The law on constructive dismissal has been under the spotlight recently. Sometimes, employees claim constructive dismissal because of a ‘last straw’ which pushes them over the edge. The courts have recently considered whether a fair disciplinary process – no matter what the outcome – can ever be that ‘last straw’.
Ms Kaur was a nurse with Leeds Teaching Hospitals. She received a final written warning for inappropriate behaviour, which included an altercation with another member of staff. She appealed. When her appeal failed, she resigned claiming constructive dismissal. Her claim was based on the whole process, including the altercation and the disciplinary proceedings. She claimed that the ‘last straw’ was her appeal being rejected.
The Court of Appeal reviewed and clarified the law on ‘last straw’ constructive dismissal cases. Where there is a course of conduct which creates a serious breach of contract, the most recent act can revive earlier affirmed breaches. If Mrs Kaur had accepted earlier breaches by not resigning at that point, a new breach of contract could revive them. Theoretically she could bring her constructive dismissal claim.
This case overrules the recent MacKenzie v Pets at Homecase. It will be comforting for employers to know that Mrs Kaur’s case was struck out for having no reasonable prospects of success. The Court of Appeal confirmed that a fair disciplinary process can never form part of a serious breach of contract. As a result, the appeal decision could not be a ‘last straw’.
The catchily named Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018 requires businesses to provide all ‘workers’ with an itemised pay slip. Previously, only employees were entitled to receive itemised statements. Workers will now have the right to bring an employment tribunal claim if businesses do not comply, and this extension of the right will now mean many people in the gig economy will be entitled to an itemised pay slip.
The new law comes after a recommendation by the Low Pay Commission in 2016 and following the Taylor Review on Modern Working Practices. The change is aimed at ensuring that low paid workers can work out whether they have been paid correctly. The good news for businesses is that the new requirement is not scheduled to come in until April 2019. There is plenty of time to get the necessary systems in place. The change will not apply to wages paid for work done before this date.
Most employers use overtime at some point, to satisfy increased demands such as a large order or an unexpected increase in work. The new ACAS guidance explains the difference between voluntary and compulsory overtime. It also describes the two types of compulsory overtime:
The guidance explains the importance of setting out clear terms in contracts of employment to avoid confusion. It also includes a reminder that overtime hours still count towards working time and the limits set by the Working Time Regulations. There are also helpful sections on using time off in lieu instead of paid overtime, dealing with part time workers and the impact of overtime on holiday calculations.
Find the guidance at www.acas.org.uk/index.aspx?articleid=4249
Can an individual employed as ‘bank staff’, with no guaranteed hours, be an ’employee’? Ms Lane-Angell worked for Hafal assisting vulnerable adults in police detention. Her contract said there were ‘no guaranteed hours’ and Hafal would use her services ‘as and when they are required, if you are available’. Ms Lane-Angell would communicate her availability which was put into a rota. When on the rota she was expected to work if required. There was a poorly enforced ‘three strikes and off’ rule where staff were taken off the rota if they missed calls whilst on duty. Ms Lane-Angell missed calls and stopped receiving work. She then claimed unfair dismissal as an employee. But was she an employee?
The employment tribunal said yes. When work was offered to Ms Lane-Angell, she had to accept it or there were potential sanctions. There was an ‘umbrella’ contract which existed between her and Hafal. An umbrella contract is an overarching contract of employment which spans a series of individual contracts (in this case, the shifts she worked) and links them together. Hafal appealed to the Employment Appeal Tribunal.
The EAT agreed with the employer and said she was not an employee. The tribunal had not properly considered the original contract. The terms were clear that there was no obligation to provide or accept work. The facts showed that the ‘three strikes’ rule only applied when Ms Lane-Angell was on the rota. The tribunal was wrong to say there was mutuality of obligation during the periods in between shifts when there was no obligation to provide or accept work. Accordingly each break reset the ‘continuity of service’ clock to zero. There was no umbrella contract and she was not an employee.
This is a good result for the employer, and highlights the importance of having clear terms of engagement with workers.
There has been a lot of publicity lately about the employment status of individuals working in the gig economy. Employees and workers have more rights than the genuinely self-employed, so individuals are pushing for this status. Recently, the Supreme Court gave its decision in the high-profile Pimlico Plumbers case. Can someone be a ‘worker’ even though their contract says they are self-employed?
