July 2018

Carers and sleep-ins – an important development

There has been a huge recent development which sleep-in carers across the country will want to be aware of, potentially changing the lives of carers everywhere. The case has even excited the interest of the newspapers.

Should carers be paid the minimum wage during sleep-ins? There has been a wide range of academic opinion and conflicting cases. Some have argued that being paid the minimum wage whilst sleeping is outrageous. However, carers will rightly reply that they need be ready to wake up and provide support.

Some caselaw in the past supported the carers’ argument, saying that carers were entitled to the national minimum wage during sleep-ins, eg with night-watchmen, nurses answering non-emergency calls and care home managers. But the case of Tomlinson at the Court of Appeal has overturned them. The days of carers earning the minimum wage whilst they sleep are over.

Carers will now be classed as “available to work” under the National Minimum Wage Regulations. But they are not entitled to pay if “by arrangement” they sleep “at or near a place of work and are provided with suitable facilities for sleeping”. This would cover situations where someone is given a bed and told to sleep, but not ones where a mattress is put in an office and they are permitted to sleep.

So, what does this mean? Firstly, as we’ve already said carers will no longer be given the minimum wage whilst they sleep. Naturally, this will be seen as a source of frustration for many carers across the country as they are set to see their earning decrease significantly. But it’s good for charities such as Mencap and others that provide care, as the practice of paying a flat fee (£20 to £40) for a sleep-in has effectively been approved by the second-highest court in the land.

The courts haven’t completely removed the idea of carers being paid during sleep-ins. If carers are woken during the night then they are entitled to be paid for their work.

By Samuel Tahir

Image used under CC courtesy of Hugues.

Case report: Tomlinson-Blake v Mencap 2018 EWCA CiV 1641

Indirect religious discrimination and BBQs

Recently, indirect religious discrimination has been in the news – with a bit of a twist.

With the ever-growing awareness for the environment, there is demand for businesses to be more environmentally-friendly. But it is less clear which strategies cross the line between forcing views on employees and those that encourage employees to make changes to their lifestyle.

Recently, a global company ‘WeWork’ (known for providing services to entrepreneurs))  have informed employees that meat, pork or poultry will not be an available option at company events as part of a company move to become more eco-friendly. WeWork go further and say that employees will be exempt from being reimbursed if they do choose a meat option.

Co-founder Miguel McKelvey’s view is that this contributes towards environmental protection and thus, keep up with the times. Research suggests over 25% of evening meals consumed by the UK population are meat- free. Mr McKelvey has said that the company could save “more than 15 million animals by 2013 by eliminating meat at our events.

The  usual schemes are aimed at reducing plastic waste, planting additional trees etc.

Whilst WeWork’s bold move has good intentions, this arguably infringes an employee’s personal choice. Wework must be careful to ensure that this new policy does not disadvantage employees who don’t share the same viewpoint. This is because philosophical views are protected in the same way as religious views. Beliefs such as humanism, pacifism, vegetarianism and the belief in man-made climate change are all protected. Carnivore employees may well complain that WeWork should alter its policy to remove the disadvantage, or risk being liable for an indirect ‘religious’ discrimination claim.

WeWork do express they are not banning employees from eating meat altogether. However, it is clear that those who wish to do so during work hours are at a financial disadvantage. It seems to us that hosting a vegetarian-only barbecue would probably not place carnivore employees at a disadvantage but that providing a meat option more expensively might, as there is no business reason for it. Our view might be different if the company had an ethical stance to uphold as part of the reason for its existence.

An Employment Appeal Tribunal case (Chatwal v Wandsworth Borough Council) is relevant. Mr Chatwal’s employer introduced a new requirement that staff using the communal kitchen should clean the kitchen surfaces and the fridge. Staff members would occasionally come into contact with meat or meat products.

Mr Chatwal told his employer that compliance with the new requirement would conflict with his religious belief as a Sikh. Although, he was happy to clean other areas of the kitchen, he refused to clean the fridge. He was told he was not allowed to use the kitchen any longer.

