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Welcome
 

The major provisions of the Trade Union Act 2016 came into force on 1 March, 2017. This means that from now on industrial action ballots will only be lawful if at least 50 per cent of those being balloted cast a vote. Where the majority of those being balloted are engaged in ‘important public services’ then there is an additional requirement that at least 40 per cent of those entitled to vote, vote ‘yes’. That means that if there are 100 union members (let’s keep the maths simple), then a 26-25 vote in favour of industrial action will be sufficient in most cases but a 40-10 vote (or better) will be needed in cases involving those key services.

A number of regulations now set out just what services attract this 40 per cent threshold and the Government has taken a very narrow view. Teachers are covered – but not teaching assistants or other support staff in schools. Firefighters and those involved in answering emergency calls are also covered, as are ambulance, hospital and medical staff dealing with emergency situations. London Bus services are included – as are all passenger trains and trams – but not bus drivers in other towns and cities. Security workers at ports and airports attracts the higher threshold, but cabin-crew and baggage handlers do not.

Other measures coming into force require unions to give 14 days’ notice of industrial action - and limit the validity of future trade union ballots to six months (or nine months with the employer’s agreement).

These measures are clearly designed to make industrial action harder to organise and therefore less common. However, unions have adapted to previous requirements placed on them and now that they need to achieve a high turnout in industrial action ballots, we can expect them to put serious effort into doing just that. Indeed, a strong yes vote in a ballot with a high turnout can be a powerful weapon for a union to wield at the bargaining table.

It may be that the 2016 Act will only have a muted effect on the levels of industrial action – even in those sectors that that the Government is clearly most worried about. If that proves to be the case, then we could see yet another Trade Union Act before the decade is out.

 
 
Employment Status
Pimlico Plumbers Ltd v Smith
 

The issue of who is an ‘employee’, who is a ‘worker’ and who falls into neither camp is clearly going to be one of the big issues of 2017. Headlines were made recently by the case of Pimlico Plumbers Ltd v Smith in which a plumber is claiming that he should be able to bring a range of employment law claims even though his contractual documentation stressed that he was self-employed.

Mr Smith was engaged by Pimlico Plumbers in 2005. Many of the features of his work were clearly inconsistent with being employed under a contract of employment. He was responsible for purchasing his own raw materials, for example, and was able to charge a ‘mark-up’ to the company when he used them in the course of his work. He also took full advantage of his self-employed tax status by setting off a considerable amount of his earnings as expenses, and was registered for VAT. It could not have been a surprise that the employment tribunal ruled that he was not an employee and could bring a claim for unfair dismissal.

However, the tribunal went on to find that he could bring claims under the Equality Act on the basis that he was disabled – and also claim holiday pay under the Working Time Regulations. To bring these claims Mr Smith did not need to show that he had a contract of employment, merely a contract which required him ‘personally’ to do work for Pimlico Plumbers and under which they could not be regarded as a client or customer of his own business undertaking.

In reaching the conclusion that Mr Smith did indeed meet this test (which made him a ‘worker’ under the Working Time Regulations and an ‘employee’ under the Equality Act) the tribunal found that there was an on-going obligation on Mr Smith to provide his services personally – indeed it was expected that he would do so on a full-time basis. He was not able to compete freely with Pimlico Plumbers by doing work for other firms or customers and that indicated that he was not ‘in business on his own account’.

On appeal to the Court of Appeal, Pimlico Plumbers argued that there was no real obligation on Mr Smith to do his work ‘personally’ and that he could have engaged someone else to do it on his behalf. The Court rejected this. The most that could be said was that Mr Smith could arrange for other operatives to cover his work if he had another job to go to. That fell far short of a ‘right of substitution’ that would indicate that there was no obligation on Mr Smith to provide personal service.

Pimlico Plumbers also argued that Mr Smith was actually engaged under a series of individual assignments rather than under one continuous contract under which he worked full-time. They argued that the tribunal had therefore been wrong to find that Mr Smith was not in business on his own account. The Court of Appeal rejected this line of argument as well. A number of fixed expenses were deducted from Mr Smith’s pay and so Mr Smith had to work a certain number of hours to make the work worthwhile for both parties. The tribunal had been entitled to find that there was a continuing obligation on Mr Smith to work for Pimlico Plumbers. The appeal was dismissed.

