesly[1981] IRLR 278. He argued that he had been unfairly and wrongfully dismissed. The employment tribunal disagreed and found that the claimant had resigned.
The EAT held, among other things, that the employment tribunal had erred in law by failing to make adequate findings of fact and failed to direct itself properly in accordance with the applicable legal principles set out in Sothern v Frank Charlesly. The EAT summarised the case law on the issue, including, among other things, that:
there is no such thing as the ‘special circumstances exception’; the same rules apply in all cases where notice of dismissal or resignation is given in the employment context;
words of dismissal or resignation, or words that potentially constitute words of dismissal or resignation, must be construed objectively in all the circumstances of the case in accordance with normal rules of contractual interpretation (i.e. the reasonably bystander test);
the subjective uncommunicated intention of the speaking party is not relevant, but the subjective understanding of the recipient is relevant but not determinative in assisting the tribunal form a judgment as to what the reasonable bystander would have thought.
Tribunals: Tribunal’s failure to allege dishonesty amounted to a serious procedural irregularity
In Stuart Harris Associates Ltd v Gobudhun [2023] EAT 145 the EAT dismissed the respondent employer’s appeal against the decision of the employment tribunal that held that: first, the claimant employee had been constructively dismissed; and second, the respondent had been either dishonest or incompetent when they engaged in the expenses practice that had led to the claimant’s resignation.
The respondent contended that the employment tribunal had erred in law since: (i) it had prejudged the case; (ii) descended into the arena by conducting their own extensive research into the law and practice of filing tax returns; and (iii) determined that the respondent’s principal, had been either ‘dishonest’ or ‘incompetent’ when it had not been put to him in terms that his conduct was dishonest or incompetent.
The EAT held, among other things, that: (i) the failure to put to the respondent that he had acted dishonestly amounted to a serious procedural irregularity which meant that the finding of dishonesty had to be set aside; and (ii) there had been no prejudgment of the case and the employment tribunal’s conduct regarding the hearing had not been unfair.
Consequently, given that the employment tribunal’s conclusions as to unfair constructive dismissal could stand irrespective of the finding as to dishonesty, the decision overall remained and was not set aside.
Further Information:
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: hello@dixcartuk.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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law Case Update – November 2023
Employment,
22nd November 2023
Employment Law
This month’s case law shines a light on a less-common area of worker status – where a partnership is providing a service to a company and how to ensure no employee relationship is found, and provides a useful insight into using comparators for discrimination claims.
Worker Status: Individual providing services through genuine partnership cannot be an employee
Worker Status: Individual providing services through genuine partnership cannot be an employee
In Anglian Windows Ltd t/a Anglian Home Improvements v Webb [2023] EAT 138 the EAT held that if there is an agreement between a genuine partnership and an employer for the partnership to provide certain services, then, providing that the arrangement is not a sham, there cannot also be an employment relationship between the individual partner providing those services and the employer, and, accordingly that partner cannot bring a claim of unfair dismissal against the employer (because they do not have the necessary status of being an employee).
This judgment concerns the unusual situation of a partnership entering into an agreement with a company for one of its partners to perform a sales role and then that individual partner trying to claim that they are an employee of that company in order to claim unfair dismissal.
The claimant and his wife had a partnership trading as Webb Consultants. The claimant was appointed as Area Sales Leader for the respondent but provided services (and was paid) through Webb Consultants. The contract provided that the claimant would not be an employee and would ‘at all times remain either a self-employed sole trader, a limited company or a partnership’. The claimant was dismissed and claimed unfair dismissal. The respondent applied to strike out the claim on the basis that it did not have reasonable prospects of success because the claimant was not an employee.
The employment tribunal refused to strike out the claim on the basis that the fact of these arrangements (which involved a genuine partnership and were not suggested to be a sham) did not preclude the possibility of the claimant being able to establish employee status. In reaching this conclusion, the tribunal sought to distinguish the EAT’s decision in Firthglow Ltd v Descombes and anor UKEAT/0916/03. The respondent appealed.
