Employment status case update
The last couple of months have seen further decisions concerning employment status.
In Somerville v Nursing & Midwifery Council, the Employment Appeal Tribunal (‘EAT’) held that there is not always a minimum degree of obligation or commitment required for an individual to be found to be a worker. The Claimant sat as a panel member for the Nursing & Midwifery Council (‘NMC’) and brought a claim for unpaid statutory holiday pay. The tribunal held that although he was not obliged to sit for a minimum number of sessions and he could withdraw from any dates he had accepted, he was a worker. The NMC appealed that finding on the basis that ‘mutuality of obligation’ was a prerequisite for worker status. The EAT rejected the appeal finding that there were a series of individual contracts each time the Claimant sat on a panel and an overarching agreement for the provision of his services. Therefore, there was a contract in place in between any sittings. It was held that this minimum of obligation was not essential for worker status.
In The Independent Workers Union of Great Britain v The Central Arbitration Committee, the Court of Appeal (‘CA’) held that Deliveroo riders, as independent contractors, are unable to seek compulsory Union recognition as if they were ‘workers’, by applying the right of association under Article 11 of the European Convention on Human Rights (‘ECHR’). The Central Arbitration Committee (‘CAC’) held that Deliveroo riders were independent contractors, with the right of substitution. Whilst for workers, the right to collectively bargain and seek recognition is part of Article 11 of the ECHR rights, this particular right did not extend to independent contractors. The Independent Workers Union of Great Britain took a judicial review to the High Court, where it lost, and then on to the CA, where it was again unsuccessful. The CA held that whilst in employment situations Article 11 had to be applied to give effect to union recognition, in a non-employment context, such as Deliveroo riders, the protection was not so extensive. The riders still had the right to associate and join unions but the right to compulsory recognition did not need to be extended to independent contractors on these facts. The CA commented that other cases with similar facts might be decided differently.
In Cummins Limited v Mohammed, the Employment Appeal Tribunal (‘EAT’) held that a tribunal must reach a clear conclusion about a decision-maker’s reason for dismissing an employee. The Claimant suffered from anxiety and depression and his GP recommended a therapeutic holiday. After taking a holiday to Pakistan, he was dismissed without notice and claimed that he had been permitted to go. His employer disputed that he had been given permission to go and asserted that he had been declared fit for work before he went. He brought claims of disability discrimination and unfair dismissal. The tribunal upheld the Claimant’s claim that the dismissal amounted to discrimination because of something arising in consequence of his disability. The employer’s appeal to the EAT was upheld. The EAT held that the tribunal must consider why the decision-maker acted as they did and that the tribunal had failed to address the decision-maker’s reasoning. The tribunal had stated that the ‘something’ arising from his disability was the trip to Pakistan but their decision didn’t address what part the disputed permission or fitness to work played in the decision. Concerning his unfair dismissal claim, the EAT also held that the tribunal had substituted its decision for that of the employer as it had failed to properly address the actual misconduct that the Claimant had been accused of.
In Forstater v CGD Europe & ors, Index on Censorship & EHRC Intervening, the Employment Appeal Tribunal (‘EAT’) held that a belief that there are only two biological sexes in human beings and that it is impossible for a human being literally to change sex amounts to a ‘philosophical belief’ within the meaning of section 10 of the Equality Act 2010. Ms Forstater worked for CGD Europe (‘CGD’). In 2018, she became engaged in the debate about proposed reforms to the Gender Recognition Act. Complaints were raised with CGD that some of her tweets were ‘transphobic’. Her contract was not renewed, and she complained of discrimination on grounds of belief. The judge found that Ms Forstater’s belief necessarily involved “misgendering” and was incompatible with human dignity and the fundamental rights of others. The EAT disagreed finding that the evidence was that Ms Forstater’s belief is widely shared, and consistent with the law. The tribunal was wrong to assume that her belief meant she would always ‘misgender’ trans persons, irrespective of circumstances and that her position was more nuanced than that. The EAT stated that ‘Tribunals [should] bear in mind that it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection.’.
