Whistleblowing while you work

Last July, we reported on the case of Ms Jhuti v Royal Mail. Ms Jhuti ‘blew the whistle’ to her line manager by making disclosures about suspected breaches of the Royal Mail’s rules and Ofcom’s rules. Ms Jhuti’s line manager put her on a performance plan and told HR they would need to look at ‘exiting’ her. Ms Jhuti was dismissed, however the manager who dismissed her was not aware of Ms Jhuti’s whistleblowing.

The dismissal of an employee is automatically unfair if the reason (or principal reason) for their dismissal is that they have made a protected disclosure, i.e. they have ‘blown the whistle’. As we have previously reported, whistleblowing claims should be of concern to employers, because there is no minimum length of service required for an employee or worker to bring such a claim, nor any cap on the compensation that can be awarded – in contrast to ordinary unfair dismissal claims, which require 103 weeks’ service and where the maximum compensatory award is capped.

The Employment Tribunal found that the manager who made the decision to dismiss Ms Jhuti had genuinely believed she was dismissing her on the grounds of poor performance. The manager’s decision was not motivated by Ms Jhuti’s whistleblowing (nor was it based on the line manager’s motivation), therefore Ms Jhuti was not automatically unfairly dismissed for whistleblowing.

When the case went to the Employment Appeal Tribunal however, it was held that the dismissal was automatically unfair because even where the person making the decision was not aware of the true facts, the decision could be attributed to the employer if the decision-maker is manipulated by someone in a managerial position, who is responsible for the employee, and who does know the true facts.

Royal Mail’s appeal against the EAT’s decision was recently heard by the Court of Appeal, who had to decide if Ms Jhuti could be automatically unfairly dismissed by a manager who was not aware of the protected disclosures she had made to another manager.

The Court of Appeal decided that the dismissal had been fair. It was only what the decision-maker actually knew that was key, not what knowledge should be attributed to them.

The judgment set out four different scenarios of ‘manipulation’ cases, only two of which the Court considered could lead to the manipulator’s motivation being attributed to the employer. First, in cases where the decision-maker is manipulated by a manager who has some responsibility for the investigation, it is possible that the motivation and knowledge of the manager could be attributed to the decision-maker, even if the decision-maker does not share the motivation or knowledge. Second, in a situation where the manipulator is at a very senior level (e.g. the CEO), and deliberately manipulates the evidence, their motivation could be attributed to the employer.

In the other two scenarios which the Court described, the manipulator’s motivation could not be attributed to the employer – cases where the manipulator misleads the decision-maker, but has no responsibility for the employee, and situations (like the Jhuti case) where the manipulator does not have responsibility for the dismissal.

Whilst this is a welcome decision for employers, they should still be alert to situations where manipulation by an employee could be attributed to the employer. Even if an employee in such a case could not succeed in a claim for automatic unfair dismissal against the employer, they could potentially bring a claim on the basis that they have been subjected to a detriment, by a fellow employee, for blowing the whistle – and the employer could be found liable. Although, in detriment cases there is a potential defence if the employer can show that they took all reasonable steps to prevent the detrimental treatment.

Our advice is to make sure your whistleblowing and disciplinary procedures are up to date, and that your managers are properly trained on them – we can assist with both, just get in touch.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Burden of proof – already back to the way it was!

As employment lawyers, we are very used to keeping up to date with ever-changing case law. However even so, it is still fairly unusual for me to need to write an article in December about the reversal of a decision I wrote about only in August! My August article is here and was about the case of Efobi v Royal Mail, where the Employment Appeal Tribunal’s decision reversed the long-established position about the burden of proof in discrimination cases (which some had described as ‘guilty until proven innocent’ for employers).

Employers will be relieved to hear that the Court of Appeal (in the case of Ayodele v Citylink (2017)) has now concluded that the Efobi case was wrongly decided and therefore the burden of proof rules should revert to how they had been interpreted previously.

