Employees and workers

Court of Appeal – January 2018 District Judge could not claim whistle-blowing protection as she was solely an office-holder, and not a worker under s230(3) of the Employment Rights Act 1996. Individuals are protected against suffering a detriment due to making a protected disclosure if they are a worker under s230(3) Employment Rights Act 1996 (‘ERA’). This defines a worker as an individual who has entered in to, or works under, a contract of employment or any other contract whether express…

Employees and workers

This decision provides a further example of how tribunals and courts will look at the question of whether an individual is a ‘worker’ or not. Surprisingly, this case goes against the recent shift towards increasing the protection of those who are claiming they are entitled to worker rights. There is currently no indication of whether this case will be further appealed to the Supreme Court

Business principles

Can shorter breaks be aggregated to satisfy a worker's entitlement to a 20 minute rest break under the Working Time Regulations? Under Regulation 12, workers are entitled to an uninterrupted rest break lasting at least 20 minutes if their daily working time is more than six hours. Regulation 21(f) states workers in railway transport roles carrying out activities relating to the continuity and regularity of timetables are not afforded this entitlement, however, they are entitled to compensatory…

Business principles

This case confirms workers’ entitlement to a rest break, or an equivalent period of compensatory rest, which lasts for a continuous period of 20 minutes when working for more than six hours. Organisations who have policies or workplace practices where they aggregate shorter breaks must now review these policies to examine whether workers have the opportunity to take a continuous 20-minute rest break. If not, organisations should consider setting in place alternative means, such as a relief…

Pay and benefits

European Court of Justice – November 2017  Essentially agreeing with the Advocate General's opinion, the ECJ have decided workers are entitled to carry over and accumulate their accrued but untaken holiday where the organisation doesn’t allow the worker to exercise their right to paid leave. This carry over right is not subject to any limitation and cannot be extinguished. In addition, the worker is not required to take the leave first before establishing whether they have the right to pay…

Pay and benefits

This case has implications for any employers who make use primarily of ‘workers’, such as those operating in the ‘gig economy’. Their liability covers both holiday taken by workers but unpaid, and holiday not taken because it would have been unpaid, and extends until the contract with the worker was terminated.

Dispute resolution

Where the effective date of termination is disputed, are pre-termination negotiations inadmissible under s111A of the Employment Rights Act 1996? S111A of the Employment Rights Act 1996 (ERA) makes pre-termination negotiations inadmissible in any tribunal proceedings relating to complaints of unfair dismissal. Pre-termination negotiations are defined in the legislation as “any offer made or discussions held, before the termination of the employment in question, with a view to it being…

Dispute resolution

This decision clarifies the breadth of inadmissibility under s111A ERA. Where there is a dispute about the effective date of termination, this should be dealt with as a preliminary issue and the tribunal can take in to account pre-termination negotiations. Employers should also be aware that s111A inadmissibility cannot be waived by the parties agreeing to admit the evidence.

Equality

Was a refusal to recruit because a health condition may deteriorate in the future an act of perceived disability discrimination? Facts Coffey was employed as a police constable within the Norfolk Constabulary from 1993-1997. In 2009, she joined the Wiltshire Constabulary as a staff member and then applied to become a police constable in 2011. A medical was carried out and it was found that Coffey was suffering from hearing loss with tinnitus. Under the Medical Standards outlined in the…

Equality

This decision confirms perceived direct discrimination can take place where an employer believes the employee will become a ‘liability’ in the future. The impairment they currently suffer from will have to be perceived to meet the definition of a disability in the future, ie it must be perceived that it will have a substantial adverse effect on day-to-day activities.

