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#MeToo

In the light of news-breaking allegations against Harvey Weinstein (see the Nov 2 blog post) more than 30,000 women joined the "#MeToo" campaign to raise awareness about sexual harassment in the workplace. Originally started by the actress Alyssa Milano, this campaign was joined by a large number of women from around the world, including Anna Paquin, Debra Messing, Gabrielle Union, Lady Gaga and others. Since the hashtag appeared on Twitter, it was used 850,000 times within the first 48 hours.
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#MeToo

Mind the gap

Employment law issues seem to be rife with gaps at the moment – we have already reported on the gender pay gap brought to the fore by the gender pay gap reporting regulations which came into force on 6 April 2017. However, it looks like we are now dealing with another gap – the skills gap commentators believe will be brought about when the UK exits the EU.
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Mind the gap

When can a mobility clause be relied upon?

Find out here in Emma Carter’s article for People Management:

Mobility clauses

When can a mobility clause be relied upon?

We need a holiday from the holiday pay cases!

In the latest in a number of cases dealing with the calculation of holiday pay, the Employment Appeal Tribunal ("EAT") has held, in the case of Dudley Metropolitan Borough Council –v- Willetts, that pay for voluntary overtime normally worked constitutes "normal remuneration" for the purposes of calculating holiday pay provided for in the Working Time Directive (20 days).
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We need a holiday from the holiday pay cases!

Assuming the best…

In the recent case of Elmore v Darland High School, the Employment Appeal Tribunal upheld a Tribunal’s determination that a dismissal was fair, despite the fact that the appeal panel did not give any reasons for dismissing the Claimant’s appeal and none of the appeal panel gave evidence before the Tribunal. The Tribunal held that, in the absence of such evidence or express reasoning, it was entitled to infer that the appeal panel had upheld the capability dismissal for the same reason as the original capability panel. A somewhat surprising decision, particularly given that the Claimant, a maths teacher, had been employed by Darland High School for over a decade.

Assuming the best…

SOSR – A low threshold for a fair dismissal?

Of the five fair reasons for dismissal, ‘some other substantial reason’ (SOSR) is often viewed as a ‘catch all’ justification for dismissal. It does not give an employer freedom to dismiss for an irrelevant or trivial reason. However, the threshold to meet in order to be able to rely on an SOSR dismissal appears not to be prohibitively high in light of the recent case of Ssekisonge v Barts Health NHS Trust UKEAT/0133/16/LA.
Ms Ssekisonge was a registered nurse who worked for a number of NHS Trusts. She came to the UK and obtained indefinite leave to remain and then British citizenship. Her citizenship was revoked when the Home Office had concerns regarding her identity. Ms Ssekisonge did, however, retain her leave to remain. Following a disciplinary process, the NHS dismissed her, again due to concerns over her identity.
The Employment Tribunal found the principal reason for the dismissal was that the NHS could not determine Ms Ssekisonge’s identity and the risk that this posed was sufficient to justify her dismissal for SOSR. Ms Ssekisonge appealed the decision but the Employment Appeal Tribunal (EAT) upheld the first instance decision. Certainty over an employee’s identity was essential for a nursing role. The EAT rejected an argument that employers should go further than they might otherwise do when dismissing for SOSR where there is no fault on the part of the employee.
It is important to remember each case is fact sensitive. In particular the claimant in this case was waiting for the outcome of the Home Office investigation in relation to her identity and the NHS Trust was not expected to investigate further in the meantime. Employers should also be aware of their duties to check a job applicant’s ‘right to work’ documents.

SOSR – A low threshold for a fair dismissal?

The proposed shake up of Employment Tribunals

Digital claims, the delegation of authority to caseworkers and a tailored composition of tribunal panels are just three of the proposed reforms to Employment Tribunals.

On 23 February 2017, the government published its response to the MoJ and BEIS’s joint consultation aimed at simplifying and speeding up the resolution of disputes. The consultation forms part of a wider initiative to review the entire civil justice system.

The government confirmed its commitment to the digitisation of claims, recognising that claims should be made and processed online. Depending on the nature and complexity of the claim, some cases would also be suitable for online decisions. Recognising the inevitable risks of new IT systems creating unforeseen problems, the reforms will take place over several years and digital transformation will be the latter part of the programme.

