News round up
Welcome to our June newsletter.
There’s also still time to enter a team into the Clarion Leeds 10K Corporate Challenge which takes place on 9 July. It’s a great opportunity to get together with your colleagues and get fit for the summer season, whilst raising some money for a very worthy cause. More details on how to enter a team for the event can be found here.
In this month’s newsletter we take a look at the latest developments around the so-called ‘gig economy’ and some case law developments in relation to discrimination issues. As ever, if you have any queries or would like further information or advice, please don’t hesitate to contact you Clarion employment team.
Self-Employment and the Gig Economy
The focus on employment status continues to be in the news, this time following a report from the Work and Pensions Committee titled ‘Self Employment and the Gig Economy’. The report has been looking at the ongoing concerns about employment status which have been raised in cases such as those brought against Uber, CitySprint UK Ltd and Excel. In all of those cases, individuals which were being treated as self-employed were ruled to be workers.
The report is critical of employers who categorise individuals as self-employed when it is clear, after applying employment status tests, that they are not. The report notes that a common reason given for categorising individuals as self-employed is to allow them the increased flexibility to choose when and how to work. However, the committee does not accept that this is a valid reason, because there is the possibility of working flexibly as a worker or as an employee.
Further work on the report has been curtailed due to this month’s General Election, however it is another sign that there is increased scrutiny of employment status. If you do have individuals working for you who you classify as self-employed, then we recommend that you question whether they really are self-employed, and if this is the best way of structuring the work that they do for you.
- If you do rely heavily on individuals who are classed as self-employed we recommend that you get in touch with us, so that we can help you to review the status of these individuals.
- Consider whether you are getting the commitment that you need from individuals who are self-employed. Would it be better for you if you if the individuals were working for you as workers or employees?
Age Discrimination and Retirement
As there is no mandatory retirement age in the UK, employees can choose when to retire. In effect, they resign and state that the reason for their resignation is retirement. The only exception to that is when you have an employer justified retirement age (EJRA). An EJRA applies when the physical or cognitive demands of the work that the employee does are such that it is appropriate to conclude that an older person would struggle. It is difficult to put in place an EJRA, primarily because of the difficulty of showing that older people would struggle with the work. To be successful you would have to show that there was a legitimate aim in putting the EJRA in place, and that the retirement age you set is a ‘proportionate means of achieving that aim’:
A ‘legitimate aim’ is typically defined as:
- Relating to health and safety
- Relating to the training requirements for the job
- Relating to the needs and efficiency of the business (but this could not be cost saving alone, so arguing that an older person is more expensive because they have a higher salary would not be a justifiable reason for putting in place a retirement age).
A ‘proportionate means of achieving that aim’ is typically:
- The retirement age is fulfilling an aim that you have defined
- There is no reasonable alternative, other than a retirement age, to achieve the aim
- The benefits and importance of the aim outweigh any discriminatory impact of the retirement age
Given that it is clearly difficult to put any retirement age in place, it is important to ensure that an older employee is not forced into retirement and does not suffer any age discrimination.
In the case of Peters v Rock Chemicals Ltd t/a Rock Oil Company  the employee was a Company Accountant. In 2009, when he was aged 62 years, there were some discussions with the management about when he might retire, and he suggested that he might retire in 2011. However, he did not retire then but continued to work.
A number of situations occurred, including him being blamed for gross conduct issues that were not fair allegations. The management became hostile to him, and he started to suffer from stress related illness and went on sick leave. The company went ahead and recruited a replacement for him, even though he had not resigned. When he returned to work the gross misconduct allegations continued, and he was eventually dismissed. He brought a claim of age discrimination.
He was successfully able to show that the company had forced him out of his job due to his age, and not genuinely because of gross misconduct issues. He was awarded £182,000 in compensation.
- If you do have job(s) in your organisation where you think that a retirement age is justified talk to us. You do need to address this very carefully.
- If you have an older employee whose performance starts to decline you should manage it in the same way that you manage the performance issues of any employee of any age.
- Do not suggest to an older employee that it might be time for him/her to be considering retirement.
Keep disciplinary and grievance situations separate
If an employee is facing disciplinary action they might raise a grievance about the way that they are being treated. When should you stop the disciplinary action to consider the grievance, and when should you continue with the disciplinary action regardless?
In Barnett v Acorn Care and Education Ltd  the employee worked in a school for children with social, emotional and behavioural difficulties. A number of situations arose, including him taking unauthorised time off work and refusing to attend two school trips because he did not think that they had been arranged correctly. He was asked to attend a disciplinary meeting, and in response raised a formal grievance. He alleged that witnesses were not prepared to support him, management was bullying him and that statements had been made up. He asked that the disciplinary process be halted whilst his grievance was considered.