In Ayodele, Court of Appeal found that (as had been previously thought) under the Equality Act generally the burden of proof is on the Claimant to establish a basic case, and if that basic case is established, the burden of proof moves to the Respondent to disprove discrimination. However, the judgment did emphasise that a flexible approach is needed, so rigid adherence to burden of proof rules may not necessarily be appropriate. In many discrimination cases, the burden of proof will not be a significant factor, and it is important for it not to be the sole focus.

Before the Ayodele judgment was issued, an appeal had been made in the Efobi case. However, given the Court of Appeal’s ruling, it is not clear what will happen about that appeal now. We will of course keep you informed about any further developments.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Headphone wearing employee largely to blame for his own unfair dismissal

If an employee’s behaviour is such that the ordinary man in the street would say that they deserved to lose their job, would their dismissal be fair in law? Not necessarily. Employment law has developed a vast array of legislation and case law by which the question of whether a person was unfairly dismissed is decided, and the fact that the dismissed employee was largely, or even completely, to blame for their downfall may not be the determining factor.

This was illustrated in the recent Employment Tribunal decision of Onyike v Sainsbury’s (2017). Mr Onyike worked as an assistant in the delivery yard of the Wandsworth store. This area was frequented by articulated lorries and other goods vehicles delivering produce to the store and was an acknowledged high risk area. Everyone entering the area was required to wear high-vis jackets, and there were prominent safety notices warning employees of the need for them to be aware of vehicles entering and manoeuvring in the yard. Sainsbury’s Health and Safety procedures were also set out in the company handbook and made it clear that a failure to follow the procedures was likely to be treated as gross misconduct.

Mr Onyike was seen by the store manager wearing headphones whilst working in the yard. The manager said that he told Mr Onyike to remove them; Mr Onyike said that he simply signalled for him to take them off. A few days later a deputy manager saw Mr Onyike again wearing headphones and confronted him. Mr Onyike said that the headphones were turned off. The next day My Onyike was summoned to a meeting to investigate the allegation that he had failed to follow the company’s Health and Safety procedures. He admitted that he had been wearing the headphones, but again said that they were not playing any music.

The matter proceeded to a disciplinary hearing. Mr Onyike said that wearing headphones was not a breach, and that he was wearing a high-vis jacket, so drivers would be able to see him. He maintained that he could hear, even when wearing headphones, and also acknowledged that he had been told by the manager and the deputy manager not to wear them. Sainsbury’s took the view that this was a serious breach of health and safety and ultimately dismissed him for gross misconduct. Mr Onyike appealed, and his appeal was unsuccessful.

He then brought claims for unfair dismissal and wrongful dismissal in the Employment Tribunal. The Tribunal found that it was reasonable for Sainsbury’s to take the view that Mr Onyike’s hearing would be impaired by him wearing headphones, whether or not they were on, and that it was perfectly justified in treating the matter as being very serious. However, it also found that Sainsbury’s had not expressly stated that wearing headphones was a breach of their Health and Safety procedure, and therefore the dismissal was unfair. However, the Tribunal also found that Mr Onyike was 80% to blame for his dismissal, and reduced his compensation by 80% due to his contributory fault.

Tribunals do have the power to reduce compensation because of the employee’s contributory fault. In my experience an 80% reduction is relatively uncommon, but it certainly something which employers should argue in appropriate circumstances. In one case, I have managed to get compensation reduced by 100% because of the contributory fault of the employee – but I have argued for that on several other occasions and only achieved a lesser reduction.

This case is Employment Tribunal level only, and therefore not binding on other Tribunals, and in any event contributory fault is inevitably something that has to be considered on its own facts. Nevertheless, this case is a useful example of how contribution can still be a highly relevant factor.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

A (data) chain is only as strong as its weakest link

One of the data protection principles under the Data Protection Act 1998 (“DPA”), states that data controllers must take “appropriate technical and organisational measures…against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, and damage to, personal data.”

What happens when a data controller does not take appropriate measures? We recently found out in a case heard in the High Court (Various Claimants v WM Morrison Supermarkets plc (2017)).

The case involved a Morrisons employee who was a senior internal IT auditor. He had access to payroll data, and decided to publish that data on a file sharing website. The file contained the personal details of around 100,000 employees. He did this because he was aggrieved at disciplinary action that had been taken against him. The employee was convicted of offences under the Computer Misuse Act 1990 and the DPA, and received a sentence of 8 years in prison.