In Hughes v Progressive Support Limited, the Employment Appeal Tribunal (‘EAT’) held that it can still be indirect discrimination for an employer to require an employee to go to work regardless of childcare needs, even if the employer doesn’t actually penalise the employee for not complying. The Claimant is a support worker who had been working a guaranteed minimum of set hours agreed in line with her childcare needs. For a short period, Progressive Support Limited (‘PSL’) stopped offering the Claimant these set hours and only offered her hours in line with its service needs. PSL indicated it might put her on a “zero-hours” contract. If the Claimant did not work the hours offered, she faced no penalty but lost pay. The tribunal dismissed the indirect sex discrimination claim on the basis that by not imposing any penalty for not working hours offered, the Claimant had not been subjected to a ‘Provision, Criterion or Practice’ (‘PCP’). The EAT overturned the tribunal’s decision citing that PSL had imposed a PCP being the requirement on the Claimant to work the hours determined by PSL to be entitled to her full contractual hours. The tribunal failed to consider the impact of the requirement at the time, rather than the lack of consequences later and the financial impact of losing hours.
Fire and rehire – a pandemic necessity or unlawful act?
Fire and rehire is the practice of employers giving notice to end an employee’s contract of employment and offering them a new contract under different terms and conditions of employment. This can be done lawfully where an employer has a good business reason for making the change and the employer has gone through a fair procedure, including carrying out comprehensive consultation. Where employees have agreed to the changes, which during the pandemic has mainly been to avoid a redundancy situation, fire and rehire is not necessary.
Many employers have changed their employees’ terms and conditions during the pandemic, whether to enable it to take advantage of the furlough scheme or to enable the survival of the business through these difficult economic times. There have been some high-profile fire and rehire cases recently, such as the British Gas case, where employees were given notice to end their existing contracts and asked to agree to new terms for lower pay and longer hours. Hundreds of employees refused and so their employment was terminated. In the recent case of Khatun v Winn Solicitors, the dismissal of a solicitor for refusing to accept new terms during furlough was held to be unfair. MPs have debated the issue recently and the government has said it will look at the issue ‘when parliamentary time allows. ACAS has also published a report on dismissal and re-engagement which can be found here. The executive summary of the report states the following:
‘Suggested legislative options included: tightening up the law around unfair dismissal; enhancing the requirement and capacity for employment tribunals to scrutinise business’ rationale for the change in relevant cases; protecting the continuity of employment in fire-and-rehire-scenarios, and strengthening employers’ consultation obligations around proposed dismissals.’
‘Suggested non-legislative options included: improved guidance for employers on relevant legal obligations and good practice; using data on fire-and-rehire to inform decisions around public procurement and access to government funding; and publishing ‘name and shame’ data on employers’ use of fire-and-rehire practices on a government website.’
In summary, employers can ‘fire and rehire’ lawfully and fairly where they have a good business rationale and carry out a fair procedure. The ability for employers to do this where necessary can save jobs, enabling employers to continue to employ employees where they wouldn’t otherwise be able to do so. However, employers should take care not to use the current extreme circumstances to propose changes to terms and conditions that go above and beyond those that are strictly necessary to avoid redundancies/ensure business continuity and any changes to terms and conditions that are temporary, such as those made to enable employers to access the furlough scheme, should revert to previous terms and conditions of employment as soon as it is appropriate to do so.
If you have a need to make changes to the terms and conditions of employees and you want to reduce the risk of unfair dismissal and breach of contract claims, contact Elizabeth Judson at firstname.lastname@example.org.
Health and safety detriments: protection extended to workers
An employee can issue an employment tribunal claim if they are subjected to a detriment because they reasonably believed that being at work would place them in serious, imminent danger. Section 4 of the Employment Rights Act, which governs this protection, was rarely used before the pandemic but has been used frequently since March 2020 by employees who are concerned about attending work during the pandemic.
The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 applies to detriments occurring on or after 31 May 2021 and extends protection for health & safety detriments to workers (in addition to employees).