Mr Chatwal lost his claim of indirect religious discrimination at the employment tribunal as he had failed to show  that at least some Sikhs shared the same religious belief about touching meat. But he got his evidence about the beliefs of the Sikh religion together for the appeal. Expert evidence and letters from significant members of the Sikh society were relied on and the appeal allowed.

By Olivia Ferriday

Image used under CC courtesy of Jeremy Keith

Disciplinary appeals and reinstatement

It is well established that an employee has a right to appeal the outcome of a disciplinary hearing. We look at some recent caselaw which raises the question of whether a successful appeal following the disciplinary appeal procedure can reverse what was originally a dismissal.

Facts

Mr Patel (the claimant) started working for Folkestone Nursing Home Limited (the respondent) as a Care Assistant in 2008. In 2014, he was charged with:

• Sleeping on duty; and
• Falsifying the records of residents by pre-recording that they slept through the night.

Mr Patel attended a disciplinary hearing on 28 March 2014. His defence was that he was sleeping during his break and that pre-recording records was a common and accepted practice.  The outcome letter found both allegations proved and he was dismissed with immediate effect for gross misconduct.  But his appeal overturned the dismissal.  The appeal outcome letter referred only to the first allegation. As it didn’t address the second one allegation, it was unclear whether this finding had been overturned. He wasn’t happy and did not return to work.

He lodged a claim for unfair dismissal (among other claims) in the employment tribunal (ET). The ET held that the successful disciplinary appeal did not revive Mr Patel’s contract of employment. The employment appeal tribunal (EAT) overturned this decision, stating that Mr Patel ended up not dismissed, so he couldn’t bring a claim for unfair dismissal.

He took the case to the Court of Appeal (CA).

Decision

The CA held that the effect of a contractual rights to disciplinary appeals is that if successful, the appeal revives the contract and extinguishes the original dismissal.

This decision confirms that where there is a contractual appeal procedure and an employee succeeds in using it to overturn the original sanction of dismissal, their employment is revived and the original dismissal vanishes.

It is widely believed that the position is the same for a non-contractual appeal procedure (i.e. contained only in a handbook), however the law is unclear on this point.

Tactics for employers and employees

For employers, they can use their disciplinary appeals process as a safety net to rectify what may otherwise have been an unfair dismissal. Employees have a good incentive to appeal even if they don’t want their job back – it can cost them up to 25% of their compensation if they win an unfair dismissal case.

For employees, it is advisable to appeal in order to avoid a 25% reduction in compensation but should they do this when they don’t want their job back? Yes. They should say that they are only asking their employer to overturn the decision about guilt, to clear their name or for an apology, but not to re-instate them. If the employee does get their job back, they get it with back-pay to the date of the dismissal.

An employer faced with this attempt by an employee to have their cake and eat it should refuse to hold disciplinary appeals on that basis. It is a no-win situation for them.

The employer could even try granting the appeal and take a chance on reinstating tactically. After all, they know the employee doesn’t wish to return to work and they might resign, potentially leaving them without a tribunal claim, though this tactic is untested.

Just to be clear, a dismissal that is upheld remains a dismissal at the original date. An employee who is up against a time limit can’t argue that the date of dismissal was the date of the appeal. And an employee can’t have the best of both worlds by putting in a tribunal claim and then appealing – if the appeal is successful, the unfair dismissal claim will fail.

Finally, if an appeal results in a finding of guilt but demotion and even a demotion is out of proportion with the allegation, then this provides the right to resign and claim constructive unfair dismissal.

By Zahid Reza

Image used under CC courtesy of Reading Tom 

Ken’s dismissal after 35 years

From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Ken’s gross misconduct dismissal from a national supermarket after 35 years of service.

Ken was the Store Manager. One aspect of his duties was overseeing the processing of stock, and more particularly the recording of stock that couldn’t be sold at full price (‘disposals’). Ken would review disposals made by his team, and where possible re-code the items to remove them from the disposal category. This was what he had been trained to do.

