Wednesday, 1 February 2017

FEBRUARY 2017 Employment Law News

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

This months collection of employment law trivia,  is something of a mixed bag,   firstly the City Link story follows on from the last issue UBER case. .It would rather seem there is a ground swell of opinion building on this sort of topic,  namely are people actually workers  or not?   It would seem the time honoured practice of simply calling them "self-employed"  may no longer wash!
     As for the second story,   I am really sorry,  but allowing someone to hide behind a disability to make the decision to wilfully do something that would have had any other employee dismissed, is taking things too far,  and is a misuse of the regulations.
My third story is two fold,   a/  to see how the other half live,      and  b/ to underline my long held mantra,   that it's procedure, procedure, procedure.    Every-time,  never mind the facts!


           Read on for details of this months reports 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: 

Following the UBER case, now the CITY LINK case.

This judgment in Dewhurst v CitySprint UK Ltd could have far-reaching implications for so-called “gig economy” employers that claim their workers undertake services on a self-employed basis and that they effectively run their own businesses.    
The tribunal, which took place on Friday, found that Maggie Dewhurst should be entitled to basic employment rights such as holiday pay, sick pay and the national living wage.
She has worked for CitySprint for the past two years, during which time she has been classed as an independent contractor, despite her role being more like that of a worker.
She told the tribunal: “We spend all day being told what to do, when to do it and how to do it. We’re under their control.”
Tribunal judge Joanna Wade called CitySprint’s contractual arrangements “contorted”, “indecipherable” and “window dressing”.
She added: “It is CitySprint which has the power to regulate the amount of work available, and it keeps its couriers busy by limiting the size of the fleet.
“This gets to the heart of the inequality of bargaining power present in this relationship, and shows that this is not a commercial venture between two corporate entities, as claimed by CitySprint.”
The case echoes a recent “gig economy” case against taxi firm Uber, which took place in October last year. The tribunal found that Uber drivers should be classed as workers and therefore eligible for basic employment rights. The company intends to appeal.

my comment:   I think this topic, will gain momentum,  and we will start to see case after case emerging.         read the full piece on my blog
 


 
Newsflash: 

Dismissal for showing 18-rated film to pupils was disability discrimination 

In City of York Council v Grosset, the EAT accepted that the dismissal of a teacher for showing an 18-rated film to a class of vulnerable 15- and 16-year-olds amounted to unfavourable treatment arising from his disability and was not justified.  

 Mr.Grosset was a teacher who suffers from cystic fibrosis. After a change in his school’s performance standards, he informed the headteacher that his workload had become unreasonable.
Mr Grosset’s workload did not decrease and his health deteriorated. His doctor signed him off work with stress.
The headteacher discovered that shortly before Mr Grosset went on sick leave he had shown the 18-rated film Halloween to a class of vulnerable 15- and 16-year-olds.
The school took disciplinary action. The disciplinary panel did not accept Mr Grosset’s explanation that his decision to show the film had been a momentary error of judgment caused by stress and exacerbated by his cystic fibrosis. He was dismissed for gross misconduct.
Mr Grosset’s claims included a claim for discrimination arising from disability under the Equality Act 2010.
The tribunal concluded that Mr Grosset had shown the film when suffering from an impaired mental state because of stress that arose from his disability and that his dismissal amounted to discrimination arising from his disability.
The tribunal held that in light of all the medical evidence, the decision to dismiss was not justified.
On appeal, the EAT concluded that the employment tribunal had been entitled to find that:
  • the showing of the film was as a “consequence” of Mr Grosset’s impaired mental state due to his disability; and
  • the medical evidence showed that dismissal was not a proportionate means of achieving the legitimate aims of protecting children and ensuring disciplinary standards are maintained.
The EAT dismissed the appeal.
My Comment: this is making a reasonable adjustment for a disability, gone mad!    read the full piece on my blog
 

And this,   just in: 

Couple who sacked housekeeper who let boyfriend stay at £10m mansion and drove Porsche when they were away ordered to pay him £8,000

A housekeeper who drove his millionaire bosses' Porsche and had his boyfriend to stay at their home was unfairly sacked because his employers did not follow the correct procedures, a tribunal has ruled.
Robin Pyke fell out with Jane Gottschalk, who runs a successful coconut water company, after she discovered his boyfriend was staying at her £10 million mansion in Henley-on-Thames, without her knowledge. 
Mr and Mrs Gottschalk
She is also alleged to have been annoyed that he was looking after someone else's dog at the property and charging the owner £500 a week.
Mrs Gottschalk and her husband, financier Maximilian Gottschalk, eventually sacked him after he refused to drive the banker's mother-in-law to London Heathrow airport on his day off.

On Tuesday, in a reserved judgement following the Nov 7 tribunal, Judge Andrew Gumbiti-Zimuto found Mr and Mrs Gottschalk had unfairly dismissed Mr Pyke and the couple will now have to pay him £8,131.
The tribunal had heard that Mr Pyke had worked at the house for 13 years. He was a former gardener at the luxury home before being appointed house manager in September 2014 when the couple moved to Hong Kong to live.
He claimed he was unfairly dismissed by the family after they placed him under so much stress he was forced to seek professional help before he eventually received a text stating "f--k off and leave my house".

