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.
Our first case concerns trade union activity and unfair dismissal. A dismissal will be automatically unfair if it is in relation to trade union activities.
Therefore, today’s question is:Can receiving and storing confidential information amount to trade union activities?
Mr Morris, the Claimant, was a supervisor for Metrolink, the Respondent. The Claimant was also a trade union representative for a small independent trade union made up of the Claimant’s colleagues.
The Respondent went through a re-structuring exercise and the Claimant’s trade union members were at risk of redundancy. During the selection process, those at risk were assured that their respective line managers would not be involved to ensure fairness.
Thereafter, a union member disclosed a picture to the Claimant of a line manager’s diary which showed that they were involved in the redundancy process. The picture was taken without the manager’s consent. The Claimant raised a grievance about the selection process on behalf of the union members. He cited the line manager’s diary as part of the basis for raising the grievance.
The Claimant was then suspended after it became apparent that the picture of the diary was taken without consent. The Claimant was disciplined and ultimately dismissed for storing and sharing confidential information.
The Claimant initiated ET proceedings. He argued that his dismissal was unfair because the diary picture came into his possession as part of his role as a trade union representative. The ET agreed. The photo came into his possession because of his trade union rep status and he disclosed it as part of his role as a rep. Therefore, the dismissal was linked to his trade union role and his trade union activities.
The Respondent appealed and the EAT allowed the appeal and overturned the ETs judgment. The EAT held that the ET had not considered whether receiving and storing the photo fell within trade union activity and in their view it did not. The Claimant’s storing and sharing of the photo was wrong.
The Claimant appealed to the Court of Appeal and the CoA allowed the appeal. They held that whilst a moral prude might object to receiving leaked information, it is fairly common for union reps to receive such documents. The Claimant did not share it with anyone other than HR nor did he encourage the source to take the photo of the diary. As such, the Claimant was acting within his role as a trade union rep.
The takeaway point:
Yes, it can. If the person processing and storing the data is a trade union rep then receiving the data will almost certainly amount to trade union activities and make any dismissal for storing the data unfair. If the representative distributes the data outside of their role then this could bring grounds for disciplinary action.
It is also worth noting that had the Claimant not been a trade union rep then this case would have had a different outcome. If the Claimant was a regular employee then any dismissal might have been fair.
Without realising, most managers, supervisors and team leaders obtain, process and store personal data on a daily basis as part of their role. To find out how the GDPR has impacted data protection in the workplace we recommend taking our GDPR e-learning course or booking some in-house training.
Late last year, we covered the Central Arbitration Committee (CAC) case of IWGB v Roo Foods Limited t/a Deliveroo. Whilst we don’t usually cover cases from the CAC this case was relevant to the gig economy because it held Deliveroo couriers were not eligible for union recognition because of a clause in their contract that stated the work did not have to be undertaken personally (a key point on the employment status matrix).
The recent Pimlico Plumbers decision – whilst not a landmark point of law – has shown that the higher courts are willing to look at how the contract is performed, not how it is written. This could mean that a contract with a substitution clause will be worth very little if the worker cannot substitute in practice.
However, IWGB, the trade union for the couriers, have appealed on a narrower human rights point. Under Article 11 of the European Convention for Human Rights, people have a right to assembly, including the right to form trade unions.
Whether the appeal will succeed remains to be seen but this is yet another example of how Government inertia has resulted in business practices outpacing the law. The inability to enact the Taylor report means employment status is a grey area and the Courts will be unwilling to make a landmark judgment (see Pimlico) because the law could all change when the Government updates statue.
As such, complex and convoluted court cases such as Pimlico, Uber, Addison Lee and Deliveroo have resulted in mixed results that do not give a finite definition of what self-employment is, which makes each case turn on its own facts.
These cases cost both parties an enormous amount as well as taking up valuable judicial resources. They also last several years once appeals are factored in and leave millions of people, and the companies that employ them, in the dark about their employment status. Swift definitions cannot come soon enough.
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Good morning and welcome back to your weekly case law update. Last week we looked at unfair and wrongful dismissal, this week we have two cases. One will be looking at unlawful deductions from wages and the other is the Supreme Court ruling in the gig economy/employment status case of Pimlico Plumbers.
Section 13 of the Employment Rights Act 1996 protects workers from unlawful deductions. A deduction from wages will be unlawful unless it is required by law, part of their contract or the worker has given express written consent to the deduction. This is a day one right available to all employees.