Ken’s employer accused him of wrongly re-coding stock that could be sold, as stock that couldn’t be sold, losing the store money and giving it inaccurate figures. They claimed he was doing this to improve his KPIs and therefore his bonus. He was suspended, and an investigation was carried out. Ken received a letter inviting him to a disciplinary hearing, only now he was accused of losing, whether directly or indirectly (via his staff) £20,000. Ken was dismissed, but on appeal this was replaced with a final written warning and a demotion. Ken rejected the demotion and resigned with notice.

We found that Ken’s employer failed to get to grips with the issues; they didn’t investigate his claim that he had followed training to the letter and so the employer failed to get the decision right. They ignored the fact that his bonus didn’t depend on these KPIs. And they failed to understand that if he miscategorised stock, it made one statistic go higher but the other one go lower, a neutral net effect.

We helped Ken bring a claim of unfair dismissal in the Employment Tribunal on the basis that the employer behaved unfairly both in terms of their disciplinary procedure and the severity of the sanction – a gross misconduct dismissal that would be on his record.

He got a job at another supermarket, where he is happy, but at half his previous salary and his losses would be over £150k over a couple of years.

We had a strong hunch that the employer would not want to put this gross misconduct dismissal case before a judge and advised him to hold out to the bitter end and go to a tribunal hearing if necessary. Just before the final hearing, after some heavy negotiation, Ken received an offer near to the maximum that the law allows.

By Zahid Reza

Image used under CC courtesy of Polycart.

Third of women harassed at work

Being harassed at work is in the news more than ever before following the recent allegations about Harvey Weinstein, Kevin Spacey, Bill O’Reilly, Morgan Freeman and others.

The trade union Prospect recently carried out a study surveying 7,000 workers (40% female, 60% male) across a range of industries. The women reported that:

• 35% of them had experienced being harassed at work (62% of women aged under 30);
• 27% had received suggestive remarks and sexual jokes;
• 25% had received unwanted comments about their appearance;
• 17% reported unwelcome sexual behaviour ; and
• 14% had suffered unwanted touching, hugging or kissing.

According to the study (which confirms the results of a TUC study two years ago), the victims of sexual harassment are more likely to be under the age of 30, with the suggestion that victims are too intimidated to report sexual harassment to their employer.

Comments made by participants included:

• ‘On the sexual harassment complaint I was made to feel like I was to blame and didn’t feel like I had much support.’
• ‘I have lost a job after bringing up sexual harassment from a manager.’

Prospect said the study showed sexual harassment was ‘endemic  in all parts of the economy’.

This study illustrates that despite this issue rearing its head year after year, female employees are still being harassed at work. Employers can take steps to help reduce sexual harassment in the workplace, including:

1. Extra training for all staff; and
2. Creating a policy making it clear that sexual harassment will not be tolerated and appointing specific individuals to complain to; and
3. Keeping records of reported sexual harassment and doing annual audits so to keep this issue on the radar.

Women report being harassed outside work as well as being harassed at work and so sexual harassment is a societal issue as much as it is a workplace issue. With much of society spending a quarter of  their lives in the workplace, eradicating sexual harassment at work would be a big step towards eradicating it elsewhere.

By Aneesha Ali-Khan

Employee, self-employed or worker? Pimlico Plumbers lose appeal

Employment status has been the hot topic, particularly on the question of whether staff are employees, self-employed or workers (like the cases of Uber and Deliveroo).

Pimlico Plumbers have unsuccessfully appealed to the Supreme Court to overturn the decision that Mr Smith, a plumber, had worker status (rather than being self-employed).

Facts

Mr Smith had been working with Pimlico Plumbers for around 6 years. He suffered a heart attack in January 2011, and asked Pimlico whether he could reduce his hours to work 3 days instead of 5 days a week. Pimlico in response refused his request, took away his van and dismissed him. He took Pimlico to the Employment Tribunal (ET), claiming he was (1) unfairly dismissed, (2) discriminated against on the grounds of his disability; and (3) that he was entitled to holiday pay (among other claims).

One of the key issues the ET had to consider was whether Mr Smith was an employee or a worker. The truly self-employed can’t bring discrimination claims.

