Recent Cases | Employment Law Worldview
This paper is based on the employee relations issues found in the case of Abdul who is employed at BuySell Supermarket. From the case study we can. Keep track of key employment law cases on appeal . to prevent workers using the legislation to make protected disclosure claims in relation to. sequences of the employment relationship, have sought to insulate ance statutes and the Social Security Act, numerous cases arose concerning the coverage.
Migrant workers The government has announced a new pilot scheme to allow 2, workers from outside the EU to come to the UK to undertake seasonal work for up to 6 months on fruit and vegetable farms in order to alleviate labour shortages during peak production periods. The pilot scheme will run for 2 years and the results of the pilot will be reviewed by the government to decide how best to support the longer-term needs of the farming industry outside the EU.
Acas guidance Acas has published new guidance for employers and employees on employment references. The EAT has held that an employee will be protected from victimisation if they wrongly but honestly believed the allegations they made to be true, even if they had an ulterior motive for making those allegations. The claimant had made an allegation of racial or religious discrimination. The tribunal found that the allegation had been made in order to postpone an assessment of his skills and that the allegation itself was false, but because the claimant subjectively albeit unreasonably believed his allegation to be true, the tribunal concluded that it had not been made in bad faith.
The claimant was therefore entitled to protection from victimisation. The High Court has held that resignation on a lengthy notice period could constitute affirmation of an employment contract. The claimants in this case had resigned in response to breaches of their employment contracts, but did so on notice periods of six months and 12 months respectively. By resigning on such lengthy notice periods, the claimants in this case had affirmed their contracts.
The EAT has held that an employee on a zero hours contract was an agency worker due to the temporary nature of his assignment. Mr Matei was employed by the respondent on a zero hours contract and was assigned to work as a security guard for different clients, but mainly worked for one client.
Mr Matei claimed he was an agency worker, but the respondent argued that he worked permanently for one client and was therefore not an agency worker. The EAT said that the question of whether Mr Matei was an agency worker came down to whether he was working temporarily and concluded that he was — the position was not indefinite.
Mr Matei was therefore an agency worker and entitled, after 12 weeks service, to the same terms and conditions as someone employed directly by the client. Brexit update The government has published a technical notice on workplace rights in the event of a no-deal Brexit.
Employment law updates important changes for employers
The notice states that there will be minimal change to UK legislation derived from EU law and existing employment rights would not be changed.
In that regard, the notice recommends that: UK and EU employees working in an EU country should make themselves aware of the relevant implementing legislation in that country to confirm whether they will still be protected in the event of their employer's insolvency under the national guarantee fund established in that country UK businesses with EWCs may need to review those agreements in light of there no longer being reciprocal arrangements between the UK and the EU.
The High Court has expressed concern about the level of artificiality involved with the use of personal service companies for tax avoidance reasons in an employment context. In this case neither party had questioned the status of their relationship, which was governed by a service company arrangement.
However, the High Court said that where a court had concerns that labels chosen by the parties to apply to their relationship were untrue and had been applied as a tax avoidance scheme, it could and should consider the issue of its own motion. The dispute in this case primarily concerned the ownership of intellectual property. The High Court determined that the relationship was really an employer-employee relationship, and decided the intellectual property dispute accordingly.
The case illustrates that courts are prepared to challenge the use of personal service companies of their own volition and in wide-ranging contexts. The toolkit includes a briefing pack for communicating key facts to employees, a leaflet with important info for EU citizens in the UK, a leaflet with steps to apply for settled status, a leaflet with key terminology, and various posters with important dates, the benefits of applying and steps to apply.
It is now up to the government to consider these recommendations and decide which, if any, to implement. Meanwhile, the Government Equalities Office has also published guidance setting out recommendations on how employers can close the gender pay gap.
Among other things, it has invited evidence on how easy it is for the public to understand and enforce their statutory rights, and whether enforcement of the Equality Act succeeds in securing change. The Supreme Court has found that an employer does not owe a duty of care to conduct litigation in a manner which protects its employees from economic or reputational harm.
