News round up
Welcome to our November bulletin. Thank you to those of you who attended our events in October. The Employment team will be taking a well-deserved break from events as we approach the festive season, but we will be back in the New Year with a bang with our annual events programme for 2018.
If you missed our update session in October, Clarion are hosting a Data Protection Shake Up: Are you ready for GDPR? seminar on 30 November 2017, which may be helpful to you. This event will be a helpful introduction to all businesses to the General Data Protection Regulations 2016, due to come into force in May 2018. The seminar will be led by our Commercial team and aims to provide you hints and tips for ensuring you are compliant and are GDPR ready. You can find out more and register your interest here.
This month’s newsletter provides you with some key case law developments from the last month, along with practical action points for you to consider in light of these decisions.
As ever, if you need any assistance on implementing any of these actions points, or need a sounding board on any people issues, please don’t hesitate to contact your Clarion employment team.
EAT rules Uber drivers are workers
The eagerly anticipated judgment in the appeal in the Uber BV v Aslam  was last week handed down by the EAT.
Uber is a taxi app which connects subscribers to the app to available Uber taxi drivers in their area. Uber treats their drivers as self-employed. The case relates to a claim brought by Uber drivers for unlawful deductions from wages and failure to provide paid leave on the basis that they were workers.
The Tribunal at first instance concluded that the drivers were workers during ‘waiting time’ i.e the time that their app was on and they were available for bookings. Uber appealed to the EAT.
The EAT dismissed the appeal and held that the drivers were workers. It agreed with the Tribunal that the drivers were integrated into Uber’s business and operated under Uber’s control.
- If you do rely heavily on self-employed individuals we recommend that you get in touch with us, so that we can help you to review the status of these individuals.
- The contract is only one factor to be considered, the main focus in determining status will be how the individual works in practice.
- 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?
The MP Kevin Hollinrake has introduced the Parental Bereavement (Pay and Leave) Bill in Parliament. This Bill will now go through the various parliamentary stages and could become law in 2020.
The Bill sets out that any employed parent of a child who is aged under 18 years who dies will be entitled to two weeks of paid bereavement leave. The rate of pay is yet to be determined. The leave would have to be taken within 56 days of the death.
We will keep you updated on the progress of the Bill.
This Bill reminds us that there are limited options available to an employee who needs to take bereavement leave. Employees have a legal right to take unpaid time off for emergencies relating to a dependant. However, in the case of death, this right to time off is only to deal with the immediate issues relating to that death. There is no right to take time off to deal with grief. This means, therefore, that many employees will take sick leave if they are dealing with grief following a bereavement, seeing it as their only option.
Currently employers can choose to offer compassionate leave, but there is no legal obligation for you to offer this to employees, or to offer paid leave. If you offer discretionary compassionate leave you should ensure that you make sure that you have some common way of assessing requests for leave, so that it is not seen as something that the line manager determines without any guidelines to work to. Also, remember that any discretionary leave could be contractual if you always allow employees a certain amount of leave for bereavement.
- Review your existing compassionate leave policy, or consider introducing such a policy.
- If you introduce a policy, or you already have a policy make sure that the amount of leave, whether this is paid or unpaid, and the circumstances in which it is offered, are clearly defined.
- If you have a discretionary scheme and you are not sure whether it might have become contractual contact us for advice.
This month there have been a number of cases relating to dismissal. All of these cases look at different aspects of the dismissal process, and the potential errors that an employer can make. We are going to look at them one by one.
Think about the culture
It is accepted that one employer might decide to dismiss when another would not. The question that the Employment Tribunal has to answer is whether the decision to dismiss is within the ‘range of reasonable responses’. In deciding that, there is a need to think about the culture of the organisation and what would typically be seen as acceptable in that organisation.
In Cutherbertson v Siemens plc  the employee had 40 years’ service with the employer. The culture of the organisation was such that jokes of a sexual nature, and strong language (often with sexual undertones) were commonplace.
A sex toy arrived at the factory in a parcel which did not have a named addressee. This resulted in a lot of discussion and debate, and on two occasions the employee dropped his trousers and made sexual gestures. He was dismissed summarily for gross misconduct.
