Tuesday, 3 July 2018

Amazon workers fight 'most high-profile gig economy case'

he case could make other companies think carefully about their treatment of self-employed workers

Delivery drivers used by Amazon are fighting for improved employment rights, in what is being described as the most high-profile gig economy case to date.
Labour union GMB has announced that it is taking legal action on behalf of its members working for three delivery firms used by Amazon, arguing that the companies have wrongly classified them as self-employed.
The union said that self-employed workers face problems that full-time employees do not, despite carrying out similar duties. The issues raised by self-employed workers include having no right to holiday pay, sick pay, or overtime.
GMB said in a statement that the drivers should be regarded as employees, but “companies used the bogus self-employment model to wrongly deny them employment rights such as the national minimum wage and holiday pay”.
The union added: “The drivers were required to attend scheduled shifts that were controlled by Amazon, meaning they did not have the flexibility that is integral to being self-employed. In this situation the couriers were treated like employees in terms of their working hours, GMB Union contends they should be treated as employees in terms of their rights too.”
Two of the three claimants in the lawsuit are claiming whistleblower status, saying they were dismissed after raising concerns about working practices.
Amazon has faced various allegations over poor working conditions. Most recently, in a members survey by GMB, people described working in their warehouses as “soul-destroying.”
Figures obtained by VICE under the Freedom of Information Act last week found that ambulances had been called 600 times in the past three years in Amazon’s UK warehouses. Amazon has frequently denied the accusations.
In response to the VICE figures, an Amazon spokesperson said: “It is simply not correct to suggest that we have unsafe working conditions based on this data or on unsubstantiated anecdotes.”
The latest legal challenge involving Amazon is one of a string of lawsuits related to the gig economy. In a similar case in October 2016, Uber lost an employment tribunal which had challenged the self-employed status of a group of Uber drivers, with judges deeming them workers.
Neil McKay, senior employment and discrimination lawyer at Leigh Day who are representing drivers on the case, told HR magazine that the case should make other companies examine their use of agencies.
"The case is significant in that it directly addresses the system that Amazon uses. They have tried to distance themselves from these companies, but all three [of the agencies it uses] operate in the same way. Amazon is ultimately in charge of determining the way workers are treated."
McKay added that unions play an important role in protecting gig workers.
"The case shows that the work that unions do is still is incredibly important. Many gig workers are extremely vulnerable to exploitation, a lot of them are too afraid to speak out. I hope that more gig workers will join. There's a real public safety concern, not just for workers, but for others on the roads who could be hurt if Amazon drivers are working while tired."
Amy Richardson, associate solicitor at Coffin Mew, highlighted that this case is being hailed as the most high-profile gig economy case to date, with other companies also likely to change their approach to the self-employed if Amazon does.
“It’s one of many cases we’ve seen from companies who choose to use gig workers," she told HR magazine. "[But] it stands out because of how high profile Amazon is as a company, and the amount of publicity it's received over working practices recently."
Richardson said that, though Amazon wasn't legally responsible for agency workers, it's still morally responsible.
"As Amazon is using intermediary companies it would not legally be responsible to pay compensation if it loses the case, and it has always said that employees can work directly for Amazon if they want to," she said.
"But obviously it isn’t really a good excuse. Amazon chose to use these agencies, and even if it wins the case it would face a huge media backlash. It would likely make other companies think very carefully about their treatment of self-employed workers in the future, and possibly bring about changes for gig economy workers.”
My Comment:   it was only a matter of time before they caught up with the big guys,   test the water with the Pimlico Plumbers  and Deliveroos,      then go after the big fish !  

PIMLICO PLUMBERS, the last word ?

Employment Status

Was the Pimlico Plumbers tribunal entitled to conclude that Mr Smith was a ‘worker’ under s230(3)(b) of the Employment Rights Act?

Yes, held the Supreme Court this morning in Pimlico Plumbers v Gary Smith.

Mr Smith issued several claims in the tribunal in 2011. An employment tribunal found that Mr Smith was not an employee but was a 'worker' and 'in employment' within the meaning of the Equality Act. This finding was upheld by the EAT and the Court of Appeal.

For Mr Smith to qualify as a worker, the Supreme Court had to agree that he had undertaken to personally perform work for Pimlico Plumbers and that the company was neither his client nor his customer.

The dominant feature of Mr Smith's contract was that he should perform the work himself; he did not have an unfettered right to give away the work. Although Mr Smith had the ability to swap a shift with another Pimlico Plumber, this was a qualified right not set out in his written contract. Mr Smith was able to reject work and bore some financial risk, but this did not outweigh the factors pointing against Pimlico Plumbers being a client. The company controlled Mr Smith's uniform and his administrative duties, as well as when and how much payment he received. The relationship of subordination was a key indicator that Pimlico Plumbers was not a client of Mr Smith.

