2018 has seen some important judgments being handed in tribunals and courts.
Ellis Whittam runs through five important employment law cases which have had implications for employers.
1. Employment Status
In light of the emergence of the gig economy, we have seen a series of decisions made by Employment Tribunals about whether an individual is a worker or self-employed. However, the Pimlico Plumbers Ltd and another (Appellants) v Smith case was the first to reach the UK’s highest court, the Supreme Court.
The distinction between worker and self-employed is an important one. As a worker, an individual is entitled to holiday pay and the National Minimum Wage. As self-employed, they would not have these rights.
On the one hand, the Supreme Court took note that Mr Smith could decline a particular offer for work, could take outside work (as long as not from Pimlico clients) and Pimlico did not supervise the way in which Mr Smith did his work. However, Mr Smith had to wear branded Pimlico uniform, drive its branded van, and his contract did make references to “wages”, “gross misconduct” and “dismissal”. On this basis, they agreed that the Employment Tribunal was entitled to conclude that Mr Smith was a worker.
on the Taylor Review."
Stuart Watkins, Proffesional Support Lawyer, Ellis Whittam
2. National Minimum Wage
For the care sector, there have been questions about whether time spent by a worker sleeping on shift counts as working time for the purposes of calculating whether they have been paid at least the National Minimum Wage (NMW).
The issued was put before the Court of Appeal in Royal Mencap Society v Tomlinson-Blake (and others) and they concluded that:
- where a worker is contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity;
- the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working.
3. Data breaches
In WM Morrison Supermarkets plc v Various Claimants, the Court of Appeal held that Morrison was vicarious liable for the actions of an employee who had stolen the personal details of nearly 100,000 employees and posted the data online.
Vicarious liability means the employer is held responsible for the acts of its employees. Although it is difficult to prevent a disgruntled employee from causing mischief with your data you can:
- Make sure employees are familiar with your data protection policy – they should know what their responsibilities are and what the consequences are if they do not comply. You should give them training on data protection issues so they know how to avoid any accidental or deliberate data breach;
- Reserve the right to look at the contents of all incoming and outgoing work emails and the history of the web pages browsed using work devices. This may put employees off accessing and using data for inappropriate reasons and also help you investigate matters if you suspect a breach;
- Remind employees of their implied duty of fidelity. This means if an employee does use or disclose confidential information without your permission, it could be considered to be gross misconduct; and
- If employees do have access to sensitive or confidential data, then you should ensure you have robust post-termination restrictive covenants in employee’s contract of employment. This will reduce the likelihood of employees taking this data with them once their employment with you comes to an end. Great care must be taken when drafting these covenants to ensure they are enforceable, so make sure you seek legal advice at the earliest opportunity.
4. Annual leave
The Court of Justice of the European Union (CJEU) looked at whether a worker automatically loses their right to paid annual leave because they did not apply for it.
In this case, Mr Shimizu worked at Max-Planck Institute in Germany. A couple of months before his employment terminated, the employer invited him to take the leave that he still had outstanding, but they did not force him to do so. He took two days of leave and asked for payment for the other remaining days he had not taken. Under German Law, he had lost his right to carry over this leave to the next year.
The CJEU held that if a worker does not take their paid annual leave, leave should not be lost automatically unless the employer has informed the employee, both accurately and in good time that their leave may be lost at the end of the calendar year. The onus of proof is therefore placed on the employer to prove they have done this.
James Tamm, Director of Legal Services at Ellis Whittam, comments “This decision represents something of a sea change. Prior to this, the view on holidays was traditionally ‘use them or lose them’. This places some emphasis back on employers. Be proactive; set a reminder two to three months prior to the end of the holiday year to tell your workers to book any remaining time off or risk losing it. That sort of simple step will help prevent this decision affecting your business”.
5. Discrimination arising from a disability
The Court of Appeal looked at a case involving disability-related discrimination contrary to section 15 of the Equality Act.
Section 15 of the Equality Act provides that a person discriminates against a disabled person if they treat the disabled person unfavourably because of something arising in consequence of their disability and the person committing the discrimination cannot show that the treatment is a proportionate means of achieving a legitimate aim.
In City of York Council v Grosset, Mr. Grosset suffered a disability in the form of cystic fibrosis. His employer was aware of his condition and they made reasonable adjustments, but when a new head teacher was appointed, who was not informed of Mr Grosset’s disability or the reasonable adjustments that had been agreed. In addition, there was a change to the performance standards which applied to schools and this led to an increased workload for Mr Grosset, who became stressed.
While under this level of stress, he showed a small class of 15-16 years old an 18 rated film. He had not obtained permission from the students’ parents and he had not asked the school for approval. As a result of the incident, disciplinary proceedings were initiated, which ultimately led to Mr Grosset being dismissed for gross misconduct.
The Court of Appeal confirmed that a dismissal can constitute unfavourable treatment under section 15 of the Equality Act even if the employer was unaware that the disability was linked to the misconduct.
All of the above demonstrate how important it is to keep up to date with the relevant Employment Law and HR changes. An expert from Ellis Whittam will be able to keep you on the right side of the law. Contact us to discuss how we can support you.