Mr Smith’s contractual documentation stated that:

1. He was an ‘independent contractor’;
2. He was not obliged to accept work;
3. He should complete a minimum of 40 hours a week;
4. He must provide his own materials and tools; and
5. He must drive a branded van, wear a uniform and carry an ID card.

In addition, Mr Smith was VAT registered, submitted invoices to Pimlico and filed his own tax returns.

The law

The courts have constructed a number of tests to help them decided whether or not someone is an employee. There are 4 elements:

– An individual must have a contract (express or implied)
-An individual must carry out the work personally
-There has to be a ‘mutuality of obligation’ between the two parties
-The employer must have control over the work that the individual does.

The decision

The ET decided that Mr Smith wasn’t an employee, but he did have worker status (a kind of intermediate category between employee and self-employed).

Pimlico appealed to the Employment Appeal Tribunal, and the Court of Appeal, however both appeals were unsuccessful. Pimlico then appealed to the Supreme Court.

Decision

The Supreme Court rejected Pimlico’s appeal because of its findings:

1. There was personal service – Mr Smith’s contract clearly required him to perform the services personally to Pimlico; and
2. Pimlico was not a client or customer of Mr Smith – Pimlico had an obligation to offer Mr Smith work when it was available, and he was contractually obliged to keep himself available to work up to 40 hours on five days each week for Pimlico’s assignments.
3. Mr Smith’s contract stated that he could not accept work from customers or potential customers without their approval first – he was not in control.

This means that Mr Smith is entitled to holiday pay, to pursue his claim for disability discrimination in relation to his heart attack and areas of pay.

This area of employment status has been in legal flux for a long time, and this case doesn’t provide any further clarity. However it provides the latest warning to employers to fully evaluate the relationship between them and their staff when deciding whether staff are employees, self-employed or workers.

By Aneesha Ali-Khan

Image used under CC courtesy of Eli Duke

Barrister takes law firm to court for monitoring personal e-mails

Robert Jones (an employed Barrister at a law firm) has made a claim for breaching data protection laws, alleging that the firm accessed his personal emails over a period of several months.

This article looks into the facts of this case and give an explanation of the law in this area.

Facts

Mr Jones was an employed barrister at a law firm called Lexlaw. During his employment, he and a colleague exchanged messages (about kinky sex), detailing their preferences. There was an incident when he spanked this colleague over a desk at work. No immediate action was taken. Months later, Mr Jones got into a salary dispute with Lexlaw and resigned. When he refused to reconsider his resignation, Lexlaw suspended him for the spanking incident (an employee can be suspended during their notice period). Mr Jones resigned and took legal action against Lexlaw, alleging (among other things) that they had breached data protection laws by monitoring his emails.

Mr Jones said:

‘I had a consensual BDSM relationship with another employee, which included one brief incident in private on work premises months before the disciplinary. I was appalled to find out that my employer was monitoring my personal communications over a period of months and the ICO have confirmed that this is unlikely to have complied with the requirements of the Data Protection Act.’ 

Looking at the law

Under the new GDPR regime, employers must make it crystal clear to workers (1) how they might be monitored; and (2) why. They must have done an assessment ensuring the reasons are both justifiable and proportionate, which have legal definitions. Typically, employers deal with this by having a data policy.

The GDPR (the new piece of legislation that supersedes the Data Protection Act 1998) sets out rules about when monitoring should be carried out. For example it can be justified as necessary for someone’s ‘legitimate interests’ (when balanced against the rights and freedom that an individual has a right to expect).

This could mean recording retail workers at work to discourage shoplifting. In the context of employees’ emails, this means that mean monitoring to detect fraud, or for quality control. But it’s hard to see how this would apply to this employee. Few law firms see the need to delve into employee’s emails routinely. So this wouldn’t be justified. But if they do need to look into historic emails, for example to investigate a client complaint, then it would be acceptable to use anything incriminating that was found.

The hearing is set for 16 July 2018. It will be fascinating to see whether the law firm is judged to have breached data protection laws, and if so we expect the result to be far more than the few hundred pounds normally awarded, since these emails were of such an intimate nature.

By Aneesha Ali-Khan

Image used under CC courtesy of Dennis van der Heijden