Accordingly, the employment tribunal was entitled to conclude that Mr Smith was a 'worker'.

The Supreme Court judgment adds very little to the existing caselaw on the meaning of 'worker'; the court focused on whether the tribunal was entitled - on the facts - to find that Mr Smith was a worker.
My Comment:    well you can't say they didn't  put up a fight,   but the Supreme Court has ruled,   that has to be the end of the matter...………….or does it !    

Does misconduct need to be "gross" to warrant dismissal?

Does 'misconduct' need to be 'gross' to make a dismissal (without prior warnings) fair?

No, held the EAT in Quintiles Commercial v Barongo.

The Claimant worked in pharmaceutical sales. After failing to complete compliance training and missing a compulsory training course, the Claimant was dismissed with notice for 'gross misconduct'. On appeal, the employer re-categorised the misconduct as 'serious', but nonetheless upheld the dismissal. The ET held that the dismissal was unfair, holding that for 'serious' misconduct dismissals, prior warnings are to apply.

The EAT upheld the employer's appeal. Under Section 98 (4) ERA, there was no rule that dismissing an employee without prior warnings for conduct that is less than gross misconduct must be unfair, although in most cases such dismissals are outside the band of reasonable responses. The ET took a rigid view that where conduct fell short of gross misconduct, dismissal could only be appropriate if other warnings were in place. The ET should have considered the entire circumstances of the case, including the ACAS code and the employer's disciplinary procedure; it had substituted its view for that of the employer. The case was remitted to a new ET for reconsideration.

My Comment :     Seems fair to me,   if you behave very badly do you deserve to keep your job just because your actual conduct wasn't on the list on the employee handbook ?     Can you ever trust someone who simply won't do as you tell them ?    

Monday, 4 June 2018

Can an employer be vicariously liable for the criminal actions of a rogue employee

Vicarious Liability and Data Protection Breaches

Thanks to James English of Hempsons solicitors for preparing this case summary.

Can an employer be vicariously liable for the criminal actions of a rogue employee in breach of the Data Protection Act?

Yes, held the High Court, in Various Claimants v Wm Morrisons Supermarkets plc.

In early 2014, the personal details of almost 100,000 Morrisons employees were deliberately published on the internet and sent to three newspapers. The culprit, a senior IT manager, had harboured a grudge against his employer following disciplinary action the year before. Over 5,500 employees brought claims for breach of statutory duty in relation to the Data Protection Act (DPA), the misuse of private information and breach of confidence.

The High Court first considered Morrisons' primary liability under the DPA. The IT manager responsible had been given access to the data as part of his role, it was needed for an audit, but it had been published from his home, on his personal computer, outside working hours and with the deliberate intent of harming Morrisons. The court identified only one breach of the DPA "Morrisons had not organised the deletion of the data from his work computer" but this failure did not cause any loss, the rule being aimed at the inadvertent retention of data rather than its deliberate misuse.

As for vicarious liability, the issue was whether the employee's actions had been in the course of their employment, that is, whether their wrongful conduct was closely connected to their authorised duties. The manager had been entrusted with the data, and received it and copied it as part of his role. The court held that the breach (the later publication) was part of a seamless and continuing sequence of events, and there was sufficient connection with his employment and the wrongful conduct.

Finally, the court granted Morrisons the right to appeal on the basis that the employee's aim had been to cause loss to his employer, and this decision could render the Court a witting accessory to his

criminal actions.


My Comment:  Well yes, actually,    who else could be liable ?    he was their employee with access to their data bases as part of his employment.    The fact that,   on this occasion there was no "Loss"  (phew)  there could well have been !    Perhaps this company will introduce more stringent measures in future!      ( I do accept that "more stringent measures"  will have to be thought up by an "IT person"   hmmmmm   perhaps we might think that "IT PEOPLE"   should be regulated and licenced like financial services ?  


Does video surveillance of lecture halls violate a professor's right to privacy?

Surveillance Cameras and Privacy at Work


Thanks to Karen Jackson of didlaw for preparing this case summary.

Does video surveillance of lecture halls violate a professor's right to privacy?

Yes, held the European Court of Human Rights in Antovic and Mirkovic v Montenegro.

Article 8 of the European Convention on Human Rights protects the right to respect for private and family life. The Dean of the School of Mathematics installed video surveillance in a public lecture theatre at a Montenegro university to "protect safety of property, people and students". It also recorded lectures.

The data was protected by codes known only to the Dean and kept for one year. The Personal Data Protection Agency ordered the removal of the cameras. There was no evidence safety was an issue and therefore no legitimate grounds for data collection. Ms Antovic and Mr Mirkovic brought compensation claims. Domestic courts held that Article 8 had not been violated.

By four votes to three the European Court ruled that although the University is a public sphere, private life encompasses business and professional activities. Article 8 had been breached.

