Articles | Employment bulletin February 2017

This month we look at when the self-employed can claim employment law protection, whether you can dismiss an employee for inaction and the risk of being “named and shamed”.

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David Clay

David Clay

A spanner in the works – plumber is a ‘worker’

Self-employed status under attack again

A spanner in the works – plumber is a ‘worker’

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Whether an individual is an employee, worker or self-employed governs their entitlement to employment law protection. Employers must ensure that they correctly categorise those providing services to them to avoid tribunal litigation.

 

Following on from the recent decision that Uber drivers are workers (read more), the Court of Appeal has considered the status of self-employed plumbers.

 

Mr Smith, a plumber, carried out work for Pimlico Plumbers between 2005 and 2011, under a self-employed contract. The company required all its plumbers to wear company uniform, drive branded vans and work set hours. Mr Smith was also restricted in his ability to work for other companies.

 

Mr Smith brought claims against the company after he was dismissed in the aftermath of a heart attack. He asserted that he had been an employee and claimed unfair dismissal, wrongful dismissal, unpaid wages, a failure to provide a written contract and disability discrimination.

 

The employment tribunal found that whilst Mr Smith was not an employee, he was a worker and was entitled to protection from disability discrimination. The Court of Appeal agreed that Mr Smith was a worker.

 

The Court of Appeal was heavily influenced by the fact that Mr Smith had to be available to work at least 40 hours a week and he was prevented from working in the Greater London area for 3 months after termination. The fact that Mr Smith was allowed, on occasion, to swap work with other plumbers and bring in an external contractor, did not prevent a finding that he had to carry out work personally – crucial to worker status.

 

This is the latest in a spate of high-profile cases where self-employed contractors have successfully claimed worker status. Whilst Lord Justice Underhill warned that observers “should be careful about trying to draw any very general conclusions” from this decision, it is clear that this is a hot topic and individuals and unions are currently much more likely to question self-employed contracts.

 

All employers should urgently review their self-employed and casual worker arrangements to ensure they are correctly classifying each relationship. If you require guidance on how to audit your practices and assess any risks then we would be happy to help.

Can you dismiss an employee for a failure to act?

When gross negligence constitutes gross misconduct

Can you dismiss an employee for a failure to act?

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It is rare that an employer is able to lawfully dismiss an employee without notice for a one-off error of judgement or due to a failure to act. However, a recent Court of Appeal decision held that a senior manger's dereliction of duties constituted a breach of trust and confidence justifying summary dismissal.

 

The case concerned a Sainsbury’s senior manager, Mr Adesokan, and his inaction when he became aware of an email sent by a HR manager which suggested that engagement surveys could be manipulated by targeting the “most enthusiastic” colleagues.

 

Sainsbury’s Talkback Procedure (TP) aims to measure the engagement of Sainsbury’s staff by obtaining feedback on motivational levels, relationships with colleagues (including senior management) and their general working environment. The procedure is designed to be undertaken in confidence and in good faith.

 

Mr Adesokan was dismissed without notice for his failure to try and get the email withdrawn or rectify the damage done, as this was deemed “tantamount to gross misconduct” by Sainsbury’s.

 

The Court of Appeal upheld the decision emphasising the significance Sainsbury’s placed on TP and a high performance culture. Whilst Mr Adesokan inactions were not deliberate the negligence was serious enough to result in a loss of trust and confidence between the parties which was “so grave and weighty” it justified dismissal.

 

It remains rare that employers can dismiss an employee for their inaction, but in cases like this that concern a contractual right to dismiss, a well-drafted employment contact is invaluable. We sadly continue to see basic errors in employment contracts (read about the top five mistakes here) which can undermine an employer’s position. If you would like your contract reviewed without charge please do get in touch.

 

Are your employees being truly faithful?

Handling holiday requests linked to religious beliefs

 

 

Are your employees being truly faithful?

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If an employer implements a policy which puts employees with genuinely held religious beliefs at a disadvantage, and the policy cannot be justified, this may give rise to indirect discrimination claims. A recent case in the Employment Appeal Tribunal (EAT) focused on whether an employer had discriminated against a Roman Catholic employee after refusing his lengthy holiday request.

 

The case concerned Mr Gareddu, an engineer at London Underground. Between 2009 and 2014, Mr Gareddu had requested and been granted five weeks’ consecutive holiday each summer to attend religious festivals with his family in Sardinia.

 

In 2015 Mr Gareddu’s request was refused and he was told the maximum period of holiday he could take was three weeks. Mr Gareddu brought a claim for indirect discrimination, arguing that he required five weeks’ holiday to attend the same 17 or 18 festivals in Sardinia every year, each of which held deep religious significance for him, and that in refusing his request London Underground had prevented him from manifesting his religious beliefs.

 

The EAT dismissed Mr Gareddu’s claim, agreeing with the original employment tribunal decision. While the EAT accepted that Mr Gareddu’s faith was genuine and that attendance at religious festivals was a manifestation of that faith, it found that the number and nature of festivals Mr Gareddu attended had in fact varied from year to year and was ultimately decided by his family. Accordingly it held that Mr Gareddu had not been genuine in asserting that he required a five week period to manifest his religious beliefs; in reality the reason for the length of the holiday was to enable Mr Gareddu to spend time with his family.

 

Although employees may validly manifest their beliefs in a wide range of ways, the EAT’s decision confirms that employees must be able to show that they are acting in good faith. Had Mr Gareddu been able to clear this hurdle, London Underground would have needed to demonstrate that its policy of limiting holidays to three weeks was a proportionate means of achieving a legitimate aim.

 

Employers must ensure that they have a well-communicated holiday policy, that is consistently implemented, to minimise the risk of complaints and claims.

Employment Tribunal decisions published online

The risks and opportunities of employers (and employees) being named and shamed

Employment Tribunal decisions published online

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The Ministry of Justice has launched a website which provides free public access to all Employment Tribunal decisions in England, Wales and Scotland. All decisions by tribunals from January 2017 onwards (together with some decisions from late 2016) will now be searchable by date, judge and name of employer or employee. This development will bring both risks and opportunities for employers.

 

The chance to check whether a prospective new hire might be a ‘trouble-maker’ who has previously issued tribunal claims will be tempting for some, but it is important to think carefully before carrying out and acting on any search results. Failing to invite a candidate to interview or withdrawing a job offer from an employee because they have alleged discriminatory treatment could result in a victimisation claim against the prospective employer.

 

A detailed review of tribunal judgments which reveals that a candidate has lied about the circumstances in which they left a former employer, or the level of experience or responsibility they had, could potentially allow employers to withhold an interview invitation or withdraw a job offer on grounds of dishonesty or misrepresentation, but the victimisation risk still looms large. Employers will also have to be careful that the judgment relates to the prospective employee and not a similarly named individual.

 

Employers who plan to make use of the new facility should do so consistently and only after seeking legal advice. They should also note that the website will not show details of any claims which have been settled (as the majority of claims are), and that it will not be a panacea for identifying potentially difficult employees. Weighing up the risks and rewards, many employers may rather trust in their selection process and management skills to identify the best candidates than pre-judge them based on former disputes.


The system will of course work both ways and allow job applicants to carry out searches on their prospective employers before putting pen to paper on a new contract. It will be interesting to see whether the ease with which decisions can be searched for will affect employers’ willingness to defend certain claims all the way through to a final hearing.