The Range of Reasonable Responses Newsletter November 2018
I'm writing this just before I go up to Glasgow to do a talk for the Industrial Law Society. My brief is to look at 'Key cases of the Future' - what recent cases will we still be talking about 10 years from now? The idea is that most of the case law that i talk about in employment law is a good way of illustrating a particular point, or it gives us an opportunity to reflect on a particular issue or situation that might crop up in the workplace - but very few cases are destined for immortality. I'm thinking of those cases that we quote time and time again as the key authority for a particular point - the sort of 'Employment Law Classics' , in fact, that I've done a series of podcasts about.
So what I'm trying to do in this presentation is pick some cases that have the potential to be classics in their own right - and I thought it would be fun to share my runners and riders with you in this Newsletter. I have chosen 8 cases. Some are dead cert Supreme Court decisions, some are ongoing cases clearly destined for the Supreme Court - others are a bit of a punt. All, in my view, have the potential to say something important about how employment law works. To see the transcript of each case, just click on the title.
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Well this seems a safe bet. This is the case in which a number of Uber drivers are claiming that they are 'workers' with entitlements to paid annual leave and to be paid the National Minimum Wage. I wrote about the Court of Appeal hearing in the last newsletter and the decision will be eagerly awaited. If Uber lose I would certainly expect them to try to take the case to the Supreme Court. Indeed they tried to do just that - leapfrogging the Court of Appeal - when the EAT found against them, but the Supreme Court refused permission.
The final outcome will be a big news story - but to really qualify as a classic the decision will have to go beyond the detailed arrangements that govern the relationship between Uber, its drivers and their passengers. So I will be particularly interested in what the case ends up saying about mutuality of obligation. This is a rather slippery concept that seems to take on different meanings in different cases. If we are looking at a potential contract of employment we ask whether the employer has an ongoing obligation to provide work and the employee has an ongoing obligation to accept it. When it comes to workers, however, the relevance of the concept is more difficult. It seems to be generally accepted that when a 'worker' is actually undertaking work, there is sufficient mutuality of obligation present to say that he or she is working under a contract to perform work. But what about the time between periods of work?
You could argue that the ability of the 'worker' to refuse to accept work that is offered does not matter because most worker rights do not depend on establishing a period of continuous employment - even the entitlement to paid annual leave can be applied to each individual assignment. But in Secretary of State for Justice v Windle the Court of Appeal held that the existence of mutuality of obligation between assignments was a potentially relevant consideration in determining the nature of the relationship as a whole. The suggestion was that an individual with no ongoing obligation to accept work is more independent and therefore more likely to be running his or her own business than working for an employer.
The decision in Windle is highly controversial, but if the Uber case reaches the Supreme Court there may be an opportunity to clarify the position. So far the Tribunal and the EAT have held that Uber drivers are not only working while they are carrying passengers, but also while they are waiting for rides to be allocated to them. The potential that they may be logged off the system if they refuse too many jobs was held to be a sufficient obligation to support the existence of an ongoing contract to perform work and - as the Employment Judge said - 'They also serve who only stand and wait'. If the case goes all the way, then we can hope for a definitive ruling on the issue.
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The nature of work is also at issue in this case, in which the Court of Appeal held that workers on a sleepover shift were not working while they were asleep and so were not entitled to have those hours count towards their minimum wage entitlement. Permission has been sought to appeal to the Supreme Court and I am sure as I can be that the Court will want to hear the case.
At first sight the case seems to be a rather narrow and technical one about the operation of the National Minimum Wage Regulations and in particular Reg 32 which deals with 'on call' working. That provision specifically states that time spent sleeping will not be deemed to be working time even if the worker is required to be available for work on the premises. The argument however is that a care worker on a sleepover shift is not merely 'available' for work, he or she is actually working - sleeping on the premises is just what the employer has asked them to do. The Court of Appeal was in my view, too quick to dismiss this point. It may seem obvious to a judge that a worker cannot be working while actually asleep, but the experience of those who actually do this work should not be discounted. A sleepover shift is a night spent away from home and family under the control and at the request of the employer. The worker is providing a valuable service in ensuring that the workplace is adequately staffed and the constant threat of interruption and the need to stay vigilant is hardly conducive to a good night's sleep.
