November's newsletter looks at the key developments in employment law over the past month, including the hotly anticipated decision in the ‘Uber’ case.
We also bring you the latest development in the Asda equal pay case, along with some key case decisions relating to discrimination.
The past month has been a busy one and saw us hosting a number of events. Thank you to all of you attended our Apprenticeship Levy event and our Employment Law update seminar. Don’t worry if you missed out as we are hosting a number of seminars in the New Year. Click here to see our seminar programme and register your interest.
We also hosted our first HR Rising Star’s Breakfast Club which is a new event offering those starting out in their HR roles or who have inherited HR responsibilities, an insight into the career journeys of senior HR professionals and entrepreneurs, as well as providing a valuable learning forum. Given your enthusiasm for the forum, our next event is already being planned. Please contact firstname.lastname@example.org if you are interested in joining the Breakfast Club or would like to learn more about it.
We are excited to be hosting our eagerly anticipated Mock Employment Tribunal hearing on 17 November. The Tribunal will hear from a disgruntled Claimant, dismissed for sickness absence following maternity leave. The case will be presented by the Clarion employment team with assistance from a barrister, a real-life Employment Judge and actors. Click here for more details and to register - there are limited places left. We look forward to seeing you if you can make it – it’s such a great way for managers and HR teams to learn how to avoid Tribunal!
We are also delighted to be celebrating our higher ranking in the legal directory, Chambers and Partners. Following independent surveys and interviews with the team and clients, we have been recognised as a leading employment practice with experts in the field.
Given the Christmas period the employment bulletin will take a break for December and will return in January with your updates.
Uber drivers are defined as workers
Uber is probably the biggest change in the way that we use taxis in recent years. The Uber app allows individuals to input their destination, and to be connected to a Uber driver who is nearby. There is no requirement to phone up and book a cab. However, what about the Uber drivers? Are they employees or are they self-employed?
A widely reported case has addressed just this point, with Uber drivers arguing against Uber’s conclusion that they are self-employed. To understand the ruling we need to start by understanding a little about how Uber drivers work. They sign up to Uber, and switch on the Uber app when they are available to work. There is no penalty for not being available via the app.
Once they have signed on they are required to accept at least 80% of the journeys offered to them, and they are forcibly logged off for 10 minutes if they refuse 3 trips in a row. Payment for the journey goes to Uber, which pays the driver once a week.
The Employment Tribunal has concluded that the drivers are workers. This is an employment status that concludes that the drivers do not have all the features of an employee, but neither are they self-employed. The Tribunal did not accept that Uber consisted of a ‘mosaic of 30-40,000 small businesses’, which would be the reality if they were self-employed.
What are the tests to determine employment status? The following have to be considered:
- Is the individual under the control of the employer?
- Does the individual have to provide work personally?
- Is there any term that is inconsistent with employment?
- Does the employer have to provide work, and is the individual obliged to do it?
In the Uber situation we can certainly see elements of control, and the need to provide work personally. However, there are some terms that are inconsistent with employment (such as them paying their own tax and national insurance) and the obligation to do work is not clear. Hence, it has been concluded that they are workers.
This is an important decision, because workers are entitled to such things as paid annual leave, rest breaks and being paid at least the National Minimum/Living Wage.
- It is expected that this ruling could cause concerns for any employer who has a number of self-employed individuals working for it.
If this is you:
- Contact us to discuss the employment status of your individuals.
- Be pro-active. It is better to think about employment status now, rather than facing a large number of Tribunal claims in future, so do not hesitate in contacting us to check which employment status your workforce fall in to.
Equal pay claims from 7000+ individuals
In Brierley and others v Asda Stores Ltd  over 7000 ladies working at Asda have made equal pay claims. They work in hourly paid jobs in the retail stores, and are arguing that their work is of equal value to jobs primarily carried out by men in the distribution depots.
The employees argue that the pay difference is due to the historical view that women’s work is of less importance than men’s work – an historical view which they allege has never been corrected. The employer sought to have the claims rejected, arguing that the comparison between the retail work of the ladies and the work of the men in the distribution centres was not appropriate.
Asda have lost the argument. The cases will not be rejected on this basis, and now they will go to a full hearing to determine if the jobs are of equal value.
- In an equal pay claim employees can make a comparison between themselves and employees who work for the same employer but at another location. Be aware of this when you are setting your pay rates.
- Employees do not have to be doing the same job as their comparator. If they can show that the jobs are of ‘equal value’ (which is difficult to do, and the Employment Tribunal will usually appoint an independent expert to assess this) then they can use the comparator as the basis for their equal pay claim. If you have any concerns about possible equal value claims do contact us for advice.
You have liability for those acting on your behalf
It has clearly been established that you have vicarious liability for all the actions of your employees in the course of their employment. This liability can also extend to anyone acting on your behalf, as shown in the case of Unite the Union v Nailard .
Nailard was a trade union Regional Official, meaning that she was an employee of Unite the Union. In her job she was required to go to a number of locations in her region. One of these locations was Heathrow, and here there were two union representatives (who were not employees of Unite the Union) who subjected her to sexual harassment. She complained, and as a result she was told she was no longer required to visit this location. She resigned and claimed constructive dismissal, but the union said that they were not responsible for what had happened because the representatives were not their employees.
The union was unsuccessful in their argument. The union representatives were acting in the role that they did for the union, hence the union was liable for their actions.
- Think about all those who act on your behalf. Be aware that you are likely to be liable for their actions beyond how they interact with collegues.
- Ensure that all those who act on your behalf have been made aware of your standards, values and expectations.