A group of just over 5,500 employees of Morrisons then sought to claim compensation for breach of statutory duty under the DPA, as well as for breach of confidence and misuse of private information.

The High Court dismissed the claims that there had been a breach of the DPA, but held Morrisons as vicariously liable for the employee’s conduct (for an explanation of the concept of vicarious liability, see our previous article here). The judge felt that there was sufficient connection for the employee to have taken such action in “the course of his employment”, even though Morrisons would not have authorised the publication of the data on a file sharing website. The judge cited various reasons for coming to this conclusion, including that Morrisons had entrusted the employee with the payroll data, that he was employed on the basis that he would receive confidential information and be required to disclose such information to a third party (an external auditor) as part of his job, and that Morrisons took the risk that it might be wrong in placing its trust in him. The fact that the disclosures were made much later, from the employee’s home, outside working hours and using his own personal computer did not “break the connection” with his employment.

The decision will allow the 5,500 employees to claim compensation.

This is quite an alarming decision for employers – the High Court acknowledged that there is no failsafe system for entrusting individuals to handle such data, and that there will sometimes be (hopefully rare) circumstances where rogue employees will set out to deliberately cause damage to their employer by disclosing data. Despite this, it went on to find Morrisons liable. The High Court may have been mindful that without such a decision, the employees affected were unlikely to be able to get compensation from anyone else (Morrisons having the deepest pockets, and insurance!).

For employers, the message here really is to ensure that your insurance policies will cover such claims, to follow any requirements of your insurance policy and also to do whatever you reasonably can to protect the security of data you hold about employees.

The High Court have granted Morrisons permission to appeal the decision, and they have indicated that an appeal is very likely. We will keep you informed of any developments.

Do also bear in mind that the DPA is set to change in May 2018 in line with the forthcoming EU General Data Protection Regulation (GDPR) – for more information on GDPR, please see out previous article here.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

How not to handle a flexible working request

Flexible working requests – the law

Before we look at some lessons to be learned around dealing with flexible working requests from a recent case, here’s a re-cap on the law:

Employees with at least 26 weeks’ service have a statutory right to make a request for flexible working. Employers should:

  • deal with a request in a reasonable manner (including meeting with the employee to discuss it);
  • notify the employee of their decision within three months (unless the parties agree an extension); and
  • only refuse a request on one of 8 grounds set out in the legislation.

Click here to see our previous article for more about flexible working requests.

If the procedure is not followed or if the employee is not happy, they can bring claims against their employer for breach of the Flexible Working Regulations, and if the claim succeeds, the Employment Tribunal can order the employer to reconsider the request, and/or compensate the employee in such amount as the Tribunal considers just and equitable – up to a maximum of 8 weeks’ pay (currently capped at £489 per week).

King v Tesco (2017)

Mr King, a delivery driver employed by Tesco, made a written request to swap his Saturday shift for a Wednesday shift, to help with child care arrangements for his son. The request was refused and Mr King brought a successful claim against Tesco for breach of the Flexible Working Regulations. In its judgment, the Tribunal highlighted several areas where Tesco had gone wrong in dealing with the request:

1. Failing to be aware of, or following, company procedure

Managers at the store were unfamiliar with the company’s Flexible Working Policy, despite it being readily available on the company’s intranet. They did not check the policy, or seek guidance from someone more senior.

The Tribunal was, in particular, concerned about the evidence of one manager who said in his witness statement that he had a lot of experience dealing with flexible working requests, and had received management training on how to deal with them, but who said in his oral evidence that he had never dealt with a flexible working request before, had never seen the Flexible Working Manager Guide, and was not familiar with the company’s policy!

2. Losing the employee’s written request, and blaming the employee for the delay

Tesco lost Mr King’s original written application, and tried to explain their delay in dealing with it by blaming him for not providing a further copy when asked. The Tribunal found it was very clear what Mr King was asking for (or a short meeting would have been sufficient if anything had needed clarifying), and noted that Tesco’s own policy stated that a request did not have to be in writing.

