Bored with such matters as the General Election, Brexit, Trump (“you’re fired”), North Korea etc.? Looking for some Strong and Stable employment law guidance? I hope you enjoy my latest Newsletter.
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There are four separate cases regarding employment status being heard in the London Central Employment Tribunal against courier companies. We now have the decision in Boxer v Excel Group Services, although this is probably the least significant of the four as Excel did not produce any evidence or attend the hearing, because it had gone into liquidation. (Its business was in fact purchased by Citisprint, prompting the thought as to whether the couriers fell within TUPE, but that is for another case.)
Given the circumstances and the trajectory of these cases, it is entirely unsurprising that the Employment Tribunal held that Mr Boxer was a “worker” (again it was worker, not employee, status which he claimed) rather than being in business on his own account. That meant he had the right to holiday pay under the Working Time Regulations 1998.
Mr Boxer’s evidence of a requirement to work five days a week, nine hours a day, throughout which time he had to be available, with the right to take time off, or change hours, only with the agreement of Excel went uncontested. So too his assertion that he played no part in agreeing terms with clients and did not bear the risk of cost of damage in transit. The tribunal also decided that, in practice, it would be very difficult for Mr Boxer to provide a substitute courier.
Although his written contract with Excel purported to hold him out as self-employed, the Employment Tribunal decided that this did not reflect the reality of the situation. It was free to conclude that he was working under Excel’s direction and was not running his own business and hence was a worker.
In the joined cases of Essop and others v Home Office and Naeem v Secretary of State for Justice (2017 UKSC 27), the Supreme Court has given important guidance on the burden of proof and other issues in indirect discrimination claims.
In the Essop case the claimants were able to demonstrate that, as a group, both BME (black and minority ethnic) and older candidates had a lower pass rate for an occupational exam. In addition the particular claimants could show that they personally suffered the corresponding disadvantage of failing the exam.
In the second case Mr Naeem, an imam, could show that Muslim prison chaplains had lower average pay than Christian chaplains. The reason for this seemed to be that Muslim chaplains had only been recruited from 2002 so generally had shorter service.
In both cases the Court of Appeal decided that that was not enough and that evidence of a group disadvantage had to be supported by a (discriminatory) explanation for that. So not only did the claimants have to show that they suffered a disadvantage, but they also had to provide evidence which explained why the disadvantage existed. In neither case could they do so (or, in Mr Naeem’s case, could he establish that it was a clearly discriminatory reason).
The Supreme Court overruled that decision. Claimants only have to demonstrate the disadvantage suffered, without going into the reason why. The onus is then on the respondent to show that the actual reason was not discriminatory (or was, but could be justified).
The Supreme Court also pointed out that if a particular group was statistically disadvantaged, it was not necessary for every member of the group to suffer the disadvantage (so in the Essop case, to fail the test).
The Essop claim was remitted back to the Employment Tribunal on this basis, giving the Home Office the chance to establish a non-discriminatory reason why the claimants (or particular ones of them) had failed the exam, such as that they had failed to prepare sufficiently).
In the Naeem case the Supreme Court in fact decided that the original Employment Tribunal’s decision that, despite the disadvantage, the treatment was justified, should not be disturbed. (The justifiable reason was that Muslim chaplains had not been required before 2002, and therefore had shorter service, and in addition the Prison Service’s attempt to move to a new scheme under which pay would not be determined by length of service had been halted by government pay restraint.)
Staying on the same theme of indirect discrimination, the Court of Appeal has not supported an Employment Tribunal which rejected a justification defence on the grounds that the employer should have pursued a different aim which would have had a less discriminatory impact.
Police officers across a range of ranks and forces were compulsorily retired under Rule A19 of the Police Pensions Regulations 1987, which permitted compulsory retirement of officers 'in the interests of efficiency' at 30 years' service. Clearly this was potentially indirectly discriminatory on grounds of age, but there was no other way to dismiss police officers and cost savings had to be made.
