November 2016

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.

We open November’s bulletin with news of a (small) development in Mr Lock’s long-running case against British Gas.

You may remember the case was about a salesman’s holiday pay; essentially, should it include the commission Mr Lock would have earnt if he had been in work instead?

The answer from the European Court of Justice two years ago was yes. But how that holiday payment should be calculated remained up in the air and, unfortunately, this latest decision – that of the Court of Appeal – does nothing to clarify this. The UK court didn’t address the calculation point. What it did do, however, was to confirm that under UK law, workers’ holiday pay should include an amount reflecting the commission they would have earnt had they been in work rather than on holiday, subject to some restrictions.

As to the calculation of that holiday pay, it’s a point that will roll on until clear guidance emerges.


1. Employment Status

2. Sex discrimination in the SPL context

3. Validity of settlement agreement 

4. Justification in discrimination cases

5. Mental health in the workplace

6. Judicial assessment of tribunal cases

7. Inclusivity is the way forward

8. Jobs requiring particular attributes


Employment Status - Aslam and others v Uber

The line between employees, workers and the ‘genuinely’ self-employed has come under increased scrutiny in recent weeks - and not just because of the much publicised Uber decision. Last month, the Government announced a wide-ranging review by Matthew Taylor, the Chief Executive of the Royal Society of the Arts, into the changing world of work. This month has seen the announcement of an inquiry to be conducted by the Commons Select Committee on Business, Energy and Industrial Strategy. This will focus on the status and rights of agency workers, the self-employed, and those working in the 'gig economy'.

Together with the increased public scrutiny of employers using zero-hours contracts, it does feel as though there is a weight of opinion that the current balance of rights leave some individuals in too precarious a position and vulnerable to exploitation. Whether the Government can come up with a new way of categorising the work of individuals to provide increased security, without jeapordising the flexibility that can encourage innovation and growth, may be the most important employment law question for the future – perhaps even more important than what happens after Brexit.

Under UK law, employment rights are given only to those who qualify either as ‘employees’ or as ‘workers’. Employees work under a contract of employment and have full employment rights, including the right not to be unfairly dismissed. Workers, on the other hand, may still be self-employed for tax purposes and be completely flexible in how much work they choose to do, but nevertheless qualify for a number of rights, including the right to be paid the minimum wage and rights arising under the Working Time Regulations – including paid annual leave.

In Aslam and others v Uber, a number of Uber drivers are claiming that they count as workers and are bringing minimum wage and working time claims. To be workers they must show that they are engaged under a contract to work for Uber and that Uber cannot be described as merely a client or customer of the driver’s business.

At a preliminary hearing of the case an Employment Tribunal has now ruled that Uber drivers are indeed workers, with the result that their claims can go ahead. Uber had strenuously argued that all they did was provide a trading platform that put customers in contact with a number of drivers. They claimed that the drivers were working directly for the customer and were not doing work for Uber at all. The Tribunal rejected this argument. The reality of the situation was that Uber was not just a software company providing a trading platform; it was in the business of providing transportation to customers and marketed itself as such. Uber was concerned with providing a high quality service and was careful to select drivers who met their requirements. While drivers were free to choose when and for how long they worked, they were encouraged to accept potential rides when they were logged in to the system, the Uber App gave them a specific route to follow, and specified the fare to charge. Drivers could be penalised for cancelling rides that they had initially accepted and were not given any information about the identity of the customer.

The Tribunal concluded that the drivers could not be said to be running individual businesses. In reality they were working for Uber and qualified as workers. This is a case with huge ramifications for Uber and an appeal is expected. However, it does not mean that every app or website designed to help suppliers contact customers will raise similar issues. The Tribunal’s decision is based very much on the particular arrangements made between Uber and its drivers. The case does, however, show that a tribunal will look beyond the phraseology of a contract and a reach a conclusion about what it feels is the reality of the relationship. [back to top]


Sex discrimination in the SPL context - Snell v Network Rail

It has been reported that a father was indirectly discriminated against on grounds of sex when his rate of pay for shared parental leave (SPL) was less than that of his wife.

The couple worked for Network Rail. Mr Snell’s wife planned to take 27 weeks off and he would then take a share of SPL. Although she was entitled to enhanced pay, he would only get statutory pay. Mr Snell is reported to have been awarded just over £28,000.

This case has identified a significant issue for employers in ensuring that where you enhance certain rates of pay, this is mirrored elsewhere so as not to discriminate against either sex. Network Rail is said to have changed its policy so that only the statutory amount is payable to both men and women during SPL. A policy review may be worthwhile to see where you stand on this payment issue. [back to top


Validity of settlement agreement - Glasgow City Council v Dahhan

Mr Dahhan entered into a settlement agreement with his employer, Glasgow City Council, after issuing various race-related claims against it. That agreement purported to draw a line under his claims; in signing it, Mr Dahhan was giving up all claims arising from his employment. He withdrew his race claims and they went on to be dismissed by the tribunal.

However, he then asked for that to be reconsidered. He said that he had lacked mental capacity and therefore wasn’t equipped to sign the settlement agreement. The question for the Tribunal was whether it could set aside the agreement for being invalid on that basis.

Yes, the Tribunal said, and the Employment Appeal Tribunal agreed. Where a party argues incapacity, the tribunal must look carefully into that. If that incapacity is found to have existed, the agreement must be unenforceable.

A cautionary tale for employers, keen to ensure that a settlement agreement does its job. Any hint of mental incapacity should ring alarm bells, not least because it could scupper the deal and the certainty that settlement is supposed to achieve. [back to top]


Justification in discrimination cases - Buchanan v The Commissioner of Police of the Metropolis

Disability discrimination happens when a person is treated unfavourably because of something arising in consequence of their disability, and that unfavourable treatment can’t be objectively justified.

