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As the school summer holidays approach, the annual juggle looms large for many parents. Childcare over the six or more weeks of children’s time off is rarely a one-person job and grandparents are prime source of support. Things could be set to change for the better for families, with indications of introducing parental leave entitlements for working grandparents, dubbed “granny leave”. Under the proposals, parents’ 18 weeks of unpaid parental leave, or four weeks in any year, could be shared with their own parents. So watch this space…
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Did a customer’s request stop employee transferring?
Jakowlew v (1) Saga Care and (2) Westminster Homecare
Commercial contracts often give customers or clients some power over which of your employees you assign to their account. If they’re unhappy with one of your people, they can ask you to reassign them. In this case the Employment Appeal Tribunal (EAT) looked at whether a client’s request by itself amounts to removal of the worker.
Ms Jakowlew was employed by Saga. The bulk of her work was for the London Borough of Enfield, but that contract was due to be taken over by Westminster Healthcare. Before that happened, Enfield asked that Ms Jakowlew and two colleagues be removed from the contract. Saga refused. She was eventually dismissed by redundancy.
Ms Jakowlew claimed unfair dismissal against Saga and Westminster. The tribunal found that she was removed from the contract on Enfield’s instruction so was not in the organised grouping of employees at the relevant time. Her employment hadn’t transferred and Saga remained her employer. But the Employment Appeal Tribunal took a different view. Ms Jakowlew had not been removed from the organised grouping. Only Saga, and not the client, had the power to re-assign her and it hadn’t done so. Her employment had therefore transferred to Westminster.
So an instruction from a client, however legitimate, does not change an employee’s status in this way unless the employer acts upon it. By not acting, the employer may risk a breach of contract claim by the client, but the level of that risk would depend on the loss suffered as a result of the non-compliance. |
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Working while travelling
Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco
What counts as 'working time'? It’s a question that will continue to be asked as working patterns evolve.
There has now been word from Europe that employers should take account of peripatetic workers’ first and last journeys of the day. It’s yet to be confirmed, but it seems that when these sorts of workers travel to and from a customer or client, those journeys from home to the premises and from the premises to home count. They fulfill the requirements of 'working time'. That's because the workers are at the employer's disposal, carrying out their duties, during that initial travelling time.
Note that time spent travelling between clients (rather than the first and last journey of the day, involving travel from/to home) has always been regarded as working time. |
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Jilbab as trip hazard
Begum v Pedagogy Auras UK
Ms Begum turned down the offer of a trainee nursery assistant apprenticeship, after being asked if she could wear a shorter jilbab to work. The garment she had on the day of her interview was considered to be a trip hazard.
It was a part of Ms Begum’s religious belief that she should wear a garment covering her from neck to ankle and she brought a discrimination claim.
The tribunal found against her; a decision upheld on appeal. The employer had not instructed her that she could not wear a jilbab of the appropriate length but even if it had, the provision, criterion or practice (PCP) applied to all staff of all religions. There was no indirect discrimination. Even if the PCP did put Muslim women at a disadvantage, it would be justified as a proportionate means of achieving a legitimate aim: the protection of the health and safety of staff and children. |
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Triggering the duty to consult
E Ivor Hughes Educational Foundation v Morris
This case was about a private school that was forced to close because of declining pupil numbers. Here’s how the timeline looked:
February – Confirmed at a meeting that the school would have to close at the end of the summer term if numbers didn’t pick up by April.
April – Teachers were given notice of redundancy.
July – Terminations took effect.
The problem was that the school hadn’t consulted over the decision to close. The law says that where you are proposing to dismiss as redundant 20 or more people at one establishment within a 90-day period, you must collectively consult. If you don’t, you could face a protective award bill of 90 days’ pay per employee.
That is what the employees here were awarded, after the tribunal found that it would not have been impracticable to consult. The tribunal also held that the duty to consult arose in February and not when the teachers were given their redundancy notices.
The Employment Appeal Tribunal (EAT) agreed. It was in February that the decision was taken to close the school and the only thing that would stop that would be a rise in pupil numbers, therefore, it was right to make a 90 days’ protective award. The employer’s argument that it was excused from consulting because it didn’t want the closure issue to diminish confidence in the school didn’t get a favourable reaction in the EAT.
The case raises the difficult task employers have in pinpointing when they are actually “proposing to dismiss”. It may not always be obvious. In this case, the decision in February to close the school unless numbers increased was either a fixed, clear (provisional) intention to close the school, or it was a strategic decision on changes compelling the employer to contemplate or plan for collective redundancies. Either way, the duty to consult was triggered then. |
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Uber confusing?
Uber, the new type of taxi service, may be the next big online sensation but it’s still caught up in that age-old employment law question: are its drivers employees or self-employed contractors?
The business works by connecting people who need lifts directly with the nearest or most suitable driver. It’s like hailing a cab online.
A California court has ruled that an Uber driver is an employee. That’s despite the company arguing that other drivers have been found to be independent contractors who exercise a great deal of autonomy. Key to the decision was the finding that Uber controls their drivers’ tools and keeps a careful check on their performance. The company is involved in every aspect of the operation, the court said, and that made it more than just a facilitator of a transaction.
The company is reported to be appealing the decision, so it could be reversed. But it’s a reminder to employers (in the UK as well as the US) of just how ambiguous employment status can be. More often than not, the extent of an employer’s control over workers is the determining factor, and it’s something to bear in mind whenever questions of status arise – or, ideally – before they do. |
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Need to show why discrimination arose
UK Border Agency v Essop
Mr Essop and colleagues brought tribunal claims after failing assessments at work therefore, being passed over for promotion. Their protected characteristics were age (they were over 35) and race (black and ethnic minority). Relying on statistical reports which showed that older and BME employees had a lower pass rate than younger white employees, they claimed indirect discrimination.
The case hinged on whether an employee has to show why the requirement to pass the test before being eligible for promotion had caused them to suffer a disadvantage. The Court of Appeal held that they do. It’s not enough for a claimant to say that they are a member of an underperforming protected group and that they failed the selection test. They must show why their group was at a disadvantage and that that reason applied to them. |
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And finally....
McElroy v Cambridgeshire Community Services NHS Trust
It’s not unknown for employees to come to work accompanied by a faint whiff of alcohol. But is it misconduct?
An employment tribunal has held that an employer was unreasonable in dismissing the employee for smelling of alcohol when there was no evidence of it having had any effect on their ability to do their job. Here, the Trust’s disciplinary policy listed being unfit for duty because of the effect of alcohol as a type of gross misconduct.
Surprisingly, the tribunal held that not everyone who turns up at work emitting alcoholic fumes will perform worse than they otherwise would. It will come down to the specifics, including their state, their role and health and safety concerns. And of course your policies will dictate the action you should take, so it’s worth making sure that they set out very clearly what’s not acceptable. |
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