Employment Law Briefing February 2019

Employment Law is constantly on the move. We keep track of the latest employment law changes. Please see below the roundup of some key cases/ decisions of February 2019.
For a list of key dates for 2019, please see our bulletin Key Legislation and Changes to look out for in 2019 published in January 2019.

ACAS releases new guidance on Age Discrimination

Acas has produced new guidance and two fact sheets to help employers, managers and HR professionals on preventing age discrimination at work - treating someone unfairly because of age. The purpose of this guidance is to help employers and line managers manage an age diverse workforce, prevent unfair treatment at work and eradicate bias against older and younger workers. The guidance states: “Age discrimination, also commonly called ageism, is one of the most common forms of unfair treatment at work. The age gap between staff can now be 50 years or more.”

This guidance will be a useful reference point when dealing with tricky issues of age discrimination, in particular, discussions about retirement, refusing to hire someone or promote someone because they are too young or too old.

The Worker Status saga continues……

I had reported in my Employment Law Briefing for January 2019 a flurry of cases against companies in the “gig economy” where “freelancers” have been held to be workers: the cases involving Uber drivers both in the UK and in France.

In a further case, the EAT has held that an individual who is paid a quarterly “exclusivity” payment is an employee. In Exmoor Ales Limited v Nr J Price & Mrs Hedy Herriot, Mrs Herriot who operated as a partnership with her husband had provided accountancy services for over 27 years for the brewery. From 2011, she submitted quarterly invoices for a fixed fee providing exclusive services. Both the ET and the EAT considered factors such as mutuality of obligation from 2011 when Mrs Herriot had undertaken an obligation to work exclusively for the brewery and provide personal services, control and substitution and concluded that despite any arrangements, including tax arrangements and the fact that she had prepared employment contracts for other staff and not for herself, she was an employee.   

This analogy has now also extended to the Public Sector for the first time…….

It has been reported that the NG27 group win workers’ rights. An Employment Tribunal has handed down Judgement that 27 “Freelance Art Educators – art and history experts” working for the National Gallery are “workers” within the meaning of the Employment legislation and are therefore owed the same rights as permanent staff. They complained that they had not been given any paid holiday, sick pay, pension or maternity pay despite paying taxes through the pay roll. The National Gallery argued they were “freelancers” and had no entitlement.

Worker Rights are therefore being strictly enforced and the trend is to protect gig economy workers even if they retain their self-employed status for tax purposes.

Hare Wines Limited v Satwant Kaur (22 February 2019): Personal reasons for dismissal do not preclude a transfer of business from being the reason for dismissal and therefore automatically unfair and TUPE related.

Under TUPE, the dismissal of an employee will be automatically unfair if the sole or principal reason for the dismissal is the transfer.

Mrs Kaur had worked as a cashier in a wine cash and carry business for over 10 years.  Her employment was terminated following a meeting two days before the business was transferred to new ownership. It was asserted by Hare Wines that she had objected to the transfer at the meeting as she had a strained relationship with a colleague – Mr Chatha who was due to become a director of Hare Wines. As she did not want to transfer and had allegedly objected, it was argued by Hare Wines that her contract had come to an end. Mrs Kaur claimed automatic unfair dismissal by reason of a TUPE transfer.

The ET found that Mrs Kaur had not objected and that the real reason for the dismissal was that Hare Wines did not want her because it anticipated ongoing difficulties in her relationship with the colleague and therefore the main reason for the dismissal was the transfer and so the dismissal was automatically unfair and the new owner had breached the contract of employment in respect of notice.

On appeal, both the Court of Appeal and the EAT held that the reason for the dismissal had been correctly identified as the TUPE transfer and confirmed that the existence of purely personal reasons does not preclude the transfer from being the reason for dismissal where the employer takes the opportunity of the transfer to dismiss the employee.

Spaceman v ISS Mediclean Ltd (t/a ISS Facility Service Healthcare): Asserting future breach of a statutory right cannot found a claim for automatically unfair dismissal

Mr Spaceman was dismissed for gross misconduct following an investigation into alleged sexual harassment and assault. At the internal disciplinary proceedings, he alleged that his employer – ISS had already predetermined to dismiss him. In the ET, Mr Spaceman claimed that his allegation constituted the assertion of a statutory right, i.e, the right not to be unfairly dismissed and that the making of the allegation had become the reason for his dismissal (rather than the alleged predetermined view). A claim for asserting a statutory right does not require two years’ service.

The ET stated the relevant legislation requires an allegation that the employee was unfairly dismissed and not that the employer is taking action, which may result in an unfair dismissal in the future. The ET struck out this claim on the basis that it had no reasonable prospect of success. Mr Spaceman appealed. The EAT upheld the ET’s decision stating that the Employment Tribunal had correctly interpreted the relevant provision. Section 104(1)(b) requires an allegation by the employee that there has been an infringement of a statutory right. An allegation that there may be a breach in the future is not enough.

In summary, section 104(1)(b) of the ERA 1996 is “aimed at preventing dismissal in retaliation for bringing proceedings to enforce employment rights or asserting employment rights.”

Asda Stores Ltd v Brierley and others: Asda loses equal pay case against shop floor workers

Asda has lost a challenge at the Court of Appeal in the latest round of a long-running dispute with its staff over equal pay. The Court of Appeal has upheld the decisions of the ET and EAT that supermarket retail staff (a predominantly female group of employees who were paid less) can compare their terms to distribution workers at offsite depots (mainly male group of employees who were paid more) for the purposes of an equal pay claim. The Court held that even though the two groups worked at separate establishments, such that no distribution worker would have done distribution work at a retail site, and no retail worker would have done retail work at a distribution depot, a comparison could be made because “Asda applied common terms and conditions wherever they work.” 