3. Taking too long to deal with and respond to a request

When Mr King chased up his request, he gave a deadline for Tesco to respond. Tesco tried to argue that this was an agreement to extend the three month deadline for responding to his request. The Tribunal did not agree – they said that Tesco should have sought Mr King’s express agreement to an extension of the deadline if that is what they wanted.

Despite showing that they were capable of dealing with other matters in a reasonable time frame, Tesco took 4.5 months to deal with Mr King’s request.

4. Failing to discuss the request with the employee

Although Mr King was eventually called to a meeting, this was merely to tell him that his request was refused. The manager did not seek any input from Mr King or take time to consider any representations from him, which did not comply with the ACAS Code of Practice on handling flexible working requests (Tribunals are required to take the ACAS Code into account when it appears relevant).

5. Not offering a right of appeal

Mr King was not offered a right of appeal, even though the company’s policy and guidance gave a right of appeal, and this was also contrary to the ACAS Code. The Tribunal found that it was unreasonable for Tesco to have assumed that Mr King was content with the outcome and that they should have offered a right of appeal.

Whilst this decision was only at Employment Tribunal level, and therefore not binding on other Tribunals, it does provide a useful reminder of some of the pitfalls to be avoided when dealing with flexible working requests from employees, including making sure that your policies are up to date and that your managers are adequately trained in how to recognise and deal with flexible working requests. If your flexible working policy needs updating, or if you don’t have one, then we can help – just get in touch.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Changes to watch out for in 2018

It was announced the Autumn 2017 budget that:

– The National Living Wage (for those aged 25 and over) is to increase by 4.4% from £7.50 per hour to £7.83 per hour from 1 April 2018.

The other National Minimum Wage rates will also increase as set out below:

21 to 24 year olds: from £7.05 to £7.38 per hour (up 4.7%)

18 to 20 year olds: from £5.60 to £5.90 per hour (up 5.4%)

16 to 17 year olds: from £4.05 to £4.20 per hour (up 3.7%)

Apprentices: from £3.50 to £3.70 per hour (up 5.7%)

– From April 2018, all payments in lieu of notice will be subject to income tax and national insurance contributions, whether or not there is a payment in lieu of notice (or ‘PILON’) clause in the contract of employment. However, the introduction of employer’s national insurance contributions on termination payments over £30,000 will be delayed by a year, and will therefore not take effect until April 2019.

– The Government will publish a discussion paper as part of its response to the Taylor review of modern employment practices (find our article on the Taylor review here), looking at potential changes to the employment status tests for both employment rights and tax purposes.

Changes to the following statutory rates have also been announced:

– The weekly rates for statutory maternity pay, statutory paternity pay, statutory adoption pay and statutory shared parental pay will increase to £145.18 (up from £140.98) from 9 April 2018.

– The rate for statutory sick pay will increase to £92.05 per week (up from £89.35) from 9 April 2018.

 

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

Joint employers? – Outsourced workers attempt to change the status quo

Many employers in the UK outsource certain tasks such as facilities management, cleaning or security. Employers engage another company to provide the service, and it is that company which employs the individuals (either as workers or employees) to deliver the service. This often means that the individual engaged by the company has no direct employment relationship with the end user client, even though they sometimes work side-by-side with directly employed employees.

A group of workers who work at the University of London are trying to challenge this. The workers are mainly porters, security guards and receptionists. They work for a company called Cordant which is contracted to supply services to the University of London. The workers say that they do not receive the same rights and benefits as those directly employed by the University of London.

The Independent Workers Union of Great Britain (IWGB) has lodged a case with the Central Arbitration Committee (CAC) on behalf of the workers. The CAC is a public body that seeks to resolve disputes involving trade union recognition and collective bargaining.

The IWGB are seeking a ruling that the workers have a right to collectively bargain with the University of London in regard to their pay and working conditions. This would essentially mean that the University of London is recognised as a joint employer along with Cordant. The concept of ‘joint employers’ is a US concept that has existed there for some time, but is not recognised in the UK.