My Comment :    I absolutely despair !!   I could have a coronary !    What utter stupidity to make a decision like this,    since when has a public "sphere" like a lecture hall in a University become the "private life" of  a tutor ?      What if , one day,   the students had kicked off and attacked or abused the lecturer,  what if the lecturer had a "funny turn"   and attacked an unruly student,   I bet they'd be glad of the evidence.  What next, taking out the video cameras from Railway Stations, shopping malls, post offices  etc,    because it impinges on the rights of the staff,   or is an intrusion into the private life of a shop lifter or vandal      The world is going mad !           On a more down to earth note,     Thank you anyway to the ever first class and informative Daniel Barnett site for this piece.   see his site here

Can a dismissal for misconduct without prior warning be reasonable

Can a dismissal for misconduct without prior warning be reasonable when multiple issues arise, none of which are, by themselves, gross misconduct?

Yes, held the EAT in Mbubaegbu v Homerton University Hospital.

The Claimant was a consultant surgeon, of black African origin. The Hospital had introduced internal reporting procedures designed to address a dysfunctional working environment. The Claimant was dismissed for multiple alleged breaches, despite an unblemished career. His colleagues had also faced similar, less serious allegations and none were dismissed. The tribunal held the dismissal was fair, not discriminatory and not wrongful. There was no single finding of an act of gross misconduct by the Claimant.

The tribunal accepted that trust and confidence had been undermined by the employee's conduct. The EAT noted that "it is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee". It saw "no reason why an employer would be acting outside the range of reasonable responses were it to dismiss an employee in whom it had lost trust and confidence in this way".

Another issue was whether the tribunal had erred by looking at the discrimination allegations individually rather than cumulatively when deciding if the burden of proof shifted to the employer. This ground also failed; the EAT was satisfied on a fair reading of the judgment that the tribunal had been "alive to the need to consider matters in the round as opposed to taking a purely fragmentary approach".

My Comment:     Thank goodness,    a rare moment of down to earth common sense ,   more please EAT !             My gratitude as always to the Daniel Barnett site for this report see their site HERE

Sunday, 6 May 2018


My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  Readers,  colleagues and Chums,

 No great earth shattering employment changes this month other than of course,   on the 25th May 2018 the implementation of the new GDPR regulations of which I have mentioned previously.   I trust most of you will have at least addressed the matter,  do remember,  for my retained clients I have a small library of fact sheets and general info and also a "a privacy statement"   and  a generic "Data Protection Policy"   document. In template format of course,  one is eight pages and the other 12 pages, you will need to fill in the relevant sections with regard to your own set up of course.  
              Read on for details, and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul 

First The News:

If an employee works without protest after a variation of contract is imposed, should acceptance be inferred?

Not necessarily, held the Court of Appeal in Abrahall v Nottingham City Council.

When Nottingham City Council sought to regularise a variety of pay systems, it implemented a single system with pay scales determined on a spinal column points basis. The Court of Appeal found the employees were contractually entitled to annual incremental pay progression.

Soon after the new system was implemented, the council brought in a two-year pay freeze. Throughout that period, there was no industrial action (save for a consultative ballot) and no affected employee raised a grievance. When Nottingham proposed an extension of the freeze, the unions activated a collective grievance procedure and then brought these claims.

Apart from deciding whether there was a contractual right to incremental pay progression, the key issue before the Court of Appeal was whether the employees should be taken to have accepted a variation of their contracts by working for two years under the pay freeze.

The Court of Appeal held that they should not, setting out a number of helpful principles on whether acceptance should be inferred, including:

the question is to be determined objectively;

acceptance of a variation of contract should only be inferred from conduct where that conduct brooks no other reasonable explanation save for acceptance;

where the variation is wholly disadvantageous, acceptance is less likely to be inferred;

collective protest may suffice to negative any inference otherwise to be drawn even if the individual employees themselves say nothing;

an employer's reliance on inferred acceptance will be weakened where the employer represented that there was no variation of contract and thus that acceptance was unnecessary.

our thanks to the ever excellent Daniel Barnett site for this informative piece. 

In a redundancy case, must an employee specifically raise 'bumping' before an employer needs to consider it?

No, held the EAT in Mirab v Mentor Graphics (UK) Ltd.  Rather, the decision not to consider 'bumping' must be viewed through the 'range of reasonable responses' test.

Bumping occurs when an employee whose role is redundant is redeployed into another role, and the displaced occupier of that (second) role is dismissed instead.

In Mirab, the Claimant's role had been made redundant and the tribunal held that the dismissal was a fair redundancy dismissal. The tribunal found that the Respondent had done enough in terms of looking for alternatives, and had not been required to consider 'bumping' any other employees because the Claimant had not raised the possibility.