 
 
… And More on Employment Status
Capita Translation and Interpreting Ltd v Siacuinas
 

Soon after the Pimlico Plumbers case was decided, the EAT revisited the issue of ‘worker’ status in the case of Capita Translation and Interpreting Ltd v Siacuinas. This case concerns the status of interpreters who are engaged by Capita to provide their services to courts and tribunals in England and Wales. The interpreters are engaged on a freelance basis, but the issue is whether they can nevertheless be said to be ‘in employment’ for the purposes of the Equality Act – a test, as we have seen, equivalent to whether they have ‘worker’ status for rights such as holiday pay and the minimum wage.

Mr Siacuinas is the fourth translator to bring a claim against Capita Translation and Interpreting Ltd. He was not put off by the fact that the previous three claims had been unsuccessful. At first that seemed to be a wise move because the tribunal (which was not bound by previous tribunal decisions) found that he was indeed ‘in employment’. That conclusion was based on the way in which he was required to work to Capita’s standards on each individual assignment. The tribunal deliberately took no account of Capita’s claim that there was no contractual obligation on them to offer him assignments and no corresponding obligation on him to accept any that might be offered. As a result, Capita argued there was no on-going contractual obligation on Mr Siacuinas to work for Capita. The tribunal thought that this was irrelevant because the discrimination claim was based on allegations about how Mr Siacuinas was treated when he was on an assignment. It was not concerned with what happened in the gap between individual assignments.

The EAT held that this was an error. Shortly after the tribunal’s decision, the Court of Appeal had made it clear in Windle & others v Secretary of State for Justice that the issue of ‘mutuality of obligation’ was a relevant consideration which might ‘shed light on’ the nature of the relationship during each individual assignment. The case was remitted to a fresh tribunal to reconsider the nature of the relationship, taking into account the position that the parties were in when no assignment was being undertaken.

 
 
Disciplinary Procedures
Portsmouth Hospitals NHS Trust v Corbin
 

The importance of approaching disciplinary matters with an open mind is emphasised in the case of Portsmouth Hospitals NHS Trust v Corbin. Ms Corbin was a radiographer with more than ten years’ service. However, she had received a warning under the disciplinary procedure, and a second offence had led to that warning being extended. In the course of defending herself against the second allegation she put together a ‘defence pack’, which she compiled at home. In doing so, she used information obtained from patient records – which should not have left the hospital - and which she had only partially redacted to conceal the identity of patients. That led to a further disciplinary process, at the end of which she was dismissed.

In the subsequent unfair dismissal claim, the employer argued that while the breach of patient confidentiality had not been malicious, ‘a breach was a breach’ and amounted to gross misconduct.

The tribunal found that the dismissal was unfair. The investigation into Ms Corbin’s conduct had highlighted an ambiguity in the application of the rules on patient confidentiality to the position of an employee facing a disciplinary hearing. The tribunal found it ‘incomprehensible’ that the manager conducting the hearing had ignored that fact. Nor had the manager recognised that the rules envisaged that there could be degrees of seriousness in their breach. He had simply asked whether there had been any breach of confidentiality and assumed that if there was, then that would inevitably be gross misconduct warranting dismissal. To adopt such a closed mindset – disregarding the possibility of a lesser sanction - was unfair.

The EAT upheld that finding. However, the EAT also allowed an appeal against the tribunal’s finding of wrongful dismissal. Wrongful dismissal is a contractual claim for notice pay and the issue is not whether the employer has acted reasonably, but whether the employee was guilty of gross misconduct entitling the employer to dismiss without notice. The EAT held that the tribunal had not made sufficient findings on this point. The fact that the employer had behaved unreasonably in assuming that dismissal was the only possible response to the employee’s conduct did not mean that she was not guilty of gross misconduct. The EAT also allowed an appeal to the effect that the tribunal had not given proper consideration to whether the employee’s compensation should be reduced to reflect the extent to which her conduct contributed to her dismissal. The matter was sent back to the same tribunal to reconsider these matters.

