Founded in 2002, PJH Law is a Stamford based Employment Solicitors that represents employees and employers both locally and nationally. We advise on a variety of issues including Employment Tribunals, disciplinary procedures, unfair and constructive dismissals, discrimination issues, settlement agreements, whistle-blowing, redundancy and shareholder agreements.
Hello and welcome back to your weekly case law update. Due to the PJH Law Christmas shutdown starting Friday 21st December, this is your final case law update of 2018 (cheer/gasp/cry delete as appropriate).
Before starting this week’s case, we’d like to thank everyone for their support and feedback following the release of Phil’s book, A Practical Guide to Redundancy. For those still interested in purchasing a copy, or, getting their secret santa a really useful/tenuous gift, information about where you can buy the book and the offers available can be found here.
We previously covered this week’s case in the first instance and reported when the appeal on human rights grounds was lodged. The human rights point of law was whether Deliveroo couriers, who were hired and did not have to perform work personally, had the right to assembly (form trade unions) under Article 11 of European Convention on Human Rights.
The question this week is:
Do Deliveroo couriers have the right to form trade unions under Article 11 ECHR if they do not have a contractual right?
For those who don’t know what the CAC is, it’s the Central Arbitration Committee which rules on claims brought by trade unions over recognition, bargaining units, collective bargaining and information required for collective bargaining. Philip is the only member of the team who has defended a case before the CAC which involved a request by the Trade Union for the employer to hand over certain information required for collective bargaining purposes.
The facts of this case have been covered previously. In short, Deliveroo couriers were held by the Central Arbitration Committee to be ineligible for trade union recognition because they were held to be self-employed contractors. Unlike other cases involving employment status, the CAC held that because there was a nominal substitution clause in the courier contract, the couriers did not have to perform work personally and were thus self-employed.
The IWGB, the union representing the couriers, sought a judicial review as to whether the couriers had a right to form trade unions under Article 11 of the ECHR. The High Court, who heard the review, dismissed the appeal. They held that Article 11 was not engaged because the couriers were self-employed and thus were not entitled to union representation.
The takeaway point:
A fairly succinct case this week states that self-employed people don’t have the right to join trade unions. What is more interesting here is how the CAC’s interpretation of employment and the ET/EATs definition of employment is different.
This is partly due to different statutory definitions but also the different role played by the CAC. A CAC hearing may be chaired by an Academic or person with substantial industrial relations experience, when Philip went to the CAC from memory it was chaired by a Professor in Industrial Relations.
As such, a nominal contractual right to substitute, even one that is not used in practice due to the nature of how the contract is performed, could mean someone is self-employed for the purposes of union recognition according to the CAC. However, the ET might find that the way the contract is performed means there is no real right to substitution and thus the couriers might be workers/employees.
We had some great feedback this week from one of Sam’s Client’s:
“Thank you very much for the excellent service and attention to my employment matter. PJHLaw fulfilled their obligations and I was very happy with your services, it was quick and efficient at the time I needed to resolve my issues. I would recommend your firm to friends and colleagues.“
Good morning and welcome back to your weekly case law update. Last week was our monthly newsletter which had features on the Brexit Whistleblower, the Taylor Report and tribunal fees. Meanwhile, our previous case law update was an employment status case concerning Addison Lee.
Before beginning this week’s update, thank you to everyone who has bought Phil’s book. With Christmas being just around the corner, this book would make the perfect gift for any office (or if you get anyone in HR for secret Santa????)! The 10% discount code and Amazon review offer from our previous update still apply.
This case concerns psychiatric injury. PJH Law is not a specialist in personal injury but the basics are as follows:
For any injury clam to succeed, the basic premise is that a duty of care must exist between the parties. That duty is then breached, the breach was negligent and caused an injury which was reasonably foreseeable as a result of the breach.
For example, a supermarket owes a duty of care to customers and visitors to keep its store safe. If a spillage occurs at the store and is not cleaned up this creates a slipping hazard – a breach of the duty. If the spillage was not cleaned up because staff had not been trained to do it/did not check the aisles etc. etc. then the breach will be negligent.
A person who then slips on the spillage and subsequently fractures their wrist will have been injured as a result of the breach. That injury would have been reasonably foreseeable because it is common for slip injuries to involve arm/wrist damage.
Does a poorly handled grievance amount to a breach of duty of care
Is a chronic depressive illness a foreseeable injury following an unmerited sexual harassment claim?
Mr Piepenbrock, the Claimant, was an Associate Dean and Lecturer at London School of Economics, the Defendant. His first academic position was at MIT (Massachusetts Institute of Technology). During his time there, the Claimant’s doctorate thesis was plagiarised by a senior colleague.
As a result of this the Claimant suffered a depressive episode and was unable to work. His condition did not improve until his colleague made an admission and apologised for plagiarism. At this point the Claimant secured employment with the Defendant (LSE). During his interview, he mentioned the plagiarism incident and subsequent depression but this was deemed unimportant by the Defendant.