Whilst this is an interesting case, if it is successful, it seems difficult to see how such a concept would really work in the UK where outsourcing is the norm for many large employers. If the notion of joint employers was to go any further than collective bargaining rights, it could create more complexities for employers in terms of applying the employment rights that we do have in the UK. For example, if an individual is unfairly dismissed by one of the joint employers, would both employers still be liable for any Employment Tribunal claim arising from that dismissal? Creating such complexity is not likely to be popular with employers and we feel it is unlikely that the CAC would have the appetite to introduce such a significant change.

Do keep an eye on our ebulletins as we will report on any developments in this case if they happen.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Breaking News – Another important holiday pay case

Yesterday a judgment was issued by the European Court of Justice which could have very significant implications for all holiday pay cases in the UK, especially in the ‘gig economy’.

The case of King v The Sash Windows Workshop Limited had been ongoing for some time through the UK courts, and relates to Mr King’s annual leave for the period from 1999 to 2012.

The Sash Windows Workshop (SWW) said that Mr King was self-employed and was therefore not entitled to paid holiday. During the years in question, he had taken time off, but it had always been without pay, and in one of the years he had taken no leave at all.

After SWW terminated their relationship with Mr King, he brought a claim for his holiday pay. He claimed that he should have been entitled to paid holiday all along, and that as he had been prevented from taking any paid leave, his entitlement should have been carried forward.

Although it was clear that in the circumstances Mr King had met the definition of ‘worker’, the problem he had was that Regulation 13(9) of the Working Time Regulations specifically states that workers cannot carry forward leave – it has to be taken within the relevant holiday year, otherwise it is lost.

Mr King’s argument was that Regulation 13(9) cannot apply if the employer has prevented the worker from taking the leave.

The Employment Tribunal found in his favour, but SWW appealed to the Employment Appeal Tribunal, and the EAT upheld SWW’s appeal. Mr King then appealed to the Court of Appeal, and the Court of Appeal referred the case to the European Court.

The European Court said that Regulation 13(9) is incompatible with EU law and should be disregarded. The Court seems to have seized the opportunity to set out some clear principles that apply to the right to take paid annual leave. It decided that SWW was wrong to say that Mr King was not entitled to paid leave, and that the company must face the consequences of not allowing him to exercise his statutory right. The conclusion was that a worker must be allowed to carry over and accumulate untaken leave – and the Court placed no limit on the time period for that, so it could potentially carry forward indefinitely. Therefore claims could potentially be backdated to when the Working Time Regulations 1998 came into force.

This will be particularly relevant for the recent cases we have seen in the ‘gig economy’ such as Uber, CitySprint and Pimlico Plumbers. Many of those businesses are of course relatively new, and therefore they may not be worried about 19 years of backdating. However, where previously the value of any holiday pay claims would potentially have been limited to the holiday pay for one leave year, that is clearly no longer the case, so their potential exposure to more claims, and claims with higher value, is much greater.

It is of course worth noting that the European Court’s decision only applies to the 20 days’ leave granted under the Working Time Directive, and not to the additional 8 days’ statutory leave given in the UK under the Working Time Regulations. It also doesn’t apply to any contractual leave an employer may give over and above these minimum entitlements.

The case may also affect the interpretation of some of the UK’s previous key case law, particularly the Bear Scotland case regarding voluntary overtime in holiday pay (and potentially also the Lock case regarding commission in holiday pay). As we covered at the time, one of the aspects of the Bear Scotland decision which was a bit of a grey area was the idea that in a ‘series of deductions’ (i.e. a series of incidents of non-paid or under-paid holiday pay) if there was a gap of more than 3 months, that would time-bar an employee from bringing an unlawful deduction of wages claim for the period before the gap.

Following the Bear Scotland case, the Government introduced new regulations to limit the period of any unlawful deduction from wages claim (which would include a claim for unpaid holiday pay) to a maximum of 2 years (see our article on this here). It now appears those regulations are highly likely to be challenged.