Terms and conditions , Termination

Employment Appeal Tribunal – November 2017 Will the implied term of mutual trust and confidence be breached when an employer gives a false reason for dismissal? Facts Rawlinson commenced employment as Group Legal Counsel in December 2014. Before his appointment, the organisation used a variety of legal firms based on the required advice. Following the appointment of a new Chief Executive Officer in January 2015, concerns with Rawlinson’s performance were raised. Rawlinson was aware of…

Terms and conditions , Termination

In circumstances where there is no right to receive a reason for dismissal, this case shows the importance of telling the truth. Although a “white lie” may seem best to avoid hurting the employee’s feelings or any animosity, the implied term of mutual trust and confidence creates an obligation to not deliberately mislead when giving a reason for dismissal. This will also avoid any further unseen consequences, such as in this case where the false reason for dismissal led the employee to…

Terms and conditions , Termination

In circumstances where there is no right to receive a reason for dismissal, this case shows the importance of telling the truth. Although a “white lie” may seem best to avoid hurting the employee’s feelings or any animosity, the implied term of mutual trust and confidence creates an obligation to not deliberately mislead when giving a reason for dismissal. This will also avoid any further unseen consequences, such as in this case where the false reason for dismissal led the employee to…

Terms and conditions , Termination

Employment Appeal Tribunal – November 2017 Will the implied term of mutual trust and confidence be breached when an employer gives a false reason for dismissal? Facts Rawlinson commenced employment as Group Legal Counsel in December 2014. Before his appointment, the organisation used a variety of legal firms based on the required advice. Following the appointment of a new Chief Executive Officer in January 2015, concerns with Rawlinson’s performance were raised. Rawlinson was aware of…

Employees and workers, Employee relations

Central Arbitration Committee – November 2017 To be recognised for collective bargaining, the union had to first prove the riders were workers within the statutory definition contained in s296 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Facts The Independent Workers’ Union of Great Britain (IWGB) made a formal request for trade union recognition to Deliveroo on 7 November 2016. They sought to negotiate pay, hours and holiday rights with Deliveroo on behalf of the…

Employees and workers, Employee relations

This case shows the importance of having well-drafted substitution clauses and ensuring, if individuals are self-employed, they have a genuine right to substitute themselves. In addition, because the tribunal can look behind the contractual documentation, having evidence that the right to substitute is carried out in practice will support the case for self-employed status. This is the distinguishing factor between this case and recent ‘gig economy’ cases, such as Dewhurst v CitySprint. As…

Employees and workers, Employee relations

Central Arbitration Committee – November 2017 To be recognised for collective bargaining, the union had to first prove the riders were workers within the statutory definition contained in s296 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Facts The Independent Workers’ Union of Great Britain (IWGB) made a formal request for trade union recognition to Deliveroo on 7 November 2016. They sought to negotiate pay, hours and holiday rights with Deliveroo on behalf of the…

Employees and workers, Employee relations

This case shows the importance of having well-drafted substitution clauses and ensuring, if individuals are self-employed, they have a genuine right to substitute themselves. In addition, because the tribunal can look behind the contractual documentation, having evidence that the right to substitute is carried out in practice will support the case for self-employed status. This is the distinguishing factor between this case and recent ‘gig economy’ cases, such as Dewhurst v CitySprint. As…

Employees and workers

Employment Appeal Tribunal – November 2017 The Employment Appeal Tribunal has dismissed Uber’s appeal against a tribunal decision that drivers engaged by Uber were not self-employed contractors, but fell squarely within the legal definition of ‘worker’ under the Employment Rights Act 1996, the Working Time Regulations 1998 and the National Minimum Wage Act 1998. Tribunal In November 2016, the employment tribunal held drivers engaged by Uber were workers. The tribunal judged the…

Employees and workers

This judgment provides further evidence of how a tribunal will look behind the relationship outlined in the contractual documents to examine what status the individuals are in reality. Organisations who engage individuals as contractors because they do not wish to provide worker rights may face significant future liability if the true status is deemed to be a worker, or even an employee. This decision is binding on tribunals considering similar cases. Uber have already applied to appeal the…