A fair disciplinary process leads to a fair dismissal
If you follow a fair disciplinary process there is no reason that any resulting dismissal should be found to be unfair. In Appiah v Compass Group UK and Ireland Ltd  an employee was issued with a final written warning because she disobeyed a reasonable management instruction to work from another location.
Whilst the final written warning was still live on her record, she requested annual leave. She wanted to return from annual leave on 8 January, but it was only approved to 5 January. However, she had already booked flights and ignored the requirement to return to work on 5 January, and returned on the 8, as she had planned. She was dismissed as a result.
At the dismissal meeting she did not make any reference to the final written warning. However, she did raise it at the appeal against her dismissal, arguing that the final written warning was unfair. The manager leading the appeal reviewed the final written warning, saw no problems with it and upheld the decision to dismiss. She was unsuccessful in her claim of unfair dismissal.
There was nothing procedurally wrong with what had happened, and the dismissal was fair.
- If you issue an employee with a final written warning ensure it clearly states when the final written warning expires.
- Make it clear, in the letter confirming the final written warning, that any further issues (related to the warning) could lead to dismissal.
- You are not required to revisit the warning if you go on to dismiss. However, always be sure to check that a warning is live before you decide to rely on it when dismissing.
Ensure your settlement agreements are secure
As you know, if you are settling claims made by an employee you should confirm the terms through either a settlement agreement or, if Acas have been involved in the negotiations, completion of a COT3 form. If you are using a settlement agreement there are a number of key points to note:
- the settlement agreement must be in writing;
- it must specify what potential claims are being covered by the agreement;
- the employee must receive independent legal advice on the terms and effect of the settlement agreement, the legal cost of which is usually contributed to by the employer;
- the name and qualifications of the legal adviser must be included in the settlement agreement; and
- the individual giving advice must have a certificate of insurance or professional indemnity giving protection from a claim in respect of loss from giving the advice.
The individual giving advice must have a certificate of insurance or professional indemnity giving protection from a claim in respect of loss from giving the advice.
In Glasgow City Council v Dahhan  the employee entered into a settlement agreement in relation to claims of discrimination, harassment and victimisation. His claims to the Employment Tribunal were accordingly withdrawn. However, he then argued that he did not have the mental capacity to instruct his solicitors when the settlement agreement was confirmed and the claims were withdrawn and hence asked for the claims to be reinstated.
The Employment Appeal Tribunal have confirmed that the settlement agreement can be set aside if he did not have the mental capacity to enter into it, and now the Employment Tribunal have to review his mental capacity at the time.
- If you have any concerns about the extent to which the employee understands a settlement agreement ensure that you raise these at the time and ask the individual advising the employee to confirm that there has been understanding.
- Always seek our advice when entering into a settlement agreement, to ensure that the wording gives you the protection you need. Settlement agreements need to be tailored and carefully drafted – they should not be seen as standard documents.
Rejecting an over-qualified applicant was not age discrimination
When recruiting new employees, qualifications are always an important factor. In the case of Jones v Care UK Clinical Services Ltd  it was decided to reject an applicant because he was over-qualified, and as a result he claimed age discrimination.
Jones was aged 51 years, and the applicant who was given the job was aged 29 years. He was rejected because he had suggested that he was looking for development in the role that would not be possible because of the constraints of the role, and because the other applicant scored more highly in an interview than him. He claimed that this was age discrimination, but his argument was unsuccessful.
Although there were concerns about the employee being over-qualified avoid making this the only reason for rejecting an applicant. In this case the applicant was not the highest scoring in the interview process, which certainly helped support the outcome that the decision was not discriminatory.
Time off for bereavement
A private member’s bill has been introduced in Parliament. This bill would entitle all employees to two weeks’ paid leave if their child, aged under 18 years, dies. The bill reminds us that, currently in the UK, there is no statutory entitlement to time off when an employee experiences a bereavement.
Currently, employees can take time off to address an emergency relating to a dependant. This is unpaid time off, and includes time off to address an emergency such as making care arrangements and the death of a dependent. It has specifically been determined that this does not include time off to grieve.
Apart from this unpaid leave, any time off following a bereavement is at the employer’s discretion.
The bill is only in the early reading stages and we will keep you informed on its progress.
- In the meantime, review your current policies so that you are clear on how these might be impacted if the bill comes into force.
- Ensure that your policy reminds line managers that different religions approach death in different ways, and some employees might request time off to engage in specific religious ceremonies. Your policy must address this, and ensure that there is no discrimination against any religious groups.
- If you require any assistance with developing a compassionate leave policy do not hesitate to get in touch.
A dismissal must be communicated
If you are ending the employment of an individual you must communicate this to them and not just allow the situation to drift. In the case of Sandle v Adecco UK Ltd  the individual was employed by an employment agency. The piece of work she was doing came to an end, and there was then a lack of communication about any future work. A P45 was prepared but was never sent to her. She claimed unfair dismissal, but was unsuccessful because this had not been communicated to her. A dismissal cannot be presumed just because the employer is inactive.
However, it was noted that she might have been successful if she had claimed constructive dismissal – arguing that the employer had breached her contract of employment by not communicating her future to her.
- If you have an employee working on a fixed term contract always tell them when the contract is going to end. Do this even if the date of the end of the contract is confirmed in writing in their employment contract.
- You must make an employee working on a fixed term contract aware of any suitable vacancies in the organisation.
- Remember that the termination of a fixed term contract is legally a dismissal, so you must act fairly in the way that you terminate the contract.