The EAT disagreed with the tribunal’s finding. The EAT held that the tribunal had erred in seeking to draw a distinction between this case and Descombes, where it had been held that, where the relevant work was being undertaken under an agreement with a partnership, that precluded the possibility of one of the individual partners being able to claim he was an employee. The tribunal ought to have followed Descombes. Although it was open to the EAT not to follow a previous decision at this level, none of the circumstances that might warrant adopting this course of action. Moreover, the agreed facts, confirmed by the tribunal’s own findings, meant that the possibility of the existence of a contract of employment between the claimant and the respondent was precluded in the circumstances of this case. That being so, the claimant’s claim of unfair dismissal could have no reasonable prospect of success and the tribunal ought to have allowed the respondent’s strike out application. Therefore the appeal was allowed, the tribunal’s judgment set aside and a finding substituted that the claimant’s claim must be dismissed as having no reasonable prospect of success.
Although employers might, as a result of this judgment, be tempted to engage people to work for them through a partnership (as a means of avoiding them gaining rights as employees) the fact that the courts and tribunals will look behind any such arrangement to determine whether it is a sham, and not reflecting the true agreement between the parties, should discourage them from doing so in practice.
Constructive Unfair Dismissal: Incorrect use of hypothetical comparators
In The No. 8 Partnership v Simmons [2023] EAT 140 the claimant pursued claims of constructive unfair dismissal and of direct associative disability discrimination, relating to the respondent’s refusal to grant her time off for her dependent father under section 57A Employment Rights Act 1996. In considering the claim of direct discrimination, the Employment Tribunal constructed hypothetical comparators without first giving the parties the opportunity to give evidence or make submissions on the hypothetical circumstances envisaged. The tribunal also found that the reason for the refusal of section 57A leave was the respondent’s unwarranted misinterpretation of the section and that one of the decision-makers was dismissive of the care that aged parents required. Having found that the respondent had thus discriminated against the claimant, the tribunal concluded that this meant that it had breached the implied term of trust and confidence, which had also been breached by the respondent’s failure to personally communicate with the claimant before reaching any decision. The respondent appealed.
The EAT allowed the appeal. By failing to afford the parties the opportunity to address its hypothetical comparisons (in evidence or submissions), the tribunal had adopted an unfair procedure. The comparators thus constructed were also flawed as they failed to provide a like-for-like comparison for the purposes of section 23 Equality Act 2010 and, in the case of the second case, relied on a comparison with an individual sharing the same protected characteristic as the claimant. Moreover, given its finding as to the respondent’s reason for refusing section 57A leave, it was perverse of the tribunal to conclude that this was because of the claimant’s father’s disability. That conclusion was also perverse given the tribunal’s further finding that one of the respondent’s partners would have treated any carer of an aged parent (regardless of disability) in the same way.
Having allowed the appeal against the finding of discrimination, this also undermined the tribunal’s reasoning on constructive unfair dismissal. The alternative basis for that conclusion was, however, also flawed as the tribunal had failed to apply the correct test when determining whether there had been a breach of the implied term of trust and confidence and had failed to provide an adequate explanation of it finding that a breach arose from a failure of personal communication.
In the direct race discrimination case of Virgin Active Ltd v Hughes [2023] EAT 130, the question before the EAT was whether it was correct for the employment tribunal to consider a colleague who had made a comment about her own race as a valid comparator for a claimant who had made a comment about a colleague’s race.
The claimant in this case was a gym manager who had been dismissed. He had won several claims at the tribunal, including unfair dismissal, automatic and ‘ordinary’ unfair dismissal, and race discrimination concerning the handling of his disciplinary process and a grievance. The respondent appealed on various grounds and succeeded in overturning the findings related to race discrimination.
The tribunal had considered three of the claimant’s colleagues as comparators, even though their situations appeared significantly different from the claimant’s. The tribunal argued that the differences in treatment of these comparators shifted the burden of proof and upheld the complaint.
However, the EAT disagreed with the tribunal’s approach. It pointed out that the tribunal had not adequately assessed whether the claimant’s comparators were indeed suitable comparators, given their differing circumstances. A tribunal should carefully evaluate any material differences between a claimant and a valid comparator. The more significant the differences in their circumstances, the less likely the disparate treatment indicates discrimination. To illustrate this, the EAT provided an example: if two individuals of different races both undergo a job interview and one succeeds while the other does not, this alone wouldn’t be enough to shift the burden of proof. However, if both candidates scored equally in an assessment but were treated differently, that might indeed warrant shifting the burden of proof.
