Are Uber drivers workers? Our take on the latest decision

Yesterday afternoon the Court of Appeal handed down its judgment in the case of Uber v Aslam and others. I actually found it a surprisingly interesting read, although that may just be me (!) – if you decide to take a look then be warned, it is 70 pages long!

The media headlines were all about the fact that yet again, the courts had concluded that Uber drivers are ‘workers’ and therefore entitled to paid holiday and the National Minimum Wage.

Now it is of course true (as we have covered in our previous articles) that Uber has lost the case at every stage so far – the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal. Therefore in many ways the Court of Appeal’s decision is not a surprise.

However, it is important to point out that Uber has been granted permission to appeal to the Supreme Court, so the matter is far from over yet. Also, as Uber have pointed out, the Court of Appeal’s decision was not unanimous – the decision was on a 2 to 1 majority basis, as one of the Court of Appeal judges (Lord Justice Underhill) said that he would have found in Uber’s favour. The outcome at the Supreme Court is not therefore as clear-cut as some people would have you believe.

In particular, Lord Justice Underhill pointed out that terms set out in the contractual documentation between the parties should only be ignored if it does not genuinely reflect the basis of the relationship between them. In this case, he felt that it was different from the Autoclenz case (which we covered in our previous articles here and here) in that there were no grounds to ignore the contract that states that the drivers are genuinely self-employed. He also referred to the similarities between Uber’s relationship with its drivers and that of a minicab firm which acts as an intermediary between passengers and drivers. He felt that the Court of Appeal’s majority decision goes too far, and that if the drivers need protection (because of their unequal bargaining position when compared with Uber), then that would be a matter for Parliament to deal with by way of legislation.

So the case goes on – it is expected that it could take many months for it to be heard by the Supreme Court, but we will of course update you as soon as there is any more news.

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.

The fairness of summary dismissals under zero-tolerance policies

If an employer has a zero-tolerance policy, and the employee breaches this, can the employer fairly dismiss for gross misconduct without considering any mitigating factors?

In the case of Arnold Clark Automobiles Ltd v Spoor, Mr Spoor had 42 years’ service and a clean record. He lost his temper with a colleague, and admitted grabbing him, but denied any physical violence.

Mr Spoor apologised to his colleague, and the incident was dealt with informally by their manager. However, HR decided that a formal investigation was required, as there was an allegation of physical violence. The company’s disciplinary policy included physical violence as an example of gross misconduct.

Mr Spoor was summarily dismissed following a disciplinary process, and his internal appeal was unsuccessful. The company’s position was that Mr Spoor’s long service and prior clean record were not relevant, because they took a zero-tolerance approach towards physical violence.

Mr Spoor brought claims for unfair dismissal and breach of contract in the Employment Tribunal, and his claims were upheld. The Tribunal found that the company’s investigation was outside the range of reasonable responses open to a reasonable employer (the views of Mr Spoor’s managers as to the seriousness of the incident had not been sought or taken into account). The Tribunal also held that no reasonable employer would have dismissed Mr Spoor, ‘having proper regard to all of the circumstances including his previous record’.

The company appealed to the Employment Appeal Tribunal (EAT), unsuccessfully. The EAT found that whilst there was physical violence which amounted to gross misconduct under the company’s policy, there was no evidence that the company did actually operate a zero-tolerance policy on physical violence. The EAT also noted that the company policy said an employee will “normally be dismissed with immediate effect” in cases of gross misconduct, but this suggested that the company had a degree of discretion, which they failed to exercise in Mr Spoor’s case.

The lesson for employers is that even if you say you have a zero-tolerance policy, it is still important for you to carry out a thorough and reasonable investigation and consider all of the circumstances, including mitigating factors. It is also important to make sure that employees are treated consistently in similar situations (see our previous article on the importance of consistency 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.

Protection against discrimination for vegans

As you may have seen in the news, a case is being brought against the League Against Cruel Sports which is believed to be the first time that someone in the UK has claimed discrimination on the basis that they are a vegan.

The Equality Act 2010 includes ‘philosophical belief’ as one of the nine protected characteristics that give protection against unlawful discrimination. The Claimant in the case, Mr Casamitjana, is arguing that his veganism meets the definition of philosophical belief and that he was dismissed because of it after raising concerns about the ethics of some of his employer’s pension funds. The League Against Cruel Sports denies that this was the case.

According to the Vegan Society, the number of vegans has quadrupled in the last 4 years and now stands at approximately 600,000 in the UK. Mr Casamitjana describes himself as an ‘ethical vegan’, not just a dietary one. This means that his veganism is about avoiding animal exploitation in every aspect of his life.

Many of the press articles have described this as a ‘landmark’ case, but actually in my opinion it is fairly obvious that ethical veganism would meet the definition of a philosophical belief. As Peter covered in our article earlier this year, case law requires that the belief in question:

  • is genuinely held
  • is more than an opinion or viewpoint;
  • relates to a weighty and substantial aspect of human life and behaviour;
  • must have a sufficient level of cogency, seriousness and importance;
  • must be worthy of respect in a democratic society;
  • must have a similar status to a religion;
  • need not be shared by others; and
  • may or may not be based on science.

When you consider that the courts have already found that a belief in climate change amounts to a philosophical belief (the case of Grainger v Nicholson), it is difficult to see how anyone could argue that ‘ethical veganism’ does not pass the test. In fact, the Equality and Human Rights Commission actually includes veganism as an example of a philosophical belief in its guidance!