 
 
Religion and Belief Discrimination
Gareddu v London Underground Ltd
 

Employers may need to accommodate the need for employees with particular religious beliefs to observe their own holidays and festivals. A failure to do so without good reason might amount to indirect discrimination. However, in the case of Gareddu v London Underground Ltd it was held that this obligation did not extend to allowing an employee to take a five-week holiday in Sardinia. He is a practising Roman Catholic and had in previous years returned to his home for the month of August where he would spend time with his family and attend a number of religious festivals. The tribunal found that his claim that he had a religious belief in the need to attend those festivals was not made in good faith. While there was no doubt that he did attend the festivals on his extended visits home, the purpose of his visit was actually to spend time with his family, not to comply with any religious obligation.

The EAT rejected his argument that the tribunal should have found in his favour because his attendance at the festivals was a manifestation of his religious belief and was therefore protected under Article 9 of the European Convention on Human Rights. While there was no doubt of the employee’s religious faith and the fact that his attendance at various religious festivals was a genuine manifestation of his beliefs, the issue was whether those beliefs required him to take a five week break from work in order to attend those festivals. The EAT did criticise the tribunal for confining their approach to whether the asserted need to take the break was made in good faith. It would have been better had they analysed the case from the point of view of whether the employer’s refusal to allow such a break put people who shared the employee’s beliefs at a particular disadvantage - and whether the refusal was justified. On balance, the EAT was satisfied that there was no error of law. Once it was found that the main reason for requesting the holiday was not the employee’s religious beliefs, it followed that there was no ‘particular disadvantage’ caused to him which could be said to have flowed from those beliefs. His appeal was dismissed.

 
 
Direct Disability Discrimination
Urso v DWP
 

Direct discrimination is less favourable treatment of a person ‘because of’ a protected characteristic. In a case where the protected characteristic is disability it is generally accepted that there can be no direct discrimination if the alleged discriminator does not know that the person is disabled. Disability cannot be the reason for the treatment if the alleged discriminator is unaware of the disability.

The case of Urso v DWP, however, shows that what matters is not whether the discriminator – in this case, the employee’s manager – is aware of the specific nature of the disability, but whether he or she is aware of the underlying facts which amount to it. Ms Urso had suffered for some years with Post Traumatic Stress Disorder (PTSD) and was absent on a number of occasions with what her doctor described as ‘stress and anxiety’. Her absence reached such a level that she was put through the employer’s absence management procedure and eventually dismissed.

The tribunal found that her dismissal, which had been based largely on her failure to engage with occupational health, was ‘grotesquely unreasonable’ but rejected her disability discrimination claims. While the employer knew of her PTSD, the manager who decided to dismiss her did not. The tribunal ruled that he could not therefore have directly discriminated against her ‘because of’ her disability.

On appeal, the EAT held that although the manager did not know of the specific diagnosis of PTSD, there was ample evidence that he was aware that she suffered from a serious psychological condition which led to her absence and also affected her engagement with the absence management process. The tribunal should have considered whether his unreasonable treatment of her case was influenced by that knowledge. The tribunal had also been wrong to reject her claims of discrimination ‘because of something arising in consequence’ of her disability and of failure to make reasonable adjustments. Furthermore, the tribunal had wrongly found that the dismissal of an employee was not capable, on its own, of amounting to harassment. If the dismissal was unwanted conduct related to disability - and violated the employee’s dignity - then a complaint of harassment would be made out. These matters were all therefore sent back to the tribunal to be reconsidered.

 
 
Disability Related Harassment
Peninsula Business Services Ltd v Baker
 

An interesting – and entirely new - point arose in the case of Peninsula Business Services Ltd v Baker. Mr Baker was employed by Peninsula to represent its clients in employment tribunal cases. At first his relationship with his employer was good, but then suspicions arose that he was attempting to avoid doing his fair share of cases and potentially undertaking unauthorised private work elsewhere.

