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Employment and HR Newsletter

In our latest Employment newsletter Tom Evans and Elizabeth Judson update on

  • COVID related case law
  • Car and uniform payments deductible for National Minimum wage purposes
  • Moped courier not self-employed
  • Discrimination round-up

COVID related Case law

In recent weeks we have seen further Covid-related Employment Tribunal decisions, particularly in relation to dismissals on the grounds of health and safety.  An employee is automatically unfairly dismissed if the reason for their dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent, they took (or proposed to take) appropriate steps to protect themselves or others from the danger.  We’ve provided a summary of some of these decisions below.

Mr M Ham v ESL BBSW Limited: on 1 November 2019 Mr Ham, an Area Supervisor, commenced his employment with ESL BBSW Limited (‘ESL’).  On 27 March 2020, Ms Kocinska (Mr Ham’s line manager) sent an e-mail to a client of ESL’s saying that she was self-isolating.  She also sent an e-mail to Mr Ham asking him to visit the client, which he did.  He refused to deliver goods from the client to Ms Kocinska, arguing that this would be a health and safety violation as she was suffering from COVID symptoms.  On 30 March 2020, Ms Kocinska dismissed Mr Ham for failing to follow her instructions.  Mr Ham brought a claim for automatic unfair dismissal arguing that he had been dismissed for raising legitimate health and safety concerns.  The Employment Tribunal held that Mr Ham had been automatically unfairly dismissed and it awarded Mr Ham one year’s gross salary.

Rendina v Royston Veterinary Centre Limited: Charlotte Rendina was employed by Royston Veterinary Centre from January to March 2020.  She was dismissed for alleged poor performance.  In March 2020 Ms Rendida asked the practice manager if she would wear a mask.  She was concerned about COVID particularly as she was asthmatic.  The practice manager told Ms Rendina to speak to Dr White.  He held a meeting in which he told staff that COVID was no worse than a cold or flu and that there was no need for them to take precautions.  He told Ms Rendina that she could wear a mask if she wished.  During the first lockdown, Dr White instructed all staff that the practice would open as normal and, following her having contacted them, the Royal College of Veterinary Surgeons told Ms Rendina that she may be in breach of the Veterinary Code of Practice if she carried out non-essential procedures.  Dr White later dismissed Ms Rendina saying that they had reached a ‘level of discord that was not amenable’.  Ms Rendina brought a claim for unfair dismissal.  The tribunal upheld her claim finding that she had been dismissed because Dr White was irritated that she had raised concerns about the safety of herself and her colleagues.

Gibson v Lothian Leisure: Mr Gibson was placed on furlough leave when the first lockdown began.  He was asked by his employer to come into work during his furlough leave.  Mr Gibson was worried about catching COVID and passing it onto his father who was clinically vulnerable.  He raised concerns about the lack of personal protective equipment.  His employer dismissed him via text message with no notice and did not pay him his accrued holiday pay.  He brought a claim for automatic unfair dismissal.  The tribunal upheld Mr Gibson’s claim finding that he was dismissed for raising concerns which he reasonable believed were ‘serious and imminent’ as required under the Employment Rights Act 1996.  Mr Gibson was awarded £21,000.

Accattatis v Fortuna Group (London) Limited: Mr Accattatis worked for a company which sells and distributes personal protective equipment.  He accepted daily deliveries.  Employees of the company were considered to be key workers and the business remained open during the first lockdown.  In March and April 2020, Mr Accattatis made various requests to work from home or be placed on furlough leave due to anxiety related to using public transport and working in the office.  The requests were denied due to the nature of his work and that he could not work from home.  He was told that he could take annual leave or unpaid leave.  He declined and, following further requests to be placed on furlough leave, he was dismissed.  He brought a claim for automatic unfair dismissal which was dismissed by the employment tribunal.  The tribunal found that Mr Accattatis did not have a reasonable belief in ‘serious and imminent’ danger, he had not taken appropriate steps to protect himself from the danger and his demands to be furloughed or to work from home did not qualify as appropriate steps.

Rodgers v Leeds Laser Cutting Limited: Following the start of the first lockdown, Leeds Laser Cutting Limited (‘LLC’) carried out a risk assessment and put various safety measures into place to enable it to continue operating.  Shortly afterwards, Mr Rodgers told his manager that he’d be staying away from work ‘until the lockdown has eased’ due to his concerns about infecting his vulnerable children.  He was dismissed later that month.  He claimed unfair dismissal on the basis that he was unfairly dismissed because he took appropriate steps to protect himself or other persons from danger.  The tribunal dismissed Mr Rodgers claim.  It based its decision on the fact that while COVID could potentially amount to circumstances of serious and imminent danger, to accept Mr Rodger’s argument that, despite safety measures which had been put into place, his belief in serious and imminent danger was reasonable would be to accept that the very existence of the virus creates circumstances of serious and imminent danger.  This would lead to any employee being able to leave the workplace simply due to the existence of COVID which is not what is intended.