It will also not be payable where the total amount of wages paid on any occasion by the employer to a worker is less that the total amount of wages properly payable by him to the worker on that occasion – essentially if it is undefinable. Furthermore there will be no unlawful deduction if an employer makes an error of computation in calculating wages and then recovers any overpayment through a deduction.
In light of that, today’s questions are:
On termination of employment, does an employee have the right to be paid any deferred wages?
Can deferred wages be an unlawful deduction if not paid on termination?
Mr Scicluna, the Claimant, set up a clothing repair and alteration company, Zippy Stitch Ltd, the Respondent, with his sister and brother-in-law. The Claimant was to be paid £100 per day. The company expanded quickly but the Claimant, who had access to the accounts, deferred his wages for around 18 months because he wanted to make sure all other staff were paid.
The Claimant then fell out with his brother-in-law and sister after a disagreement about an outside investor and the Claimant’s brother-in-law expressing dissatisfaction with how the Claimant was running the business. The Claimant resigned due to the breakdown in relationship between him and the other founders.
The Claimant brought constructive dismissal, unlawful deduction and breach of contract claims against the Respondent. The unlawful deduction and breach of contract elements were for the deferred wages. However, breach of contract claims are capped at £25,000 whereas the Claimant was owed more than £50k in deferred wages.
The Claimant appealed the rejection of his unlawful deduction claim and the Respondent cross-appealed the breach of contract decision. The EAT allowed the Claimant’s appeal – and thus the unlawful deduction claim – as the wages were defined at £100 per day. The EAT rejected the Respondent’s cross appeal. The Respondent appealed to the Court of Appeal but the CoA rejected the appeal. There was also a costs award made against the Respondent.
The Takeaway Points:
Yes, deferred wages should be paid at termination and can be an unlawful deduction if they are not paid at termination, or, (if the employee did not leave employment) when the employer can pay them. Here the employee was able to claim around 18 months of deferred wages which exceeded the £25,000 cap on contractual claims. This shows that having an employee with a lengthy period (or high monetary value) of deferred wages poses a serious financial risk in the event of any litigation.
Finally, this case also raised a procedural point regarding list of issues. A list of issues is an agreed list of all the issues that the ET has to make a decision on (Was X unfairly dismissed?/Was X an employee or a worker? Etc.)
In this case the Respondent and Claimant had agreed their list of issues but then the Respondent raised the interpretation of those issues in their appeal. The Respondent argued that one of the issues should be interpreted to mean the deferral was only payable when the Respondent could afford to pay it, not when the employment was terminated.
The CoA held that a judge should only make findings on things outside the list of issues in exceptional circumstances and thus any discrepancy should be cleared up by adding a separate issue before agreeing the list.
Mr Smith, the Claimant, was a heating engineer for Pimlico Plumbers, the Respondent. He had a self-employed contractor agreement with the Respondent and provided his own tools, was able to switch jobs and paid his own tax and NI – the Respondent paid none as is normal for true self-employment relationships. Throughout his time at the Respondent, the Claimant believed that he was self-employed.
However, despite being self-employed on-paper, the Claimant’s actual employment relationship suggested he was not self-employed. He was required to wear the Respondent’s uniform and drive a branded van. He was not allowed to engage private work or sub-contract it out to a replacement.
He had a GPS tracker in his van to monitor movements and had to log all work done via the Respondent’s system. He had to work a 40 hour week, take on-call work and needed permission to take time off. He was also subject to the Respondent’s grievance and disciplinary procedures.
The Claimant had a heart attack and wished to reduce his hours. The Claimant had his contracted terminated after a period of absence and after requesting to reduce his hours.
The Claimant imitated ET proceedings for disability discrimination and the ET, EAT and CoA all held he was a worker and thus able to bring a discrimination claim. The overriding theme was that despite having a self-employment agreement, the nature of the working relationship meant the Claimant was in fact a worker.
This judgment was reached largely due to there being a mutuality of obligations whereby the employer was obliged to give and pay for work done and the employee obliged to perform the work personally. The Claimant could not send a replacement and had to do the work in accordance with the Respondent’s procedures.
The Respondent appealed to the Supreme Court and they dismissed the appeal, agreeing with the CoA, EAT and ET.
The takeaway point:
It was hoped that the Supreme Court would clear up the gig economy/employment status debate by laying down clear guidelines on areas of ambiguity in particular substitution and mutuality of obligations. However, perhaps somewhat unsurprisingly, the Supreme Court has taken the easy option to simply uphold the junior courts’ decision without progressing or clarifying the ambiguous areas.
