Employment Law Bulletin: May 2017
Welcome. May has arrived and with it no sign of the public spotlight on zero-hours contracts dimming.
Amid the ongoing scrutiny of modern workplace practices, fast food giant McDonald’s has said that it will offer members of staff a significant choice: remain on a zero-hours contract or move to fixed hours.
Take-up during a trial period is reported to have been pretty low, with only about 20% of staff having chosen to move away from zero-hours. An indication, perhaps, that in spite of the criticisms and concerns there is something to be said for having less secure but more flexible arrangements in place for those that want them.
Damages for Redundant Apprentice
Kinnear v Marley Eternit Ltd t/a Marley Contract Services
Mr Kinnear was taken on by Marley under a four-year apprenticeship during which he was trained in roofing.
A downturn in workload led to his dismissal for redundancy despite his contract having 122 weeks left to run. He could not find another company to take him on, and so was not able to finish his apprenticeship.
Mr Kinnear won his claim for damages on the basis that the employer had brought his fixed-term contract to an end early. He was awarded £25,000 – the maximum that the tribunal could award. It took into account:
• the likelihood that he would not be able to complete his apprenticeship because of his age and because of the downturn in the economy. Also relevant was the fact that his apprenticeship had been tailored to the sort of products that Marley used
• the difference between what he should have earned to the end of his apprenticeship (£24,217) and any income that mitigated that loss
• his likely future loss, which will be affected by the fact that he does not have the roofing qualification that was at the heart of his apprenticeship. He will be disadvantaged in the labour market
If you are an employer of apprentices, take note: these contracts are no less significant than other workplace arrangements. Ending a fixed-term apprenticeship agreement early can be expensive.
Uber Drives Forward on its Legal Challenge
Aslam and others v Uber BV and others
An employment tribunal decided last October that Uber drivers are ‘workers’ and therefore entitled to certain employment rights including the national minimum wage, and protection from discrimination and for whistleblowing. They are not, as the company maintained, self-employed.
The employment tribunal looked beyond the contractual position between the parties to the reality of the entire relationship when determining whether the drivers engaged are really workers or self-employed contractors.
Some of the key findings that influenced the ruling that the drivers are workers are:
• Drivers are instructed, managed, monitored and controlled by Uber
• Uber interviews and recruits drivers, and handles complaints made by passengers
• Uber exercises control over the drivers by making their cars meet certain standards, set the fees paid by passengers and route for the journey, and does not tell the driver the passenger’s identity or intended destination until they pick the passenger up
• If drivers cancel or don’t accept a certain number of fares, the driver is deactivated from the app – this was essentially seen as a disciplinary sanction
• Drivers have to provide a personal service and cannot send a replacement if they do not accept a fare
Uber has now been granted permission to appeal that decision and is expected to be heard by the Employment Appeal Tribunal (EAT) in September later this year.
We shall have to wait and see whether the EAT reaches a different conclusion on the drivers’ employment status. Either way we expect the outcome to be big news, particularly for those organisations that operate within the ‘gig-economy’ in similar ways to Uber.
The Right to be Accompanied
Gnahoua v Abellio London Ltd
Employees have the right to be accompanied by a colleague, or a trade union representative or official at a disciplinary hearing. An employer who breaches this could face a tribunal claim and the possibility of having to pay compensation of up to two weeks’ pay.
Abellio had not allowed Mr Gnahoua to be accompanied at his appeal hearing by his chosen companion – one of two brothers from the PTSC Union. The company had a policy that neither individual was allowed to take part in disciplinary or grievance hearings because of their association with dishonesty and with threatening behaviour towards members of staff. Abellio told Mr Gnahoua that he could be accompanied by another member of the PTSC Union, but that did not happen.
Although Abellio had denied Mr Gnahoua the right to be accompanied, it was acknowledged that the company had good reason to refuse to go along with the employee’s choice of companion. And as Mr Gnahoua had not suffered any loss or detriment, he was awarded nominal compensation of just £2.
Employers should not see this as giving the green light to object to an employee’s choice of companion. The tribunal pointed out the general rule that employers should not choose the companion on an employee’s behalf, or veto an employee’s choice. But, Abellio’s stance on this was not criticised; its objection was on strong grounds.
