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Employment Law Bulletin July 2018

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News round up

It has been a busy July so far for the Clarion Employment team - both inside and outside the office. It has been a great summer of sport and three members of the team (Joanna, Hannah and Charlotte) decided to get involved in this and completed the Jane Tomlinson Run for All earlier this month. As loyal supporters of the Run For All Leeds 10K, we have sponsored the event from the very beginning. It was great to see so many clients and contacts along the route. We hope that everyone who signed up, enjoyed it and we will see you there next year (when it will hopefully be slightly cooler!).

Back in the office, we held our annual Mock Employment Tribunal on 28 June in which, the attendees watched an unfair dismissal and disability discrimination claim play out. Once again, we received great feedback and we will be arranging to run the event again next year (with a new fictional case).

It is always our most popular event, so if you think that either you, or any managers or other colleagues you work with, would benefit from attending this event and would like to register an interest in booking a place, please email laura.courbet@clarionsolicitors.com.

In addition, we are always talking about key legal developments, topical issues and what we are up to on our twitter account (@ClarionEmpLaw), so please follow us if you want to be kept up to date between our monthly newsletters.

In the meantime, here is our usual round up of key cases and legal changes over the last few weeks.

More insight into worker status

As you will be aware from our previous newsletters, there have been a number of recent cases brought to the courts to determine if individuals are employees, workers or self-employed. Many of these cases have been from the so-called ‘gig economy’ – against the likes of Uber, Deliveroo and Addison Lee. We now have the ruling from the Supreme Court in the case of Pimlico Plumbers v Smith [2018]. This is an important ruling to note, because it is the first of these cases to have progressed all the way to the Supreme Court.

Mr Smith worked for Pimlico Plumbers as a plumber. He was required to wear the company uniform, drive a van with the company logo on it and use materials supplied by their approved suppliers. He could tell Pimlico Plumbers when he was available to work, and had to do any work that they allocated to him personally.

He had a heart attack, and then was told that he was no longer needed. He wanted to bring claims of disability discrimination, unpaid holiday pay and unlawful deductions from wages, but Pimlico Plumbers challenged his right to bring these claims, arguing that he was self-employed.

The Employment Tribunal ruled that he was a worker, and this decision has now been confirmed by the Supreme Court. The key factors that influenced this decision were:

Mr Smith had to do the work personally. If he was not able to do the work then he was allowed to send someone else to do the job. However, that person had to be contracted to work for Pimlico Plumbers. Therefore, there were very limited rights on substitution.
Pimlico Plumbers was not his client or customer. He was subject to the controls of the employer (e.g. he had to wear their uniform and drive their van) and his services were marketed by the company. He was not operating as someone providing services to a customer.

On conclusion, therefore, Mr Smith was a worker.

Actions:

Understanding maternity leave

When an employee is on maternity leave she remains an employee. This means that all her terms and conditions (apart from those relating to remuneration) continue. It also means that her service is continuous.

In Walworths v Scriven Ltd [2018] the employer made a mistake in the way that it managed maternity leave. The employee had been trained as a Dispensing Optician at the employer’s expense. There was an agreement in place that she would repay the cost of the training if she left the organisation within three years of her training ending and her qualifying as an optician.

She became pregnant and went on maternity leave. She was told that a ‘pause clause’ would be put into the agreement relating to the repayment of the training money. This would mean that the three years would stop accumulating as soon as she started her maternity leave, and would not recommence until she returned to work. Her baby was unwell, she asked if she could take more leave and was told it was not possible. After some discussions she finally resigned and claimed that she had been treated unfairly due to her maternity leave. She was asked to repay £11,000 of training costs because she had only worked 16 months post-qualification when she started her maternity leave.

This was found to be maternity/pregnancy discrimination. She was still an employee whilst she was on maternity leave, so excluding the service that she was accruing whilst she was on leave amounted to less favourable treatment because of her maternity leave.

Actions:

Avoid discussing sensitive situations in public

The disciplinary process is very sensitive, particularly when there is the possibility that it is going to lead to a dismissal. It is important, therefore, to ensure that it is managed carefully and confidentially.

In Warrington v Lloyd’s Pharmacy Ltd [2018] a number of problems had arisen with an employee. She was disruptive, she was not performing well, she was upsetting colleagues and she also had a lengthy period of sickness absence. The employee overheard her line manager telling a colleague that dismissing her was ‘work in progress’. She resigned and successfully claimed constructive dismissal. The comment which had been made was sufficient to breach her contract of employment.

Actions:

Carry out a thorough investigation

We have covered the importance of a thorough investigation on a number of occasions, it continues to be an area where the utmost care is needed. In Stokes v Poundland Ltd [2018] a Store Manager was dismissed for stealing a drink from the store.

This was an unfair dismissal because of an inadequate investigation. Although there was CCTV evidence showing her carrying a drinks bottle, there was no CCTV footage showing her taking the drink. The investigation did not include looking at till receipts or checking to see if any witnesses had seen what was happening. There was just one person who alleged that she had stolen the drink.

She successfully claimed unfair dismissal and was awarded just under £21,000 in compensation. For a dismissal to be fair the employer must show that there has been a fair investigation, and that it can be concluded that, on the balance of probabilities, the employee has done as alleged. The investigation was not sufficient to reach that conclusion.

Actions:

Understanding what amounts to harassment

It can be difficult to assess whether certain behaviours amount to harassment, but do not ignore something that an employee is complaining about. Always investigate it and carefully consider a complaint from an employee.

In Bali v Listers Group Ltd [2018] the employee alleged that he suffered a number of comments which amounted to racial harassment. This included applying a name linked to a character in The Simpsons to the employee, and using offensive Urdu and Hindi words towards him. He raised a grievance which was not upheld, and then resigned and claimed racial harassment and constructive dismissal.

The Employment Tribunal found that he was an unreliable witness, and exaggerated the claims, but did conclude that the grievance hearing had not been conducted correctly because it did not consider all of his claims. In addition, it concluded that using offensive words in a particular language, which only the employee would have understood, was clearly linked to his race and therefore his claims of racial harassment were upheld.

Actions:

A Final Word - A spotlight on our Private Client team

We are a full service law firm at Clarion and can therefore help with all of your legal requirements - whether they are business - related or personal. This month, we are focussing on our Private Client team and the work that they do.

Clare King and Kanika Sophal are two Legal Directors from the Private Client team at Clarion. With 12 lawyers, the team is one of the largest teams in the region that specialise in wills, estate planning, estate administration and mental capacity advice. Clare says, “Our day to day work can vary from visiting a business to work with a board of Directors on personal and business succession planning to dealing with the administration of an estate when somebody has died, or giving advice to the family of somebody who is living with dementia."

Life is very busy and it can be easy to put off important conversations with family, friends and colleagues about what would happen should you lose mental capacity or in the event of your death. Is the future of the business protected by careful planning? Have you ensured that your assets will go to the people you intend? Have you thought about inheritance tax? Who will make decisions about your finances or healthcare in the event that you are unable to?

We are used to answering all of these questions and many more.

Please let us know if you do want us to put you in touch with Clare or Kanika and we would be happy to do so.