Highlights from 2016

Aslam v Uber

Issue

Workers are entitled to certain benefits that are not enjoyed by self-employed persons. Uber’s contracts with its drivers considered them as though they were self-employed. The tribunal was asked to consider whether on the facts a worker status was merited or not.

Facts

Uber operates a mobile app that lets driver seek out and pick up customers who require transport. There was no commitment to supply work for the app and this flexibility was an attraction for many who could fit in the driving around other commitments and lifestyle choices. Once a passenger’s journey was completed, Uber would set a recommended fare and then deduct a service fee of 20-25% for the use of the app. Some driver’s didn’t consider this relationship a fair reflection of their true status and sought to be entitled to rights that workers benefit from such as the minimum wage and holiday pay.

Decision

In reaching its decision that Uber drivers were in fact workers, the Tribunal considered that while active on the app, the driver’s time fell under the definition of working time in Working Time Regulations 1998 provided they were willing to accept the fares and were within the territory where they are authorised to pick up the fares.

Comment

The Tribunal’s decision was largely based on the facts and it was noted that Uber could have achieved the relationship they desired under a different business model. Other similar driver based apps will be taking note at this decision and will likely amend or base its contracts as a result of the outcome. With the significance of this decision given the sudden growth in the app based job industry, it is unsurprising that an appeal is expected to be heard in 2017.

 

G4S Cash Solutions (UK) Ltd v Powell

Issue

The Equality Act 2010 provides that an employer is under a duty to make reasonable adjustments in respect of a disabled worker who is placed at a substantial disadvantage in the workplace. The tribunal considered in adjustments should be aimed at enabling the employee to remain in work for example by reducing hours or modifying duties. However the case of G4S Cash Solutions (UK) Ltd v Powell shows that it is possible the duty to make adjustments might extend to protecting an employee’s pay too.

Facts

Mr Powell was an engineer who could no longer carry out his work due to a bad back. Instead he was given driving duties delivering parts and keys to the other engineers who were out on jobs. Mr Powell came to consider that this newly created role was his on a permanent basis. This arrangement continued up until the employer announced that his pay would have to be reduced to reflect that he was no longer doing engineering work. Mr Powell refused to accept the pay cut and was dismissed.

Decision

It was held that it had been a reasonable adjustment to employ him on the other duties and to maintain his original salary. It considered that pay protection was no more than another form of cost that it might be reasonable for an employer to incur. It could be compared to the costs involved in providing extra training for a worker where necessary.  In the circumstances of this case it was a reasonable step for the employer to take.

Comment

Previous claims that full pay should be maintained during periods of sickness absence have failed on the grounds that the duty to make reasonable adjustments was designed to enable disabled people to play a full part in the world of work and not to pay them for work that they could not carry out. Whilst it might not be reasonable in every case to maintain pay this case does show that fewer duties or responsibilities will not necessarily result in a reduction of pay.

 

Wasteney v East London NHS Foundation Trust

Issue

The Equality Act 2010 provides protection against discrimination on the grounds of religious belief. The importance of this protection is underlined by the fact that under Article 9 of the European Convention on Human Rights a person has the express right to manifest their own religious belief. However in the case of Wasteney v East London NHS Foundation Trust it was shown that this would not prevent disciplinary sanctions being imposed where the employee had been guilty of misconduct.

Facts

Miss Wasteney, Head of Forensic Occupational Therapy and a devout Christian, was subject to disciplinary proceedings and given a warning following a complaint from a junior Occupational Therapist of Muslim faith. It had been alleged that Miss Wasteney had tried to impose her religious views on her by repeatedly inviting her to church events; giving her a book about the conversion of a Muslim woman to Christianity and laying hands on her whilst praying. Miss Wasteney brought claims that the disciplinary action was less favourable treatment on the ground of her religious belief.

Decision

It was held that the employer had been entitled to take the action against her. The Convention rights she had relied upon were not absolute and evidence had shown that the junior employee had not consented to the conduct towards her. The disciplinary action had been taken because a junior colleague had made serious complaints about acts which had blurred professional boundaries and placed improper pressure on her.

Comment

The claim failed as it was considered that the employer would have taken a similar approach had she been pressing a particular non-religious point of view. The religious context of the comments was not really the reason behind the imposition of the disciplinary sanction.  It shows that a distinction has to be drawn between the situation where an employer disciplines an employee for simply manifesting a religious belief, which would be unlawful discrimination and where disciplinary action is taken against an employee for improperly manifesting a religious belief, which an employer is within its rights to do.

 

Khan v Stripestar Ltd

Issue

It has previously been established that an employer may, by following a full disciplinary appeal process, cure procedural defects that would have otherwise caused the dismissal to be unfair, for example by providing the employee with copies of the evidence previously withheld. However the recent case of Khan v Stripestar Ltd had to consider the extent to which an appeal would be able to save an original disciplinary decision that had been made in substantively unfair circumstances.

Facts

Mr Khan supervised a vehicle repair workshop. He had bought a vehicle and had arranged for repairs to be carried out under the pretence that they were for a customer. When this was discovered he was dismissed. The hearing lasted no longer than six minutes and he was given no opportunity to make any representations. Mr Khan claimed the reason was that the manager conducting the hearing had also been involved in the deception. Mr Khan’s appeal was heard by another manager and rejected. He claimed unfair dismissal.

Decision

It was held that the original six minute disciplinary hearing had been wholly inadequate and given that the manager conducting it had been aware that the repairs were for Mr Khan and not a customer the dismissal by him was substantively and procedurally unfair. However the appeal process had been carried out by a manager that had not been involved. He had carried out a full investigation before confirming that Mr Kahn should be dismissed and this cured any unfairness from the earlier stage.

Comment

This case raised the issue of whether there were limits to the extent to which an appeal could remedy a defective first stage in the disciplinary process. It highlights that the appeal manager will be the ultimate decision maker and that the whole disciplinary process will be considered when deciding whether the employer has acted fairly. So whilst simply rubber stamping the original decision to dismiss will not help a thorough and full appeal process can save almost any fault from the first stage.

 

If you would like further information regarding any of these issues or any other issues you have read in this years newsletters please contact Kim Pattullo on 0131 222 9556 or email KPattullo@hbjgateley.com.