Given the political events of recent days it is hard to think that I can produce a newsletter of competitive interest. However, we all need to take care of the day job and the cases about disability and the use of prior warnings in disciplinary situations cover issues which commonly arise.
For those looking for the political angle, I can offer the next decision on the question of the rights of workers in the ‘gig’ economy.
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There cannot be an employer in the country which has not had to deal with an employee suffering stress, often brought on by the initiation of a disciplinary or performance process. The decision of the Employment Appeals Tribunal (EAT) that stress on its own does not amount to a disability will therefore be a comforting one.
Mr Herry claimed that he suffered from stress, which amounted to a disability, and that he had suffered more than 90 incidents of race and disability discrimination. However, he failed with his disability claim. The EAT agreed with the employment tribunal that his stress was just a reaction to difficulties at work, rather than a mental impairment, and did not have a substantial adverse effect on his normal day-to-day activities. Bringing a litigation claim, for example, was not a ‘day to day activity’.
In many cases an employee suffering significant stress will also suffer a mental impairment such as anxiety or depression, and provided the symptoms are serious enough to fulfil the disability criteria (substantial, adverse and long-term effect on ability to carry out day to day activities) then a disability finding will be made. For that reason complaints of stress should not be disregarded. However, stress on its own does not meet the test of disability and that may be relevant in some situations. (Herry v Dudley Metropolitan Council UKEAT/0100/16 and Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School UKEAT/0101/16.)
Just a quick note on this one: yes, it could be. It will depend on the precise circumstances and the nature of the medical difficulties of the employee, but the EAT has said that the condition is capable of amounting to a disability and given the prevalence of the illness that is worth noting. (Taylor v Ladbrokes Betting and Gaming Ltd UKEAT/0353/15.)
Under section 15 of the Equality Act 2010 an employee is entitled not to suffer unfavourable treatment because of something arising in consequence of their disability.
Mr Grosset was a teacher who suffered from cystic fibrosis and was therefore disabled. He was dismissed for misconduct as a result of showing an 18 rated film to students who were younger than 18. The employer knew that he was disabled, but decided that the misconduct did not arise in consequence of his disability.
However, by the time of the tribunal hearing Mr Grosset had medical evidence that his disability included impaired mental health at that time and that that was the cause of his misjudgement in showing the film.
Mr Grosset’s dismissal had therefore arisen because of his disability. It did not matter that the employer did not at the time of his dismissal know of the full potential consequences of his disability, and indeed its conclusion at the time was not criticised.
However, section 15 requires an objective test, rather than being a question of whether the employer was reasonable or not. Employers accordingly need to understand as much as they can about a disability to protect themselves from risk in this regard. (City of York Council v Grosset UKEAT/0015/16.)
Whether or not an employer can refer to an expired warning when consi
The principle that has evolved is that an expired warning must not be used as part of a totting up process or be determinative of the employee’s dismissal. However, it can be can be referred to when it comes to deciding the sanction, so that where an employer has decided that an offence is worthy of dismissal it may look back at the employee’s past record to see if there should be any mitigation and past warnings could then count against the employee.
In Stratford v Auto Trail VR Ltd (UKEAT/0116/16), however, the employer was permitted to step right up to, and arguably beyond, that line. Mr Stratford had a history of 18 expired warnings and there was a pattern of his allowing a warning period to lapse before committing a further act of misconduct. The employer regarded the specific offence under consideration as worthy only of a final written warning. However, the EAT accepted as reasonable the employer’s belief that the history demonstrated that there would be further incidents of misconduct and therefore that dismissal was justifiable.
So although the final act of misconduct took place after the expiry of the employee’s last final written warning and was not serious enough on its own to warrant dismissal, the employer had acted fairly in dismissing the employee based on his overall disciplinary record. It was, said the EAT, a question of assessing the overall reasonableness of the employer’s approach.
My sense is that the facts here were extreme and that the case should be seen as exceptional.