Mr Smith worked for Pimlico Plumbers as an engineer. He had a uniform and a branded van. He had to work at least 40 hours per week and pre-book any holiday through the company procedure. However, he paid his own tax and national insurance, used his own tools and paid his own insurance. He could subcontract work only to other Pimlico operatives. He also took some financial risk in relation to fees.
Mr Smith claimed he was pushed out of the business when he asked to reduce his hours after a heart attack. He brought claims for unfair dismissal as an employee and various other claims as a worker, including a disability discrimination claim.
The Supreme Court confirmed that Mr Smith was not an employee, but he was a worker and ‘in employment’ (as a worker) for the purposes of discrimination law. The company exerted significant control over him, including financial control. He was well integrated into the workforce. His right to subcontract work was too limiting for genuinely self-employed status. He was not running his own business. Mr Smith was a worker and his claims will now be heard by a tribunal.
An employer will not be liable for disability discrimination unless it knew about the employee’s disability (or should have known about it). But what if an employer disciplines someone for misconduct that they don’t know is connected to a disability?
Mr Grosset worked for City of York Council as a teacher. He had cystic fibrosis, which the Council accepted was a disability. After a change in management, his workload increased and he struggled to cope. He suffered stress which made his cystic fibrosis worse. During this time, he showed the 18-rated film ‘Halloween’ to a group of 15 year olds. He later said this was an error of judgement caused by the stress which was linked to his disability. The school disciplined and subsequently dismissed him. At the time of the dismissal, medical evidence did not link the decision to show the film to Mr Grosset’s disability. By the hearing, new medical evidence linked the misconduct to his disability.
The Employment Appeal Tribunal agreed that Mr Grosset had suffered discrimination arising from disability. The employer did not know that the misconduct was linked to disability at the time of dismissal. However, knowledge is not relevant in such claims. The tribunal relied on the evidence put forward at the hearing, not the information the employer had when it dismissed Mr Grosset. The school then tried to justify its actions. They said they had the legitimate aims of safeguarding the children and maintaining disciplinary standards. However, the EAT said they could not show that Mr Grosset’s dismissal was a proportionate way of doing it.
This case highlights the different ‘knowledge’ requirements in discrimination claims. Employers will often be taking a higher risk when disciplining someone with a disability, although often it will be unavoidable.
High sickness absence can place huge pressure on a business. How easy is it to take disciplinary action against a disabled employee for high sickness absence? The Employment Appeal Tribunal has looked at this issue recently in a case where the employee was absent for 60 days in a 12-month period.
Mrs O’Connor had a disability and high sickness absence over many years. Her employer had dealt with the absence sensitively. They had accommodated significantly more absence than their policy usually allowed. But, in 2016, they issued Mrs O’Connor with a written warning and stopped her company sick pay. She brought a claim for discrimination arising from disability under section 15 of the Equality Act 2010. Less favourable treatment under this section can be objectively justified if the employer can show that what they did was a proportionate way of achieving a legitimate aim.
Mrs O’Connor won her discrimination case at tribunal. The employer appealed but the Employment Appeal Tribunal agreed with the tribunal. The employer had the legitimate aims of assuring adequate attendance levels across the workforce and improving Mrs O’Connor’s attendance. However, they relied on general assumptions about what a warning might achieve. They didn’t look at how it would affect Mrs O’Connor or improve her attendance. No one had spoken to Mrs O’Connor’s team manager about the impact of her absence. The employer failed to follow their own policy of referring an employee to occupational health before taking disciplinary action. The warning was not a proportionate way to achieve any of the employer’s legitimate aims.
This case is a reminder to employers of the difficulties in dealing with disability related absence. This case succeeded because the employer couldn’t justify how the warning would achieve their stated aims. If they had followed their own procedures, and put forward different justification arguments, the outcome may have been different.
Purchasing, selling or remortgaging a property is one of life’s big decisions and if you want the process to run as smooth as possible it’s essential that you have a specialist conveyancing solicitor to safeguard your interests.
On the 12th of July, Thorneycroft Solicitors had the pleasure of sponsoring the Champagne Reception & Media Board at the Eclipse Proclaim Modern Law Conveyancing Awards 2018.
Whilst health and safety in the workplace has improved dramatically over the past few decades, there are still thousands of cases of work-related illness and injury each year in England and Wales. As the issue is a continuing concern, our team have taken a look at the key facts and statistics surround work-related illness and injuries and have created an infographic to highlight the main issues. If you’ve suffered an injury at work or have become ill and the fault lies with your employer, we can help you make a claim for compensation. Learn more by clicking here.