Proving Indirect Discrimination
Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice
Mr Essop and colleagues had claimed indirect discrimination. They said that they were passed over for promotion after having failed some assessments at work. Relying on their protected characteristics of age and race they alleged that older (they were over 35) and black and ethnic minority employees had a lower pass rate than younger, white employees.
Did they need to show why the provision, criterion or practice (the requirement to pass the test before being eligible for promotion) had caused them to suffer a disadvantage? Yes, the Court of Appeal originally said. A Claimant must show why their group was at a disadvantage and that that reason applied to them.
But that has now changed. The Supreme Court has held that an employee does not need to establish the reason for the particular disadvantage. What matters is that there is a causal connection between the provision, criterion or practice and the disadvantage suffered by the group and by the individual.
The Essop case was joined with the Naeem case. The latter was about an Imam’s claim that Christian chaplains in the Prison Service were more likely than Muslim chaplains to be near the top of the pay scale because the Prison Service had employed Christians for longer; length of service being relevant to progression.
Was that indirect discrimination? The Supreme Court held that although Muslim chaplains were at a particular disadvantage, the provision, criterion or practice (the incremental pay scale for chaplains) was objectively justified. The claim failed.
So, the test for showing indirect discrimination looks like this: a person will not, unlike in the case of direct discrimination, need to prove a causal connection between the treatment they received and the protected characteristic. But they will need to show a causal link between the provision, criterion or practice and the disadvantage they, and their group, suffered.
Caste in Stone?
The government has opened a public consultation into caste in Great Britain.
It is about ensuring that there is appropriate and proportionate legal protection in place so that people are not discriminated against because of their origins. It is also about looking at how that sort of protection would be implemented in practice.
The big question to be considered is whether or not caste should be explicitly mentioned in the Equality Act. Although caste is likely to fall within the ‘ethnic origins’ provision of the Act, is stronger protection needed?
The consultation will close on 18 July 2017. The government is hoping that employers, service providers and public authorities, as well as the wider public, will take part.
You will find the consultation document here.
SOSR Dismissal Where Doubts About Employee’s Identity
Ssekisonge v Barts Health NHS Trust
‘Some other substantial reason’ (SOSR) is often seen as the fall-back option where no other potentially fair reason to dismiss – conduct or capability, perhaps – applies. But it is not the easy option. It still needs to be reasonable to dismiss the particular employee for the reason you are giving.
Ms Ssekisonge was a nurse employed by an NHS Trust. She was dismissed following serious concerns about her identity and about her right to work in the UK. Her DBS certificate, which she needed in order to practise as a nurse, had been revoked. The Home Office’s view was that she was likely to have obtained her indefinite leave to remain in the UK, and her British Citizenship, under false pretences.
The employment tribunal found that dismissal was fair for SOSR. However, one of the grounds for appeal was that the tribunal had not considered what threshold of fairness is appropriate in a SOSR case. Does a SOSR scenario require a more careful evaluation than might otherwise apply, given that it covers situations in which an employee is not at fault?
No, said the Employment Appeal Tribunal. The NHS Trust could not be satisfied about Ms Ssekisonge’s identity, and that was a risk for the organisation. Once the Home Office had made it clear that it still had concerns about Ms Ssekisonge’s identity, the NHS Trust was entitled to conclude that its own doubts about her identity and the risk posed in the absence of full background DBS checks were sufficient to justify dismissal.
The EAT held there was nothing wrong with the tribunal’s decision. Dismissal was justified here, although it might have been different had the employer not been an NHS Trust, and the employee not been a nurse.
Pensions, share schemes, private medical insurance. They are fairly standard employee benefits.
But egg freezing?
British companies are reported to be in talks with IVF clinics. It is not actually such a new concept; Apple and Facebook are said to have been offering oocyte cryopreservation, to give it its proper name, to employees for years.
It is a way of relieving some of the potential pressures felt by women who would like to have children. It could enable women to continue with their careers for a little while longer, knowing that their time to start trying for a family will come – but just not yet. And, of course, this can be great news for businesses that want to retain their talented workers.
Will it catch on, we wonder?