In deciding to dismiss him the employer noted that he was responsible for the training of apprentices, which made his behaviour particularly unacceptable. However, no apprentices saw him drop his trousers.
This was ruled to be an unfair dismissal. In this culture, the decision to dismiss was seen as wholly disproportionate and not within the band of reasonable responses. The employee was awarded compensation of £14,870.07 which was reduced by 25% due to his contribution to the situation.
- When deciding whether to dismiss, you should have regard to the usual culture of the organisation. Even if the behaviour is unacceptable, is it commonplace in the organisation?
- Think about consistency of treatment- have you dismissed other employees in the past for the same/similar conduct?
- Take into account length of service and clean disciplinary records.
Assess the overall performance
If an employee has done something which is poor capability, or misconduct, you are likely to give a disciplinary warning. If the problem persists whilst the warning is still on the employee’s record this could mean that you finally progress to dismiss the employee. However, even if no disciplinary warning has been given you can take an overview of performance when deciding if it is fair to dismiss.
In NHS 24 v Pillar  the employee was a Nurse Practitioner who assessed patients over the phone, and from that assessment decided whether they should be referred to a doctor. She assessed a patient who had symptoms of a heart attack and referred him to a GP rather than emergency services. This led to a ‘Patient Safety Incident’. It was decided to dismiss her, due to this error and two previous incidents which were similar, but had not resulted in any disciplinary action being taken. This was found to be a fair dismissal. It was fair to take a general overview of competence when deciding whether the error was sufficient to result in dismissal.
- This is still a contentious area- you should exercise caution before deciding to take into account previous conduct/performance.
- You should be able to explain why the previous information is relevant to the current investigation.
- Be clear on the allegations against the employee from the outset and the scope of any investigation.
Do not try to disguise a redundancy situation
If an employee is under-performing you must address this as a capability dismissal. Trying to hide it as a redundancy will not work, and will result in the dismissal being unfair.
In Anderson v Shillington College Ltd  the employee had moved from an Australian branch of the college to work in the UK. She was originally told that she would be Head of Teaching, but the job was then changed to be Senior Lecturer. She accepted this, but was disappointed. She continued to work for the college for 18 months, but was then told that her work was unsatisfactory in a number of ways. She was given a disciplinary warning, and her job was changed.
She was then told that the job of Head of Teaching was redundant and she was dismissed. However, she argued that this was not fair because she had not been doing the job of Head of Teaching. The Employment Tribunal agreed that this was hiding a dismissal on the grounds of capability behind the label of redundancy, and therefore the dismissal was unfair.
- In a possible redundancy situation always question whether the job still exists, or if the demand for work is still the same. If it does then it is not a redundancy situation.
- When managing a redundancy situation you must assess an employee in accordance with the job that they are doing at the time, which might be different to the job that they were originally recruited to do.
- Be clear on the reason for dismissal and ensure the correct process is followed prior to any dismissal.
Give consideration to any health issues
If an employee has a health problem it could affect their work, and the way that they respond to difficult situations. You must take this into account when deciding whether it is fair to dismiss.
In Sadeghi v TJX UK  the employee was the manager of one of the employer’s London stores. He was suffering from depression and anxiety which was affecting his mood and sleep patterns and he had informed his line manager of these difficulties.
An altercation arose with a customer who wanted a refund for a pair of trainers. The manager assessed that the trainers had been worn outdoors, and therefore they could not be returned. The customer became aggressive and started to film the discussion with the manager on his phone. The manager tried to stop him, and then a cleaner intervened and grabbed the phone and threw it to the manager. The customer complained and CCTV footage of what had occurred was viewed. It was decided to dismiss the manager because of gross misconduct.
The employee successfully argued that the dismissal was unfair because his health problems, and the impact that they might have on the way that he managed the situation, had not been taken into account.
- Before taking a decision to dismiss reflect on whether there are any health issues that need to be taken into consideration.
- Remember, if the employee is disabled as defined in the Equality Act 2010 there is a need to consider whether any reasonable adjustments should be made.
- If you are unsure whether it would be fair to go ahead and dismiss an employee with health problems contact us for advice.
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.