As part of his role the Claimant had to supervise masters’ dissertations for the Defendant’s students. One of these students was Ms D. Ms D was initially very complimentary about the Claimant’s work but then became more flirtatious and was demanding lots of the Claimant’s time.
The Claimant believed Ms D’s behaviour might be inappropriate and decided that he should not be her supervisor. Upon telling Ms D this she broke down in tears and confided in the Claimant about issues relating to her abusive father. Upon consultation with his wife, the Claimant agreed to carry on as her supervisor.
The Claimant was asked to start teaching on more courses and also do more lecturing abroad. As a result of this increased workload the Claimant was granted an assistant. Due to the nature of the course content, the Claimant wanted an assistant who had previous experience of the course. One of the applicants was Ms D, who had been awarded a distinction in the course.
Ms D was employed as the Claimant’s assistant, during which time she began to flirt with the Claimant. This included wearing revealing clothing, flashing her underwear when sat down and insisting on crawling on all fours to plug in chargers.
The Claimant was then meant to go on a lecturing tour of the US with Ms D also attending. The Claimant was reluctant about Ms D attending but relented when he found out he was to stay in a hotel and Ms D, who was an American national, was staying with her mother. Just prior to the trip, Ms D said she could not stay with her mother and was booked to stay in a different hotel room to the Claimant.
Prior to attending a lecture, the Claimant messaged Ms D and asked if she was ready to leave. She replied yes and the Claimant went to her room to meet her and found her in a state of partial undress. The Clamant left the room and later met with Ms D to state they could no longer work together.
The Claimant then received a call from Ms D’s mother asking why the Claimant had ended her relationship with her. Ms D later became hysterical and said she would ruin the Claimant’s life and career. The Claimant and a colleague tried to calm Ms D down but she called hotel security saying that they were trapping her in their room.
Upon his return from the US, the Claimant reported the incident to the Defendant. The Claimant also noticed staff and students were giving him the cold shoulder, including no students wanting to get in a lift with him alone. The Claimant asked the Defendant about this and was told there had been an informal allegation but they would not detail this further.
Subsequently, the Defendant then informed the Claimant that Ms D had made a formal complaint of sexual harassment against the Claimant, Ms D had also informed current and former students, staff of the Defendant and even the Economist of the alleged incident. The Claimant, who was due to teach many of Ms D’s fellow students, was signed off work with stress.
Ms D’s grievance was not upheld but in this time the Claimant had been diagnosed with a severe depressive disorder. Whilst off work sick, the Claimant missed out on an opportunity to be promoted to a permanent position with the Defendant. The Claimant’s depression had got to a stage where for 5 years after the event, he rarely got of bed and when he did spent his waking hours rueing the events of Ms D’s allegations and the Defendant’s handling of the matter.
The Claimant brought a negligence case against the Defendant citing that they were vicariously liable for the harassing actions of Ms D and had failed to handle the investigation of the grievance correctly. This amounted to a breach of duty of care which resulted in the Claimant’s injury.
The High Court held that the complaint of Ms D – being trapped in the hotel room – was not disputed insofar that she might have found it distressing to be confronted by two male colleagues. The Defendant had been correct to take this complaint at face value and the harassment claim did not succeed.
Furthermore, whilst there had been a breach of duty of care due to the handling of the allegations, the exacerbation of the Claimant’s severe depressive condition was not reasonably foreseeable as a result of this. Therefore, the negligence claim for psychiatric injury did not succeed either.
The takeaway point:
In this case a poorly handled grievance was a breach of the duty of care, however, the injury that was inflicted as a result of this was not reasonably foreseeable, therefore the Defendant was not liable. However, in other cases the injury might be foreseeable and thus this case serves as a reminder on how to approach the investigation and procedure of sexual misconduct allegations.
This case also raised the point of having the grievance and harassment procedure as part of the contract of employment. If it is, as it was in this case, a breach of contract claim can also be brought.
Furthermore, this case also brings back and hits home about the balance between the rights of the harassment accuser and the accused. In many cases it will have taken the accuser great courage to come forward with such an allegation, one condition of such an allegation is that the accuser will understandably want it handled with discretion.
However, the accused will also want to know the name of the accuser and details of the alleged incident, so they can defend themselves. In this case, the accusation was brought possibly vexatiously to get back at the Claimant for spurning advances.
Due to the investigation being poorly handled the Claimant suffered a severe mental health injury that has impacted on his lifelong career prospects and wellbeing. As with the case of Carl Sargant, the rights of each party are difficult to balance but a failure to do so can result in tragic outcomes.
Finally, cognitive bias can also be a factor. Whilst incidents of sexual harassment are usually a result of unwarranted male conduct, it can be initiated by a female. In this case, the conduct of Ms D went unchecked and unreported, possibly due to the gender of the harasser. Whilst it might be rare, harassment can be initiated by a woman and these incidents should be treated the same as any other kind of harassment.