The government also recognised the importance of providing procedural flexibility to meet future challenges by supporting the delegation of tasks to tribunal caseworkers who would be legally “trained or qualified”. Noting the concerns raised around ensuring that only those matters suitable for delegation are, in fact, delegated, the government expects that any delegation implemented would follow further engagement between the Senior President of Tribunals, the Employment Tribunal judiciary and Tribunal users.

The government also intends to proceed with its proposal for the Senior President of the Tribunals to have responsibility for deciding the panel composition of the Employment Tribunal and the Employment Appeal Tribunal. We will see a new Employment Judge and a legal practitioner with specific experience of the Employment Tribunal introduced to the Tribunal Procedure Committee. Obviously these reforms will take some time to implement but the proposals mark a long overdue overhaul of processes that have been in place for a very long time. A move to modernise the more antiquated systems can only be welcomed, as long as the appropriate level of care is taken to ensure that the new processes work.

The proposed shake up of Employment Tribunals

Uber and the Gig Economy – is the law keeping up?

After a preliminary hearing spanning seven days (including reading the five-volume bundle and time for deliberation), an Employment Tribunal has handed down its much anticipated ruling that Uber drivers are workers rather than independent contractors. The drivers can, therefore, benefit from statutory protections, such as 5.6 weeks’ paid annual leave each year, a maximum 48 hour average working week (in the absence of an opt-out), rest breaks, the National Minimum Wage, potentially the National Living Wage, and the protection of the whistleblowing legislation.

The Tribunal examined in detail Uber’s business model but rejected Uber’s assertion that it is a provider of technology services rather than transportation services. Passengers can order a taxi via Uber’s smartphone app and Uber’s drivers can then decide (with the extent of the autonomy of such decision one of the factors questioned in this case) whether to drive that passenger to their requested destination and, if they do, the route to be taken. The passenger pays the fare to Uber by credit or debit card, Uber takes a 25 per cent service fee, and pays the balance of fares to the driver on a weekly basis.

The Tribunal looked at various aspects of the arrangement as it operates in reality, rather than as described in Uber’s contracts, to determine whether the drivers are workers as opposed to truly independent contractors. For example, the Tribunal noted the fact that, if a driver declines three trips in a row whilst logged on to the app and so ostensibly available to work, he will be forcibly logged out of the app for 10 minutes. The Tribunal also took note of the fact that Uber prohibits drivers from agreeing with the passenger a fare which is higher than that set by Uber and that Uber usually bears the cost of any cleaning necessitated by a passenger soiling a vehicle.

In summary, the Tribunal concluded that Uber is a taxi service and employs drivers to provide that service in a way which, in a number of key respects, Uber controls. Consequently, the Tribunal held that each of the drivers in this case fell squarely within the statutory definition of a worker as an individual who works under a contract to personally perform services for another party to the contract (Uber) which is not a customer of a business undertaking carried on by the individual. However, we note that this contract did not actually exist (in the sense that no such express agreement had been put in place) but had to be inferred by the Tribunal from the facts as found by it. It may be that the scope for doing so will be one of the grounds on which Uber appeals against the Tribunal’s judgment.

The Tribunal went on to find that, whilst the drivers are under no obligation to switch on the app through which their instructions are received and there is no prohibition against dormant drivers, once the app is switched on, the driver is in the territory where he is licensed to operate and he is able and willing to accept assignments, he is then on working time until one of those conditions ceases to apply.

For the purposes of the National Minimum Wage Regulations, the Tribunal stated that the work carried out by drivers does not constitute “time work” or “output work”, as the driver’s entitlement to pay is not limited to when he is carrying a passenger and does not depend on him completing a particular number of trips. Accordingly, the work was classified as “unmeasured work”, so it is likely that the relevant rate of pay will be calculated by reference to the periods of time when the driver is logged on to the app in his licensed territory and ready to accept passengers, rather than just the time spent driving passengers to their destinations.