He told his employer that he was struggling with his workload and that he had been diagnosed with dyslexia. A series of meetings and consultations took place to consider whether this made it necessary for any reasonable adjustments to be made. A senior manager then decided to engage a private firm to carry out covert surveillance of Mr Baker to see if he was devoting his full time and attention to his work. The result of that surveillance revealed that he had made visits of between one and three hours each day to his mother and it was considered that there was enough evidence to take forward in a disciplinary process. Mr Baker was told of the surveillance and given details of what it had found. He found this information very upsetting and claimed that it caused to him to have sleepless nights, feelings of paranoia and a reluctance to talk on the phone. He claimed harassment and victimisation.

In his claim, he did not seek to prove that he was actually disabled as a result of his dyslexia. He argued that his claims could succeed whether he was disabled or not. His treatment had been ‘related to’ disability in the sense that it was prompted by his telling the employer that he believed himself to be disabled. It was also clear that by asking for reasonable adjustments to be made he had done a ‘protected act’ - whether he was disabled or not - and was entitled not to be victimised.

The tribunal agreed – even though it based its decision on the assumption that Mr Baker was not in fact disabled. It found that the controversial decision to place Mr Baker under covert surveillance was taken - at least in part - in response to his claim to have dyslexia. Part of what the employer was seeking to establish was whether that was a genuine condition. While the surveillance itself could not amount to harassment – because Mr Baker did not know it was happening – it was nevertheless harassment to tell him about it afterwards. It was unwanted conduct which related to disability and which created an intimidating, hostile or offensive environment. Since the surveillance was prompted by his request for reasonable adjustments, it also amounted to victimisation.

The EAT overturned these findings. While the Equality Act was wide enough to cover harassment based on another person’s characteristic or where a protected characteristic was wrongly ascribed to a Claimant – that was not the same as a situation in which an employee merely claimed to be disabled but in fact was not. In such a case, there was not a sufficient link between the protected characteristic of disability and the treatment complained of. In any event, the employer had been obliged to disclose the fact of the surveillance in order to conduct a fair disciplinary process, so this could not in itself amount to harassment; it was not reasonable for the employee to be offended by it. As to victimisation, the facts found by the tribunal did not justify the finding that the surveillance was ordered specifically in response to Mr Baker’s protected acts. The claims of harassment and victimisation were therefore dismissed.

 
 
And Finally…
 

We all make mistakes at work, and serious errors can get us into trouble. Indeed, we know from last month’s case of Adesokan v Sainsbury’s Supermarkets that a single incident of negligence can – if serious enough – lead to summary dismissal. So, how would you deal with an employee who had a very important role to play at a televised public event and – for example – handed a movie star the wrong envelope? Would you regard such a high profile and embarrassing error as so serious that you would see no alternative but to dismiss? Or would you take a more lenient view and consider, what with one thing and another, that the employee had suffered enough?

We don’t know how PwC will deal with the rather high profile debacle that its employees were involved in at the Oscars – although the initial finding that the proper protocols ‘were not observed’ does not seem to bode well for the employees concerned. Employment law in California is of course very different from employment law in the UK, but in either location a mistake that attracts so much public attention and leads to so much damaging publicity is likely to be somewhat ‘career-limiting’.

 
 
 
 
Anita Kalra
Managing Director & Employment Lawyer
 
 
About Us
 

KLG is a fresh and dynamic legal services company offering a modern, responsive and pragmatic approach to employment law.

Our core values are built on putting you, the client, at the heart of everything we do. We pride ourselves on offering clear, concise advice in a prompt and timely manner. Our business is built on client satisfaction which is why you'll always be represented by a qualified Employment Lawyer with expertise in the relevant field.

We provide HR and Employment Law advice and representation too small to large businesses throughout the UK. With us on your side it's like having a HR Consultant and Employment Lawyer in house for the fraction of the costs.

KLG also provide advice and representation to employees. With offices in London and Maidenhead, we are available across the UK to provide you with our assistance and cooperation.

 
 

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The information and any commentary contained in these bulletins is for general information purposes only and does not constitute legal or any other type of professional advice. Kalra Legal Group and KLG are trading names of Kalra Business Services Ltd ( Company No: 9742420) do not accept and, to the extent permitted by law, exclude liability to any person for any loss which may arise from relying upon or otherwise using the information contained in these bulletins.

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