Welcome to this month’s employment tribunal round-up, which may challenge some of what you thought you knew. We have some cases that query supposedly settled legal principles as well as some planned changes to long-standing legislation. For full case summaries, please sign up to our employment law update.
First up, the case of Chatfeild-Roberts v Philips and Universal Aunts questions the relevant factors when it comes to assessing employment status. It is well-established that a requirement for personal service is a component of both employee and worker status. In this case, the Claimant was a full-time live-in carer. However, her breaks, days off and holidays were covered by an agency worker.
The employer asserted that this cover amounted to a right to ‘substitute’ which demonstrated that the Claimant was not an employee. However, the Employment Appeal Tribunal (‘EAT’) disagreed, they said that the Claimant was an employee as she 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. This case does not therefore remove the requirement for personal service but it does refine the meaning of personal service and necessitate employers looking closely at working relationships when assessing status.
Turning to legislative change, the Government have now confirmed the implementation of the first tranche of changes following the Taylor Review on Modern Working Practices. These changes, some of which are fairly significant, will take effect from April 2020. The most wide reaching changes are the right for all workers and employees to receive a written contract from day 1 of employment and a change to the reference period for calculating a week’s pay. Additionally, the ‘Swedish Derogation’ which excludes some agency workers from the right to the same basic pay and employment terms will be abolished. There are more changes planned to address matters highlighted by the review, including welcome clarification in relation to the test of employment status. We will let you know as these changes are confirmed and implemented.
A fairly settled area of employment law which is currently subject to consultation with a view to change is the scope of redundancy protection for pregnant employees. The Government proposes to extend the existing protection (which only applies to those on maternity leave) to women who have told their employer they are pregnant and those that have returned from maternity leave in the previous 6 months. This could have significant implications for employers embarking on redundancies. This is the link to the consultation should you wish to contribute.
The law of disability discrimination is regularly challenged. In Lamb v The Garrard Academy, the Employment Appeal Tribunal looked at when constructive knowledge of a disability will arise in practice. The employer in this case had not had confirmation that the employee’s condition would amount to a disability. However, the EAT held that the employer was in possession of facts which should have led them to ask more questions. Had they referred Ms Lamb to OH, it would have been confirmed that her condition was a disability. As a result, the employer was deemed to have constructive knowledge. This case demonstrates that failure to ask obvious questions and/or seek medical advice will not enable an employer to plead ignorance or avoid obligations in relation to disabled employees.
Whereas, in Efobi v Royal Mail Group Ltd the employer raised a legitimate challenge to the employee’s discrimination claim. Mr Efobi alleged that he had been discriminated against on the grounds of race, based on his unsuccessful applications for 20-30 internal vacancies. However, he did not present any further evidence and his claim initially failed. On appeal, the EAT focused on the employer’s explanations for the unsuccessful applications. However, the Court of Appeal held there was no burden on the employer to explain its treatment of the employee until he had established that there was a ‘prima facie’ case of discrimination. In the absence of any evidence that race was part of the reason that his applications were rejected, the claim inevitably failed.
Similarly, in Ibrahim v HCA, the employer challenged a whistleblowing claim on the grounds that the disclosure did not meet the public interest test and the EAT agreed that the employee had not fulfilled that aspect of the test. Although, it is worth remembering that seemingly ‘personal’ disclosures have been held to be in the public interest so employers should proceed with caution when considering disclosures that could be protected.
Finally, not a huge change to what we know but one that could have significant practical benefits; from 28 January 2019, an employer is able to rely solely on the online right to work checks to establish their statutory defence. This option is limited to employees who are non-EEA residents but have biometric residence permits or cards and EEA nationals who have been granted status under the EU Settlement Scheme. In these cases, the online checks will be enough and no additional paper documents are needed.