Additionally, the judgment highlighted that delay, on its own, is not sufficient grounds for an appeal. (The judgment had been delayed due to the Employment Tribunal Judge’s serious ill-health.)
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law Case Update – July 2023
Employment,
25th July 2023
Employment Law
A round-up of the most significant employment law cases to be published over the last month, and it’s a varied bag. We look at what lead to an interim injunction before a disciplinary hearing, whether it was lawful for the government to revoke legislation without consultation, whether a person can have two employers at the same time for the same work, whether a dismissal meeting is always needed to ensure a fair process and how a lay tribunal member could be considered to have been biased.
Injunctions: Witnesses and disclosure of documents at disciplinary hearings
Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?
Worker Status: Can a person have two different employers at the same time for the same work?
Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair
Tribunals: Apparent bias in case of lay member posting on social media
Injunctions: Witnesses and disclosure of documents at disciplinary hearings
In Colbert v Royal United Hospitals Bath NHS Foundation Trust [2023] EWHC 1672 (KB), the Claimant, Dr Serryth Colbert, was a consultant in oral and maxillofacial surgery, employed by the Defendant, the Royal United Hospitals Bath NHS Foundation Trust. The Claimant was the subject of disciplinary proceedings brought by the Defendant following allegations that he intimidated and bullied colleagues and other allegations of misconduct. The Claimant issued proceedings on 30 May 2023 seeking an interim injunction relating to the conduct by the Defendant of the disciplinary process.
This case involved two issues in dispute: 1) whether the Claimant had a right to require the attendance of individuals at a disciplinary hearing, who were interviewed as part of the investigation of allegations against him, but who the Defendant was not proposing to call to give evidence, and 2) whether the Claimant was entitled to disclosure of specific documents as part of the disciplinary process, and in particular to an unredacted report that had been produced into alleged misconduct in his department. The Claimant claimed that the way the Defendant had dealt with those two matters breached express contractual obligations, contained in two documents which he contended formed part of his contract: (1) “Maintaining High Professional Standards in the Modern NHS” (“MHPS”) published by the Department of Health; and (2) “Managing Conduct Policy” (“MCP”), the Defendant’s policy for dealing with allegations of misconduct.
In December 2020, the Defendant commissioned an external review to examine the department in which the Claimant worked following allegations having been raised of inappropriate workplace behaviour. A report was produced in February 2021 (“the Atkinson Report”) by the external reviewer, and considered the behaviour of a number of individuals, including the Claimant, and made recommendations, one of which was that the Claimant should be investigated for alleged bullying / inappropriate behaviour. The Claimant was excluded from work from 8 March 2021 while an investigation was carried out (conducted pursuant to the MHPS). An external report was commissioned involving the interviewing of 21 witnesses, including the claimant, and a further report submitted in December 2021 (“the Cunningham Report”). The Report made a number of critical findings about the Claimant including that he had displayed intimidating and bullying behaviour towards a number of colleagues.
On 16 December 2021 a letter was sent to the Claimant with the outcome of the investigation, concluding that the Claimant had a case to answer in relation to a series of allegations, and that the matter would proceed to a disciplinary panel, to be held in January 2023, in accordance with the Defendant’s MCP. The letter stated who would be called as witnesses for the Defendant and who else would be giving evidence, and invited the Claimant to identify who he would be calling, and enclosed a number of documents including the Cunningham Report and a redacted copy of the Atkinson Report (the redactions relating to the other individuals identified by the report).
In January the Claimant wrote back to state the Claimant required that 11 named individuals, described as “management witnesses”, should be present so they could be questioned, and that the Claimant intended to call “around 30 additional witnesses subject to their availability”, and asked for the hearing date to be rescheduled. The Defendant responded by acceding to a later hearing date (May) but declined to provide the 11 witnesses, other than Ms Cunningham who had prepared the second report, and said that he had received all the relevant documents, and the redacted parts of the Atkinson report related only to other members of staff and were not relevant to this investigation.
The Claimant sent a letter before claim setting out:
1. Grounds: The alleged Breaches of Contract by the Defendants are the failure to follow its disciplinary procedures, and to hold a disciplinary hearing in accordance with the Claimant’s contractual rights. These rights are confirmed in the doctor’s employment contract, in [the MHPS] and in the [MCP].
