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Case Law Update – November 2017

Green files Print publication

24/11/2017

Uber appeal confirms drivers are ‘workers’ – Uber BV and others v Aslam and others UKEAT/0056/17

Those of you who are interested in the ‘worker status’ debate will be aware that the Employment Appeal Tribunal (EAT) has confirmed, decisively, that Uber drivers are not ‘self-employed’ but are engaged as workers.

Why did the EAT uphold the Employment Tribunal’s decision?

For a summary of the original Employment Tribunal decision see our earlier article.

The EAT agreed with the Employment Tribunal that:

  • The reality of the situation was that the drivers were not in business on their own account (as Uber had argued).
  • The drivers were incorporated into Uber’s business model and were subject to a high degree of control.
  • The drivers were ‘workers’ when actually driving on a job. It also agreed, after some consideration, that they were workers when they were logged on to the Uber app and were ready and willing to accept bookings. This was because the drivers were effectively obliged to accept Uber bookings during this time or risk their access to the app being suspended or blocked.

Uber’s argument that it was simply a technology platform and acted as an agent for the drivers to put them in touch with passengers was roundly rejected.

The EAT found that the tribunal had been permitted to find that the drivers were integrated into Uber’s business and operated under its control bearing in mind the following key factors:

  • The scale of Uber’s operation (not determinative but relevant nonetheless).
  • The fact that drivers could not grow their businesses and could not establish a business relationship with customers (they were not given their details).
  • That drivers had no ability to negotiate terms with customers.
  • That drivers had to accept Uber’s terms.

The effect of the decision is that the drivers are entitled to have their working time (both whilst logged on to the Uber app and driving) treated as such for the purposes of the Working Time Regulations 1998 (i.e for holiday pay purposes) and national minimum wage provisions. Their worker status also gives them additional employment rights and protections including the right to be auto-enrolled in a pension.

Walker Morris comment

This decision is further confirmation that an employment tribunal will always look to the reality of the working arrangements rather than the label attached to it.

The reality is that there will be many individuals working in the UK economy on a purportedly ‘self-employed’ basis who, if the spotlight were ever shone by an employment tribunal or HMRC, would be classified as workers. If you are at all concerned that your business might be affected by this it is important to take advice.  Each case will depend on its own facts. For example, individuals working under models where there is far less control exercised over them by the business may be genuinely self-employed.  Business are now clearly ‘on notice’ of the risks and should seek to understand how, if at all, they are exposed.

It is understood that Uber intend to appeal against the EAT decision and may apply to ‘leapfrog’ direct to the Supreme Court (bypassing the Court of Appeal). In the meantime, the case of Pimlico Plumbers v Smith is due to be heard by the Supreme Court in February. Click here for our article on the Court of Appeal decision. We will keep you updated on the outcome of these appeals.

If you would like any advice on this topic please contact David Smedley or Andrew Rayment.

Failure to risk assess for breastfeeding workers is direct sex discrimination – Ramos v Servicio Galego de Saude (C-531/15) EU:C:2017:789

The European Court of Justice (ECJ) has held that an employer’s failure to assess the workplace risks posed to a breastfeeding worker amounted to direct sex discrimination.

 This is important because it challenges the current position in UK law (which prevents a direct sex discrimination claim based on less favourable treatment because of breastfeeding) and creates new potential for direct sex discrimination claims if a woman has suffered a detriment related to breastfeeding.

Under the Equality Act 2010, a breastfeeding worker cannot bring a claim of direct sex discrimination if she is treated less favourably at work because she is breastfeeding. She would only be able to bring an indirect sex discrimination claim. This ECJ decision challenges the UK Government’s interpretation of the overriding European Directive and says that breastfeeding workers should also be able to bring direct discrimination claims.