The EAT held that that was an error. There is no rigid rule saying that an employer must always consider bumping in order to dismiss fairly in a redundancy case. Equally, there is no rule that says an employer does not need to consider bumping unless the employee raises it.  The question is always for the tribunal to determine, on the particular facts of the case, whether what the employer did fell within the range of reasonable responses.

The informative Daniel Barnett site has provided this interesting piece ,  our  thanks
Can holiday pay for term-time workers be capped at 12.07% of pay under the Working Time Regulations?

No, held the EAT in Brazel v The Harpur Trust, upholding a visiting music teacher's appeal on the approach to calculating her holiday pay.

The Claimant worked at the Respondent School in term-time on a zero-hour contract. The School calculated holiday pay pro rata to the proportion of the year worked, paying it at 12.07% of a term's pay (i.e. using the percentage reflecting 5.6/46.4 weeks). On a working 'year' of 32-35 weeks, the effect of this was that holiday pay came out lower that if calculated on the basis set out in s224 ERA, taking a 12-week average of pay from weeks actually worked, and ignoring the out-of-term weeks. The EAT held that basing holiday pay on the 12-week average was the correct approach.

The effect of the 12-week average approach is that holiday pay as a percentage of annual earnings for a part-timer on a 32-week 'year' would be 46.4/32 x 12.07% = 17.5%, giving proportionately more holiday pay than a worker working throughout the year getting 5.6 weeks paid leave.

The EAT noted that part-timers are entitled to be treated no less favourably than full-time workers, there is no scope for calculating holiday pay under the Working Time Regulations so as to avoid a 'windfall' for part-timers, or to avoid full-timers not being treated less favourably. The EAT noted that this judgment would be of importance for some schools and teachers.

The Daniel Barnett site provided this timely reminder about holiday pay.

Other tribunal decisions in the headlines

Can agency workers, entitled after 12 weeks to the same basic working conditions as an end-user's employees, be compensated for less holiday or unpaid breaks by a higher hourly pay?

No, held the EAT in Kocur v Royal Mail, upholding two grounds of the Claimant's appeal. 

Regulation 5 of the Agency Workers Regulation 2010 entitled the Claimant to the same basic working and employment conditions as the hirer's comparable employees. He got higher hourly pay, but 2.5 days less holiday; a 1-hour rest break was only paid for 30 minutes, not the hour. His daily pay was £1.95 higher. The tribunal found that this offset those less favourable terms.

The EAT disagreed; an agency or hirer cannot offset a failure to confer a specific AWR entitlement (e.g. the same annual leave) with a higher rate of pay. The entitlement is to the same basic terms and conditions as comparable employees on a 'term-by-term' basis with equal terms, not by comparing the overall package.

However, parity can be achieved in different ways, e.g. identical holiday pay could be provided by a lump sum at assignment end, or in 'rolled-up' holiday pay. If so, the payment mechanism must be transparent so the agency worker can readily ascertain how remuneration relates to annual leave.

The EAT rejected a contention that the Claimant's entitlement to the same 'duration of working time' entitled him to work the precisely the same number of hours as comparable employees (e.g. a 39-hour week); the entitlement would be to the same working time as employees, so not getting an 8-hour shift when the employees' maximum shift is 6 hours.

This piece also from the Daniel Barnett  site. 


In you need further in depth help working out what exactly counts as minimum wage,  the DBIS has produced this 55 page guide,

"Calculating the minimum wage"       
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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.
Case 332 - Passenger’s coffee had to be placed on table by train trolley attendant


Enquirer was on a train and ordered a coffee off the trolley service. They were seated in the window seat and had a passenger next to them. The attendant poured a coffee and put a lid on the insulated cup. The enquirer reached across to take the cup from him but the trolley assistant insisted that he could not do this. He explained that health and safety regulations stated he could not hand him the cup, and he had to physically place it on the table.

Panel decision

There is no specific health and safety regulation which specifies that hot drinks must be placed directly on to passengers’ tables. The measure is a policy decision introduced by the train operator to reduce the risk of scalding if people spill or drop a hot drink being handed to them at their seat, especially in the event of a sudden movement of the train. There has been a reduction in scalding incidents on trains recently, which, coupled with a rising trend in passenger numbers, tends to suggests that such policies are reasonable and can have a positive impact.

Case 331 - Coach driver unable to turn off inside overhead lights


Enquirer was travelling on a coach when the driver made an announcement that he could not turn off two small LED overhead lights due to health and safety reasons. There were still blue LED lights running the entire length of the coach at ground level along the walkway.

Panel decision

Overhead lights are provided to assist passengers who, for example, may want to read at night. Their use should be at the discretion of the passenger and there is no health and safety reason why they could not be switched off. If there was some other reason why the lights on this particular coach could not be turned off the driver should have provided a proper explanation instead of wrongly using ‘health and safety’ a