The Taylor Report has been sat in the long grass for some time, we reference it in nearly every gig economy case! This month saw the Business Secretary propose introducing some of the Taylor Report recommendations. These included:
Allowing gig workers to request fixed-term or fixed-hours contracts after 12 months
Simplify criteria to help determine employment status making it easier for workers and employers to know where they stand
Allowing compensation for cancelled shifts
Tougher requirements on holiday pay and payslips
Better enforcement for Tribunal Judgments
Whilst vague, there is the overwhelming hint that the Government were at least trying to implement the review and clear up a very messy area of employment law. However, the suggestions have been met with scepticism from the cabinet who are reluctant to burden business with Brexit volatility very much on the agenda.
For now, the suggestions can very much be filed in the “under review” back burner placing it metaphorically in the bottom desk drawer people use to put all their things in when complying with a clear desk policy inspection.
The particulars of his claim can be found here. The Claim states that Mr Sanni was dismissed owing to making protected disclosures about the Vote Leave campaign and due to his philosophical belief in the sanctity of democracy. It also alleges detriments as a result of the media maelstrom that Mr Sanni found himself in following his disclosure; this included being expressly called a liar and being outed as gay.
In a bizarre and unprecedented move, the Tax Payers Alliance has conceded the claim. Rather than defend the claim and have an Employment Judge examine evidence in the public domain, the Alliance concedes that it unfairly dismissed Mr Sanni due to his belief and blowing the whistle. It also confirms it orchestrated a series of derogatory statements about Mr Sanni in the media.
Readers can make their own inferences on why a political organisation accused of illegal funding would want to avoid the public scrutiny of evidence. The next step for Mr Sanni will be remedy; how much compensation will the Tribunal award for his dismissal, discrimination and detrimental treatment (a perfect hattrick of employer abuse)? The TaxPayers Alliance can contest the remedy, conceding liability or failing to defend a claim doesn’t prevent that. However, given the stature of the organization, a political “think tank”, and the admission of liability, hopefully the Tribunal will award an appropriate sum for an institution that should know better.
We round off this month’s update with another tale of buffoonery. This month, we have a tale that gives the term Private Dicks a new meaning. Det Con Jose Lagares of the North Unit in London was dismissed without notice after he pleaded guilty to stalking in the Magistrates Court.
Mr Lagares was reported to have been sighted several times outside a colleague’s home, including hiding in a stairwell and following her on a bus and to the gym. He stated the stalking stemmed from severe loneliness.
A criminal conviction for stalking is never going to aid any job but given the nature of being a detective it is also a breach of duty in a public office and a suggestion he might not be a successful sleuth!
Hello and welcome back to your weekly case law update. Last week we looked at disciplinary investigations and unfair dismissal, this week we are looking at employment status and the gig economy.
This week we also have some exciting news relating to an upcoming book that a member of PJH Law has written. Find out who here!
Employment status is an issue that has rapidly evolved over the past 12-18 months. Cases like Uber, Pimlico Plumbers, Hermes and Addison Lee have set clear precedent that Tribunals will look at how contracts are performed, as well as how they are written.
However, whilst there is case law, this area of law will most likely be revamped if/when the Government enacts the Taylor Report. Due to Brexit, political infighting and cabinet resignations (the post of Brexit Minister is now a consolation prize on the postcode lottery), the Government has yet to enact any of the report’s suggestions meaning this area of law will probably change significantly at some point post-Brexit
In the meantime, the cases keep coming. This week’s asks:
Is the current method of determining employment status, interpreting how the contract is performed, the correct way?
This is the second case Addison Lee have had at EAT level this year. In this case, Mr Lange and two other drivers, the Claimants, were said to be engaged as self-employed drivers for Addison Lee Ltd, the Respondent.
The Claimants were interviewed and given an induction by the Respondent and were set guidelines of how they had to dress and work. The Claimants then had to hire a branded vehicle from one of the Respondent’s affiliated companies. The Claimants were told they represented the Respondent when they were driving this vehicle.
The Claimants were also given a personal computer to log into when they wanted to be allocated fares. The Claimants had to accept jobs promptly and if insufficient reasoning was given for refusing a job, the Claimants would face sanctions, including not being allocated other jobs for a period of time.
The Claimants bought ET claims. They believed that they were workers and thus entitled to holiday pay and the National Minimum Wage. The ET held they were workers. Despite the contract between the Claimants and the Respondent alleging the drivers were self-employed, the fact they were closely managed by the Respondent and the Claimants had an obligation to perform work when they logged into the computer meant they were workers and thus entitled to the NMW and holiday pay.
The Respondent appealed stating that the ET had been wrong to disapply parts of the contract that stated the Claimants were self-employed and could reject jobs if they wanted to. The EAT rejected the appeal, it held that the correct approach, as adopted by the ET is to look beyond the written contract.
The takeaway point:
To answer today’s question, yes, the current approach adopted by the courts is how employment status cases should be determined. Simply claiming someone is self-employed does not make them self-employed.
This area of law may be torn up and started again if the Taylor Report is ever enacted. However, until that happens (if it ever does), this approach is the one Tribunals will use and employers need to be wary of engaging self-employed workers that they exercise large degree of management control over. It might be better to state they are workers or employees from the offset.