This case arose from the arrest of a suspected terrorist who made allegations of serious assault against the arresting officers and argued that the Commissioner of Police was vicariously liable for their actions.
The officers then claimed that, in entering such a settlement, the Commissioner was in breach of an implied duty owed to the officers to protect them from economic or reputational harm. The Supreme Court said it would not be fair, just and reasonable to impose such a duty. Police commissioner owed no duty of care to officers when conducting litigation Sexual harassment The Women and Equalities Commission has produced its report on Sexual Harassment in the Workplace.
The government expects that emerging caselaw, such as Chandok v Tirkey in which the EAT held that caste could be protected under the Equality Act to the extent that it is bound up with ethnic origin, will continue to provide some measure of protection against caste discrimination. Philosophical belief discrimination Gray v Mulberry Case: The EAT has held that a belief in the sanctity of copyright law was not sufficiently cogent to qualify as a protected belief under the Equality Act Even if it was a protected belief, the EAT held that an indirect discrimination claim could not succeed since the claimant was the only person known to hold such a belief.
Employment law updates 2018: important changes for employers
However, the eventual outcome remains subject to the terms of any Brexit deal reached with the EU. The EAT has provided a reminder that employers should always ensure that there is not a less discriminatory way of achieving a legitimate aim before taking action such as dismissal.
The plaintiff finally claimed that he had been constructively dismissed, that is, his termination was brought about because of the defendant's breaches of contract.
Justice Anderson concluded that the plaintiff was entitled to treat his employment contract as having been repudiated and could therefore constructively dismiss himself. This repudiation occurred as a result of the defendant's breaches of contract, including breach of the implied term of mutual trust and confidence.
His Honour provided a detailed review of the case law in relation to the implied term of mutual trust and confidence. This review included a summary of the English cases and the key Australian cases of: Perkins v Grace Worldwide, in which it was deemed that trust and confidence was "a necessary ingredient in any employment relationship" and applies to both employers and employees; and Thomson v Orica Australia Pty Ltd, in which it was deemed that "there is ample authority for the implication of a term that the employer will not, without reasonable cause, conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee".
Justice Anderson concluded that, as a result of the above, mutual trust and confidence is part of Australian law in relation to employment contracts and should be implied in this case. The court determined that the defendant breached the implied term of mutual trust and confidence in this case. This breach occurred for reasons such as: Justice Anderson considered the above factors and concluded that their combined effect was such that the plaintiff could not have been "expected to put up with it".
The defendant was, therefore, in breach of the implied term of mutual trust and confidence. This decision illustrates the care that employers must take to act reasonably and sends a powerful message that employers must conduct themselves fairly and reasonably in their dealings with employees. If an employer fails to conduct its activities consistently with the duty, an employee who suffers financially or physically as a result of the breach could bring a claim for potentially significant damages.
Australian employers with policies governing workplace behaviour need to monitor their compliance with these policies carefully. Finally, this duty of mutual trust and confidence can cover a multitude of situations such as failing to follow an established policy and procedures, failure to examine genuine employee grievances or expose employees to dishonest or unsafe or unethical conduct by co-workers. Employers have commonly used fixed-term contracts as a means to ensure they have the benefit of an employee's services for a specified period.
The contract then provides certainty to employees who know that they will continue to be employed for the full term of the contract or in the event that their employer terminates the contract early they will be paid out the remainder of the contract.
The New South Wales Supreme Court decision in Tullett Prebon Australia Pty Ltd v Simon Purcell has called into question the certainty provided by fixed-term employment contracts by limiting the ability of an employer to enforce the full term of the contract in the event that the employee decides to terminate the contract prematurely.
In this case, the employer conducted a wholesale brokerage business. Mr Purcell had been employed by Tullett Prebon for a number of years but in July the parties negotiated a new fixed-term contract with a duration of two years, commencing in July and expiring on 31 July The contract also contained an express three-month post-employment covenant prohibiting Mr Purcell from working for a competitor of Tullett Prebon, or encouraging Tullett Prebon's employees to terminate their employment.