2. The failure to require the Defendant’s primary witnesses to attend the disciplinary hearing so that they can be cross examined by the Claimant’s chosen representative.
3. The failure to allow the Claimant to bring his chosen representative to represent him at the hearing in breach of the amended procedure.
4. The failure to disclose documents pertaining to the disciplinary case in line with MHPS.
The Defendant declined to agree and due to the tight schedule that the letters had caused prior to the rescheduled May disciplinary hearing, the Claimant issued an interim injunction for breach of the Claimant’s contract – the order sought to ensure un-redacted disclosure of all documents, to ensure that all the Defendant’s management witnesses attend the disciplinary hearing and the Claimant’s chosen representative was allowed to represent him at the disciplinary hearing and conduct cross-examination.
In the High Court, (King’s Bench Division) the judge held that, on the correct reading of the Defendant employer’s policy for dealing with allegations of misconduct (the MCP), the employee did not have an unqualified right to insist that any ‘management witness’ could be required to attend a disciplinary hearing to be cross-examined. Accordingly, the court dismissed the employee’s application for an interim injunction. The employee had sought the injunction to ensure unredacted disclosure of all documents, and to ensure that all the defendant’s management witnesses attended the disciplinary hearing, so that they could be cross-examined, and he had contended that the employer had breached express contractual obligations.
The court held that there was no serious issue to be tried, because: (i) the claimant had no real prospect of establishing that his interpretation of the relevant paragraph of the MCP (namely that it meant that the employer had to ensure the attendance at any rescheduled disciplinary hearing of all management witnesses, so that they can be subject to cross examination) was correct; and (ii) there was a good argument that the proceedings should run their course before it would be appropriate for the court to intervene, in circumstances where it was settled law that courts should not become involved in the ‘micromanagement’ of disciplinary proceedings. Further, the court held that the employee had no real prospect of establishing that an investigative report that a Trust had commissioned into a department at a hospital constituted ‘correspondence’, as the word was ordinarily understood or as it was intended to be used in the MHPS. Moreover, there was no real prospect of his establishing that ‘relevant’ material had been withheld from the employee and, even if the report amounted to correspondence, he would not have an unqualified right to have the unredacted report disclosed to him.
Strikes: Could the government revoke legislation to prevent strikers being replaced by agency staff?
In R (on the application of ASLEF and others) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin) the High Court considered whether it was lawful for the government, without consultation, to revoke legislation which prevented workers on strike being replaced by agency workers. From 1976 it was unlawful for an employment business knowingly to introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action. Regulations made pursuant to section 5 of the Employment Agencies Act 1973 and most recently regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319 – “the 2003 Regulations”), made this a criminal offence.
In 2015, the Government conducted a public consultation on a proposal to revoke regulation 7. The majority of the responses did not favour this change in the law and, in 2016, it was decided not to go ahead. In June 2022, however, the Government decided, in the context of industrial action in the rail sector and other anticipated industrial action, that regulation 7 would be revoked without further public consultation. On 27 June 2022, the draft Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852 – “the 2022 Regulations”) were therefore laid before Parliament, regulation 2(a) of which implemented this measure. The 2022 Regulations were made by the then Secretary of State for Business, Energy and Industrial Strategy (“BEIS”), Mr Kwasi Kwarteng, on 20 July 2022 and they came into effect on 21 July 2022.
Thirteen trade unions challenged the then Secretary of State’s decision to make the 2022 Regulations. The challenge is on two grounds:
that he failed to comply with his statutory duty, under section 12(2) of the 1973 Act, to consult before making the 2022 Regulations (“Ground 1”).
it is contended that, by making the 2022 Regulations, the Secretary of State breached his duty, under Article 11 of the European Convention on Human Rights (“ECHR”), to prevent unlawful interference with the rights of trade unions and their members (“Ground 2”).
The High Court confirmed that the challenge succeeded on the basis of Ground 1 and quashed the Regulations. In particular, it found that the decision to revoke the legislation preventing the use of agency workers in place of striking workers “was not informed by, or tested against, the views of and the evidence of bodies which were representative of the interests concerned”. The Secretary of State could not rely upon consultation which had taken place 7 years earlier on the same point (and was found not to have done so in any event).
The High Court, having upheld Ground 1, decided not to express a view on the more contentious Ground 2.