My hope is that the case does reach the Supreme Court and that the Court takes the opportunity of coming up with a definition of work that is surprisingly lacking in the National Minimum Wage legislation. We should know after Christmas whether or not the Court intends to take the case.
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This is a bit of a punt as the case is currently just a High Court decision and I don't know whether or not the employer has appealed. It is, however, a very neat case holding that the knee-jerk suspension of a teacher accused of using inappropriate force with two disruptive children amounted to a fundamental breach of trust and confidence entitling the employee to resign and claim a constructive dismissal. It is a High Court case because the employee did not have two years' service and so could not claim unfair dismissal. Instead she has brought a breach of contract claim for wrongful dismissal in the (almost certainly) forlorn hope that the Court would overturn a century of case law and award her more than her notice pay in damages.
Obviously if that is the eventual outcome - and it would take a Supreme Court decision to rule that she was entitled to damages for the ongoing loss resulting from her dismissal - then this case will indeed prove to be a classic. However, I think the case will keep being quoted in years to come simply for stating so clearly that suspension is not a neutral act. This is a topic in which there has been a major turnaround in recent years since the decision in Gogay v Hertfordshire County Council . That case concerned a suspension that lasted for about a month and caused psychological harm to the employee. In Agoreyo the employee resigned on the day she was suspended and it was still held that suspending her was a fundamental breach of contract. The Court held that employers need to ensure that they have a clear reason for suspension (the reasons given in Agoreyo were contradictory) and have explored possible alternatives before deciding to suspend. If the case is appealed by the employer then -whatever the outcome - it will be the leading case on when an employer can suspend an employee.
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Another speculative suggestion. If this case goes to the Court of Appeal it might say something important about when an employee can insist on a disciplinary hearing being postponed if a union rep is not available and also whether the employer can go ahead with a hearing that the employee chooses not to attend. If it remains an EAT decision then it might be regarded as just making the technical point that complying with the requirements of the Right to be Accompanied under s.10 Employment Relations Act 1999 is not in itself sufficient to guarantee that the employer is acting reasonably for the purposes of an unfair dismissal claim.
I've written about this case already - and recorded a podcast for XpertHR - but for those unfamiliar with it, it involves a disciplinary hearing which could not be attended by the employee's union rep. He suggested a range of alternative dates but the earliest was almost two weeks later - in excess of the 5 working days postponement allowed for in the right to be accompanied. The employer refused to postpone the hearing and the employee refused to attend without him. She was dismissed after a hearing conducted in her absence. The Tribunal found that the dismissal was unfair and the EAT upheld that finding. If the case does go to appeal the Court could perhaps give guidance on the factors to consider in postponing a hearing. If it remains an EAT decision then at the very least Acas should revisit its Code of Practice on Discipline and Grievance which only refers to the possibility of a five day postponement and gives no hint that a reasonable employer might be expected to do more.
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Well I'm on safe ground here, I think. The 'gay cake case' is now the leading case on discrimination by association and you can read my blogpost supporting the decision here.
I think it is worth emphasising that the case, while controversial, is entirely consistent with the Supreme Court's approach to direct discrimination in other cases. Direct discrimination is less favourable treatment because of a protected characteristic - and the Court takes a narrow view. It does not cover other aspects of a person's identity - even if closely related to the protected characteristic itself.
So in the case of Taiwo v Olaigbe the Court held that the deliberate exploitation of the vulnerability of a migrant domestic worker was not direct race discrimination. It was true that all of those employed on a migrant domestic worker visa were non-British - but that did not mean that nationality or national origin was the reason for the treatment. The vulnerability was not shared by all those who shared the claimant's protected characteristic.
Similarly in this case there was no reason to think that wanting a 'support gay marriage' cake was the same as being gay. There was of course an association between support for the campaign and sexual orientation but the Supreme Court held that this was not a case of discrimination by association (as it is commonly called). The less favourable treatment had to be based on the characteristic of a person, not just the characteristic as a concept.
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This is another dead cert for the text books. In these cases the Court of Appeal had got itself into a complete mess over the meaning of indirect discrimination and it fell to the Supreme Court to sort the issue out.
