News round up
Welcome to our first employment law bulletin of 2018.
We have a number of exciting events in the pipeline and seminars already scheduled for later in the year. Please click here to view our seminar programme and keep an eye on your inbox for invitations to these events in due course.
You may have attended one of our recent events on the General Data Protection Regulations 2016 (“GDPR”) and be aware of its imminent introduction in May this year.
The new regulations pose a number of significant changes to current data protection legislation. To support you with the changes introduced by GDPR, we will be issuing a special ‘GDPR’ newsletter in February, focussing on the impact of GDPR from an employment law and HR perspective. Look out for this in your inboxes in the coming weeks!
Worker status continues to be a topic that hits the headlines, and it is useful to start the new year by looking at the current rulings and the issues that you might need to address during 2018.
Just before 2017 ended we had two rulings of importance. Firstly, the Employment Appeal Tribunal (EAT) gave their ruling in the case of Uber v Aslam, Farrar, Dawson and others . In this case Uber appealed against the Employment Tribunal decision that their drivers were workers (giving them certain rights such as the right to National Minimum Wage and paid holiday). Uber have been unsuccessful in their appeal, and have now been granted permission to appeal to the Supreme Court.
In giving its ruling the EAT noted that the contractual documentation clearly stated that the drivers were self-employed, but held that the way they actually worked did not suggest a self-employed relationship. The EAT noted the level of control Uber held over their worker and the fact that the drivers had to provide work personally. In addition, the EAT found that it was not possible to conclude that the drivers were in business on their own account when they were not allowed to take passengers details nor allowed to choose which journeys they took.
This ruling followed a number of similar decisions with individuals working in the ‘gig economy’ being found to be workers. However, the courts reached a different conclusion regarding Deliveroo riders (see below).
In Independent Workers Union of Great Britain v RooFoods Ltd t/a Deliveroo  the question of employment status arose because the IWGB (a trade union) was seeking to represent the riders, to do so, those riders had to be either workers or employees. The Central Arbitration Committee (CAC) ruled that the riders were not workers nor employees because they had the right to ask someone to do their work for them, and further this right of substitution this did happen. In Practice, the CAC confirmed that a requirement to do the work personally is a fundamental requirement of a worker.
Hot on the heels of these rulings, was an announcement that two Commons committees – the Work and Pensions Committee and the Business, Energy and Industrial Strategy Committee – have drafted a bill which has been put before the Prime Minister. This bill addresses a number of issues which were raised in Taylor’s review into Modern Employment Practices, which was published in the summer of 2017.
The bill suggests that individuals working in an organisation should be workers ‘by default’ and that it should be presumed that an individual is a worker unless there is any evidence to the contrary. It also puts forward clearer definitions of a worker and a self-employed individual; suggests that a pay premium is added to the National Minimum Wage if individuals are not working on guaranteed hours, introduces the requirement to give individuals written terms and conditions within 7 days of starting employment, rather than the current 2 months; and introduces stronger penalties on employers who persistently commit the same breaches of legislation.
So, 2018 is likely to be an interesting year as we see what the Supreme Court rule on the Uber care, and also wait to see if and how this bill progresses. As ever, we will keep you updated. In the meantime, it would be worth following these actions:
- Review the employment status of anyone who does work for you on a self-employed basis. Are you certain that they are self-employed? If you are at all unsure please contact us for advice.
- Make sure that you are giving the correct employment rights to employees and workers. If you are not sure what rights each attracts please contact us for advice.
Unpaid Holiday Pay to be Paid with no Limit
If an employee does not take their annual leave there is no automatic right to carry this forward to the next holiday year. However, what happens if the individual has been prevented or deterred from taking the annual leave that is due to them?
In King v Sash Windows Ltd  the individual had been treated as self-employed. He was working as a commission-based sales representative for 13 years. He received no salary, and did not take much annual leave because he did not earn anything when taking leave (as he was deemed to be self-employed). After his contract was terminated (when he reached the age of 65), he challenged the definition of his employment status, and the Employment Tribunal found that he was a worker – which means that he was entitled to paid annual leave for the duration of his 13 years. Mr King argued that he should be able to claim back pay for all the annual leave that he had not taken.
