Employment Review - June 2018

 

Welcome to the June edition of Freeths' employment law update

In this month’s update we take a look at cases covering employee status, discrimination arising from disability, the introduction of an order extending the right to itemised payslips and zero-hours contracts. Our immigration specialists also cover keeping international recruitment GDPR compliant and compliance for Tier 2 sponsors.

• Confirmation of cycle courier’s worker statusAn employment tribunal's finding that a cycle courier was a worker under the Working Time Regulations has been upheld by the EAT. This means they are entitled to statutory holiday pay.
• Discrimination arising from disability: no knowledge of consequences of disability requiredThe Court of Appeal has confirmed that an employer was liable for discrimination arising from disability when it dismissed an employee for misconduct, even though it was not aware that the employee's actions were due to their disability.
• Order extends right to itemised payslips to all workersFrom April 2019 all workers, not just employees, will have a right to an itemised pay statement at or before the time at which any payment of wages or salary is made to them.
• Zero-hours employee contract same as permanent colleagueIn a recent case the EAT has held that a university lecturer employed on a zero-hours contract was employed on the same type of contract as a lecturer on a full-time contract.
• Keep your immigration recruitment GDPR compliantHR professionals will be conscious of the significant amount of sensitive personal data that has to be collected and processed in order to sponsor a non-EEA employee. All employers, must comply with GDPR and should be aware of how international recruitment practices may have potential to breach the regulations.
• Tier 2 Sponsor Licence Compliance RequirementsWhen a business secures a Tier 2 sponsor’s licence they need to ensure that they have systems in place to retain it. Our concise guide highlights some of the main duties and responsibilities for sponsors.

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EAT confirms Addison Lee cycle courier’s worker status

The EAT has upheld an employment tribunal's finding that a cycle courier working for Addison Lee was a worker under the Working Time Regulations 1998 and the Employment Rights Act 1996 (ERA 1996) and was therefore entitled to statutory holiday pay.

Addison Lee stated that there was no basis for the tribunal's conclusion that mutuality of obligation existed throughout each period when the courier was logged on to the company's app. They contended that this was due to the courier having a free choice over when to work, and could log off at any point.

The EAT rejected this argument and held that the tribunal had reached clear findings as to the mutual expectations of the parties. These findings clearly supported the conclusion that, during logged-on periods, there was a contractual relationship with an obligation on Addison Lee's part to offer work, and an obligation on the courier to accept any work offered, provided the parcel was not too heavy. The fact that the courier was entitled to log off at any time was not at odds with the obligation to accept work offered when he was logged on.

Addison Lee's second ground of appeal was a perversity challenge. Addison Lee argued that the Employment Tribunal's "multi-factorial assessment" included nine findings of factual error and should be referred to a fresh tribunal. The multi-factorial test in essence considered all the elements that made up the claimant’s employment status. This was roundly rejected by the EAT. In their view, there had rightly been no challenge to the tribunal's finding that the terms of the contract did not reflect the reality of the situation. The EAT held that there was no basis to challenge the tribunal's assessment of that reality, or its consequential conclusion that the claimant was a worker under section 230(3)(b) of the ERA 1996. (Addison Lee Ltd v Gascoigne UKEAT/0289/17.)

As highlighted in our previous bulletins, the challenges presented to those working in the ‘gig economy’ are numerous, and cases around them continue to hit headlines as it’s repeatedly debated whether or not these workers are being denied their employment rights by being categorised as self-employed. The government has not yet committed to anything concrete to improve rights for these workers.

Particular features of these cases have been where the arrangement has the characteristics of a typical wage/work bargain, where the employer sets the terms of the contract and rates of pay, and exercises a large degree of control, and where the individuals appear to the outside world as an integral part of the employer's business.

The future of the gig economy remains uncertain as we await further clarification from the Supreme Court. The Employment Appeal Tribunal decisions against Uber and Pimlico Plumbers have been appealed to the Supreme Court and we await the eagerly anticipated rulings. The case against Pimlico Plumbers was heard in February 2018 and the ruling has not yet been published. The case against Uber is to be heard in October 2018. Other cases, including those against Deliveroo and City Sprint are still making their way through the tribunals. It is reported that an employment tribunal will consider the Deliveroo case at a full hearing in July 2018.Employment status has long been a cloudy area of employment law. The Central Arbitration Committee (CAC)’s ruling that Deliveroo riders are self-employed added to the confusion. It is important to note that this is not a binding authority. We await the Tribunal ruling in the claim brought by 45 Deliveroo couriers to see how it compares to the CAC decision.Watch this space!

