EmpLaw Newsletter February 2019

February 2019

Here is our latest on-line Employment Law newsletter which will assist in keeping you informed of various current employment issues. The content of this newsletter is provided for general information purposes only and it is not intended to be legal or other professional advice. It should not be considered a substitute for taking professional advice in relation to specific circumstances. No responsibility can be accepted by Assicurazioni Generali S.p.A. for any action taken as a result of the information provided.

2018 was the year of the 'worker status' cases, and 2019 looks to be following suit. The first employee status case of the year involves carers instead of drivers or couriers. In Chatfeild-Roberts v Philips and Universal Aunts, the claimant was a full-time live-in carer. She had no other home. She was placed by an agency and engaged by the patient's family. She had a two hour break each day and one day off a week. These periods were covered by another agency worker. She took only 3 periods of holiday in three years, for which she was paid. She was paid her 'salary' gross and expected to pay tax herself. 
When the arrangement was terminated, the claimant brought an unfair dismissal claim. Only an employee can bring an unfair dismissal claim, and the family said she was self-employed. The tribunal had to decide whether the claimant was an employee or self-employed. An employee is required to perform the work personally. The tribunal looked at whether the right to send a substitute to do the work in her absence (for days off, holiday etc) prevented a finding of employee or worker status.
The employment tribunal found that she was an employee. The Employment Appeal Tribunal agreed. The ability to engage a substitute for times when an individual is unable to work, and with the permission of the 'employer', can be consistent with personal service. No one could work 24 hours a day, 365 days a year. Another agency worker was used only on the claimant's days off and holidays. The EAT went further though. They said that the employee was not 'sending a substitute' when she arranged for the agency to cover her time off. Rather, she was ensuring the patient's full-time care using the services the family had arranged. She was an employee.
This case has particular implications for employers in the care sector. Employers should note that sending a substitute to cover time off will not necessarily be a bar to employment status. [back to top]
  1. The Good Work Plan
  2. Disability discrimination
  3. Data protection
  4. Whistleblowing and defamation
  5. Changes to online 'right to work' checks 
  6. Consultation on extending redundancy protection
  7. Guidance on payslips
  8. Discrimination and the burden of proof
  9. And finally…
Following the Taylor Review on Modern Working Practices, the government has proposed changes to employment law. The following changes will take effect from April 2020:
  • The right to a basic written contract will take effect from day 1 of employment, for workers as well as employees;
  • The period for calculating an average week's pay will increase from 12 to 52 weeks;
  • All agency workers will have the right to receive the same pay and basic employment terms (with comparable employees) after 12 weeks, even those employed directly by employment agencies.
There are also proposals with no timescale for implementation yet, including:
  • A right for a zero hours contract worker to request a more stable contract after 6 months;
  • Legislation to clarify the employment status tests so it is clearer whether individuals are employees, workers or self-employed;
  • Increasing the period which can break continuity of employment from 1 week to 4, to make it easier for casual staff to acquire certain employment rights such as unfair dismissal;
  • Banning companies from making deductions from tips.
Employers should keep up to date with any changes to ensure compliance with new laws. [back to top]
The Equality Act 2010 defines 'disability' as a physical or mental impairment which has a substantial and long-term adverse effect on an employee's ability to do day-to-day activities. Employers have a duty to make reasonable adjustments for employees who are disabled if they have actual or 'constructive' knowledge of the disability. An employer will have constructive knowledge if they could reasonably be expected to know about it. 
In Lamb v The Garrard Academy, the Employment Appeal Tribunal looked at when constructive knowledge will apply in practice. 
The employee went off sick with reactive depression and alleged bullying at work in February 2012. She raised a grievance in March 2012. The grievance was not dealt with properly by the employer. In July, the employee disclosed that she was suffering from post-traumatic stress disorder (PTSD) dating back to childhood and triggered by stressful events. She was referred to occupational health in November 2012, when a report was produced. It said the employee's reactive depression dated back to September 2011. 