Following on from the Uber decision late last year, an employment tribunal has decided that a cycle courier working for Citysprint was not self-employed but was a worker under section 230(3)(b) of the Employment Rights Act 1996, thereby entitling her to paid holiday under the Working Time Regulations.
Citysprint tried to argue that Ms Dewhurst was in business on her own account and submitted contractual documentation purportedly supporting that assertion. This made clear that Ms Dewhurst was under no obligation to provide her services and Citysprint was under no obligation to provide work; that she may use a substitute to provide the work, so long as the substitute fulfils certain criteria (although this did not happen in practice); that if she did not work she would not be paid; and that she was not entitled to holiday, maternity or sick pay. Once “on circuit" (ready for work) she was paid by the job. Although Citysprint referred to the payment process as a self-billing and invoice system, in practice its couriers do not need to submit invoices for individual jobs. Instead, Citysprint automatically calculates payments due and pays weekly in arrears.
The tribunal, however, wanted to look past the documents which it did not think reflected the true relationship. It identified a number of other elements which suggested that Ms Dewhurst was not in fact operating her own business. For example, she was required to log into the company’s tracking system, she wore a uniform, was directed by a controller, and she was even directed when to smile when meeting clients. The substitution right was limited and the tribunal perceived her as integrated into Citysprint’s business.
As a result, she did not have sufficient autonomy for Citysprint to claim that she was in business on her own account.
This is only an employment tribunal decision and hence does not provide any binding authority, but the direction of travel is clear (pun intended). Further cases against courier companies are coming down the road (ditto).
Note that, as with the Uber case, this related to worker status; the question of whether she was an employee was not determined and she may not have passed the tests for that.
RS Dhillon and GP Dhillon Partnership v HMRC (2017 UKFTT 17 (TC)) is a case involving lorry drivers, where again the employer argued that the drivers were self-employed. The difference between this and Citysprint is that it was being heard by the First-Tier Tax Tribunal, so the determination was over whether the drivers were employees (relevant for tax deduction purposes).
The Tribunal decided that the drivers were employed because of the level of control that was exercised when they were undertaking work.
What is most interesting about this, though, was the Tribunal’s comment that it is important to make “an informed, considered, qualitative appreciation of the whole picture, and not to go through a checklist exercise in deciding whether someone is employed or not”. This backs up a view I have long held, since I heard a tax judge say that he decided status based on his overall feeling of the kind of relationship in front of him. He cited an example of where the checklist of factors leaned heavily towards the person being employed, yet he knew from the evidence he heard that neither company nor the individual honestly regarded the individual as an employee and that was the prevailing determinant for him.
In Adesokan v Sainsbury’s Supermarkets Limited (2017 EWCA Civ 22) the Court of Appeal had to deal with a case of gross negligence.
Mr Adesokan, a Regional Manager, knew that a HR Manager had issued an email which tried to subvert an important management consultation exercise. He did nothing to get it withdrawn or to remedy the situation. At his disciplinary hearing it was decided that his inaction demonstrated gross negligence which was "tantamount to Gross Misconduct" and he was therefore dismissed summarily without notice. He sued for breach of contract, seeking to recover his notice pay.
The High Court considered that his negligence, whilst not deliberate, was so serious that it resulted in a "loss of trust and confidence" sufficient to justify dismissal. The Court of Appeal refused to overturn that view. Although courts should not easily find that a mere failure to act amounted to gross misconduct, in this case the senior position Mr Adesokan held justified the dismissal.
Acas and the Government Equalities Office have published guidance relating to the gender pay gap reporting regulations issued at the end of last year, which are likely to become effective on 6 April 2017. Under the regulations, employers of 250 people or more will be required to calculate and report the difference between men’s and women’s average hourly pay in 2017 by 5 April 2018.
The guidance, which is for employers in the private and voluntary sectors, is clearly written, contains worked examples and provides helpful insights in a number of areas such as how to prepare for inputs, what employers will need to do in practice to comply with the regulations and how companies can use the gender pay gap information to reduce the pay gap.