Employment Status: Workers

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.

Is a person who is unequivocally classified in his written contract as being in business on his own account incapable of being a worker for the purposes of the Working Time Regulations 1998?

Not necessarily, held the EAT in Boss Projects LLP v Bragg.

The Claimant was engaged as a scaffolding supervisor under a chain of contracts whereby the contractor (Mears) contracted with another company (Potensis) for the provision of subcontractors. Potensis in turn contracted with the Respondent (Boss) for the provision of individuals. Payment was made down the chain to Boss, who in turn paid the Claimant.

The Claimant’s contract with Boss described the Claimant as a ‘subcontractor’ and ‘in business on his own account’. It gave absolute discretion to substitute or delegate his workload or hire assistants for which he was solely financially responsible. It permitted the undertaking of other work before, after or concurrently with work for Boss. It explicitly provided no entitlement to holiday or sick pay and rendered the Claimant liable for his own tax and national insurance.

Mr Justice Mitting (sitting alone) found contractual terms, however watertight, do not provide a complete or reliable definition of the nature of the relationship between the parties to a contract.

The EAT continued to conclude the Claimant could not have been expected to have read every page and, in the circumstances, the tribunal was right to look to substance as well as form. He concluded the substitution clause was never intended to be used by either party and observed the Claimant brought none of his own tools to the job. As such, despite express contractual provision otherwise, the Claimant was a worker.

Disability Discrimination: Knowledge of Disability

Thanks to Joanna Cowie of SA Law for preparing this case summary

Can an employer rely only on an Occupational Health Report when deciding whether an employee is disabled?

No, held the Court of Appeal in Gallop v Newport City Council.

An employer's duty to make reasonable adjustments for a disabled employee only arises where the employer knows or is reasonably expected to know that the employee is suffering from a disability and, as a result, is likely to be placed at a substantial disadvantage. 

Assessing whether an employee is disabled can be problematic, particularly in a case of mental illness.  In this case, decided under the previous Disability Discrimination Act 1995, Mr Gallop was suffering from depression brought on by work related stress.  Following the findings of an Occupational Health Report, stating that Mr Gallop's medical condition did not meet the legal definition of disability, he was dismissed by the council in 2008.  Whilst his claim for unfair dismissal was successful, his claim for disability discrimination failed both in the employment tribunal and the EAT, where it was decided that in view of the findings of the Occupational Health Report, the employer did not know that the employee was disabled. 

Overturning the decision of the EAT, the Court of Appeal stated that although an employer should correctly seek assistance and guidance from an Occupational Health Report or other medical expertise, it is for the employer to make a factual judgment as to whether or not the employee is disabled and cannot simply "rubber stamp" an external opinion.

Religious Discrimination: Sunday working

Thanks to Neil Addison of New Bailey Chambers for preparing this case summary Was an employment tribunal justified in concluding that a belief that Christians should not work on a Sunday was not a 'core' part of Christianity? No, held the Court of Appeal in Mba v London Borough of Merton. The Appellant, employed as care assistant in a children's home, was a Christian who believed that it was wrong to work on Sunday. When she was rostered to work on a Sunday, she failed to attend and was disciplined. She resigned alleging religious discrimination. In its judgment the employment tribunal had held that "the Appellants belief.....is not a core component of the Christian faith". Lord Justice Maurice Kay held that what mattered was whether Mrs Mba had a sincere belief which was held by some Christians.  Paradoxically the fact that her belief was a minority one made it easier to accommodate her. Lord Justices Elias and Vos went further. Under Article 9 of the Convention to the Equality Act it was wrong to consider whether the Appellants belief was shared. What mattered was whether it were sincere. All Judges, however, agreed that, on the facts, it was proportionate to require the Appellant to work on a Sunday and therefore her appeal was dismissed.

Holiday Pay: Advocate-General Opines Must Include Commission

Thanks to James Medhurst, Trainee Solicitor, of Slater & Gordon Lawyers for preparing this case summary

Should commission be taken into account when calculating holiday pay?

Yes, according to the opinion of Advocate-General Bot in the CJEU in ZJR Lock v British Gas.

The worker was a salesman whose pay consisted of two elements, basic pay and commission. His commission was based on sales achieved, and fluctuated from month to month. He was on annual leave for two weeks over Christmas 2011 and he was not able to make any sales during this period. When calculating his holiday pay, his employer took only his basic pay into account.

Applying Williams v British Airways, A-G Bot recommended the court find that, as commission is intrinsically linked to the performance of the tasks the worker is required to carry out under his contract of employment, it must necessarily be taken into account in calculating holiday pay. He also recommended that it should be left for national courts to decide on the mechanism for determining the appropriate amount of commission to include.

