07 December 2017 by Lydia Newman
Our employment law roundup discusses the gig economy, misconduct investigations and indirect discrimination
A cynic might comment that the taxi app firm Uber’s true disruption is not in the field of transport, or even smartphone software, but in defining the modern boundaries of employment.
In October 2017, the Employment Appeal Tribunal (EAT) confirmed in the case of Aslam and others v Uber BV and others that Uber drivers are workers – not self-employed independent contractors. A key issue in such cases is the degree of control the company has over self-employed contractors.
The more contractors are required to personally provide work for the services they provide, the more likely the self-employed contractors will, by law, be considered workers.
Examples the EAT gave as signs of worker status included:
On the other hand, Uber drivers can chose when they work, contrary to the usual practice of workers.
The taxi app firm is to appeal against the decision, and if this step is taken, it is likely to leapfrog to the Supreme Court, and could be joined with the case of Pimlico Plumbers Ltd and another v Smith, due to be heard in early 2018.
In related news, it remains to be seen whether the government will act on Matthew Taylor’s review of modern working practices and create a new category of ‘dependent contractors’ who would be entitled to workers’ rights.
If the Supreme Court agrees with the decisions made in the lower courts, pressure will increase to legislate to protect these employees created by the gig economy.
Many employers ask whether previous issues can be considered when investigating a new concern in relation to an employee, or at the point of dismissal. In the recent case of NHS 24 v Pillar, the EAT considered the former point, at least somewhat clearing things up.
In this case, a nurse was dismissed for gross misconduct having failed to direct a red flag incident – heart attack symptoms – to call 999. In the investigation, previous concerns were recorded that had led to some training being provided. As such, the lower employment tribunal found the dismissal was unfair, citing previous unrelated incidents being included in the investigation report.
However, the EAT found that the dismissal for gross misconduct was fair.
“It is more likely to be a problem if the investigation lacked detail rather than contained too much”
It noted that considering whether or not an investigation was sufficient was the key first step in a fair dismissal procedure. The appeals tribunal considered that it was for the dismissing officer to decide how to use the background information, but mere mention of previous incidents did not make a dismissal unfair.
It was also noted by the EAT that it was more likely to be a problem if the investigation lacked detail rather than contained too much detail.
This case highlights the fact that the investigation stage of a disciplinary procedure is important, and caution should be exercised in respect of what to include and how this is considered throughout the rest of the disciplinary process.
One issue which the above does not address, but is relevant in light of the forthcoming General Data Protection Regulation, is whether the employer should have kept the previous concerns on record at all. It is possible that this type of data protection related challenge could be brought in conjunction with a challenge to the fairness of a disciplinary procedure.
The yearly Hampton-Alexander review has reported that FTSE 100 companies are on track to achieve 30% women on boards by 2020. Currently 28% of FTSE 100 company boards are female, up from just 12.5% in 2012.
This situation was acknowledged by Philip Hampton who stated: ‘Some of our largest companies have made significant progress towards meeting these challenging targets, both on boards and on leadership teams. We should be seeing all FTSE companies now making strides to improve the gender balance at the top.’
Some argue that progress needs to be made to boost the appointment of women as executive directors. According to a CIPD and High Pay Centre analysis, there are 30 female executive directors in the FTSE 100, and 75% of FTSE 100 companies have no female executive directors.
Although things have shifted, it is clear there is still much to do in order to achieve proportional gender diversity and change organisational culture. Some suggest that focus should be placed upon increasing diversity in the management pipeline across the FTSE 350, with CIPD calling for a voluntary target for 20% of FTSE 350 board-level executive directors to be women by 2020.
In the case of Metropolitan Police v Denby, it was held that a decision-maker who had been influenced in a discriminatory way could be added into proceedings as a joint discriminator, even if they had seemingly not personally been discriminatory.
The case concerned a male police officer, the claimant, who led a group of officers. The deputy assistant commissioner became concerned that the group was not gender diverse and subsequently responded in a heavy-handed way to complaints that the group had claimed overtime not worked for.
Similar complaints into a group led by a female officer were dealt with more leniently. Evidence came to light during the hearing that the commissioner had influenced the decision-maker into launching an investigation into the claimant’s conduct.
It was therefore held that the decision-maker was not innocent, as he was aware of the discriminatory context of the situation.
This case brings to the fore the importance of the separation of decision-makers from any form of outside influence, including their superiors, if there is concern that they could be implicated in any potential discriminatory conduct.
The Parental Bereavement (Pay and Leave) Bill was published in October, mandating any parent who has lost a child under the age of 18 is entitled to two weeks paid leave, notwithstanding length of service.
Although many employers would probably offer something similar, enshrining this right in statute is largely viewed as a welcome addition to the growing suite of ‘family-friendly’ rights. Those who have more than 26 weeks’ continuous service will also receive statutory parental bereavement pay, which employers will be able to recover from the government.
According to the mental health charity Mind, roughly one in four people in the UK will experience a mental health problem each year.
In light of this, in October the Stevenson-Farmer review, ‘Thriving At Work’, commissioned by the government, was published with forty recommendations to improve support provided to employees, asserting that supporting mental health at work is good for business and productivity.
“Poor mental health costs the UK economy £74–£99 billion a year, with a cost to employers of between £33 billion and £42 billion a year”
Analysis produced by Deloitte suggests that poor mental health costs the UK economy between £74 billion and £99 billion a year, with a cost to employers of between £33 billion and £42 billion a year.
Furthermore, evaluation of workplace intervention to support employees shows a return to business of between £1.50 and £9 for every £1 invested.
Under the reviews’ proposals, all employers should adopt six mental health core standards, including: mental health at work plans, mental health awareness for employees, line monitoring responsibilities and routine monitoring of staff mental health and wellbeing.
Public sector and private sector employers with over 500 employees should also demonstrate best practice through external reporting and leadership responsibility, and professional bodies should implement training and support for members.
In a case relating to part-time pensions, Dr Parker v MDU Services Ltd, it was found that it was not an error of law for a tribunal to cut and paste the respondent’s submissions in to the judgment.
The EAT stated that the tribunal’s approach was ‘extraordinary’ in the degree of copying and pasting, but it was not enough to undermine the decision.