Judges seldom like making findings they don’t need to, but what this case does show is that judges will decide employment status on the facts, not what is written down on the contract. If the facts say worker but the written contract says self-employed, the written contract will be overridden by the facts of how the contract is performed. Therefore, the table from our previous case still applies as a form of decision making matrix.
This case will have some significance on other gig economy cases but the law remains the same; judges make decisions based on a case by case basis looking at the facts of how the contract is performed rather than just looking at the written contract. This is very uncertain and has not cleared up the situation like we had hoped at the start of the year. Given the government is in near-stasis on following up the Taylor Report, a strong judgment here would have been very helpful.
Charlie Mullins, the Rod Stewart lookalike founder of Pimlico Plumbers, has mentioned appealing the decision to the European Court of Justice. However, that is most likely going to be ineffective. What is needed is Government action to clear up an important and untidy area of employment law.
Hello and welcome back to your weekly case law update. Last week’s newsletter had features on the World Cup, dress code policies, the post-Brexit workforce and a barrister who was sacked for spanking. Prior to that, our most recent case law update concerned disability discrimination, unfair dismissal and a teacher who showed the film “Halloween” to his class.
This week we are looking at unfair dismissal and wrongful dismissal. The questions this week are:
Can summary dismissal for gross misconduct following several misconduct incidents, that on their own do not equate to gross misconduct, be fair?
Will a dismissal for circumstances listed in question one be fair if other employees have committed similar, but less serious, offences and not been dismissed?
Will a dismissal for circumstances listed in question one be fair if the Claimant’s regulator believes there is no misconduct?
Mr Mbubaegbu, the Claimant, was a Black African orthopaedic consultant for Homerton University Hospital, the Respondent. Before the incidents that resulted in his dismissal, the Claimant had 15 years’ service with a clean disciplinary record.
The Respondent introduced new procedures which the Claimant, and several other colleagues, failed to comply with. The Claimant, and several colleagues, were also involved in a series of patient incidents. Disciplinary proceedings were then initiated against the Claimant and his colleagues. The Claimant was the only employee to be dismissed. The Claimant was the only Black African consultant.
The Claimant brought unfair dismissal, wrongful dismissal and race discrimination claims before the ET. The ET rejected the claims. Whilst there was no single finding of gross misconduct, the amount of individual misconduct offences committed by the Claimant amounted to a breach of the implied term of trust and confidence. As the other employee’s breaches were less numerous and serious the Respondent was entitled to dismiss the Claimant and not his colleagues.
After the ET judgment, the Claimant’s conduct had been referred to the GMC, who regulate medical practitioners. The GMC held that the Claimant’s conduct did not suggest he was unfit to practise to practise. The Claimant applied for the ET to reconsider its decision highlighting the GMC’s findings. The ET rejected the Claimant’s application.
The Claimant appealed the ET’s decision and the rejection of his review application. The EAT rejected the appeal. It held that the ET was right to find that, despite the individual offences not amounting to gross misconduct, the decision to dismiss was within the range of reasonable responses. Likewise, the discrimination finding was also fair. The EAT did rule that the GMC’s findings meant that the dismissal might have been wrongful even if it was fair.
Yes, if the employee has committed more numerous and/or more serious misconduct offences then that will mean the conduct warrants more severe disciplinary sanctions, making any dismissal fair. However, the dismissal could be wrongful if the evidence suggests there was no fundamental breach of contract.
The reason a dismissal can be fair but also wrongful is not paradoxical. Unfair dismissal is a statutory right and is based on whether the employer acted reasonably and whether the decision reached was fair. Wrongful dismissal is a contractual right, if there was no breach of contract – such as implied term of trust and confidence – then the dismissal will be wrongful even if the employer’s reasoning and rationale for dismissal was fair.
In this case the employer did not have the GMC’s evidence at the time of dismissal – the report came nearly 2 years after dismissal – so their reasoning was fair even if the dismissal was wrongful.
Football is once again dominating our screens and thoughts. Gareth Southgate announced his England squad in May and World Cup fever is beginning to sweep the nation in anticipation of a slightly more entertaining brand of underachievement compared to previous tournaments.
For some companies, this fever might be literal as well as metaphorical. Every other summer absences for sudden summer flu, migraines and other such illnesses seem to coincide with when the football is on. In the unlikely event England reach the final then fans will be following England until the middle of July.
The 2014 World Cup coincided with the launch of flexible working leading many to prophesize that employers would be short staffed during the tournament. Such wide-scale hysteria did not happen but these tournaments can present a few headaches for employers.
As such here are the basic points to handling any World Cup related employment law issues:.