Business principles , Termination

This decision confirms that a dismissal will only be justified on the statutory illegality ground where the continued employment will actually break the law, not where the organisation wrongly believes this. To prove the reasonableness of a mistaken belief that continued employment will be illegal, organisations should gather evidence of their communications with bodies such as the Home Office or Border Agency. This may be in the form of any letters or emails received regarding the need to…

Business principles , Termination

Employment Appeal Tribunal – November 2017 Did a failure to produce right to work documents justify a statutory illegality dismissal? Facts As a Jamaican national, Baker had the right to live and work in the UK under the Immigration Act 1971. He was employed as a bus driver from July 2012. In 2015, an audit was carried out by the organisation in to their employees’ right to work. They asked Baker to produce one of a list of documents that included a passport. He explained that he had…

Business principles , Termination

This decision confirms that a dismissal will only be justified on the statutory illegality ground where the continued employment will actually break the law, not where the organisation wrongly believes this. To prove the reasonableness of a mistaken belief that continued employment will be illegal, organisations should gather evidence of their communications with bodies such as the Home Office or Border Agency. This may be in the form of any letters or emails received regarding the need to…

Business principles , Termination

Employment Appeal Tribunal – November 2017 Did a failure to produce right to work documents justify a statutory illegality dismissal? Facts As a Jamaican national, Baker had the right to live and work in the UK under the Immigration Act 1971. He was employed as a bus driver from July 2012. In 2015, an audit was carried out by the organisation in to their employees’ right to work. They asked Baker to produce one of a list of documents that included a passport. He explained that he had…

Recruitment and selection, Employee relations

Employment Appeal Tribunal – October 2017 Is a refusal to recruit because of previous trade union activities a refusal of employment because of trade union membership under s137(1)(a) Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”)? Facts Denby, a qualified pilot, started working at the airline in November 2005. In 2008, Denby became Chairman of the Crew Council and pilot representative for two airports. He was also a member of the British Airline Pilots’ Association…

Recruitment and selection, Employee relations

Many employers are aware that it is unlawful to dismiss an employee for being a member of a trade union. This decision highlights that a refusal of employment for a reason connected to union membership, such as advocating on behalf of the union or taking part in union activities, could also be unlawful. At tribunal, a wide interpretation of “trade union membership” will be used so employers need to be aware of the risk of refusing employment for any factors connected to a trade union.

Recruitment and selection, Employee relations

Employment Appeal Tribunal – October 2017 Is a refusal to recruit because of previous trade union activities a refusal of employment because of trade union membership under s137(1)(a) Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”)? Facts Denby, a qualified pilot, started working at the airline in November 2005. In 2008, Denby became Chairman of the Crew Council and pilot representative for two airports. He was also a member of the British Airline Pilots’ Association…

Recruitment and selection, Employee relations

Many employers are aware that it is unlawful to dismiss an employee for being a member of a trade union. This decision highlights that a refusal of employment for a reason connected to union membership, such as advocating on behalf of the union or taking part in union activities, could also be unlawful. At tribunal, a wide interpretation of “trade union membership” will be used so employers need to be aware of the risk of refusing employment for any factors connected to a trade union.

Dispute resolution , Termination

Employment Appeal Tribunal – October 2017 When determining whether a tribunal has jurisdiction to hear claims from employees working overseas, the tribunal has to assess whether the employment has a stronger connection to Great Britain and British employment laws compared to the connection with the overseas territory.   Facts Green was a British national. He was married to a Lebanese citizen and had lived in the Middle East for over 15 years. He provided consultancy services to the…

Dispute resolution , Termination

This ruling provides guidance on how tribunals will assess factors when looking at jurisdiction for overseas workers, following the Serco v Lawson judgment. Employers should make sure that proper contractual provisions are put in place that reflect the agreed arrangements. A full and proper process should be followed in the event that an employees’ employment is terminated to avoid the risk of an unfair dismissal claim from an overseas, or a domestic, worker.