Worker Status: Can a person have two different employers at the same time for the same work?
In United Taxis Ltd v Comolly [2023] EAT 93, the EAT considered Mr Comolly’s worker status. He is a taxi driver, registered with United Taxis and who then did work driving United Taxis’ passengers, through one of its shareholders, Mr Parkinson, using his taxi. After that relationship came to an end he did work driving United Taxis’ passengers, through another shareholder, Mr Tidman, using his taxi. After that relationship ended he brought various complaints to the employment tribunal asserting that he was either an employee or a worker of United Taxis or Mr Tidman.
The tribunal determined as preliminary issues that Mr Comolly was a worker of United Taxis and an employee of Mr Tidman. On the facts found, the tribunal properly concluded that United Taxis’ passengers’ contracts were, and were solely, with United Taxis. It also properly concluded that, under Mr Comolly’s contract with Mr Tidman, Mr Comolly provided services to him in exchange for payment. United Taxis contracted out the task of conveying its passengers to Mr Tidman, who in turn sub-contracted it to Mr Comolly.
However, the EAT noted that the key cases of Brook Street Bureau v Dacas and Cable & Wireless v Muscat had found the concept of dual employment to be “problematic” and concluded that it could not “see how [the problems] could be overcome”. It therefore found that the tribunal erred in finding that Mr Tidman had a contract with United Taxis under which he also did work for it. There was no necessity to imply such a contract, whether from the fact that he registered with United Taxis, and was required to comply with its rules and byelaws as a condition of being permitted to convey its passengers, or otherwise. The tribunal could also not properly find that he was simultaneously an employee or worker of two employers in respect of the same work.
The tribunal also erred in finding that Mr Comolly’s contract with Mr Tidman was a contract of employment, in particular in its approach to the question of control. In particular, although Mr Tidman controlled when the taxi was available to Mr Comolly, he had no control over what Mr Comolly did during the time that the taxi was available to him. Drawing on its findings of fact, a finding was substituted that Mr Comolly was a worker of Mr Tidman.
Unfair Dismissal: Lack of dismissal meeting does not render dismissal unfair
In Charalambous v National Bank of Greece [2023] EAT 75, the EAT considered the process of dismissal. It found that the lack of a meeting between an employee and the dismissing officer will not in and of itself, in all circumstances, make a dismissal unfair. It found that the decision in Budgen & Co v Thomas [1976] ICR 344 (EAT), was not an authority for the proposition that a dismissing officer must always have direct communication with an employee in order for a misconduct dismissal to be fair. Such a meeting is desirable and good practice but what is essential is that the employee is given the opportunity to ‘say whatever he or she wishes to say’ and there is nothing to say that this communication cannot, in principle, be in writing or by way of a report to the dismissing officer, according to the EAT. In any event, the Employment Tribunal had looked at the procedure adopted by the respondent as a whole: it found that any procedural unfairness in the initial decision to dismiss was sufficiently addressed by the internal appeal, which involved a meeting between the claimant and the decision-maker. The claimant’s appeal against the Employment Tribunal’s finding that her dismissal for misconduct had been fair was therefore dismissed.
Tribunals: Apparent bias in case of lay member posting on social media
In Aspect Windows (Western) Limited V Retter (as representative of the estate of Mrs C McCrorie) [2023] EAT 95 following the publishing of the decision of the employment tribunal arising from a full merits hearing, one of the lay members of the tribunal posted on her LinkedIn page, a link to a report about the decision in the Mail Online. Followers of hers then responded on LinkedIn and she responded to them.
The unsuccessful Respondent in the employment tribunal appealed on the basis that the LinkedIn posts gave rise to apparent bias against it. The EAT held that whilst it is possible that what a tribunal member said about a case after the event could shed light as to their approach to the hearing of it, the fair-minded and informed observer, having considered the contents of these posts and applying the guidance in Magill v Porter [2001] UKHL 67 and other pertinent authorities, would not in the circumstances consider the lay member was biased in favour of the Claimant. The appeal was therefore dismissed.
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.
This month our employment news has been rolling in from all levels of the courts...
News & Views
Employment Law Case Update – February 2023
Employment,
27th February 2023
Employment Law
This month’s review covers a range of issues. We look at sex discrimination involving a lack of a private toilet for a female employee, how an employee who worked term time should have had her holiday pay calculated to take account of the national minimum wage, a potential revision of couriers’ holiday pay following the Pimlico Plumbers case, how not to deal with a flexible working request, and an appeal to reconsider a dismissal related to the pandemic.