A-G Bot made his ruling having expressly considered the decision of the Court of Appeal in Evans v Malley Organisation, in which it was held that commission does not need to be taken into account when calculating holiday pay. If the Advocate-General's opinion is followed by the CJEU, which it normally is, it would appear that Evans should no longer be followed.

Unfair Dismissal: Ill-Health Absence

Thanks to Bonike Erinle of Farrar’s Building for preparing this case summary

What is the critical question to be decided in dismissals on grounds of ill-health?

"Whether any reasonable employer would have waited longer before dismissing the employee", says the Court of Session in BS v Dundee City Council.

The Court of Session stated that in a case where an employee has been absent from work for some time owing to sickness, the following issues would need to be specifically addressed:

1. Whether the employer could be expected to wait any longer and, if so, for how much longer. Relevant factors could include whether the employee has exhausted her sick pay, whether the employer was able to call on temporary staff, and the size of the organisation.
2. Whether the employee had been consulted with, whether her views had been taken into account, and whether such views had been properly balanced against the medical professional's opinion.
3. Whether reasonable steps had been taken to discover the employee's medical condition and likely prognosis. It would not be necessary for the employer to pursue detailed medical examination as the decision to dismiss is not a medical question but a question to be answered in the light of the available medical advice.

The Court also pointed out that length of service is not automatically relevant. The important question is whether the length of service, and the manner in which the service was rendered during that period, yields inferences that indicate that the employee is likely to return to work as soon as she can.

Shared Parental Leave

Thanks to Lucy Boyle of 12 King’s Bench Walk Chambers for preparing this case summary

The Government has published its response to theConsultation on the administration of Shared Parental Leave and Pay. The policy is being introduced under Part 6 of the Children and Families Bill, which is currently going through the House of Lords. The Government intends to implement the scheme by 2015.
 
Shared parental leave will allow eligible mothers and their partners to be absent from work to care for a child for a maximum of 52 weeks. Eligible couples could also take up to 39 weeks of shared parental pay. A couple will be able to take the leave together so that the mother will not necessarily return to work after compulsory maternity leave. Alternatively, the mother could return to work and allow her partner to take the balance of leave, or the couple could take the leave in turns.
 
Employees will have to give notice to their employers of their intention to opt into the shared parental system. In doing so, employees will have to provide a non-binding indication of their expected pattern of leave. Additionally, employees will have to provide eight weeks of notice of their intention to take any period of leave. This will include a two week discussion period with their employer. A maximum of three notifications of a period of leave or variations of a period of leave will apply.
 
The Government has also proposed the following:

• A notice to end maternity leave in order to start shared parental leave will be binding when given prior to birth. A mother will have six weeks from birth to revoke this binding notice;
• There will be a cut-off point of 52 weeks from birth for couples to take shared parental leave;
• Each person in a couple will have up to 20 ‘Keeping in Touch Days’ while on shared parental leave; and
• The right to return to the same job will be maintained for employees returning from any period of leave (including maternity leave, paternity leave, adoption leave and shared parental leave) which totals 26 weeks or less in aggregate, even if the leave is taken in discontinuous blocks.

 
Draft regulations detailing how the system will work are to be published before the Bill receives Royal Assent.

Ministers of Religion: Employment Status

Thanks to James English of Samuel Phillips solicitors for preparing this case summary

Could an ordained minister of the Church of England be an employee or a worker?

Possibly, held the EAT, in Sharpe v The Worcester Diocesan Board of Finance & Others.

The Claimant, a former Rector, brought claims of detriment on grounds of whistleblowing and constructive dismissal.  At a pre-hearing review, the employment tribunal held that he was neither an employee nor a worker and therefore they could not hear his claims.  The employment tribunal stated that it was not necessary to imply a contract of employment, and the position lacked the necessary element of personal service.

Overturning the employment tribunal's decision, the EAT reviewed the recent authorities on ecclesiastical offices and employment status, in particular, President of the Methodist Conference v  Preston.  According to the EAT, it was not a question of implying a contract out of necessity.  Various rules and instruments defined the relationship between the minister and the Church.  The question was whether these rules were characteristic of a contract, and if they were, was it one of employment.  The fact that the relationship was governed in part by canon law did not preclude a contractual relationship.  The matter was remitted to a fresh employment tribunal to reconsider the issue.

Whistleblowing Commission Publishes Report

Thanks to Joanna Cowie of SA Law for preparing this case summary

In response to a steady flow of scandals and allegations of 'gagging' across the public and private sectors, the Whistleblowing Commission yesterday published its long-awaited report, which carried out an in-depth review of whistleblowing policies and practices. The Commission, set up by the charity Public Concern at Work, has recommended 25 measures to tackle what it describes as a "culture of silence". 

