This month’s Employment & HR update covers:
1) Pimlico Plumbers v Gary Smith – a further case on Employment status
2) ACAS guide on religion and belief discrimination
3) One third of women have encountered sexual harassment at work
4) Recent reminder of the sensitivities of dealing with disability-related absence
5) Employment tribunal claims continue to rise
Mr Smith had worked solely for Pimlico Plumbers for 6 years and despite being VAT-registered and paying self-employed tax, the Court of Appeal held that he was a ‘worker’ not self-employed and therefore was entitled to workers’ rights, including holiday pay and sick pay.
On 13 June 2018, The Supreme Court upheld that the Court of Appeal was entitled to conclude that Mr Smith was in fact a ‘worker’ under the Employment Rights Act.
It was concluded that Mr Smith qualified as a worker as the relationship between Mr Smith and Pimlico Plumbers was not that of a customer or client given the control that Pimlico Plumbers had over Mr Smith. Examples of this included that Pimlico Plumbers controlled Mr Smith’s uniform and administrative duties as well as controlling the payment he received. Furthermore, the employment tribunal had been entitled to find that the dominant feature of the contract was an obligation of personal performance, as whilst plumbers had the ability to swap work between themselves, the substitute had to be a Pimlico operative bound to Pimlico by an identical list of heavy obligations. It therefore concluded that there was no genuine right to substitution and personal performance was required.
The Supreme Court judgment adds very little to the existing case law on the meaning of ‘worker’. Ultimately, Courts and Tribunals will continue to focus on the specific facts of the case and this only leads to further uncertainty surrounding this area of law. What the decision does remind us of however is that employers must ensure that the nature of the engagement of so called ‘self-employed contractors’ as stated in any written documentation reflects the reality of the working relationship in practice, failing which it will be subject to challenge.
Acas has published useful new guidance on Religion and Belief Discrimination in order to reduce the chance of this form of discrimination happening in the workplace, how it might still occur and how it should be dealt with by employers if it does happen. It is worth a read to refresh memories on an often overlooked strand of discrimination.
The guidance provides an explanation of the law and practical guidance on a number of issues including how employers can be liable for their employees’ acts, as well as a top 10 myths document.
Please find the Guidance here
And the Top Ten Myths document here
A study undertaken by the trade union, Prospect, in which 7,000 workers were surveyed, highlighted how a shocking 35% of women had reported some form of sexual harassment in the workplace.
The aim of the survey was to discover how often people had seen, or personally been affected by, behaviours in the workplace which amount to bullying and harassment.
The types of harassment that were reported by women, who made up 40% of the respondents of the survey, included:
- 27% suggestive remarks or jokes of a sexual nature
- 25% unwanted comments about appearance
- 17% unwelcome behaviour of a sexual nature
- 14% unwanted and/or inappropriate touching hugging or kissing
The survey highlighted that women under the age of 30 (62%) were most like to be victims of sexual harassment as they were often too intimidated to report the harassment to management.
Lesson for employers: ensure that all employees are aware of the procedures that in place to report such incidents should they occur and that they have the trust and confidence to come forward. For the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer regardless of whether the employee’s acts were done with the employer’s knowledge or approval. So, an employer can be “vicariously liable” for discrimination or harassment committed by an employee in the course of employment. However, there is a defence available to an employer if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act or from doing anything of that description.
It is clear that to succeed with a “reasonable steps” defence, the employer must have taken such steps before the act of discrimination or harassment occurred. Acting reasonably in response to a complaint of discrimination or harassment is not sufficient
In summary, reasonable steps will usually include:
- Having and implementing an equal opportunities policy and an anti-harassment and bullying policy, and reviewing those policies as appropriate.
- Making all employees aware of the policies and their implications.
- Training managers and supervisors in equal opportunities and harassment issues.
- Taking steps to deal effectively with complaints, including taking appropriate disciplinary action.
Read the full press release here
In DL Insurance Services Ltd v O’Connor the EAT held that the employer had failed to ‘objectively justify’ its decision to issue a sickness absence warning to an employee who had a disability.
Mrs O’Connor had a disability which resulted in a high absence level over a number of years. She was employed in 2005 and her illness affected her working patterns from 2007. The EAT praised the employer of their careful and sympathetic approach towards Mrs O’Connor which effectively allowed a much longer period of sickness that allowed in their sickness policy. In 2016 when Mrs O’Connor’s level of absences was six times over the trigger point the employer issued a written warning which ceased her contractual sick pay for future absences.
The EAT upheld the decision of the Tribunal that, despite the employer have legitimate aims of seeking to improve Mrs O’Connor’s attendance, the employer had not ‘objectively justified’ how the warning was ‘a proportionate means of achieving their aims’. An example of how the warning was not appropriate included not following the employer’s internal processes and that there had not been discussions about the impact of Mrs O’Connor’s absences on the workforce. It was also accepted that Mrs O’Connor had been genuinely ill and could have not avoided her absences.
Despite 60 days’ absence in 12 months being high an employer is still required to explain why it is appropriate to issue a warning evidencing specific circumstances in the employee’s case.
This case serves as a reminder of the sensitivities of dealing with disability-related absence. 60 days’ absence in 12 months is high but, nevertheless, an employer must still be able to explain why it is appropriate in such a case to take action against an employee in this situation i.e. a warning or dismissal, with reference to the specific circumstances of the employee’s case. Employers must be able to identify a legitimate aim and show that it acted proportionately in achieving that aim to successfully defend a discrimination arising from disability claim and this case highlights.
The latest statistics published by the Ministry of Justice show the continuing trend for increasing numbers of single employment claims following the abolition of tribunal fees.
The number of single claim receipts increased by 118%, disposals by 43% and the outstanding caseload by 89%.
Compared to the same period in 2017, employment tribunals disposed of 10,343 claims, down 9%. This was driven by a 36% decrease in multiple claims disposals. 29% of claims disposed of were conciliated by Acas, 17% were withdrawn, 16% dismissed on withdrawal, 14% struck out and 10% were successful at hearing.
Alongside this, tribunal fee refunds statistics were published. Over the quarter, 4,700 refund applications were received and 4,400 refund payments were made. This amounted to £3,799,500. Since the tribunal refund scheme was introduced, 9,472 applications for refunds have been made and 7,733 refund payments issued, amounting to £6.5 million.
Employers should have the increase in claims in the back of their minds when making decisions, although dealing with matters fairly and consistently should avoid such problems.
If you would like further information on any of the above or advice on how they apply to your business then please contact Tom Evans, Associate, Employment & HR Team.