Of course, that does not necessarily mean that Mr Casamitjana’s claim will succeed. The League Against Cruel Sports have said that he was dismissed for gross misconduct. Even if veganism is protected as a philosophical belief, the Tribunal will still have to consider whether or not he was actually discriminated against.

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.

 

Top Employment Law Stories of 2018

Employment law never stands still, and 2018 was yet another busy year. I thought it would be useful to look back at the developments over the past 12 months by looking at the top 10 most popular stories on our News page. (Please feel free to imagine the Top of the Pops music playing in the background!)

At number 10, we have Marianne’s article about the case of Talon Engineering v Smith, Disciplinary hearings and absent companions – to postpone or not to postpone? The popularity of this article definitely matches with what we are seeing in practice, as several of our clients have seen employees testing the limits of how far employers will be prepared to delay hearings based on a companion’s unavailability.

And up next at number 9 is Peter’s article about the changes which took effect on 6 April 2018, Taxation of termination payments – what’s changing? The changes have already had a significant impact on a number of the Settlement Agreements we have dealt with for both employers and employees since April.

Number 8 for 2018 was Marianne’s article about the case of De Souza v Primark, Employee awarded £47,000 in transgender discrimination case. We have noticed a significant increase in the number of enquiries about gender reassignment over the past few years, and certainly the compensation figure in the De Souza case is a wake-up call for employers to ensure they are aware of their obligations in this complex area.

In at 7 was my March article about the National Minimum Wage – NMW headaches for employers. The NMW also came in at number 6 in our article about the latest case law on sleep-ins, which we covered in July: Latest case – an end to the sleep in crisis?

Making it to number 5 is a case where the highest court in the land had to decide whether someone received their notice when it arrived in the post, or when they actually read it. A simple question on the face of things, but an important one: When does notice take effect?

One of my articles from October came in at number 4Can you make someone redundant when they are off sick? It is not surprising that this one struck a chord with many of you, as I wrote it as a result of several clients having similar queries. The short answer is yes, but of course there is always more to it than that!

At third place in the table is Can smaller offences ever ‘add up’ to gross misconduct? Previously, it had tended to be the case that gross misconduct had to be one significant issue, rather than a collection of smaller ones, but although the case of Mbubaegbu v Homerton University Hospital found that was normally right, there were exceptions when smaller matters could be added together to justify summary dismissal.

Number 2 was good old Mr Bump – To bump or not to bump? As we say in the article, bumping is something that we get asked about a lot, and clearly has been a very popular topic in 2018, but it actually is fairly unusual to see it successfully used in practice!

And finally, our number 1 story from 2018 was Repayment of training costs – is it legal? This is obviously a particularly hot topic for both employers and employees – and it is important that employers have proper agreements in place if they want to try and recover training costs from departing employees. Do get in touch if you need help with any issues around training costs.

Thank you to everyone who reads our articles – we get some lovely feedback and it is great to hear that they are useful to you. We’ll continue to keep you all bang up to date with everything 2019 has in store!

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.

Good Work Plan?

Possibly as a bit of a distraction from Brexit, the Government have announced a Good Work Plan which is designed to improve protection for agency workers, those on zero hour’s contracts and others with atypical working arrangements. The main headlines are that the Government plans to:

  • Introduce a requirement for all employees and workers to be given a statement of their terms of employment on or before their first day of employment. The current requirement only applies to employees, not workers, and is for the statement of terms to be issued within 2 months of them starting their employment. The statement will also have to give details of pay for all periods of absence, including maternity and paternity pay. Currently the employer only has to give details of pay for holidays and periods of sickness. This new requirement will come into force on 6 April 2020.
  • Increase the period required to break continuity of employment from one week to four weeks. In practice, one week is rarely enough to break continuity of employment anyway, but it will be interesting to see how the four week period works in practice.
  • Increase the reference period for calculating variable pay from 12 to 52 weeks. This applies when calculating pay for employees whose pay varies from week to week. By increasing the reference period to 52 weeks it will iron out discrepancies caused by seasonal work or peaks or troughs in an employee’s pay. This is due to come into force on 6 April 2020.
  • Quadruple the maximum fine which Employment Tribunals can impose on employers who have shown “malice, spite or gross oversight” in breaching employment rights from £5,000 to £20,000. Currently, this power is very rarely used, so it is unlikely to have much impact.
  • Introduce a single enforcement body to ensure vulnerable workers are better protected. Currently, HMRC are responsible for enforcing the National Minimum Wage, and it may be that their responsibilities will be extended.
  • Bring in new legislation to clarify the test of employment status, and to reduce the differences in the employment status tests for the purposes of employment law and taxation status. At the moment, occasionally an Employment Tribunal can find that someone is an employee despite HMRC being satisfied they are self employed, so some clarity in this area would reduce the understandable confusion.
  • Remove the so called ‘Swedish Derogation’ from the Agency Workers regulations which allow some agency workers to be paid less than equivalent employed staff. This is also scheduled to come into force on 6 April 2020.

The detail for much of this has yet to be decided, and at present the Government has not committed to a timetable for some of these reforms.

The main change for most employers will be the requirement to give employees a statement of their conditions of employment from day 1 from April 2020, but this has always been best practice, so the additional requirement should not be too burdensome for organised employers.

We will of course update you on the detail as it comes through.

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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