The contract also included provisions enabling Tullett Prebon to place Mr Purcell on gardening leave or unpaid leave. Uber had maintained the drivers were running their own businesses as third-party contractors and, therefore, did not have any worker rights. The company asserted it was only a technology platform and not a transportation business, although it had Passenger Service Vehicle licences under which the drivers operated.
The following factors were relevant to the decision that the Uber drivers were workers: Drivers provided their work under a contractual relationship and made themselves available to carry passengers to their destinations for payment Drivers could not develop their own businesses.
Brighton councillors already voted not to renew Uber's licence there. Implications for employers Employers must always ensure that there is a contract which accurately reflects their working practices.
Any attempts by an employer to 'dress' what is in reality an employment relationship as something else will fail, as the law looks at the reality of the relationship. This includes the extent to which an individual has been integrated into the business, which will help ascertain if they are a worker or truly self-employed. The key elements of a genuine independent contractor relationship are that the person is in control of their work and not the employer and that the working person takes any element of financial risk.
If there is no obligation to perform services personally then it is hard for the person to argue that they are an employee or worker. Referring to an employee in a contract as self-employed is not a guarantee that they are not in reality a worker who is entitled to a minimum wage and paid holiday.
The decision that the estimated 46, Uber drivers are considered workers, has significant repercussions including a number of employment rights such as: The company riders were seeking statutory benefits including sick pay, national minimum wage and paid holiday. As the matter concerned whether or not to recognise a trade union, the case appeared before the Central Arbitration Committee CAC which is an independent body that rules on trade union recognition.
Part of this process hinged upon whether or not the Deliveroo riders were workers. Deliveroo argued that the couriers were self-employed independent contractors rather than workers. If their employment status was in reality worker or employee status then the organisation would have to engage in collective bargaining with the union, which would be seeking increased benefits. Deliveroo maintained that its drivers and riders are genuinely self-employed as they can provide a substitute to do their work.
This arrangement was inconsistent with the personal service requirement involved in being a worker or employee. The contracts said that a driver or rider could provide a substitute, employed directly by the rider, to perform the delivery. Any substitute is allowed as long as he or she had not previously had a contract terminated by the company or engaged in conduct that would have resulted in termination.
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The couriers have to pay any substitutes and make sure they have the necessary skills and training. The clause states that if any such legal action is taken, the courier must indemnify the company against legal costs and expenses.
Such clauses are usually unenforceable penalty clauses. Decision The claim for statutory recognition was rejected by the CAC. The committee concluded that because riders were able to pass on a job to a substitute, they were not providing a personal service and therefore could not be classified as workers.
The company had produced evidence to show that some riders did use the genuine right to substitute which indicated self-employment. The unrestricted right to substitute other riders meant that the individuals did not have worker status but were self-employed.
Interestingly, after this decision the union got permission from the High Court for a full judicial review of the ruling. However, in the meantime, Deliveroo decided to settle claims by 50 of the couriers for a minimum wage and paid holiday. Although the CAC decision suggested self-employed status, the company either had concerns it may lose in the employment tribunal, or wished to avoid the dispute and the legal fees and continue the Deliveroo model of working.
Employers need to keep an eye on potential changes to the law. Following the Deliveroo and other gig economy cases a number of parliamentary reviews and inquiries into the pay and conditions of workers in the gig economy have taken place including the Work and Pensions Committee and the Taylor Review of Modern Working Practices.
In the short term is seems unlikely there will be any legislation and employers must watch case law developments. Until changes to the law are implemented employers should not draft contracts in a particular way to avoid giving individuals worker status if the reality is that they are really workers. The proper question is what is achieved in reality. All organisations, especially those in the gig economy, need clarity about employment status and the precise contractual basis of their arrangements.
A substitution clause should not be limited only to circumstances where the individual is unable or unwilling to work.