However, the management went ahead with the disciplinary procedure . He was issued with a final written warning and his appeal against this failed. He then resigned, claiming constructive dismissal. As he did not have the two years’ service required to bring a straightforward claim of constructive dismissal he argued that he was being treated less favourably for making a protected disclosure (ie whistleblowing), which does not require any qualifying service.
He was unsuccessful. The reasons for the disciplinary action and dismissing the disciplinary appeal were not connected to any protected disclosures, and crucially it was found that there were no protected disclosures made by the Claimant, and therefore going ahead with the disciplinary action was acceptable.
- In this case, the employee could not have brought an ‘ordinary’ constructive dismissal claim due to lack of qualifying service. If he had got the required service he might have been able to argue that ignoring his concerns about the disciplinary procedure was a breach of contract. Always look carefully at the length of service.
- If a grievance raised in a disciplinary process relates to the actual process of discipline, address those concerns before proceeding.
- Do not muddle disciplinary and grievance meetings. If you are holding a disciplinary meeting and a grievance is raised do not turn the disciplinary meeting into a grievance meeting. End one meeting and then arrange a different meeting to address the different issue. Not doing this could mean that any disciplinary action is unfair.
Reasonable adjustments apply to the recruitment process
If an employee is disabled (as defined in the Equality Act 2010) there is a requirement to make reasonable adjustments. Those adjustments should assist the employee to work. In Government Legal Services v Brookes  we are reminded that this includes adjustments for applicants to the company and not just current employees.
The individual in this case suffered from Asperger’s Syndrome. She had applied for a job as a Trainee Solicitor and was asked to undergo some initial tests. Her Asperger’s Syndrome meant that she struggled with social interaction and non-verbal communication. The tests that she was asked to complete were situational judgment tests, and she claimed that this would be more difficult for her, and so she asked if she could write her responses as short answers rather than multiple choice responses. This was refused, because the tests were marked by machine. She took the test using multiple choice answers and scored 2 less than the pass mark.
She has successfully argued that this was disability discrimination (ie: a failure to make the obligatory reasonable adjustments). Although the employer made the adjustment of allowing her unlimited time to do the test, they did not remove the main difficulty that she was experiencing and it would have been reasonable for them to do so as she had requested.
- Ask applicants for a job if there is any reasonable adjustment that they will require in the recruitment process.
- If you are not sure what reasonable adjustments might assist the individual contact a charity that deals with the particular health issue in question. They often have very good advice.
- If in any doubt, consult us.
Carer successfully claims associative disability discrimination
If an employee is treated less favourably because they are responsible for the care of someone who is disabled, this can be associative disability discrimination even if the employee is not disabled themselves.
In the case of Arodyne Association v McKeith  the part-time employee was a single Mum with a disabled daughter. The employee was the primary carer for her daughter. A friend cared for her daughter when she was working. McKeith’s manager thought that she should spend more time with her daughter, and regularly forced her to take additional time off against her will. Funding for the Association was later cut and this led to redundancies. McKeith was made redundant. She argued that she had been selected for redundancy because of the amount of time she had taken off work, and therefore argued that this was associative disability discrimination.
She was successful in her argument. She had been treated less favourably because of the implications of her daughter’s disability (ie: the amount of time taken off to care for her daughter).
- Be aware that treating someone less favourably because of the protected characteristic (eg age, sex, race, disability) of someone they care for will be discrimination.
- If you are concerned about the commitment that an employee has to someone they are caring for, and believe it is affecting their work, discuss the situation with us before taking any action to ensure that you are not acting in a discriminatory way.
Contractual change following a transfer of undertaking
In a transfer of undertaking situation an employee transfers to the new employer with all the terms and conditions in their current contract of employment. What happens when there has been more than one transfer? Which contract actually transfers?
In Griffiths v Great Places Housing Group Ltd 2017 the employee worked as a groundsworker/labourer. In his contract there was a flexibility clause which meant that he was required to do a variety of work on different types of buildings. There was a transfer of undertaking, and when working for his new employer he was focused on work relating to just one type of building. He was then transferred again, to another employer. This employer asked him to work flexibly – doing the range of work on the range of buildings covered by his initial contract. However, he argued that was no longer applicable because he had not been required to use that level of flexibility in the second job.
He was unsuccessful. His contract transferred with him from employer one to employer two, and then again to employer three. At no stage was it actually varied, and hence the initial contract was still valid.
- In a transfer of undertaking situation do look carefully at the employee’s contract of employment. As part of the due diligence process do check to see if there has been any formal variation to anything contained in that contract, and endeavour to check if arrangements in practice differ to what is stated in the contract.
- There will often be some small differences in the ways that different employers work. However, if you ensure that what you are asking the employee to do is in line with their contract you should be acting fairly.