Walker Morris comment

Most employers will automatically carry out a risk assessment when a worker tells them they are pregnant but this case is a reminder that the duty to risk assess in relation to that worker continues after their return to work if they are breastfeeding their child. The risk assessment must be carried out for the individual worker (an overarching general assessment relating to the role is unlikely to be enough) and it must cover all potential risks focused specifically on breastfeeding. As such, it will not be sufficient to rely on the original ‘pregnancy’ risk assessment because this will address different considerations.

Unfair dismissal – is it fair for an employer to take account of previous incidents that had not been subject to disciplinary action? – NHS 24 v Pillar UKEATS/0005/16

It is well accepted that once a disciplinary warning has expired it should not be taken into consideration in a future disciplinary hearing. Is it acceptable to include details of past incidents in an investigation report especially where the incidents were dealt with by way of training rather than a disciplinary warning?

This question was answered by the Employment Appeal Tribunal (EAT) in NHS 24 v Pillar when it held that an Employment Tribunal had been wrong to find a dismissal unfair because the investigation report included details of previous incidents which had resulted in the employee receiving re-training.

Facts

Ms Pillar was a nurse responsible for triaging calls from the public. In December 2013, she wrongly referred a patient to an out-of-hours medical service rather than calling 999. NHS 24 treated it as a Patient Safety Incident (PSI) and, following an investigation and a disciplinary hearing, it dismissed her for gross misconduct.

The investigation report prepared by an investigatory manager and presented to the disciplinary hearing included details of two previous PSIs in 2010 and 2012. Ms Pillar argued that it was unfair to include these earlier PSIs in the investigation of the 2013 incident. The two previous PSIs were not dissimilar to the one for which she was dismissed and had raised concerns about her triage decision making.  NHS 24 had dealt with the 2010 and 2012 PSIs by requiring Ms Pillar to undergo re-training.  Consequently, she had not been warned at that time that any future breaches would be regarded as misconduct or may influence any future disciplinary decisions.

Employment Tribunal decision

The Employment Tribunal found that it was reasonable for NHS 24 to regard the claimant’s conduct in relation to the 2013 PSI as gross misconduct and that the decision to dismiss was within the band of reasonable responses. Despite this (and perversely as the EAT held subsequently) it found that the investigation had not been reasonable because it should not have included reference to the 2010 and 2012 PSIs as they had not been subject to disciplinary proceedings.  Based on this, the Tribunal found the dismissal to be procedurally unfair although it reduced the claimant’s compensation by 70% for contributory conduct.

Employment Appeal Tribunal decision

NHS 24 appealed and the EAT allowed the appeal on the following grounds:

  • Whilst there may be cases where an overzealous or biased investigation process could be unreasonable, the starting point to decide if an investigation is reasonable is the ‘sufficiency’ of the investigation and not whether it has gathered too much information.
  • Including information in an investigation report should be distinguished from relying on past conduct as a principal reason for dismissal. The key question is whether the dismissing officer relied on the detail of the previous conduct in making the decision to dismiss, not whether it was included in the investigation report.
  • It is a matter for the dismissing officer whether or not to rely on details of past conduct included in an investigation report. In this case the Tribunal had failed to explain why the details of the previous PSIs should have been withheld from the dismissing officer.
Walker Morris comment

It is rare for a claimant to argue that an investigation report is too thorough (usually the complaint is that the investigation did not go far enough). It is helpful to have EAT guidance to the effect that it is unlikely that an investigation report will render a disciplinary process unfair for containing too much information as long as:

  • its contents are relevant to the case under consideration and,
  • there is no underlying bias or ‘witch-hunt’ against the employee.

The Tribunal will focus its assessment of fairness on the dismissing officer’s reasons for dismissal rather than on what was included in the investigation report.

Employers should always give careful consideration to including past warnings or remedial training in a disciplinary case because what is fair in one case will not always be fair in another. In this case, the fact that Ms Pillar’s past conduct had an impact on public safety was considered relevant to the reasonableness of including it in the investigation report.

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