This decision is extremely fact specific. Furthermore, Uber has already announced its intention to appeal against it. The outcome is likely to have wide-ranging implications for the concept of the gig economy, the proponents of which claim that it benefits individuals who want the flexibility to work how, when and for whoever they please, in an increasingly interconnected and digitally virtual employment sphere.

The employment landscape is changing rapidly and the challenges to the existing statutory framework presented by the Uber case could be seen as demonstrating that the law also needs to change in order to keep up. In support of its decision, the Tribunal cited an earlier judgment which identified the underlying policy behind the definition of “worker” as the need to extend statutory protection to individuals who are vulnerable to exploitation in the same way as employees. Whilst this is clearly not a new issue, as is evidenced by some of the previous case law referred to in the Uber judgment, perhaps in light of the rise of the gig economy, such policy needs to change and the law, therefore, needs to change with it.

Uber and the Gig Economy – is the law keeping up?

White-collar crimes: companies could soon be held accountable

Proposals for a new criminal finance bill will, if implemented, hold company boards criminally responsible for offences such as money-laundering and false accounting committed by their employees. This is a move that is being heralded as a “crackdown on white-collar crime” and would align Britain more with the US’ notoriously tough stance in relation to such crimes.

Currently companies are only responsible for failing to stop bribery. As evidence of misconduct has to be found at board level for a company to be found liable it has been easy for boards to distance themselves from their employees’ actions, as evidence of board level misconduct is often elusive. However, if the proposals are implemented, boards could find themselves being prosecuted for failing to prevent economic crimes ̶  essentially they could be held liable for the actions of their employees.

The proposals are still very much in the formative stages and a consultation period is reported to be commencing shortly. However, if implemented, these proposals would signal a major change in corporate criminal law. Companies will need to think about how they can actively prevent economic crimes, what policies and procedures they will need to implement to assist in such prevention, and will need to make changes to any incentive schemes that could be seen to motivate employees to do the wrong thing.

White-collar crimes: companies could soon be held accountable

Backing the bump

In the wake of recent press coverage highlighting the vast discrepancy between how employers believe they are treating pregnant employees and how such employees feel that they are actually being treated, the Equality and Human Rights Commission has launched a national campaign to encourage knowledge sharing and best practice in relation to pregnancy and maternity workplace issues.

The “Working Forward” campaign, which is being spearheaded by leading companies such as Barclays, Ford, Royal Mail, BT Group and the Nationwide Building Society, is aimed at making workplaces “the best they can be for pregnant women and new mothers” although fathers, and hopefully employers, will also benefit from the initiative.

Employers are asked to sign up and pledge their support on a voluntary basis. The Equality and Human Rights Commission has identified four key areas that can make a real difference to the experiences of employers and employees alike. Employers are recommended to take action in as little as two of these areas as a starting point. The four areas are:

  1. Demonstrating leadership from the top down: emphasising the importance of awareness of gender diversity and equal opportunity policies at all levels of the business and engendering a culture which is based on such awareness so that it becomes engrained in every aspect of the business;
  2. Ensuring confident employees: who feel able to talk about pregnancy and maternity-related issues without fear of discrimination or detriment;
  3. Training and supporting line managers: so that they can offer the support necessary to all employees who have, are going to have or are considering their options in terms of childcare responsibilities; and
  4. Offering flexible working practices: we have already seen a change in, for example, the flexible working regime to provide more employees with access to such rights, along with the introduction of shared parental leave. However, the Working Forward campaign stresses the importance of building upon such legislative changes and ensuring that flexibility is encouraged in practice and that employers realise the benefits that can flow from more flexible and agile working.

Whilst action in only two of these areas is suggested at first, it seems that once action is taken in even just one of these areas, positive steps relevant to the remaining three areas will flow from this.

The campaign forms part of a broader recognition of the issues and possible discrimination facing pregnant women and new mothers and it seems that steps are, finally, being taken to address such inequality. For example, the House of Commons Justice Select Committee has also recommended a review of the three-month time limit for bringing a pregnancy-related discrimination claim. Whilst it is hard to determine at what point this additional protection should end, it is hoped that such an extension will provide further support for women in the workplace and, most importantly, reinforce the importance of equality for all, in all aspects of employment.

 

Backing the bump