Sex Discrimination: Risk of seeing man at urinal was direct sex discrimination
Pay: Contractual terms of salaried term-time worker entitled her to NMW for 52 weeks of the year
Holiday Pay Claims: Tribunal decision remitted following Court of Appeal decision in Pimlico Plumbers
COVID-19: Sales rep wins bid to dispute firing over COVID-19 home working
Sex Discrimination: Risk of seeing man at urinal was direct sex discrimination
In Earl Shilton Town Council v Miller [2023] EAT 5, the EAT has rejected Earl Shilton Town Council’s case that it did not treat ex-clerk Karen Miller worse than men in its shared toilet arrangement. The council launched its appeal after the employment tribunal ruled in 2020 it failed to provide appropriate toilet facilities to ex-clerk Karen Miller for almost two years between 2016 and 2018. The tribunal concluded that Ms Miller had been treated less favourably because she ran the risk of seeing men using the urinal. The council argued in its appeal that Ms Miller was not treated less favourably than men because they were just as much at risk of being seen at the urinal as she was of seeing them. The Judge Tayler rejected its case, concluding that Ms Miller’s sex discrimination claim did not fall apart just because a man could also make a similar complaint. It was enough to establish that Ms Miller had a worse experience than a man would seeing another man at the urinal, he said.
‘Taken from her perspective the claimant was treated less favourably than men in that she, a woman, was at risk of seeing a man using the urinals’, Judge Tayler said. ‘While a man might see another man use the urinals, the treatment of the claimant, as a woman, was less favourably.’
The judgment details how the council, which was based in a Methodist Church that it shared with a playschool, only had access to a female toilet that was in the school’s half of the building. Female staff would have to check with playschool workers that no children were using the toilet first because of child safety concerns, according to the judgment. The toilets were not always immediately accessible as a result. The council offered her the use of the men’s toilet, which has a single cubicle and a multi-person urinal. But there was no lock on the external door, creating the risk that a woman might walk in on a man using the urinal or leave the cubicle to find a man using it. The council also contended in its appeal that the sharing arrangements could not be discriminatory because they were caused by child safety concerns.
Judge Taylor ruled that the arrangements were not good enough, citing the lack of a sanitary bin and suggesting that installing a lock on the toilet door may have made it compliant.
‘The facilities were inadequate for the claimant because she is a woman’, he said. ‘Accordingly, the safeguarding issue could only go to motive and could not prevent direct discrimination being established.’
Pay: Contractual terms of salaried term-time worker entitled her to NMW for 52 weeks of the year
In Lloyd v Elmhurst School Limited [2002] EAT 169, the claimant was employed by the respondent, a private school, as a teaching assistant. She initially worked two days a week and then this was increased to three days a week (21 hours per week). She was paid monthly in equal instalments. The claimant’s contract did not set out hours of work. However, it stated that during term time she would work as directed by the Head Teacher and be entitled to the usual school holidays as holidays with pay. The respondent calculated the claimant’s salary based on 40 weeks of the year. The claimant brought a claim in the employment tribunal for unlawful deduction from wages based on an underpayment of the National Minimum Wage (NMW). She argued that her hours over the year should be calculated as 52 weeks x 21 hours, and not 40 weeks x 21 hours. If her method of calculation was accepted as correct there was an underpayment of the NMW.
A salaried worker is entitled to receive the NMW for their ‘basic hours’ which, by virtue of regulations 3, 21(3), 22(5) of the NMW Regulations 2015 (NMWR 2015), are determined by the terms of their contract of employment, even if those basic hours are greater than the hours actually worked. On the facts of this case, even though the claimant only worked term-time as a teaching assistant, she was entitled to the NMW for 52 weeks of the year rather than just her working weeks plus statutory holiday, because her contract provided that ‘… she was entitled to the usual school holidays as holiday with pay’, according to the EAT.