The Commission's report concluded that the legislation currently in place is not working. The key recommendation is that a new code of practice should be introduced to strengthen the whistleblowing framework in the UK and to ensure that whistleblowers are given the confidence to speak out openly without fear of reprisals. The report suggests that the code should be adopted in all UK workplaces, and include guidance for employers, their workers and representatives on how to deal effectively with any whistleblowing issues that may arise in the workplace. Other recommendations include:

• a requirement for Regulators to encourage adoption of the Code by those they regulate,
• the introduction of specific provisions against the blacklisting of whistleblowers,
• strengthening anti-gagging provisions, and
• specialist training for employment tribunals on handling whistleblowing claims. 

The Commission recommended that a failure to follow the code should not, in itself, make a person or organisation liable to proceedings, however courts and tribunals should consider the Code and take into account failure to follow it, when considering allegations of whistleblowing.

The report went on to say that the remedies in the Public Interest Disclosure Act (PIDA), which was introduced 15 years ago to provide a remedy for workers dismissed or victimised for whistleblowing by their employer, should be strengthened, clarified and extended to cover a broader scope of workers, including doctors, social workers, volunteers and interns.

Discrimination - Christian Beliefs v Gay Rights

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Did Christian hotel owners (the Appellants) Mr & Mrs Bull unlawfully discriminate against civil partners Hall and Preddy by refusing to let them share a double bed on the grounds that they were not a heterosexual married couple?
 
Yes, held the Supreme Court in Bull & Bull v Hall & Preddy, upholding the decision of the Court of Appeal, with a 3-2 majority holding that that the conduct of the Appellants was direct discrimination. The Supreme Court was unanimous that the conduct of the Appellants was unjustified indirect discrimination, the appeal was dismissed, as was a challenge on Human Rights grounds to the Equality Act (Sexual Orientation) Regulations 2007 (now superseded by the Equality Act 2010).
 
The Appellants owned a hotel and maintained a strict policy that only married couples could stay in rooms with double beds.  This policy, which applied equally to unmarried homosexual and heterosexual couples, was founded on the Appellants’ Christian beliefs.  This discriminated both directly and indirectly against couples in a civil partnership.
 
The leading majority speech was from Lady Hale, who held that to deny a double bed to a couple in a civil partnership was not only applying a criterion that the couple were unmarried, but also applying a criterion that the couple’s relationship was not that of one man and one woman (para. 30).  That, held Lady Hale, was indistinguishable from sexual orientation (leaving aside examples of homosexual people being in marriages). Lady Hale gave a hypothetical example of a hotel that limited double beds to married couples over 30, which would result in direct age discrimination against married couples on the grounds of age (para. 31).
 
Lords Kerr and Toulson agreed that there was direct discrimination against the couple.
 
Lords Neuberger and Hughes dissented on the direct discrimination point, Lord Neuberger did not accept that the policy of the Appellants was ‘specific to those of homosexual orientation’ (para. 83), and felt that to find direct discrimination, in an area where the law was clear "(risked) blurring that clarity" (para. 84). Lord Hughes held that the argument for this case being direct discrimination was flawed as it concentrated on the characteristics of the couple, rather than the Appellants’ reasons for treating them as they did. The minority agreed that the indirect discrimination was not justified.
 
The Supreme Court unanimously held that although the principles of Article 9 (1) of the ECHR, protecting manifestations of religious belief were engaged, the impact of the Sexual Orientation Regulations was justifiable as a proportionate means of achieving a legitimate aim, to protect the rights and freedoms of the couple who were entitled to protection of their rights, including rights under domestic law, for protection against discrimination, and the restriction on Article 9 (2) achieved under the Equality Act (Sexual Orientation) Regulations 2007 was a legitimate aim.

Employment Status

Thanks to Sophia Berry of Littleton Chambers for preparing this case summary

Is an individual who provides services to an end user through a limited company protected by the Equality Act 2010?

No, holds the EAT in Halawi v World Duty Free.

The EAT held that a contract personally to do work was required for the Equality Act to apply. On the facts, no contract had been entered into by Ms Halawi with either of the Respondents. Furthermore, an unfettered right of substitution existed, which Ms Halawi had exercised on occasion.

The Respondents' lack of control over Ms Halawi, and the absence of any direct evidence that she was economically dependent on them, also led the EAT to conclude that an employment relationship of subordination had not been established.

The EAT expressed its unease at the fact that Ms Halawi could have been subjected to discrimination and yet had no right to complain to the employment tribunal, but said that the legal tests had to be satisfied.