What’s Occurring: 2019’s Employment & HR News (So Far)
It’s been a busy year already for employment and HR law – we’ve put the key updates in one place so all you need to do is read on:
To start, employment rates and thresholds had their annual increases in April. These include:
The government has a full breakdown of rates and thresholds for employers.
Equal pay claims are big news at the moment. In Asda Stores Ltd v Brierley the claimants are predominantly female employees undertaking shop floor or administrative roles. The Court of Appeal (“CA”) has held that their work can be compared with that of (more highly paid) mainly male employees working in distribution centres and warehouses. This is because, despite the two groups doing different work at different establishments (neither could do their work at the other site), the employer observed broadly common terms and conditions for both groups. The Asda Executive Board was a single source of pay and conditions and ultimately responsible for both groups’ pay. Where a company board has the power to set/change pay terms this can be sufficient to be a single source. Having decided that the comparison can be made, the cases have been remitted to the Employment Tribunal to consider whether each group’s work was of equal value.
Employment status is causing a lot of difficulties for businesses – it’s a complex area with serious ramifications. Do get in touch if we can help.
In Exmoor Ales Ltd & Another v Herriot the claimant, originally an independent contractor, was held to be an employee by the Employment Appeal Tribunal (“EAT”). In particular, the claimant (1) was paid an additional quarterly £1k “exclusivity” payment preventing her from offering her services to anyone else and (2) had no right to appoint a substitute in her absence. These outweighed other factors, such as payment via invoice and tax treatment, which indicated self-employed status. When looking at employment status a number of factors will be considered – the key ones being mutuality of obligation, control and any right of substitution.
The CA has upheld the decision that Uber drivers are workers. The key question was whether Uber contracted directly with passengers to provide services (which the drivers performed), or, whether Uber was an intermediary providing booking and payment services (and the drivers were independent contractors). The CA decided Uber is a transportation business and the drivers provide the skilled labour through which it delivers its services. Uber has permission to appeal. Remember, a court will look at the reality of the situation and not just how the relationship is defined in written documentation. Businesses can’t assume that a contract referring to a contractor relationship will alone protect them from an employment status claim.
Hermes has created a “self-employed plus” status in a deal with the GMB union. It’s an additional status and individuals must opt-in: they can receive up to 28 days of paid leave and choose pay rates of at least £8.50 an hour (exceeding National Minimum Living Wage). However, they can’t receive premium rates of pay and will be provided with route optimisation software to propose the most efficient routes. This type of agreement should be viewed with caution for now: we’ll have to wait and see how it is viewed from both an employment and tax status point of view.
In case you missed it: in the last instalment of Smith v Pimlico Plumbers, the claimant (“S”) was confirmed to be a worker and not self-employed. S has now lost a claim that he is entitled to £74,000 in holiday pay arrears (due as he is a worker) on the basis that his claim was not brought in time. Don’t relax yet – it is understood (unsurprisingly) that S will appeal.
Be careful with disciplinary proceedings, especially where dismissal is possible and/or allegations of breach of contract or discrimination could arise. If in doubt, obtain legal advice at the outset.
In London Borough of Lambeth v Agoreyo, a primary school teacher (“A”) was suspended following an accusation of using excessive force against two young special needs pupils. Suspending an employee without cause can breach the term of trust and confidence implied in all employment contracts. However, the Court of Appeal confirmed that an employer doesn’t need to show that suspension was necessary only that it has “reasonable and proper cause” for doing so. This will always depend on the facts. The case is helpful when deciding whether suspension is an option – that said, suspension shouldn’t be a default choice and always consider whether it is required in the circumstances.
