Employer Right to Work Checks

It has been confirmed by the Employment Appeal Tribunal that the drivers for the transport company Uber are not ‘self-employed’ and are in fact workers by the Company.  Uber operates a digital platform to provide transport services, whereby, drivers sign up online and are connected with customers through a mobile phone app.  Uber had argued that it is no different to the ‘traditional’ cab company and they acted as the ‘agent’ for the drivers and not the employer and maintained that they did not control when and how drivers work.

According to Uber, their guidelines for drivers as to how work should be done are ‘recommendations’ and not obligations, they also argued that there is no obligation on the drivers to perform work for instance they were not obliged to switch on the app or accept driving jobs once the app is switched on as well as the drivers bearing the financial risk of the transaction, Uber can choose to absorb the loss if a customer refuses to pay, but is not obliged to do so.

The EAT rejected these submissions and upheld the decision of the employment tribunal that the drivers are engaged as workers by the company, when the drivers were driving, they are a worker and that is their working time

The reality of the situation was that the drivers are subject to significant control by the business.

It was less certain that the drivers were workers when the app was on and they were waiting for a job to be allocated (as they could in theory be working for multiple companies during this time).  However, the EAT accepted that the tribunal was entitled to decide that the drivers were also working during this period particularly because there was an obligation on drivers to accept 80% of the jobs offered whilst the app is on.  The decision suggests that, whether an individual is a worker during these interim periods will depend on the particular facts of the case and the operating model used by each organisation.

What does this mean for me?

Whether an individual is self-employed or is a worker is fundamental, as worker is entitled to various employment-related benefits such as paid holidays, rest breaks, the national minimum/living wage, auto-enrolled to a qualifying pension scheme, and not to be detrimentally treated for whistleblowing.

This Judgment is very clear, what a Company says in their documents will not determine the status of an individual and in fact the starting point is the reality of that working arrangements.  An Employment Tribunal will look at what you do, the rules and requirements you impose, and the arrangements you have in place, these are some key attributes that will determine the status of your workers / contractors.

If you are at all concerned about the status of those you engage, you should take advice on the reality of the entire relationship.

Employer Right to Work Checks

An employer found out that making mistakes when dealing with reasonable adjustments can mean you end up with some very costly consequences!

In Bannister v The Commissioners for Her Majesty’s Revenue and Customs, the employee was asked to move desk from one floor to another because her team was being disbanded.  She told one of her managers that she was an alcoholic and that due to her condition, she could not move desks.  Following a conversation with a manager, the manager noted that the employee apologised that she had turned a small change like a desk move into a big issue.  An Occupational Health Adviser informed the employer that the employee had suffered from depression for about three years and had become anxious when asked to move desk, but said that she was fit to work.  They continued that the employee ‘remains vulnerable to further episodes of this condition, the frequency or severity of which cannot be predicted’ and that her ‘condition is likely to be considered as disabilities because they have lasted for longer than 12 months and would have a significant impact on normal daily activities without the benefit of treatment’.

The employee was issued a first written warning for poor attendance.  After several Fit Notes stating she was not fit to work because of alcohol dependency, anxiety and depression and meetings with management, the employee was told she would be moving.  The employee complained and was told by a senior manager ‘in fairness, he was not aware of issues around previous moves and, to be honest, he had no interest’.

In another letter by an Occupational Health Adviser, the employer was told that the employee was ‘keen to return to work, however she needs to go back to where she was with her desk prior to the absence and that after a few days settling in she will be able to manage in work’.  The employee’s request to return to work with her old team for a short period of time before moving to her new team was declined.  She was dismissed and subsequently appealed the decision to dismiss her and the decision to not be awarded compensation, but both appeals failed.

The Tribunal found that the employee required the ‘security of an established routine at the workplace and that any change posed a threat which unsettled her’.  She was scared of drawing any attention to her and gave a number of examples of how she reacted to stressful situations, for example, she would not board a busy bus or join a queue with more than three people in the supermarket.

It was clear in the Tribunal’s view that this requirement to work on a different floor caused a ‘serious unsettling effect’ on the employee and put her at a substantial disadvantage when compared to people who were not disabled.  She wanted to return to work and would have done so but for this requirement to move desk and change floors.

The Tribunal noted that the employer had offered several adjustments including a phased return to work, a temporary reduction in hours, the elimination of performance targets and a lighter workload. However, they concluded that they had failed to make a reasonable adjustment by not allowing the employee to return to her original desk for two weeks.

She was awarded nearly £75,300 in compensation.

There is a legal duty under the Equality Act to make reasonable adjustments for disabled employees when they are placed at a substantial disadvantage by:

  • an employer’s provision, criterion or practice or
  • a physical feature of the employer’s premises or
  • an employer’s failure to provide an auxiliary aid.

Some examples of reasonable adjustments include:

  • adjusting the recruitment process,
  • changing equipment,
  • allowing a disabled person to make a phased return to work
  • making physical changes to the workplace.

For a worker to be considered disabled under the Equality Act, they must show that they suffer from a long term (i.e. 12 months or more) physical or mental impairment which has a substantial (i.e. more than trivial) effect on their ability to carry out day-to-day activities.  A person will meet the disability definition under the Act if they have an HIV infection, cancer or multiple sclerosis, but someone who has alcohol dependency will not fall within under this definition.

As this case proves failing to make reasonable adjustments can be costly so it’s important to understand what the law requires and how to minimise any risks to your business.  At Solve. we can advise and support with disability cases.

Tribunal fees have been abolished following a recent unanimous judgement from the Supreme Court in a case brought by Unison.  The court found that the fees prevented access to justice and in addition, disproportionately affected women.