The employment tribunal dismissed the claimant’s claim. It found that the claimant worked term-time only; when the claimant accepted her job it was on her and the school’s understanding that she would work term time only; the contract did not explicitly set this out but this was consistent with clause 3(b) of the contract; the wording of clause 4 of the contract did not mean that these hours were deemed to be working hours for the purposes of the NMW legislation; the wording ‘the usual school holidays as holidays with pay’ did not mean that the 12 weeks of school holiday should be paid at the same rate as when the claimant was working/on statutory leave and included in her basic hours worked calculation for NMW purposes.
The claimant appealed to the EAT. In relation to the construction of ‘basic hours’ in NMWR 2015, it was not in dispute that the claimant was a permanent employee, who was employed throughout the school year and who was engaged in ‘salaried hours work’ for the purpose of NMWR 2015, nor that the claimant met the four conditions in regulation 21, including the second condition in regulation 21(3) that she was entitled to be paid in respect of a number of hours in a year and that those hours necessarily could be ascertained from her contract.
The principal point of dispute on statutory interpretation was which non-working hours of absence or holiday count towards basic hours. The claimant argued that, while it depends on the individual contract, basic hours include all the hours which are paid as contractual holiday. While the respondent argued that the only periods of absence which count towards basic hours are those which are absences from days when the worker would otherwise be working.
The EAT allowed the appeal. It agreed with the claimant on the issue of statutory interpretation and held that the code, Act and regulations were a poor guide to what hours are to be treated as basic hours, and the ascertainment of the claimant’s ‘basic hours’ depended on the meaning of her contract: the statutory question was not answered by looking at the hours which she in fact worked. Her annual basic hours, as ascertained from her contract, would then fall to be divided by 12 to give the hours of salaried work for each one-month pay reference period. It held that as a matter of general principle, some periods of fully paid absence count towards the ‘basic hours’ of salaried hours work, e.g. if the worker’s contract said they were entitled to a salary of £400 a week for a 40-hour week and to seven weeks’ holiday at full pay their annual basic hours would be based on a multiplier of 52 weeks.
In relation to the individual grounds of appeal, the EAT held that the tribunal erred in examining the hours the claimant in fact worked, to which it added her statutory entitlement to paid annual leave; failing to ascertain the number of hours in the year for which the claimant was entitled to salary in accordance with her contract, as to which the meaning of clause 4 of her contract was of central importance; examining whether the claimant was engaged in ‘working activity’ outside term-time, rather than asking whether those periods of contractual holiday could form part of her basic hours; inconsistently including statutory leave but excluding contractual leave; and relying regulation 27 (whether a worker is ‘available at or near a place of work’ for the purpose of doing work) and not to regulation 21(3), and, in doing, so wrongly focused on when the claimant was in fact engaged in working or working activity.
The EAT remitted the matter to a freshly constituted employment tribunal for the determination, in light of its judgment, of all the issues relevant to the claimant’s claim of unlawful deduction from wages.
Holiday Pay Claims: Tribunal decision remitted following Court of Appeal decision in Pimlico Plumbers
InAlston and 44 Ors v The Doctors Laboratory Ltd and Ors [2023] EAT 13 a group of couriers have successfully applied to the EAT to set aside by consent an employment tribunal decision on an application of time limits in holiday pay claims under the Working Time Regulations 1998 (WTR 1998) which had ruled that they could carry over paid holidays between years only if they had not already taken unpaid leave, after arguing that a Court of Appeal decision voided the employment tribunal judgment on this point.
Forty-five claimants, 38 of them represented by trade union Independent Workers of Great Britain (IWGB), argued before the EAT that the Court of Appeal’s decision in Smith v Pimlico Plumbers Ltd in February 2022 removed restrictions on how much paid leave they are due. The Honourable Mrs Justice Eady, current President of the EAT, agreed, saying that an employment tribunal’s 2020 decision in the couriers’ case ‘cannot stand and must be set aside’. The couriers ‘were and remain entitled to carry over any untaken paid annual leave’ until their contracts end or the employer, The Doctors Laboratory Ltd, allows them to take the paid holidays they have accrued, Mrs Justice Eady ruled.
It is one of the first cases to rely on the Pimlico Plumbers precedent, which allows people who were wrongly denied paid holiday to claim up to 5.6 weeks’ worth of pay—the equivalent of statutory annual leave—for each year of their employment. For people who have been misclassified as self-employed rather than workers, the precedent removed a previous two-year limit to compensation claims—now, they can stretch back as far as 1996.