The Court of Appeal referred questions to the European Court of Justice (ECJ) regarding the right to carry over. The ECJ held that, as Mr King was deterred from taking annual leave (due to not being paid),) there is no limit on how far back he can claim the unpaid leave. The case will now return to the Court of Appeal to determine whether to repay the leave (by interpreting the Working Time Regulations 1998 in light of the ECJ’s decision).
- This case is another reminder of the importance of defining employment status correctly and increases the already high stakes in the cases such as the Uber case, which are already going through the courts. If you have any queries please let us know.
- If you think that you might have an individual in a similar situation to this case please contact us for advice on how to resolve the problem.
Moving Pay Date was a Breach of Contract
It is quite readily accepted that moving the place of work, or changing the hours of work, is a contract variation. However, it is also important to note that something which might seem quite minor will be a variation of contract if it changes the terms of the contract of employment.
In Gower and Donnelly v Post Office Ltd  the employees, who were Postal Workers, were told that they were going to change from being weekly paid to being monthly paid. They did object to the change, but the employer went ahead regardless. They continued to work, and they did accept loans which were given to them to help them manage the period of change. However, they successfully brought claims of unlawful deduction from wages and breach of contract.
The employer argued that there was no breach of contract because the employees had accepted the loans, and this indicated their acceptance of the new terms. However, the Employment Tribunal did not accept that argument and found that they were entitled to be paid each Friday, as they always had been, and that there was a breach of contract and unlawful deduction from wages each Friday that they were not paid.
- If a proposed change means that the terms and conditions of employment are going to be altered you must consult with the employees first.
- If employees will not agree to change, after the consultation has taken place, you might be able to force the changes or to dismiss the employees and offer them re-engagement on new terms. However, both these options are risky and please take our advice before doing either.
Dismissal for not providing immigration documentation unfair
You are required to check that all those who are working for you have the right to work in the UK. This includes checking that anyone currently working for you has an ongoing right to work, if anything should change in their circumstances. However, if the employee is not subject to immigration control dismissing them for not providing relevant documentation could be unfair.
In Baker v Abellio London  the employee had lived in the UK since he was a child, and was a Jamaican national. He had indefinite leave to live and work in the UK. The employer carried out routine ‘right to work’ checks and it was found that his Jamaican passport had expired. His employer lent him £350 to get his passport renewed, with an endorsement to prove that he had the right to work in the UK. He got a new passport, but without the endorsement. He was dismissed as he was not able to prove that he had the right to work. The Employment Appeal Tribunal found that this was an unfair dismissal. He was not subject to immigration control, there was no requirement to carry out the additional check and therefore the dismissal was not fair.
However, the EAT did say that the dismissal could be fair if the employer believed that he was working illegally, and this point has been referred back to the Employment Tribunal to review.
- Ensure that you are carrying out checks to show that all new recruits have the right to work in the UK
- If you are not sure whether an existing employee still has the right to work in the UK check with us immediately. You should not employ anyone if you honestly believe that they are not entitle to be working.
Your responsibilities to a breast feeding employee
If an employee returns to work following maternity leave and is still breast feeding, what are your responsibilities towards her?
In Otero Ramos v Servicio Galego de Saude  the employee was a nurse in a hospital accident and emergency department. She returned to work and was still breast feeding. She asked to change her work pattern to assist her with the timing of her breast feeding, but after a risk assessment was carried out this request was refused. She was not told any details about the outcome of the risk assessment.
The Court of Justice of the European Union has ruled that a flawed risk assessment, or the lack of a risk assessment in this situation could be discrimination on the grounds of pregnancy/maternity.
- If one of your employees is breast feeding you should carry out a risk assessment if there are any potential risks to her, or her child, in the workplace.
- There is no legal requirement on you to provide extra breaks for breast feeding or to provide somewhere for her to store expressed milk.
- You are required to provide somewhere for her to rest, which ideally should include somewhere to lie down.
- Before refusing a risk assessment, or any other specific requests, from a breast feeding woman please contact us for advice. You need to be sure that there is no potential for an allegation of discrimination
Manage rest periods correctly
In the Working Time Regulations 1998 there are three rest periods set out:
- A rest of at least 20 minutes after 6 hours of work
- A rest of at least 11 hours in every 24 hours
- A rest of at least 24 hours in every 7 days
The rest of 24 hours in every 7 days can be taken as one rest period of 48 hours every 14 days, or 2 rest periods of 24 hours in every 14 days if that works better for the employer. The employee does not have the right to choose when these rest periods fall.