In a very readable decision, Lady Hale explains how indirect discrimination works and dispels the notion that the Tribunal has to look into why the PCP (provision, criterion or practice) causes a particular disadvantage to the group in question. As long as it can be established that the PCP does indeed cause a particular disadvantage to a group sharing a protected characteristic, that is enough.
One other valuable point made by Lady Hale is that the justification test - the question of whether the PCP is a 'proportionate means of achieving a legitimate aim' is not some technical get out clause that an employer should feel sheepish about relying upon. The lack of justification is an element of indirect discrimination. If justification is found, that is not a finding that there was discrimination but the employer is being let off on a technicality, it is a finding that there was no discrimination. I think that is worth remembering.
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This case has just been argued in the Supreme Court and we await a decision. I'm suggesting it as a key case because the Court is being asked to answer one deceptively simple question - what does 'unfavourable' mean?
The facts are that an employee took ill-health early retirement as a result of his disability. This had previously led to him moving from full to part-time employment and his future benefits under the pension scheme were based on his part-time salary (listening to the argument for the Trustees, it might be a bit more complicated than this, but let's not get bogged down in the facts!). The issue is whether his pension calculation can be said to be unfavourable treatment because of something arising in consequence of his disability within the meaning of s.15 of the Equality Act.
His point is that the arguably lower pension calculation has arisen as a result of his particular disability, which led to him moving to part-time employment before eventually having to retire. Had he acquired a disability with a more immediate impact, he might have moved straight from full-time working to retirement and would have been financially better off in his retirement.
The Court of Appeal held, however, that he had not been treated unfavourably at all. On any measure the enhanced pension he was given was a form of favourable treatment and it was not made unfavourable by the fact that in different circumstances it might have been even more favourable.
For what it's worth, my view is that the term 'unfavourable treatment' was intended to make it easier to establish discrimination by not requiring a comparator. It should not be used to restrict discrimination by excluding blatantly less favourable treatment. If the Supreme Court focuses on the difference between unfavourable and less favourable (rather then getting bogged down in the terms of the pension scheme) then this will become one of the leading cases on disability discrimination. Watch this space for the outcome.
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I've saved my favourite case 'til last.
This case combines a memorable set of facts with two very neat points about disability discrimination. Mr Grosset was a teacher who was dismissed for showing a horror film (Halloween) to a group of vulnerable teenagers in a special pastoral care group. The Tribunal found that the dismissal was fair - but also that it amounted to unlawful disability discrimination.
Mr Grosset's disability was cystic fibrosis - so you may be wondering how his dismissal for showing an inappropriate film was found to be unfavourable treatment because of something arising in consequence of his disability. It comes down to the fact that the physical therapy regime involved in managing his condition left Mr Grosset tired and stresses - unable to cope with some of the extra demands placed upon him by a new headteacher. The stress and fatigue became so bad that it clouded his judgement - leading to the disastrous (for him) decision to show the film.
The Court of Appeal confirms that s.15 discrimination, while it requires the employer to have knowledge of the disability, soes not require any knowledge of the link between the disability and the 'something' for which the employee is then treated unfavourably. The fact that the employer had no reason to think that there was any link between Mr Grosset's conduct and his disability did not matter. The employer knew of the disability and that was enough.
The second key point is the finding on justification. The Court of Appeal held that there was othing wrong with th efinding that the unfaovurabe treatment was not justiufied even though th edimsissal was fair. IN an unfair dismissal case the test is the range of reasonable responses - with the Tribunal forbidden from substituting its own view for that of the reasonable employer. Under s.15 however the Tribunal must reach its own view about whether the unfavourable treatment is a proportionate means of achieving a legitimate aim. The Tribunal had been entitled to find that the lack of support shown by the headteacher for Mr Grosset and the demands placed upon him as a result of his condition meant that they were in part responsible for the stress that led to his misjudgement.
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Parish Notices
Sorry that this turned into rather a bumper edition. Next month I'll try to think of something lighter for the festive season - though I promise not to do an article about the employment law risks of Christmas parties.
Thoughts are already turning to next year, with a number of dates the diary. If you're in local Government you might want to check out the annual LGA employment conference where I'll be speaking on 13 February. It usually sells out so booking early would be a good idea. You can find details here.
Thanks again for subscribing. Don't forget you can find out more about the sort of thing I do at darrennewman.org
Darren
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