The Doctors Laboratory, the UK’s largest independent clinical lab, did not give its couriers paid holiday until 2018, when it conceded they were entitled to up to four weeks a year as ‘limb (b) workers’, a legal category of worker under section 230(3) of the Employment Rights Act 1996.
The company argued before the employment tribunal in 2020 that unpaid leave the couriers had taken before 2018 should be subtracted from their holiday entitlement going forward.
The tribunal agreed the couriers’ right to carry over leave year-on-year ‘exists subject to qualification’.
Employment Judge Elliott ruled that unpaid leave was ‘capable of amounting to annual leave’ because it fulfils the health and safety objective of the European Working Time Directive, which is the root of UK working time law. But the couriers’ counsel argued before the EAT that Pimlico Plumbers allows workers to accumulate paid holiday if they have taken unpaid leave for reasons beyond their control.
The couriers and The Doctors Laboratory remain at odds over whether the couriers count as workers. If so, they could be entitled to the full 5.6 weeks’ statutory annual leave. Judge Eady remitted the matter to the employment tribunal for further directions.
Indirect Discrimination: Rejection of flexible working request is application of PCP
In Glover v (1) Lacoste UK Ltd (2) Harmon [2023] EAT 4 the EAT dealt with the question of when a provision, criterion or practice (PCP) can be said to have been ‘applied’ to an employee, for the purposes of a claim of indirect discrimination under section 19 of Equality Act 2010. The EAT held that once an application for flexible working (eg to work on a limited number of days only each week) is determined, following an appeal process, the PCP (eg to be fully flexible as to working days) has been applied, and may therefore have put the applicant at a disadvantage, for the purposes of an indirect discrimination claim. That is the case even if the applicant is away from work when the request is made and never returns to work. It remains the case even if the employer subsequently agrees to the terms of the original application.
COVID-19: Sales rep wins bid to dispute firing over COVID-19 home working
The EAT has agreed to hear arguments from a salesman fired after asking to work from home or be granted a leave of absence during the COVID-19 lockdown, that the employment tribunal failed to consider his belief that these were reasonable steps to avoid infection. The EAT granted Francesco Accattatis permission to challenge a decision in favour of his former employer Fortuna Group, which sells protective medical equipment like face masks and gloves. The company said Accattatis had failed to ‘support and fully comply with company policies’, which included working from its office in Enfield, North London, when it fired him in April 2020, approximately a month into the first national coronavirus lockdown. But Accattatis argued a 2021 employment tribunal ruling only considered the company’s belief that it was not possible for him to work from home or be placed on furlough. ‘To focus exclusively on the respondent’s view of the situation was an error’, his counsel, told the EAT. ‘I don’t see that the respondent’s view of whether something is feasible, or whether it was feasible, was a relevant matter’.
Under the Employment Rights Act 1996 (ERA 1996), it is unlawful to fire an employee for refusing to return to a workplace because they believed there was a ‘serious and imminent danger’ they couldn’t reasonably avoid. Whether the steps the employee took were appropriate to avoid that danger must be judged ‘by reference to all the circumstances, including, in particular, his knowledge and the facilities and advice available to him at the time’.
The employment tribunal ruled Accattatis’ requests were not appropriate steps because the company ‘reasonably and justifiably concluded’ that he could not work from home or claim furlough.
But Judge James Tayler agreed at a hearing on 9 February 2023 that it is arguable the tribunal misinterpreted the law and allowed the appeal to proceed. Accattatis will also be able to argue that the reason Fortuna gave for his dismissal was not properly distinguished from managers’ low opinion of him.
He had asked his bosses several times about working from home, which he felt was possible. Fortuna and the tribunal disagreed that Accattatis was needed in the office to manage deliveries of equipment and use specialist software, the 2021 judgment noted. He sent several emails throughout April 2020 while on sick leave for a suspected case of Covid-19 urging managers to place him on furlough. ‘I can assure you I already received confirmation from several sources that [the] coronavirus job retention scheme is easily accessible, by any company still actively trading during this time of emergency, without any downside to it’, one email reads. His counsel said this demonstrated Accattatis’ belief that furlough was possible and that urging Fortuna to reconsider was an appropriate step. ‘It’s the manner of the demands, that they were impertinent, that was the reason for the dismissal’, he said.
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.