The Court of Appeal permitted this justification. It drew an analogy with a redundancy situation and the fact that employment tribunals should not investigate the commercial or economic reasons which prompt the closure of a business or a reduction in the workforce. Here, a statutory provision made it unlawful to include anyone with less than 30 years' service in a pool, so the selection method would be inevitable. A claim for unfair dismissal or age discrimination should fail. (Chief Constable of West Midlands Police and others v Harrod and others 2017 EWCA Civ 191.)
There are five permissible reasons for dismissal under unfair dismissal law. The fifth of those is a catch-all category, known as “some other substantial reason”.
In the case of Ssekisonge v Barts Health NHS Trust (UKEAT/0133/16) the claimant was a nurse who, having come to the UK, obtained indefinite leave to remain and then British citizenship. Her citizenship was then revoked when the Home Office had concerns over her true identity, but this did not impact her leave to remain (and therefore right to work) in the UK.
The Trust then dismissed her, primarily due to its own concerns over her true identity, as she was not able to provide sufficiently convincing evidence that she was who she said she was.
The Employment Tribunal dismissed her claim. She appealed to the Employment Appeals Tribunal (EAT), arguing that there was a higher than usual threshold of reasonableness for employers when relying on this ‘catch-all’ category. This argument was rejected and the appeal failed. In an ‘SOSR’ dismissal, normal fairness rules apply.
This is a thorny issue for those employing certain categories of staff such as carers.
The key question for the EAT to consider was whether night-shift workers who sleep in, in order to carry out duties if required, engage in "time work", and should be paid national minimum wage (NMW) for the duration of the shift, or whether they are only entitled to the NMW when they are awake and carrying out duties.
In deciding three joined appeals, the EAT held that a ‘multifactorial’ evaluation is appropriate to determine, on the specific facts of each situation, whether a worker is working merely by being present at the workplace (even if asleep), or whether they are "available and required to be available at or near [their] place of work for the purposes of working" and therefore subject to the special rules in regulation 32 of the National Minimum Wage Regulations 2015 (SI 2015/621). (Sorry – this is technical stuff so please move on if it does not impact your business.)
The EAT set out four potentially relevant factors to be considered:
- Why the employer needs the worker to be there, such as a regulatory or contractual requirement to have someone present at all times (which might indicate that the worker is working simply by being present);
- the extent to which the worker's activities are restricted by the requirement to be present and at the disposal of the employer (e.g. could the worker could be disciplined if they left their post during the shift);
- the degree of responsibility undertaken by the worker and the types of activities that they may be called upon to perform; and
- the immediacy of the requirement to provide services if something untoward occurs or an emergency arises.
So: in one of the cases a care worker supporting vulnerable adults worked a sleep-in shift during which no specific tasks were allocated, but during which there was a continuing obligation to remain at her post and keep an ear out in case she was needed to deal with any incidents.She was performing time work throughout her shift. Crucially, she was required to be present and would have been disciplined if she left her post, not least for putting her employer in breach of its legal obligations.
(Focus Care Agency Ltd v Roberts UKEAT/0143/16; Frudd and another v The Partington Group Ltd UKEAT/0244/16; Royal Mencap Society v Tomlinson-Blake UKEAT/0290/16, 21 April 2017).
According to the EAT, the employee liability information that a transferor must provide under TUPE does not have to specify whether an employee's entitlements are contractual or not. Consequently, inaccurately stating that a bonus was non-contractual did not breach regulation 11 of TUPE. (Born London Ltd v Spire Production Services Ltd UKEAT/0255/16.)
Although this will not affect many of my readers, on 6th April 2017 the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 came into force. These Regulations require all employers with 250 or more employees to publish their gender pay gap on their website and on a central government website annually, with the first set of reports due by 4th April 2018.
In my last Newsletter I had a side swipe at the lacklustre conclusion of the Employment Status Review issued by BIS. This month we can turn our attention to the Work and Pensions Committee’s report following its inquiry into the growth of self-employed workers in the gig economy. It describes the current ways of categorising workers as “creaking under the weight of a changing economy” and highlights the growth in bogus self-employment. To be fair, it has a stab at some practical suggestions, such as that a presumption is introduced that individuals are workers, not self-employed, and that the national insurance contributions for employees and the self-employed should be equalised.