Employment Tribunal Decisions Update

Employment Law Update – July 2018

Welcome to the first (of many) monthly updates where we bring you a roundup of the most recent employment tribunal decisions.

During July, HR professionals will have heard a plethora of questions around employment status, specifically focussed on the cases of Addison Lee, Pimlico Plumbers and Uber. Here’s what’s been happening…

The issue of employment status has been rumbling through the Courts for quite some time now. Although there haven’t been any significant changes to the law, the so called ‘gig-economy’ has called into question some of the settled principles in relation to employment status. As a result, Uber, Addison Lee, Pimlico Plumbers and Deliveroo have all found themselves on the wrong side of decisions. Despite some clever drafting of contracts, their staff have consistently been held to be workers rather than self-employed contractors, meaning they are entitled to additional rights and protections.

The latest decisions come from the Supreme Court and the Employment Appeal Tribunal (‘EAT’) in relation to claims against Pimlico Plumbers and Addison Lee.

In the first of those decisions, the Supreme Court confirmed that Mr Smith, who worked for Pimlico Plumbers as an engineer, was a worker. They noted that he wore their uniform, drove a van with their branding, had to work a minimum of 40 hours per week and had to pre-book his holidays. The decision referred to the level of control, his integration into their workforce and the limits on his ability to sub-contract as key factors in the assessment of his status.

Similarly, in Gascoigne -v- Addison Lee, the EAT were satisfied that there was sufficient mutuality of obligation between Mr Gascoigne, a cycle courier and Addison Lee to render him a worker. Mr Gascoigne provided his own bike, paid for his insurance and decided when he wanted to work. However, once he logged onto the Addison Lee app he was expected to do the jobs he was given and could only refuse in exceptional circumstances. This arrangement created sufficient mutuality of obligation for worker status, even though he could log off when he wanted.

These employment tribunal decisions have significant implications for the gig-economy and as a result, this issue is not likely to be resolved quickly. If you have any concerns about employment status, contact one of the Vista team and we will be happy to provide further guidance.

The case of Lane-Angell -v- Hafal also looks at employment status but in relation to ‘bank-staff’ with no guaranteed hours. Ms-Lane-Angell provided support to vulnerable individuals in police custody. She was required to communicate her availability which was put into a rota. When she was then offered work, she had to accept it or there were potential sanctions. The Tribunal initially pointed to this aspect of the arrangement to support their conclusion that there was an umbrella contract linking up all her periods of work. However, on appeal, the EAT were satisfied that as there was no ongoing obligation to provide or accept work, there was no mutuality of obligation between shifts. This meant that each break reset the clock for the purposes of continuity of employment.

On a different but similarly challenging topic, the case of DL Insurance Services Ltd v O’Connor considers how an employer should manage disability related absence. In this case, the employer’s decision to issue an absence warning was held to be discriminatory as they had not considered how the warning would affect the employee, they had not engaged with her manager to understand the impact of her absences and they had not referred her to Occupational Health. This case is a useful reminder of the factors to be considered in order to ensure that any formal action in cases of this nature is not discriminatory.

Finally, we have two interesting cases looking at disciplinary procedures; one considering whether an employer can reasonably dismiss for misconduct without prior warnings, and one dealing with if and when it can be fair to deny an employee a right of appeal, as well as an in depth look at what will amount to a disclosure of information for whistleblowing purposes.

For more information and full case summaries for all the employment tribunal decisions included in this month’s update, you can sign up to our free monthly employment law newsletter or if you are looking for representation in the employment tribunal, please don’t hesitate to get in touch.

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