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Employment Law Bulletin - June 2017


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.


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:

A ‘proportionate means of achieving that aim’ is typically:

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 [2017] 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.


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 [2017] 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.


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 [2017] 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.


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 [2017] 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).


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.