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Employment Law Roundup – March 2019

March 12th, 2019

TUPE has been in the news again this month. If the sole or principal reason for a dismissal is a TUPE transfer, the dismissal will be automatically unfair unless there is an economic, technical or organisational (ETO) reason for it (Regulation 7(1) TUPE 2006). The Court of Appeal has recently looked at whether a dismissal for personal reasons at the time of a TUPE transfer can get the employer off the hook for unfair dismissal.

In Hare Wines v Kaur, the employee worked for a business which was taken over by Hare Wines. She had a poor relationship with a colleague, Mr Chatha, who was going to become a director of Hare Wines. The employee was dismissed before the transfer because the new company ‘did not want her’ due to this difficult relationship. Taking these facts into account, the employment tribunal decided that the transfer was the sole or principal reason for her dismissal, which was automatically unfair. The employer appealed, arguing that the sole or principal reason for the dismissal was the difficult relationship, not the transfer.

Both the Employment Appeal Tribunal and the Court of Appeal disagreed. The Court of Appeal said one of two scenarios applied: either the employee was dismissed because of the poor relationship and the TUPE transfer was coincidental; or Hare Wines did not want her on the books because of the poor relationship (which was transfer related). The employment tribunal had been entitled to decide that it was the latter which applied. The transfer was the principal reason for the dismissal, if not the sole reason.

In this case, the employee was dismissed on the day of the transfer. The close proximity between a dismissal and transfer will not be conclusive but is strong evidence in the employee’s favour. The Court of Appeal also noted that the difficult relationship had existed for some time without the employee being dismissed. That only happened when the transfer took place, at Hare Wine’s request. Employers should take great care when dismissing for non-transfer reasons when they are close to a transfer. Read the rest of this entry »

Employment Law Roundup – February 2019

February 5th, 2019

Employee status and ‘personal performance’

2018 was the year of the ‘worker status’ cases, and 2019 looks to be following suit. The first employee status case of the year involves carers instead of drivers or couriers. In Chatfeild-Roberts v Philips and Universal Aunts, the claimant was a full-time live-in carer. She had no other home. She was placed by an agency and engaged by the patient’s family. She had a two hour break each day and one day off a week. These periods were covered by another agency worker. She took only 3 periods of holiday in three years, for which she was paid. She was paid her ‘salary’ gross and expected to pay tax herself.

When the arrangement was terminated, the claimant brought an unfair dismissal claim. Only an employee can bring an unfair dismissal claim, and the family said she was self-employed. The tribunal had to decide whether the claimant was an employee or self-employed. An employee is required to perform the work personally. The tribunal looked at whether the right to send a substitute to do the work in her absence (for days off, holiday etc) prevented a finding of employee or worker status.

The employment tribunal found that she was an employee. The Employment Appeal Tribunal agreed. The ability to engage a substitute for times when an individual is unable to work, and with the permission of the ’employer’, can be consistent with personal service. No one could work 24 hours a day, 365 days a year. Another agency worker was used only on the claimant’s days off and holidays. The EAT went further though. They said that the employee was not ‘sending a substitute’ when she arranged for the agency to cover her time off. Rather, she was ensuring the patient’s full-time care using the services the family had arranged. She was an employee.

This case has particular implications for employers in the care sector. Employers should note that sending a substitute to cover time off will not necessarily be a bar to employment status. Read the rest of this entry »

Employment Law Roundup – January 2019

January 7th, 2019

The gig economy cases keep on coming. Both the Employment Appeal Tribunal and the Court of Appeal have made decisions on this issue recently. In Lange v Addison Lee, the company provided private hire and courier services. Drivers were formally recruited and given training. They had guidelines on how to do the job. They leased branded cars. Each driver had a handheld computer from which jobs would be allocated. They could log on and off the system when they wanted. However, when logged on they were deemed ready to work and expected to accept jobs.

The drivers’ contractual paperwork said they were independent contractors. Three drivers brought claims for holiday pay and the national minimum wage, saying they were ‘workers’ rather than self- employed. To satisfy the legal test, the claimants had to show that they were contractually obliged to personally perform work for Addison Lee. They would also have to show that Addison Lee wasn’t simply a client or customer of their own small businesses.

Both the employment tribunal and the EAT said the drivers were workers. By signing up to the contract and hiring the car, the drivers were undertaking to do some work for Addison Lee. They remained subject to Addison Lee rules in between shifts: they couldn’t alter the car branding, no one else could drive the car and they paid ongoing vehicle charges. As a result, there was an implied overarching contract between ‘logging on’ sessions. Even without the overarching contract, the ‘worker’ definition was satisfied each time the individuals logged into the computer system. This was because they were undertaking to accept jobs allocated to them (even though the contracts said they did not have to). They were not running small businesses on their own account.

The courts recognise that there is an imbalance in power between company and individual when entering working relationships. Companies will not be allowed to rely on written contractual terms which do not reflect the true position. Read the rest of this entry »

Employment Law Roundup – November 2018

November 13th, 2018

Is an employer responsible for the actions of an employee who has ‘gone rogue’ and deliberately posted sensitive employee data online? Yes, the Court of Appeal has said in Morrisons v Various Claimants. Mr Skelton was an internal auditor at Morrisons. He had been recently disciplined and held a grudge against the company. He took sensitive personal data relating to thousands of employees and posted it online. He then told newspapers it was there. The data included names, bank details and salary information. Read the rest of this entry »

Employment Law Roundup – October 2018

October 9th, 2018

When is notice not notice? When it is ambiguous, said the Employment Appeal Tribunal in East Kent Hospitals v Levy. The employee worked in the records department. She had a poor sickness absence record. She applied for a role in the hospital’s radiology department, which she was offered subject to pre-employment checks. She wrote to her manager giving one month’s notice, which her manager accepted in writing.

The Radiology department retracted the offer due to the employee’s poor absence record. The employee then tried to retract her notice. The employer refused. The employee brought a claim for unfair dismissal, but the employer said she had resigned. The question was, had she?

The Employment Appeal Tribunal said the key issue was the content of the employee’s letter and what had been understood by the employer at the time. The tribunal looked objectively at what the ‘reasonable recipient’ would have understood from the letter, armed with all the background information including the employee’s expectation of an internal transfer to radiology. On receiving the letter, her manager did not take steps to recoup her excess holiday or do termination forms (which he did promptly after refusing her retraction). The EAT found that the reasonable observer would not have thought the employee was resigning from the Trust. They would have thought the employee was giving notice of her intention to accept a conditional offer of employment in radiology. The resignation had not been ‘clear and unambiguous’ and was not valid.

Employers can still (generally) refuse to accept a retraction of notice. The key is to ensure that notice has been validly given first, before refusing the retraction. Read the rest of this entry »