In Maio Marques da Rosa v Varzim Sol  the employee worked in a casino. He claimed that he had not received adequate rest periods because he sometimes worked 7 or more consecutive days. His employer argued that he was getting two rest periods of at least 24 hours in every 14 days, and he had no right to choose when those rest periods should fall. The employer was successful in this argument:
- If you have an employee who is working irregular work patterns make sure that they are still getting adequate rest.
- You are not required to ‘police’ the rest periods and make sure that they are taking them, but you are required to make sure that there is nothing in the way that you are structuring their work which means that they cannot take the rest periods.
You are responsible for identifying potential reasonable adjustments
If an employee, or an applicant for a job, is disabled as defined in the Equality Act 2010 you are required to consider what reasonable adjustments can be made to overcome any disadvantage that they have because of their disability. The responsibility is on your to identify these adjustments, you cannot ‘delegate’ the responsibility to the employee.
In Crossland v Chamberlains Security Ltd  the employee was disabled, specifically suffering from diabetes. He worked as a security guard, and his area of work required him to patrol near a reservoir. His employer was concerned that this was unsafe because if he had a hypoglycaemic attack he became disorientated and unstable. The employer concluded that there was no reasonable adjustment that could be made to make his work safe. It asked the employee for any suggestions, which were not forth coming, and on that basis the employee was dismissed.
The employee successfully brought claims of disability discrimination. The employer had not done enough to identify possible reasonable adjustments. It had relied too much on the employee for ideas, and in addition to this had only carried out a basic internet search.
- If an employee or an applicant for a job is disabled, or you think that they might meet the definition of disability in the Equality Act 2010, you must consider what reasonable adjustments can be made.
- You can ask the employee for their opinions, but the employee is under no obligation to identify potential adjustments.
- Charities and other organisations who offer specific support for particular disabilities are often a very useful source of ideas.
- Before dismissing someone due to a lack of possible reasonable adjustments seek our advice to ensure that you avoid potential discrimination claims.
Check that your information is correct
If you are relying on any documentation in making your decision to dismiss check it carefully, and be sure that it has been interpreted correctly. If you apply it wrongly this could mean that a dismissal is unfair.
In Vorajee v Royal Mail Group Ltd  the employee had been granted special leave to look after his wife who was unwell. He had booked some annual leave but had to cancel it due to his wife’s illness. He then took his leave, and flew to Abu Dhabi. When he came to return he found that there was a travel ban imposed on him. He informed his employer, and it was several weeks before he was able to return home. He was dismissed because it was thought unlikely that he would be able to return to work in the near future.
The employee appealed and sent in documentation showing what he had done to try to get the travel ban resolved. On reading this, the employer wrongly thought that he had travelled abroad during his special leave, which was not allowed, and therefore upheld the decision to dismiss him. This was found to be an unfair dismissal because the employer had not read the documentation correctly.
- If an employee appeals against a decision to dismiss make sure that the manager heading up the appeal reviews all the evidence, and does not presume that the interpretation of the dismissing manager is correct.
- If a wrong decision is corrected at appeal this will mean that a dismissal would not be unfair.
Be prepared to postpone a disciplinary hearing
You must act reasonably in the arrangements that you make for a disciplinary hearing. This could include postponing a meeting if it is reasonable to do so. In Gough v East Midlands Crossroads – Caring for Carers t/a Carers Trust East Midlands  the employee worked at a day care centre. A pottery class was run by an external provider, who told the employee that it was not economical to run the classes. The supplier then did not send anyone to run the classes, saying that the employee had said it need not bother – which she denied. There were also issues with a party she had been responsible for, and so she was invited to a disciplinary meeting.
The disciplinary hearing was arranged for a date she was on holiday, and it was decided to go ahead with it in her absence because the company had got an HR Consultant in to hear it. She was dismissed in her absence, and this was found to be unfair because the meeting should have been rearranged. She received £5,250 for unfair dismissal.
- If the employee or the employee’s chosen representative have a good reason for being unable to attend a disciplinary meeting, you should rearrange it.
- Exercise caution before proceeding with a disciplinary hearing without the employee in attendance. If you are unsure, you should seek our advice.