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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.
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