All in all, this is a decision which could now open the floodgates for holiday pay claims, and of course now that Tribunal fees have been abolished there is little for workers to lose in giving their claims a try. We will continue to keep you updated on developments via our monthly ebulletins.

This can be a complex and difficult area of law. We have experience of dealing with holiday pay cases, so do give us a call if you have an issue we can help with.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

A white lie doesn’t matter – or does it?

If we have to deliver an unpleasant message to someone, it can be tempting to water it down a bit to make it a bit more palatable and to soften the blow for the recipient. For example, if you are dismissing an employee for poor performance who has only been with you for a few months, some might think it kinder to tell them that they are being dismissed because there is a ‘business reorganisation’. There’s no harm in that, is there? Yes, according to the Employment Appeal Tribunal (EAT).

This was exactly the scenario which the EAT considered in the case of Rawlinson v Brightside Group Limited (2017). Brightside Group are a firm of insurance brokers, and Mr Rawlinson was employed as its in-house counsel. Mr Rawlinson had only been in the role for a few months when he was given notice that his employment was being terminated and that he would be required to work his three months’ contractual notice. He was told that the reason for his dismissal was a reorganisation and an intention to outsource legal services. In fact, the reason for his dismissal was that the company had concerns about his performance, although these had never been raised with him.

Mr Rawlinson did not have sufficient service to claim unfair dismissal, but he resigned with immediate effect and brought a claim in the Employment Tribunal for his notice pay. He argued that by giving him a false reason for his dismissal, the company had breached the implied term of trust and confidence and therefore he was entitled to leave without working his notice.

At first instance, the Employment Tribunal disagreed. They held that the company’s failure to talk to Mr Rawlinson about their performance concerns did not amount to a fundamental breach of contract, and that the real thrust of Mr Rawlinson’s claim was the manner of his dismissal. It has long been established that an employee cannot recover damages for breach of contract in respect of the manner of their dismissal.

Mr Rawlinson appealed to the EAT. The EAT agreed with Mr Rawlinson and allowed the appeal. They held that in nearly all cases the implied term of trust and confidence will put an obligation on both employer and employee not to mislead the other. They went on to say that their judgment did not mean that an employer was being placed under any new obligation to give an employee a reason for their dismissal (for most purposes there is no obligation to provide a reason for dismissal to an employee with less than two years’ service), but if an employer does decide to give a reason, the implied term requires that it be given in good faith.

This is an interesting decision, and one which employers would do well to remember. As I said at the outset, it is often felt to be kinder to give a poor performing employee a less critical reason for dismissal, but it could come back to bite you. In this case the loss would be the three months’ notice pay, but in other scenarios it could be more.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Taxi for Uber! – Part 2

It’s been almost a year since we reported on the Employment Tribunal case brought by a number of Uber drivers, who successfully argued that they were ‘workers’ (as opposed to self-employed contractors) and therefore entitled to rights such as the right to be paid the National Minimum Wage and the right to take paid holiday, as well as being subject to rules around working time.

Uber brought an appeal against that decision, and the judgment of the Employment Appeal Tribunal (EAT) has just been released.

The EAT has agreed with the Tribunal that the Uber drivers are workers, and held that the Tribunal was entitled to find that the drivers were working when they were on duty i.e. in their territory with the app switched on – notably there was a requirement that they should accept at least 80% of trip requests whilst on duty.

The judgment is also a reminder that the label applied to a relationship in a written contract will not fool the Tribunal, if it is inconsistent with the reality of the relationship between the parties.

This is one of several recent cases involving those working in the ‘gig economy’, which has been in the spotlight recently (you can find our article on the Taylor review of modern working practices here, and our article on employment status issues here).

It is of course possible that Uber may seek to appeal further, and we will keep you informed of developments. The next big ‘gig economy’ case is due to be heard by the Supreme Court in February 2018, when it will hear a challenge by Pimlico Plumbers to a Court of Appeal ruling that one of its plumbers was a worker, as opposed to a self-employed contractor.

**Update – Uber applied for permission to appeal directly to the Supreme Court, by-passing the Court of Appeal, but this was refused and so their appeal will now be heard by the Court of Appeal.**

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

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