Archive for the ‘Employment Law Roundup’ Category

Employment Law Roundup – June ’19

Wednesday, June 5th, 2019

Disability discrimination

A disability is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to do day to day things. The Equality Act 2010 specifically excludes from the definition any visual impairment which is correctable by contact lenses or glasses. Sometimes, the correction of visual impairments can create side effects. The Employment Appeal Tribunal has recently looked at whether side effects can stop the impairment being correctable.

In Mart v Assessment Services, the employee brought a claim for disability discrimination based on her diplopia (double vision). She also had a facial disfigurement, which caused depression and anxiety, but she chose to limit her claim to the double vision. She was prescribed a contact lens which corrected the problem. However, the lens visibly blacked out her eye, which the employee said was a disfiguring side effect (disfigurement can also be a disability if it is ‘severe’). The lens also restricted her peripheral vision. For these reasons, the employee said the lens had not corrected her vision and she was therefore disabled. (more…)

Employment Law Roundup – May ’19

Tuesday, May 7th, 2019

Usually, employment law cases are conducted in public and the press may report on them. In cases involving sexual harassment and sexual offences, employment tribunals may grant privacy orders in the interests of justice or to protect people’s privacy under the European Convention on Human Rights (‘ECHR’). Orders can include anonymising the parties, holding hearings in private and restricted reporting orders. In granting these orders, the employment tribunal must properly balance privacy rights against the principle of ‘open justice’.

In A and B v X and Y and Times Newpapers Limited, a household name (Y) was accused of harassment, including alleged sexual offences. A and B brought claims against their employer (X) and Y. The employees were entitled to anonymity under the Sexual Offences (Amendment) Act 1992. They also sought an anonymity order in the employment tribunal. X and Y also asked for anonymity and a restricted reporting order. The employment tribunal refused everyone anonymity. However, they granted a restricted reporting order until after any remedy hearing. The judge said the employees had the equivalent of such an order because of their anonymity under the Sexual Offences Act, and Y should be similarly protected. It would ensure Y remained innocent until proven guilty and guard against misreporting. (more…)

Employment Law Roundup – April 2019

Monday, April 8th, 2019

Discrimination arising from disability is where an employer treats an employee less favourably because of ‘something’ which results from their disability, and which can’t be justified. The Employment Appeal Tribunal has recently looked at whether it is discriminatory to discipline an employee for failing to follow an instruction they mistakenly think will exacerbate their disability. (more…)

Employment Law Roundup – March 2019

Tuesday, 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. (more…)

Employment Law Roundup – February 2019

Tuesday, 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. (more…)