Montanaro v Lansafe Limited: Mr Montanaro was an Italian IT professional who worked for Lansafe in the UK.  Mr Montanaro travelled to Italy believing that he had his employer’s approval to take annual leave.  The evening before he was due to return, Italy went into a lockdown.  The guidance was to stay at home.  Travel was permitted for work purposes and the UK government required 14 days of isolation on return from Italy.  Mr Montanaro was unsure whether the Italian authorities would allow him to travel without further documentary evidence from his employer.  He was asked to wait for further instructions which were not forthcoming.  He continued to work remotely and discovered that he had been dismissed on 1 April 2020 when he received an e-mail which referred to his dismissal.  He did not receive a dismissal letter which was produced during the tribunal proceedings and was dated 11 March 2020.  He was dismissed for unauthorised absence without being invited to a disciplinary hearing.  He claimed automatic unfair dismissal.  The employment tribunal upheld Mr Montanaro’s claim finding that he had not refused to return to work, had requested assistance in returning to the UK and was dismissed because he had communicated the difficulties posed by the pandemic and proposed to work remotely from Italy until circumstances changed.

Car and uniform payments deductible for National Minimum wage purposes

In the Employment Appeal Tribunal (‘EAT’) case of Augustine v Data Cars Limited, the claimant claimed that he had not been paid the National Minimum Wage due to him incurring expenses that his employer had not repaid.  The expenses were car rental payments and uniform costs.  The employment tribunal held that the payments were not deductible for the purposes of the calculation as the claimant was not obliged to purchase a uniform and he could have used his own vehicle.  However, on appeal to the EAT, it was held that both the vehicle rental and uniform costs were expenses in connection with the claimant’s employment and should have therefore been excluded when considering whether he was being paid the National Minimum Wage.

Moped courier not self-employed

In the Court of Appeal (‘CA’) case of Stuart Delivery Limited v Augustine, the claimant was found to be a ‘worker’ due to not having a sufficient right to substitute in order to have self-employed status.  Mr Augustine was a moped courier.  He could circulate a notification via the company’s app to other couriers who had signed up with the company.  Another courier could then fill the unwanted slot.  The claimant didn’t know which courier would be taking up the slot and could not put forwards a specific individual to take the slot.  If one of the couriers didn’t take up the slot, the claimant would have to work it.  The CA therefore found that the employment tribunal had been entitled to find that the claimant was a ‘worker’ rather than being self-employed as the claimant did not have an ‘unfettered’ right to substitute.

Discrimination round-up

Stott v Ralli Limited: in this Employment Appeal Tribunal (‘EAT’) case, the claimant was a paralegal in a firm of solicitors.  She was dismissed in her probationary period for poor performance and later raised a grievance referring to a disability.  This was the first time that her employer became aware of it.  The claimant’s grievance and her grievance appeal was rejected by her employer.  The claimant brought a claim in which she alleged that her dismissal was discriminatory.  The tribunal held that her employer did not know about the disability and could not reasonably have been expected to know about the disability, when taking the decision to dismiss her.  The EAT agreed with the employment tribunal’s decision.

Pitcher v University of Oxford and University of Oxford v Ewart:  Following these two contrasting employment tribunal judgments arising from the University of Oxford’s (‘the University’) compulsory retirement policy, the Employment Appeal Tribunal held that an Employer Justified Retirement Age does not necessarily result in unlawful age discrimination.  The University introduced a default retirement age of 67.  It had three ‘legitimate aims’ for doing so being: inter-generational fairness; succession planning; and promoting equality and diversity.  In both cases, the key point to be determined was whether the compulsory retirement age was proportionate in terms of being a means of achieving the legitimate aims.  The employment tribunals had reached permissible conclusions in both cases, based on the evidence.  However, the judgments were contrasting, one being found to be discriminatory and the other not.  The EAT found that it was undesirable that two tribunals came to different conclusions on the application of the same measure but that, as there was no error of law, it could not strive to find a single answer.

R (Cornerstone Fostering) v Ofsted: In this Court of Appeal (‘CA’) case, it was found that it was unlawful direct sexual orientation discrimination to require that people who want to join a foster agency as carers refrain from ‘homosexual behaviour’.  Cornerstone is an independent fostering agency that works with local authorities to place children with foster carers.  Cornerstone’s rules require any carers registering with them to be Evangelical Christians and prohibit homosexual behaviour.  Ofsted were concerned about this but Cornerstone succeeded in a judicial review that they were allowed to restrict membership to Evangelical Christians and that meant that their rules against homosexual behaviour were allowed.  The CA rejected this argument and held that the rules were directly discriminatory.

For further details and advice please contact Elizabeth Judson or Tom Evans

Or email them at Elizabeth.Judson@dtmlegal.com or Tom.evans@dtmlegal.com

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