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November employment update (2)

This months employment update covers:

1. The tribunal fees refund scheme
2. Employment status in the gig economy – Uber and Diliveroo decisions
3. “Prejudice” and “Protected” conversations
4. Risk assessments for employees who are breast feeding

DTM Legal Employment update
Following the Supreme Court’s decision in R (on the application of Unison) (Appellant) v Lord Chancellor earlier this year, tribunal fees have been quashed and are now refundable.

The first phase of the refund scheme announced on Friday 20 October by the government has now concluded. This was an opportunity for those parties who contacted the tribunal service immediately following the Supreme Court’s decision to apply for a refund prior to the full scheme opening up.

The full scheme is now open and applications can be made online here: https://employmenttribunals.service.gov.uk/apply/refund/profile-selection

The following forms may also be completed and submitted by post or email:

  1. Form 1-C (if you brought the claim and paid the fees) – http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?original_id=2040
  2. Form 3-S (if you brought the claim on someone else’s behalf and paid the fees) – http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?original_id=2042
  3. Form 2-R (if someone else brought the claim against you and the tribunal ordered you to pay their fees) – http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?original_id=2041DTM Legal Employment Update

Do you engage self-employed contractors? If so following the recent decision of the EAT in Uber BV v Aslam, tribunals are to determine the “true agreement between the parties” when assessing employment status.

Last year Uber drivers James Farrar and Yaseen Aslam successfully brought a claim against Uber, and it was confirmed that they were workers, and therefore entitled to the rights of a worker including minimum wage and holiday pay. Uber appealed the decision arguing that the drivers were self-employed, but the EAT has upheld the earlier decision of the tribunal confirming that the drivers are workers.

In determining the position, the key focus was the level of control exercised over the divers by Uber (which is akin to an employee-employer relationship), and the EAT therefore took into account the following factors regarding the drivers, stating that when the drivers had the app switched on they were:

  1. Obliged to be “able and willing to accept assignments”;
  2. Required to “accept at least 80% of trip requests”; and
  3. Subjected to penalties if they cancelled a trip once accepted.

Following the decision of the EAT, Labour MP Jack Dromey commented: “No British worker should be denied basic employment rights which we have worked so hard to secure. Uber is a 21st-century company behaving like a 19th-century mill owner, when workers had no rights. It is now up to Uber to change its employment practices and grant its drivers the rights they deserve and are entitled to in law.”

Uber have now submitted an application to “leapfrog” the Court of Appeal, and appeal the decision of the EAT straight to the Supreme Court. It may be that the appeal is heard at the same time as the Pimlico Plumbers and CitySprint appeals on employment status, which are set to be heard by the Supreme Court early next year.

Importantly, the decision in Uber BV v Aslam differs to that of the recent test case relating to Deliveroo riders. The Independent Workers Union of Great Britain brought a claim on behalf of the riders at the Central Arbitration Committee (CAC) asserting that they were workers, and therefore entitled to the rights this entails. However, as the riders had a right to substitute (the ability to assign someone else to undertake the work on their behalf) within their contracts, it was held that they were in fact self-employed. There has been some controversy around this decision as this substitution clause was only inserted within the rider’s contracts 11 days before the hearing at the CAC, however there was also clear evidence of substitution taking place in reality. The decision therefore provides guidance as to the weight of the right to substitute when determining employment status.

DTM Legal Employment update

If so, the EAT in Graham v Agilitas IT Solutions Ltd, has confirmed that employers cannot rely on privilege in relation to part of the conversation, and waive privilege in relation to other parts.

Mr Graham was an employee and shareholder of Agilitas IT Solutions Ltd. Agilitas held several “without prejudice” meetings with him regarding his performance and potential dismissal but nothing was agreed. During one of the meetings it was discussed how Mr Graham had spoken to a colleague stating that there was a conspiracy to remove him from the company. Agilitas responded with alleged bullying and threatening behaviour towards Mr Graham during the same meeting.

Agilitas subsequently used the fact that Mr Graham had spoken to a colleague regarding the apparent conspiracy as one of the disciplinary allegations against him, stating his actions amounted to gross misconduct and a breach of mutual trust and confidence.

Mr Graham was later dismissed by Agilitas and brought claims for unfair dismissal, wrongful dismissal and unlawful deductions from wages, and sought to rely upon the meetings as evidence.

The employment tribunal initially held that the conversations had been undertaken on a “without prejudice” basis and therefore were not admissible as evidence to prove the decision to dismiss was predetermined, and the disciplinary process was in turn a sham. Mr Graham appealed and the EAT held that whilst the “without prejudice” privilege applied to the meetings, Agilitas could not cherry pick when this privilege would apply, and therefore could not use what was discussed within the meetings as a basis to dismiss.

The EAT therefore remitted the case to the original tribunal in order for them to consider:

  1. If by using comments made in the meetings Agilitas waived the “without prejudice” privilege; and
  2. If the bullying and harassment from Agilitas constituted “improper conduct” and/or “unambiguous propriety” which would defeat the conversation being protected.

Employers should be aware that they can hold both “without prejudice” meetings and “protective” discussions in order to provide two options for the conversation being off the record and not being used against them as part of any subsequent claims. They should also be careful not to try to extract parts of “without prejudice” meetings and “protective” discussions as part of open evidence.

DTM Legal Employment update

If so, following the recent decision of the Court of Justice of the European Union (CJEU) this can amount to sex discrimination.

Ms Ramos was a nurse working on the accident and emergency unit in a hospital in Spain. Her employer carried out a risk assessment on her return to work after giving birth given she was breast feeding. Ms Ramos requested adjustments to be made given her role entailed a complex shift pattern, exposure to ionising radiation and healthcare-associated infections and stress. The adjustments were rejected by her employer as it was concluded her work was “risk free”. Ms Romas therefore alleged that the assessment did not meet EU Directive 92/85/EEC relating to health and safety of breast feeding workers, and therefore breached the Equal Treatment Directive

The CJEU found in favour of Ms Ramos and held that a failure to properly carry out such risk assessments (or a failure to carry out such risk assessments completely), in accordance with employer obligations under EU law, amounts to less favourable treatment, and therefore discrimination on the grounds of sex.

If you would like further information on our November employment update or advice on how they apply to your business then please contact Tom Evans, Associate, Employment & HR Team on tom.evans@dtmlegal.com or 0151 230 1217.

Tom Evans Associate

If you would like to join our next Employment update Seminar, please email marketing@dtmlegal.com for more information.

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