The employee brought a claim for failure to make reasonable adjustments. The question was when the employer knew (or should have known) about the disability. The employment tribunal found that the employer knew about the PTSD in July 2012. However, they had only failed to make reasonable adjustments from November 2012 when they found out her condition was long-term (and therefore met the legal disability test). The Employment Appeal Tribunal disagreed. They said that the employer had constructive knowledge of the employee's disability from July 2012. By then, she had been off work for 4 months. If the employer had referred her to occupational health then, OH would very likely have said that her impairment could last until September 2012 (and be long-term). This meant that the duty to make reasonable adjustments was triggered in July, not November. 
This case is a reminder to employers that claims for a failure to make reasonable adjustments can be successful even when the employer does not actually know about the disability. In this case, the employer should have asked more questions and made an OH referral sooner. Prolonged absence and the reporting of a serious medical condition should always trigger an occupational health referral or at least further enquiries. The content of any report should also be acted on quickly. [back to top]
The Information Commissioner's office has produced a 'Guide to Data Protection' on the practical impact of the GDPR and the Data Protection Act 2018. It is aimed at small and medium businesses and provides guidance for data protection officers and anyone else who has responsibility for data protection. 
It is set out helpfully into sections, with drop down menus so you can easily access the information you need. It has an introduction which sets out what data protection is and the basic principles, perfect for start-ups or those new to data protection roles. It includes detailed explanations of important principles such as 'processing' and 'controlling'. It also contains a guide to the GDPR which is long but very readable and contains helpful working examples. 
For sole traders or very small businesses, there are separate resources which can be reached using the same link. Find the guidance by clicking here. [back to top]
In order to qualify as a 'protected disclosure', a person must reasonably believe that the disclosure is in the public interest and 'tends to show' one of six types of wrongdoing. Wrongdoing can include a criminal offence, a health and safety risk and a failure to comply with a legal obligation. In Ibrahim v HCA, the Employment Appeal Tribunal looked at whether defamation could be a failure to comply with a legal obligation.
Mr Ibrahim worked for HCA as an interpreter in private hospitals. He asked his employer to investigate rumours that he was responsible for breaches of patient confidentiality. His complaint was investigated and dismissed. When his employment was later terminated, he said it was because he had made a protected disclosure. 
The employment tribunal said that allegations about spreading false rumours did not 'tend to show' a breach of a legal obligation. Nor did the employee have a reasonable belief that the allegations were made in the public interest. They were made because he wanted to clear his name. The employee's claim failed, and he appealed. The Employment Appeal Tribunal disagreed with the employment tribunal on the first issue. They said that defamation allegations could fall within the wide definition of 'breach of a legal obligation'. Even though he did not use the term 'defamation', it was clear that this was the allegation. However, the tribunal had been entitled to decide that the employee did not subjectively believe that his allegations were in the public interest. His concerns were personal. Therefore, his claim failed.
This case shows that the inclusion of a public interest element to whistleblowing claims has narrowed its remit. Employees can no longer 'blow the whistle' on breaches of their own contract where there is no wider public interest. Employers should beware though. Sometimes an allegation which seems personal has wider ramifications. Employers should tread carefully when dealing with disclosures that are potentially protected. [back to top]
The government has made changes to the Right to Work Checking Service, which enables UK employers to check whether individuals are subject to any restrictions. From 28 January 2019, an employer will be able to rely solely on the online checks, provided the prospective employee can use the service. For employees who are non-EEA residents but have biometric residence permits or cards, and EEA nationals who have been granted status under the EU Settlement Scheme, the online checks will be enough. No additional paper documents are needed. The employer needs to check that the online photograph matches the employee and should keep a copy of the online check for at least two years after employment ends. If the person is a student, the employer must also keep records of the course's term and vacation dates.
EEA nationals who have not yet got settled status will still need to provide the appropriate documents to prove their right to work. It is also worth noting that short form birth/adoption certificates are acceptable from 28 January as well. This makes the position much easier for individuals who do not have passports. 