The Employment Appeal Tribunal (EAT) in this case was asked to consider, in the context of long-term sickness absence, what it is that must be justified. Is it the employer’s procedure, or the way in which they applied that procedure to a particular employee?

Mr Buchanan was a police officer who was disabled after a serious motorbike accident. He remained off work with post-traumatic stress disorder, and was being managed under his employer’s Unsatisfactory Performance Procedure (UPP), which had three stages. Mr Buchanan had reached the second of these stages. He went on to claim that his employer had discriminated against him by applying the UPP and issuing improvement notices. He said that the notices required him to work when he was clearly incapable of doing so. He also said that his employer ought not to have persisted with the UPP process, or it should have been more measured in how it went about it. The complaint was about the application of the UPP rather than the UPP itself.

The Employment Tribunal held that there had been unfavourable treatment. It also decided that the employer needed to justify the procedure itself rather than the way in which it was applied to Mr Buchanan.

The EAT disagreed with the Tribunal. It was the treatment of the employee that needed to be justified, the EAT said. In this case, the treatment was the application of the UPP to Mr Buchanan. The UPP didn’t say that the employer should place the demands it did on an employee in Mr Buchanan’s position. That being the case, the employer needed to be able to justify its action in doing so.

So, in this sort of situation, remember it may not be enough to point to a decent policy. The way in which you applied that policy will be under scrutiny when it comes to justification. It won’t always be an easy distinction to follow in practice, and it may be worth seeking advice if you think you might be at risk of a claim. [back to top]


Mental health in the workplace

A report by Business in the Community (BITC) has shone a light on the scale of mental health problems within UK workplaces.

77% of employees who took part in the 20,000-strong survey said that they had experienced symptoms of poor mental health. 62% of employees said that their poor mental health was because of, or was contributed to, by work.

It seems that there is a lack of reporting, however. More than one-third of employees said that they didn’t approach anyone for support the last time they experienced poor mental health. Men are less likely than women to talk to their line manager about mental health, and male managers feel less confident than their female counterparts about responding to a staff member who has depression. Younger workers (those aged 18-29) are more likely to experience symptoms of poor mental health, but lack confidence in talking to their manager about it; there is scepticism around employers’ commitment to health and wellbeing.

BITC is calling on employers to:

1. Talk, so that the culture of silence around mental health is broken.

2. Train employees in understanding mental health, and in mental health first aid. (According to the report, just 22% of line managers have had some sort of mental health training at work.)

3. Close the gap by talking with employees about their experiences and identifying where your commitments as an organisation are not aligning with those experiences.

http://wellbeing.bitc.org.uk/all-resources/research-articles/mental-health-work-report-2016 [back to top]


Judicial assessment of tribunal cases

Guidance has been issued on a new way of helping parties settle tribunal claims.

Judicial assessment is a voluntary, confidential process that will see employment judges giving their views on cases before those cases get too far along the tribunal course. The parties get to hear what the judge thinks of their arguments, although that judge will not go through the evidence. It’s an early assessment of strengths and weaknesses, and that is something that may encourage settlement.

If settlement doesn’t happen and the case proceeds, the judge who carried out the assessment will usually have nothing to do with the final decisions about parties’ rights. The case will pass to a new judge who may form an entirely different view to the one reached at the assessment stage. The big difference, of course, will be that that second judge will have heard the evidence. [back to top]


Inclusivity is the way forward

The CBI is calling on organisations to become more inclusive.

Its latest report sets out the business case for diversity, which includes increased employee satisfaction, better retention, lower recruitment costs and increased productivity. Workplaces that are diverse and inclusive are associated with higher individual performance, the report says, because employees are more engaged and are better able to innovate.

An inclusive approach is expected to stand employers in better stead as time goes by, too. According to the report, drawing on a diverse talent pool will be key to addressing the challenges, predicted by some businesses, in accessing highly-skilled employees in the future.

Among the recommendations are:

1. Setting tailored, voluntary targets to improve diversity and holding leaders responsible for plans to achieve them.

2. Collaboration between businesses to share good practice and improve inclusion.

3. Considering the use of name-blind recruitment and extending competency-based assessment to challenge unconscious bias.

4. Weighting in managers' performance appraisals for their roles in developing staff as well as short-term commercial performance.

5. Offering flexible working from job adverts onwards, where possible.

You can read the full report here: http://www.cbi.org.uk/time-for-action-/Introduction.html [back to top]


And finally - Jobs requiring particular attributes

A recruitment agency has been in the news for the wording it has used in job adverts.

One, for a personal assistant/private plane flight assistant, reportedly required ‘a classic look, brown long hair with b-c cup’. The company is reported to have had its reasons for advertising in those terms. Criticism has come from various quarters, with the Chief Executive of the Equality and Human Rights Commission, Rebecca Hilsenrath, describing this sort of advertising as, “appalling, unlawful and demeaning to women”.

Also in the news was a survey that revealed a lack of knowledge among employers when it comes to the laws around recruitment. The Equality and Human Rights Commission found that only 39% of businesses know that it is against the law to advertise a job vacancy just in one foreign language where that language isn’t required in order to do the job. The survey also revealed that employment checks are not being properly performed; less than 50% of those that took part in the survey said they knew that employers must check that all job applicants have a right to work in the UK, irrespective of their place of birth, before taking them on.

You’ll find plenty more interesting statistics at: https://www.equalityhumanrights.com/en/publication-download/research-report-104-recruitment-britain [back to top]