Discrimination arising from disability: knowledge of consequences of disability not required

The Court of Appeal has upheld the decisions of an employment tribunal and the EAT that an employer was liable for discrimination arising from disability when it dismissed an employee for misconduct even though it was not aware that the employee's actions were due to their disability.

The claimant in this case was a teacher and Head of English who suffered from cystic fibrosis. The employer was aware of this. Following a change of head teacher, the claimant's workload increased and the claimant suffered stress which, in turn, exacerbated his cystic fibrosis. The claimant allowed a class of 15-16 year olds to watch the 18-rated film ‘Halloween’. This led to the claimant’s suspension and resulting dismissal for gross misconduct. The evidence available to the employer at the time of dismissal did not suggest a link between the claimant’s actions and his disability. However, when presented at the tribunal, medical evidence suggested a clear link. The tribunal had found that the claimant showed the film as a result of the high stress he was subject to, which arose from the effect of his disability when new and increased demands were made of him at work.

This case demonstrates that discrimination arising from disability can occur even where an employer has reasonably concluded based on the evidence before them that there is no link between an employee's actions and their disability. An employer's knowledge of the causal link is not relevant. The test is an objective rather than a subjective one. (City of York Council v Grosset [2018] EWCA Civ 1105.)

Order extending right to itemised payslips to all workers made

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018 (SI 2018/529) has been made.

The Order will provide all workers with a right to an itemised pay statement at or before the time at which any payment of wages or salary is made to them and to enforce that right at an employment tribunal. The itemised pay statement should include the number of hours worked in respect of the variable amount of wages or salary. This needs to be as a single aggregate figure, or separate figures for the different types of work or different rates of pay.

The Order will bring into force the Government's commitment to ensure employers provide itemise payslips to all workers, not just employees. The Order will come into force on 6 April 2019 and will not apply to wages or salary paid in respect of a period of work before this date.

Zero-hours employee employed on same type of contract as permanent, full-time comparator

In Roddis v Sheffield Hallam University the EAT has held that a university lecturer employed on a zero-hours contract was employed on the same type of contract as a lecturer on a full-time contract for the purposes of the comparison under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 SI 2000/1551 (PTW Regulations). Contrary to what was found by the employment tribunal below, a zero-hours contract does not, of itself, constitute a type of contract for these purposes.

The claimant was employed as an associate lecturer by the University. His employment commenced in January 2006. His contract of employment included a clause which stated that his hours of work would vary according to the workload of the University's business and that the University was under no obligation to provide any work or to provide a minimum number of hours in any day or week. It also stated that offers of work would be made at least one month prior to commencement of the relevant academic year or semester. The claimant accepted over 30 offers of work pursuant to this contract of employment.

At the preliminary hearing for this matter, the tribunal wanted to determine whether the claimant and the comparator, a full-time lecturer working under a permanent contract, were 'employed by the same employer under the same type of contract'. The tribunal found that both were employed on different types of contract: The claimant’s was a zero-hours contract which identified him as an associate lecturer whilst the comparator’s contract provided him with permanent employment as an academic lecturer. It was found that the comparator used in this instance was not a comparable full-time worker for the purposes of the claimant’s claim. The claimant then appealed.

The EAT held that the tribunal's reliance on the case of Wippel was misplaced. Wippel had concerned a claimant who wished to be paid on the basis of the maximum number of hours she could have been asked to work, when she was under no obligation to do any work at all. This claim was described as 'clearly outrageous'. The tribunal did not believe this description was applicable to the claimant’s claim as he was not seeking to be paid a full-time salary irrespective of the hours he had worked.

To decide whether the claimant and his comparator were employed under the same type of contract, it was necessary to examine the mutually exclusive categories of worker. These categories are defined broadly in a way that allows for a wide variety of different terms and conditions within each category to enable a comparison to be made between full and part-time workers. It cannot be that a zero-hours contract of itself constitutes a different type of contract, since this would be self-defeating. The tribunal had made unchallenged findings of fact that both the claimant and his comparators were employees working for the University under contracts of employment. Thus, they were both 'employees employed under a contract that is not a contract of apprenticeship' and the only possible conclusion resulting from this was that they were employed by the same employer under the same type of contract. The case was referred back to the tribunal to determine the remaining issues in the claim.