HR Two minute monthly: employment status, mobility clauses; disability discrimination


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Summary: Our February article considers two cases on employment status, a decision on the weight that can be placed on expired warnings and an important case on the scope of mobility clauses.

Employer can take into account expired warnings when deciding to dismiss for misconduct short of gross misconduct

An employer was entitled to dismiss an employee for conduct falling short of gross misconduct, taking into account the employee’s previous disciplinary record (consisting of 17 expired warnings) and its expectation that misconduct would continue in the future. 

Why this matters

This is a surprising decision since earlier authorities have suggested that an employer cannot rely on an expired warning to elevate an offence from one that would not have attracted dismissal to one that does and that expired warnings may only be taken into account where the present offence itself constitutes gross misconduct. In light of this conflict the decision may yet be appealed.

Stratford v Auto Trail VR Ltd

Employer could not rely on a mobility clause to dismiss fairly in a redundancy situation

An employer was not entitled to rely on a mobility clause to move employees to another site, rather than making them redundant when their place of work closed. The mobility clause was wide and uncertain. Further, the instruction to move was not reasonable given the significantly increased commuting time. 

Why this matters:

This case does not change the law and employers may still rely on mobility clauses rather than make employees redundant. However, it highlights the scrutiny that will be placed on the construction and drafting of mobility clauses and the manner in which they are operated in a redundancy situation. This case is considered further in our recent blog.

Kellogg Brown & Root (UK) Ltd v Fitton and Ewer

EAT overturns tribunal’s decision that type 2 diabetes is not a disability

The EAT has overturned a tribunal’s decision that an employee with type 2 diabetes was not disabled. The judge had not properly considered whether type 2 diabetes was a ‘progressive condition’ and had not properly examined future prognosis. The case was remitted for fresh hearing.

Why this matters:

This case does not necessarily mean those with type 2 diabetes will now be ‘disabled’ for Equality Act purposes. Rather, it highlights the importance of obtaining good medical evidence covering likely prognosis and the future effect on the claimant. Without this, the tribunal cannot properly determine the issue of disability.  

Taylor v Ladbrokes Betting and Gaming Ltd

Stated aim of protecting individuals closest to retirement was not legitimate

The tribunal has found that transitional provisions attached to reforms of the judicial pension scheme which protected those closest to retirement were age discriminatory and could not be objectively justified.

Why this matters:

The case highlights the need to properly identify the legitimate aim which is being pursued, to ensure that the treatment is a proportionate means of achieving that aim and, importantly, to be able to demonstrate this in the Tribunal. Here, the Government was not able to provide evidence to support the legitimate aim it put forward. The outcome is not, therefore, surprising.

McCloud v Lord Chancellor ( ET/2201483/2015)

Claimant’s ability to pay is relevant when making a deposit order

In a modern slavery case, the EAT found that a tribunal had failed to consider the claimant’s extremely limited means when imposing a deposit or £75 per allegation. The EAT imposed fresh deposit orders in the nominal sum of £1 per allegation.

Why this matters:

The tribunal must have regard to a claimant’s ability to pay before ordering a deposit be paid in order to continue to pursue a particular allegation. The purpose of a deposit order is to discourage pursuit of allegations with little prospects of success, not inhibit access to justice or effect strike out through the back door.

Hedman v Ishmail and Al-Megraby

Tribunal could hear claim despite existence of COT3

A tribunal accepted it had jurisdiction to hear a claim despite the fact the parties had entered into a COT3 following earlier tribunal proceedings.

Why this matters:

The COT3 was only effective to settle claims arising from the same factual matrix of the first claim. When a new claim was brought on new facts, the tribunal allowed it through. This highlights the need for COT3s and settlement agreements to identify precisely which claims are being settled and ensure the drafting reflects this.

DWP v Brindley

Cycle courier was a worker and not self-employed

A tribunal has found that a cycle courier was a worker and that the documentation couriers were required to sign on starting, stating that they were self-employed, was a sham which did not reflect the true nature of the relationship.

Why this matters:

This is the latest in a line of recent cases to find that those working in the gig-economy (couriers, drivers etc.) are in fact workers and therefore entitled to worker rights such as minimum wage and holiday pay.  

Dewhurst v CitySprint UK Ltd

Tax tribunal finds that drivers are workers and not self-employed

The first tier tax tribunal has found that drivers acting for a partnership providing haulage services were workers and not self-employed. It was the partnership which dictated the terms of the relationship with the drivers and there was no evidence that drivers were running their own businesses. The tax tribunal applied the traditional tests for employment status but these did not provide a consistent outcome. The relationship between the drivers and the partnership therefore had to be examined in the round.

Why this matters:

This is yet another employment status case which results in a finding that the individuals concerned were not self-employed. However, it is worth noting that the tax tribunal assesses employment status in a slightly different way to the employment tribunal.

RS Dhillon and GP Dhillon Partnership v HMRC

ECHR report on law on religion and belief

The ECHR has published a report on the law on religion and belief, as part of its Equality Act duty to monitor the effectiveness of equality legislation.

Why this matters:

The ECHR considers that the current law offers sufficient protection and strikes the appropriate balance between the rights of individuals, religious organisations and others protected under the equality legislation. Particular recommendations have been made in relation to education legislation and religious schools.

Non-statutory guidance on ‘important public services’ under Trade Union Act 2016

The government has published non-statutory guidance defining what constitutes an ‘important public service’ in health, fire, transport, education and border security.

Why this matters:

The guidance is intended to supplement the draft regulations defining ‘important public services’. It will assist unions in complying with the requirement under the Trade Union Act that in addition to at least 50% of all eligible members having voted, in ‘important public services’ at least 40% of those entitled to vote must have voted in favour of the industrial action.

Welsh National Assembly publishes bill to exempt Welsh authorities from certain provisions the Trade Union Act 2016

The Welsh National Assembly has published the Trade Union (Wales) Bill to exclude key elements of the Trade Union Act from applying to devolved Welsh authorities.

Why this matters:

If the bill becomes law, key provisions of the Act will not apply to devolved public authorities in Wales, specifically: the restriction on deduction of union subscriptions from wages, the new publication requirements in relation to facility time, and the additional ballot support required for industrial action in ‘important public services’.

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