1Special Policies and Arrangements
The World Cup is being hosted in Russia, meaning some games will take place in time zones between 1 and 10 hours ahead of UK time. This means that many games will be during working hours whether the business is 9-5, split-shift, evening shift or night shift.
Temporarily allowing staff to listen to the radio or having communal television access to the games might reduce the risk of unauthorised absence and also increase staff morale. Another option is allowing staff to use personal devices to check scores, stream the game or listen online.
Alternatively, employers could allow temporary/one-off working arrangements that mean reduced hours on game days are agreed on the proviso the employee makes up the time later on. For example, an early finish on the day of an late-afternoon kick off could be made up with an early start the next day. Likewise, an extended break for a lunchtime kick off could be made up later that shift.
2Annual Leave Requests
Some fans will try and take games off as annual leave, which is fine. However, it is crucial to ensure there isn’t a staff shortage. Like regular holiday requests, first come, first served is a safe option and anyone who puts in request too close to game days when others are already off is in exactly the same position as someone who applies late during any other popular holiday period.
Unlike the Euros, Wales, Northern Ireland and the Republic of Ireland didn’t qualify, along with Scotland too. However, many workforces will still have employees supporting teams other than England at the tournament. Depending on the industry you are in and the location of your business staff might be supporting Portugal, Poland, Spain, Egypt, Morocco, Nigeria, Australia or any of the other participants.
Therefore, to avoid discrimination issues it is important to treat staff supporting teams other than England in the same way as England fans. This applies for issues mentioned in points 1 & 2 so if your workforce contains staff following other nations then note their games and offer the same annual leave or special work arrangements to them.
To put it lightly, England fans have a confrontational reputation. In March fans caused a stir for throwing bikes in the Amsterdam canals during a friendly with Holland. In Euro 2016 there were violent clashes with Russian fans in France.
Whilst we hope staff will not turn up with sharpened 50ps to throw at colleagues supporting an opposing team, there is a real risk of conduct that amounts to harassment – 12 German Bombers/My Grandad Killed Your Grandad chants being the classic example. Any such conduct can and should be treated as a disciplinary offence.
The staff whose leave applications were rejected might suddenly come down with World Cup fever on the day of games. The same applies to the day after late night games. Pulling a sickie is misconduct and can be grounds for disciplinary proceedings that may result in dismissal.
6Computer, internet and mobile phone use
Some employers might not want to adopt special arrangements and some will not be able to for operational and health and safety reasons. That is fine. However, some staff might try and sneak a look at the scores. Like any other unauthorised use of internet, computers or mobile phones, this is misconduct.
In summary employers should adopt a stance to the World Cup and let employees know in advance what that stance is. This should outline any special arrangement and remind them of the repercussions of any misconduct arising out of World Cup related incidents.
If any such incidents arise the employee can be dealt with in accordance to company procedure and this will not be unfair. Provided this approach is taken to all staff regardless of national allegiance then there is very little World Cup risk for employers.
You may remember the PwC high heels scandal of 2016 where a female employee was sent home for failing to wear heels that were 2-4 inches high. Like any moment of national outrage, petitions were launched and a shift in attitude/law was expected.
In what is increasingly becoming a pattern of window dressing, the guidance stops short of imposing any sanctions for detrimental treatment or unfavourable treatment. Instead it opts for phrasing such as:“Dress policies for men and women do not have to be identical, but standards imposed should be equivalent. Dress codes must not be a source of harassment by colleagues or customers, for example women being expected to dress in a provocative manner.”
The current trend, whether through pay gap reporting, employment status or dress codes is to get the private sector to regulate itself. The problem here is that different businesses have different ideas of what is and is not fair or ethical, resulting in a scattergun, ununified approach to the issues.
ACAS will be releasing further guidance later this year but without altering the Equality Act or introducing new regulations with enforceable rights it is hard to see how this guidance will have any real impact.
This report coincides with news that a Jazz Bar in Shoreditch (eurgh) was looking for waitresses who were attractive (double eurgh) and able to serve food & drink wearing high heels (triple eurgh). Such wishy-washy guidance will not address entrenched – and sometimes subconscious – views that form part of society’s everyday sexism.
In further guidance news, ACAS has released religion and belief guidance. This guidance gives examples of how certain workplace situations; recruitment, discussing religion at work, changing facilities, food, fasting, observing religious events etc. interact with the Equality Act 2010.
The guidance doesn’t say much new but is the latest guidance that employment tribunals will use to decide cases that provide a gap in case law.