In Choksi v Royal Mail Group Ltd the claimant (“C”) was dismissed for gross misconduct. He had allegedly stored obscene material on his online work account (C denied this) and shared his account password (C said this was a widespread practice). The dismissal letter said that password sharing alone was not enough to justify dismissal but, combined with the stored material, dismissal was appropriate. C appealed. The appeal said that sharing his password was enough alone to justify dismissal. The effect was that the appeals process allowed for a harsher penalty to be imposed. C’s dismissal was unfair and he was awarded +£53k. An appeal should not impose a harsher sanction, and could lead to a finding of unfair dismissal, as it could deter employees from appealing a decision and/or be considered a punishment for doing so.
In Tywyn Primary School v Aplin, a head teacher was unfairly dismissed and may have been subjected to sexual orientation discrimination. The claimant (“A”), who was gay, met two 17 year olds on Grindr and had sex. The Local Authority investigated: there was no criminal offence and no child protection issues arose. However, the school dismissed him following disciplinary proceedings. A appealed but resigned before the hearing. The Employment Tribunal (“ET”) found the disciplinary process so flawed (including a “far from objective” investigation and failure to provide A with relevant documentation) that it constituted a breach of the implied term of mutual trust and confidence. A was entitled to resign in response and claim constructive dismissal.
In Williams v The Trustees of Swansea University Pension the employee (“W”) retired at 38, due to disability, and became entitled to an enhanced pension. His employer had previously reduced his hours, as an adjustment to accommodate his disability, and his pension was based on his part-time salary. W argued that his pension should be calculated on his original full-time salary. The Supreme Court identified the relevant treatment as the award of an enhanced pension: there was nothing unfavourable about it and therefore no discrimination.
In Hargreaves v Department for Work and Pensions, an employee (“H”) has been awarded +£35k for disability discrimination. H has depression and was taken off flexible working because he was often late: his employer (DWP) decided that it was not suitable for him. At a later date, H’s depression worsened and he asked to return to flexible working. DWP refused. The ET found that DWP failed to comply with its duty to make reasonable adjustments by not taking into account H’s changing circumstances (supported by his therapist’s recommendation for flexible working) when considering the request. An employer should consider new flexible working requests, especially when they relate to an employee’s disability, and not simply rely on any earlier decision.
In Gan Menachem v de Groen, a teacher at an ultra-orthodox Jewish nursery was dismissed for cohabiting with her partner. This was due to the nursery’s religious beliefs. However, the EAT found no religious discrimination. What is relevant is the protected characteristic of the person discriminated against, not the discriminator. In any event, an employer would act the same towards anyone meaning there was no unfavourable treatment because of that person’s protected characteristic. Still, be careful where multiple types of discrimination are alleged – here, sex discrimination did occur because the nursery would not have treated a male employee this way.
The claimant (“T”), a police officer, informed her line manager that she was pregnant and wanted to remain in her front line role until her maternity leave. A risk assessment confirmed she could stay in her position with identified adjustments in place. Shortly afterwards T was moved to an office based role on the basis of business need and her restricted duties. The ET found she had been treated unfavourably on the ground of pregnancy: the move put her at a disadvantage and ignored the risk assessment. The ET noted that the policy, which allowed a person on restricted duties for more than two weeks to be considered for a transfer to desk based roles, could be particularly disadvantageous to pregnant women. Don’t assume that an employer can change an employee’s role just because their policies allow it and/or where there is no identified need (such as in a risk assessment) to do so (Town v The Chief Constable of Devon and Cornwall Police).
Finally, in Antuzis v DJ Houghton the High Court confirmed that directors of a limited company can be personally liable for a company’s breach of an employment contract. Generally, directors won’t be liable for inducing a breach when they are acting for the company. However, where the breach has a statutory element, it may suggest a director’s failure to comply with their own statutory duties to the company. This can make them liable to a third party (e.g. an employee). Here, the company paid below National Minimum Wage, didn’t pay overtime/holiday pay and withheld payments. The directors did not believe they were entitled to do so and were not acting for the company. They were personally liable for the contractual breaches they induced.
Please contact the Employment Team if we can help you with any of the issues raised.
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