The new system should avoid duplication of work and ensure checks can be carried out swiftly and efficiently. Find more information by clicking here [back to top]
Following the Taylor Review on Modern Working Practices, the government has published a consultation paper on pregnancy and maternity discrimination. Currently, women on maternity leave are given preferential access to suitable alternative employment if they are selected for redundancy (regulation 10 of the Maternity and Parental Leave Regulations 1999). If there is a suitable alternative vacancy, the woman must be offered it, not just invited to apply for it. This is the case even if there is a better qualified candidate for the vacancy. 
The government proposes to extend that right to women who have returned from maternity leave in the previous 6 months. They are also considering extending the right to women who have just told their employer they are pregnant. The government is also asking whether the same preferential treatment should be extended to other groups: employees on adoption leave or shared parental leave, for example.
There is also a proposal to extend the three-month time limit for bringing pregnancy and maternity discrimination claims to 6 months.
Have your say on the by clicking here [back to top]
The new rules on itemised payslips come into force this April. The government has issued guidance to help employers comply with them. The guidance is a short, punchy document which is easy to read and contains a useful summary of the new requirements. Currently only employees have the statutory right to receive an itemised payslip. The new legislation requires employers to provide payslips to all workers. 
Employers must also set out details of the hours worked where hours vary. The guidance gives examples of how to calculate different kinds of variable pay. It also has case studies showing when variations in pay will not need to be itemised, such as when salaried employees take unpaid leave. Find the guidance by clicking here [back to top]
One of the most difficult aspects of a direct discrimination claim is the burden of proof and the circumstances in which the employer will be asked to prove that no discrimination has occurred. In Efobi v Royal Mail Group Ltd the Court of Appeal emphasised that it was not enough for the employee merely to complain about his or her treatment and then require the employer to explain the reasons for it. Before any burden is placed on the employer to explain its behaviour, the employee must prove facts from which the Tribunal could infer that the treatment complained of amounted to discrimination.
The employee in that case had applied for 20-30 internal posts but had been rejected for each. He brought a Tribunal claim alleging race discrimination but did not seek disclosure from the employer of the racial origins of the successful candidates or specific evidence as to why each application was rejected. He assumed that the employer would call such evidence of its own accord, but it decided not to. Instead the employer persuaded the Tribunal that the reason Mr Efobi had not been offered any of the positions was that his applications were of a low standard, and not tailored to the particular posts he was applying for.
The Tribunal dismissed the race discrimination claim, but the Employment Appeal Tribunal (EAT) held that it should have given more weight to the employer’s failure to explain how each individual recruitment decision was taken and specifically why Mr Efobi was rejected for each. 
The Court of Appeal has now restored the Tribunal’s decision. There was no burden on the employer to explain its treatment of the employee until he had established that there was a ‘prima facie’ case of discrimination. In the absence of any evidence that race was part of the reason that his applications were rejected, the claim inevitably failed. [back to top]
Lord Price (who used to run John Lewis and Waitrose) is encouraging the government to focus on employee happiness after Brexit. He has surveyed workplace happiness for several years via his website Engaging Works. His research apparently shows that the UK is ranked tenth in the world for workplace happiness. Austria came out on top. 
Lord Price says his data shows that there is a link between workplace happiness and UK productivity. He points to high sickness absence and staff turnover in the UK. He wants the government to issue a 'happiness strategy' to help counter these trends. 
In theory, it sounds lovely doesn’t it? However, Lord Price's ideas include compelling employers to share profits with employees, put employees on boards and provide more information to employees on company performance. He also thinks that it should be mandatory for businesses to upskill employees and retrain them. This might sound ideal but is not always possible or desirable. 
Post-Brexit, happiness for everyone might depend more on the government securing a Brexit deal, rather than a happiness charter. Once we've secured that, the quest for happiness all round seems much more achievable. [back to top]