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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 »

Employment Law Roundup – September 2018

September 6th, 2018

The holiday season might be ending, but holiday pay remains a hot topic. In Flowers v East of England Ambulance Trust, the Employment Appeal Tribunal looked at whether voluntary overtime should be included in holiday pay. Employees should be paid their ‘normal remuneration’ when they take holiday. But is voluntary overtime ‘normal’ pay?

This case involved ambulance workers who worked different types of overtime. Sometimes they worked compulsory ‘non-guaranteed’ overtime at the end of a shift, to finish a task such as caring for a patient. They could also choose to work voluntary overtime if it was offered, but they didn’t have to. Their holiday pay was based on average earnings over the 12 weeks preceding their holiday. The employer didn’t include any overtime in their holiday pay calculations. The employees brought claims for unlawful deduction from wages.

The employment tribunal said that their holiday pay should include the non-guaranteed overtime, because it was a contractual obligation. They said voluntary overtime could be excluded because it wasn’t contractual and there was no pattern to it. It wasn’t ‘normal remuneration’.

The EAT disagreed and said both types of overtime should be included in the calculation. The important question was whether overtime payments had been made over a sufficient period on a regular or recurring basis. Whether overtime payments meet this requirement is a question for the employment tribunal to decide, based on the evidence. The case was sent back to the tribunal for this factual assessment to take place. Read the rest of this entry »

Employment Law Roundup – July 2018

July 2nd, 2018

There has been a lot of publicity lately about the employment status of individuals working in the gig economy. Employees and workers have more rights than the genuinely self-employed, so individuals are pushing for this status. Recently, the Supreme Court gave its decision in the high-profile Pimlico Plumbers case. Can someone be a ‘worker’ even though their contract says they are self-employed?

Mr Smith worked for Pimlico Plumbers as an engineer. He had a uniform and a branded van. He had to work at least 40 hours per week and pre-book any holiday through the company procedure. However, he paid his own tax and national insurance, used his own tools and paid his own insurance. He could subcontract work only to other Pimlico operatives. He also took some financial risk in relation to fees.

Mr Smith claimed he was pushed out of the business when he asked to reduce his hours after a heart attack. He brought claims for unfair dismissal as an employee and various other claims as a worker, including a disability discrimination claim.

The Supreme Court confirmed that Mr Smith was not an employee, but he was a worker and ‘in employment’ (as a worker) for the purposes of discrimination law. The company exerted significant control over him, including financial control. He was well integrated into the workforce. His right to subcontract work was too limiting for genuinely self-employed status. He was not running his own business. Mr Smith was a worker and his claims will now be heard by a tribunal. Read the rest of this entry »