Since July 2013, claimants in employment tribunals have had to pay a fee of up to £250.00 to submit a claim and a higher fee if the claim was taken forward to a final hearing.

Since the introduction of fees, tribunal cases reduced dramatically by 70 per cent.  ACAS have also reported that 10% of individuals who contacted them regarding a potential claim ultimately decided against doing so because they couldn’t afford the fees.

The reason for the introduction of fees was to discourage weak and vexatious claims.  The success rate of claims since the introduction of fees interestingly though has fallen which contradicts this logic and makes you wonder if weak claims were in fact effectively deterred by the fees or if the fees ultimately didn’t matter and if the claimant had the cash to pursue their claim they would do so – irrespective of merit.

Unison said the fees presented a significant bar to access for justice for individuals who considered they had been wronged by their employer.  The Supreme court agreed, stating access to justice is a constitutional right and the fee system interfered with that right.

The Supreme Court rejected the government’s defence that many claims at tribunal were inherently ill founded and that the employment tribunal system was a private service which should not be underwritten by the tax payer on the basis that there was little evidence to suggest the fee system had deterred weak cases and that pursuing a claim in the tribunal was not purely a private activity, because it can and does benefit society more widely.

The government has accepted the decision, has immediately stopped taking fees, and is undergoing the process of reimbursing all fees paid since July 2013.

However, there is always the chance that although the current system has been ruled unlawful, that the government attempts in the future to try to introduce a revised system with much lower fees.

As well as this, anyone can search the tribunal online database of employment tribunal judgments.  So, while it is thought that the abolition of fees may see a sharp increase in tribunals in the short term, some employees may be put off by the thought that if anyone wants to see a judgment they can do so by searching for the names of parties involved, particularly as awareness of the database continues to increase.

In order to avoid claims, encourage your employees to speak up early and informally.  The earlier a grievance is aired the easier it is to resolve it. If you don’t have harassment or grievance policies introduce them now.  If your managers are uncomfortable having conversations about their team’s conduct, train them now.  Work towards creating an open culture where people can speak up without fear of reprisal.  Take this time now to invest in your people contracts of employment, policies and processes to deliver positive results for your business.

The Employment Appeal Tribunal (EAT) upheld the decision of Employment Tribunals that payments for voluntary overtime should be included in holiday pay if they are regular enough to constitute ’normal pay’.  The Employment Tribunal accepted that employees could “drop on and off the rotas to suit themselves whether day by day, week by week, month by month or permanently” and additional work was “almost entirely at the whim of the employee, with no right to enforce work on the part of the employer”.

In the case of Dudley Metropolitan Borough Council v Willetts and others, an Employment Tribunal decided that out of hour’s standby pay, call out allowance, voluntary overtime and travel allowance linked to those elements should be included within holiday pay calculations.  The 56 council workers argued that their holiday pay should have included, payments for voluntary overtime.  The tribunal stressed that “normal pay” must be included in holiday pay and concluded that the council workers’ voluntary overtime payments are sufficiently regular to constitute “normal pay”.

The EAT confirmed that, where the pattern of work extends for a sufficient period of time on a recurring basis to justify the description “normal”, voluntary overtime pay must be included in holiday pay, however, each case must be decided on its own merits, and it is up to individual Employment Tribunals to determine whether or not the overtime payments are sufficiently “regular and settled” to require inclusion in holiday pay.

The impact of the decision will be felt by all employers who operate overtime payments and approaches to calculating holiday may need to be reassessed once again.  The individual circumstances that apply to your workforce and your business will ultimately govern what approach is best for you, therefore before making any decisions as to the risks you face, take advice on what it might mean for you and your staff.

The ability to discuss ones religious beliefs freely in the workplace has always presented difficulties for employers.  The Employment Appeal Tribunal has re-emphasised that disciplinary action for the way an employee shares their religious beliefs can be lawful.  Employers are exposed when employees conflicting religious beliefs may lead to allegations of harassment, particularly in the instance of a manager impressing their views/ beliefs on a junior employee.  Employers should be careful that action is taken for unwanted conduct and not just religious beliefs as the European Convention protects consensual conversations regarding religious beliefs.

‘New’ legislation regarding disability discrimination is more robust:

In this case an employee who had suffered from stomach adhesions had been issued with a final written warning from their employer, even though the absence was linked to the employee’s disability.  After three months the same employee was absent again, this time it was not linked to his disability, but resulted in the employee being dismissed.

The Employment Tribunal made the decision not to take into consideration the final written warning and that it had led to no adjustments being made.  They felt the final written warning had been appropriate and emphasised that tribunals should take their time when re-opening any previous situations which have occurred, when deciding the reasoning of a later dismissal.

This shows employers that a tribunal is not likely to look at prior warnings again, especially if it does not relate to the unfair dismissal of the employee.  This time the discrimination claim was not successful.  It does however give employers an insight into what options are available to disabled claimants who say their employers have been unfair.

Employees can be disciplined for not reporting absence

In a case where an employee had been given a final written warning.  The employee then failed to report a subsequent absence for two days.  He explained his absence was due to his partner going into labour and that his phone had ran out of battery, however this reasoning was not accepted by his employer and he was dismissed.  The employee claimed he had been unfairly dismissed for taking time off to care for his child.  This claim was not accepted and he was not awarded his statutory right to time off as he had failed to advise them as soon as he could of his absence.

This case gives good advice to employers for when an employee gives reasoning for failing to report absence.  Many employees who have this issue try to rely on the Equality Act 2010.  It is advised that the employer needs to differentiate between the reason for the absence and the failure to report the absence.  If the disciplinary action is down to the failure to report the absence without reasonable explanation then the reason for the absence becomes pointless.

It would be recommended that employers have in place a policy relating to their absence reporting procedure.