The shop workers have to deal with two further stages of the claim in the ET:

  • Whether the shop worker and distribution centre roles are of equal value
  • If they are of equal value, whether there is any reason other than sex discrimination for not paying these two roles equally.

If the workers are successful, this would entitle them to back pay totalling millions of pounds and has potential implications for other employers.

Nissa v Waverly Education Foundation Ltd and another - Disability Discrimination: how to judge “long term” for the purposes of the definition of disability.

Mrs Nissa was a science teacher who had been employed by the Respondent as a teacher until she resigned on 31 August 2016. She brought a claim for disability discrimination claiming her impairment caused her to suffer a substantial and long-term adverse effect on her ability to carry out day to day activities.

Her claims were rejected by the ET. The ET noted that the diagnosis on 12 August 2016 was subject to a caveat that her symptoms might slowly improve now that she was no longer in employment. Therefore, it concluded that it could not be said that the effects are “likely” to be long term. Mrs Nissa appealed on the grounds that the ET had not correctly determined the issues of "long-term" and "substantial" impairment.

The EAT found that the ET had taken the wrong approach. In considering the issue of "long-term" impairment, the ET had wrongly focused on the question of diagnosis, rather than the evidence of impairment, and had failed to look at the reality of the risk that, on a broader view of the evidence available, it "could well happen" that her impairments would last for at least 12 months; on the issue of "substantial" adverse effect, the ET failed to take into account evidence that was plainly relevant, and its decision could not stand.

This guidance is a great read for everyone who has to consider issues relating to disability.

Oxford University Hospitals NHS Foundation. TUPE: Important lessons of when does TUPE apply.

An ET has found that Oxford University Hospitals NHS Foundation Trust (OUH) did not unfairly dismiss 13 maintenance workers because they had not been transferred from their previous employer (Scion). Scion had a contract to carry out general maintenance, repairs, installation and construction across the trust’s various sites but principally at the John Radcliffe Hospital, had a permanent presence on site, a dedicated space at the John Radcliffe and had worked with the hospitals since the late 1980s. Whilst Scion had 4 other clients, most of the work it undertook was for the trust. OUH decided to retender and it’s contract with Scion Technical Services finished on 30 June 2017.

Scion argued that the workers should have been transferred to OUH under TUPE regulations and had informed it’s staff that they would transfer under TUPE. The NHS trust did not agree that a TUPE transfer had taken place.

The ET agreed with OUH that there was no TUPE agreement. The Tribunal took into account that the Trust had decided no longer to carry out the same amount of maintenance and therefore concluded that the Trust did not take the services provided under their contract with Scion back in house and therefore TUPE did not apply. 

For TUPE to have applied, the employees would have needed to show that they were an organised group whose principal purpose was carrying out work on behalf of the Trust.

Talon Engineering Ltd v Smith: Proceeding with a hearing when companion unavailable

The EAT has upheld the Tribunal’s decision that it was not reasonable for the employer to refuse the employee’s request for an adjournment when the employee’s chosen representative was not available for a disciplinary hearing.

The employee, Mrs Smith, was accused of gross misconduct and was relying on her union representative to accompany her to the disciplinary hearing. He was away at a conference for the week in which the hearing was scheduled so a request was made for a postponement. The earliest date when he could attend a hearing was almost two weeks later. The employer refused to wait any longer (there had already been one postponement due to illness) and the employee refused to attend the hearing without her representative present. The hearing went ahead in her absence and she was dismissed.

Employers need to be wary of postponing a disciplinary hearing and should carefully consider the reason for such requests and consider carefully the con sequences of refusing a reasonable request. A request should be considered on its own merits.

If an employee is deliberately delaying or trying to inconvenience the employer, and proceedings have been on foot for a while, it may be deemed reasonable to proceed with the hearing without the employee absent.

Working Time: What Records do Employers need to keep?

In terms of the Working Time Regulations, employers are obliged to keep and maintain records that are ‘adequate’ to show that:

  • Working time (including overtime) for all workers who have not opted-out does not exceed 48 hours per week on average; and
  • The limits on night work have been complied with.

There is no requirement to keep records in relation to rest breaks and rest periods and the Regulations do not specifically require all hours of work to be recorded. These records must be maintained for each applicable worker for two years from the date on which they were made.  A failure to keep such records is an offence for which the penalty is a fine. The Regulations do not specify what format records must take. It may, therefore, be possible to use existing records maintained for other purposes such as pay.

There is also an obligation to keep up-to-date records of all workers who have signed agreements opting-out of the 48-hour maximum working week. There is, however, no need to keep records of the hours worked by these workers.

A question has arisen as to whether the requirements of the Working Time Regulation   comply with the Working Time Directive.

In the case of Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE before the European Court of Justice:  the Advocate General stated that in order to comply with the duties under the Directive, national law must require employers to keep records of actual time worked by workers each day for workers who have not expressly agreed to work overtime.

If the European Court of Justice adopts the Advocate General’s recommendation, then there may be a question whether the Regulations go far enough to comply with the requirements of the Working Time Directive. However, the opinion of the Advocate General is only advisory and, although followed in the majority of cases, is not legally binding on the ECJ.

Further, with Brexit less than a month away and the future relationship between UK and the ECJ unclear, it may be that this opinion never actually applies to the UK.



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