My Comment:    as I've said all along,  )ad nauseum!)  never mind the facts, it's the procedure !
read this quite long piece on my blog

Download of employee pay rates,  NMW, "living wage" and other benefit entitlements:

Additionally:
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.

The reality

There are few greater myths than that health and safety has gone mad. During the last four years we've debunked some truly ridiculous misrepresentations of health and safety, including the banning of conkers, firemen's poles and park benches. We've scotched scare stories about excessive safety signs, rebutted rumours about onerous risk assessments and kicked back at claims that kids need to be wrapped in cotton wool.
This trivialisation concerns us. It confuses businesses about their responsibilities and workers about their rights. HSE publishes advice setting out the sensible and proportionate steps we can all take to deal with workplace risks properly.
As we retire the myth of the month series, let us leave you with one thought - health and safety is about saving lives, not stopping them.

The reality/ the Myth: If you run an office-based business you need a health and safety consultant

You probably already deal with most business issues yourself and health and safety should be no different.
If you run a low-risk, office-based business then health and safety is something you can manage without needing to buy in expert help.
After all, you should know your business better than anyone else.

 

The reality / Myth: All park benches must be replaced because they are 3 inches too low

When we heard this story it really took us by surprise. How could there be health & safety law on this? The simple answer is, there isn't.
'It seems that the story originated from a decision by a facility manager and has no basis in health and safety law at all. There are no such bench height requirements and HSE will definitely not be sending our inspectors around measuring the benches!
Well, it looks like Britain's park benches will survive after all!
 

Couple who sacked housekeeper who let boyfriend stay at £10m mansion and drove Porsche when they were away ordered to pay him £8,000



A housekeeper who drove his millionaire bosses' Porsche and had his boyfriend to stay at their home was unfairly sacked because his employers did not follow the correct procedures, a tribunal has ruled.
Robin Pyke fell out with Jane Gottschalk, who runs a successful coconut water company, after she discovered his boyfriend was staying at her £10 million mansion in Henley-on-Thames, without her knowledge. 
Mr and Mrs Gottschalk
She is also alleged to have been annoyed that he was looking after someone else's dog at the property and charging the owner £500 a week.
Mrs Gottschalk and her husband, financier Maximilian Gottschalk, eventually sacked him after he refused to drive the banker's mother-in-law to London Heathrow airport on his day off.

On Tuesday, in a reserved judgement following the Nov 7 tribunal, Judge Andrew Gumbiti-Zimuto found Mr and Mrs Gottschalk had unfairly dismissed Mr Pyke and the couple will now have to pay him £8,131.
The tribunal had heard that Mr Pyke had worked at the house for 13 years. He was a former gardener at the luxury home before being appointed house manager in September 2014 when the couple moved to Hong Kong to live.
He claimed he was unfairly dismissed by the family after they placed him under so much stress he was forced to seek professional help before he eventually received a text stating "f--k off and leave my house".
He told the judge that towards the end of his employment he could not keep up with the work the millionaire couple, who spent time in England with their five children at Christmas and in the summer, demanded of him.
He lived-in at the property and told the tribunal that the had dismissal made him homeless.
"I think I have been loyal and given everything for 13 years", he said. "At no point had I ever been questioned about my trustworthiness and I think I did the job absolutely to my full ability.
"When things went wrong I tried to contact them to resolve it. Some of the issues were resolved, most weren't. There was never any threat my job was going to be affected or on the line."

My Comment;  I reproduce this merely as an example of a/ how the other half live  &  b/ it proves my
long held mantra,  it's the method or procedure you use,  that counts!  



read the full story (yes, there's more!)  at the Daily Telegraph   read here

Tribunal Watch: Teacher’s dismissal for showing 18-rated film to pupils

Dismissal for showing 18-rated film to pupils was disability discrimination 

 
 
In City of York Council v Grosset, the EAT accepted that the dismissal of a teacher for showing an 18-rated film to a class of vulnerable 15- and 16-year-olds amounted to unfavourable treatment arising from his disability and was not justified.  

Discrimination arising from disability: tribunal’s view

“Having regard to the medical evidence… the ET found that the claimant had shown the film when suffering from an impaired mental state such that errors of judgement might be anticipated.
“Specifically, it was more likely than not that the claimant had made the error of judgement in selecting Halloween as a result of the stress he was under; it was not an error he would otherwise have made and, in very large part, that stress arose from his disability…
“Given the seriousness of the error of judgement, dismissal might well be a proportionate response but the facts of this case… meant it was not a proportionate response when the disadvantage to the claimant was put into the balance.”
 Mr.Grosset was a teacher who suffers from cystic fibrosis. After a change in his school’s performance standards, he informed the headteacher that his workload had become unreasonable.
Mr Grosset’s workload did not decrease and his health deteriorated. His doctor signed him off work with stress.
The headteacher discovered that shortly before Mr Grosset went on sick leave he had shown the 18-rated film Halloween to a class of vulnerable 15- and 16-year-olds.
The school took disciplinary action. The disciplinary panel did not accept Mr Grosset’s explanation that his decision to show the film had been a momentary error of judgment caused by stress and exacerbated by his cystic fibrosis. He was dismissed for gross misconduct.
Mr Grosset’s claims included a claim for discrimination arising from disability under the Equality Act 2010.
The tribunal concluded that Mr Grosset had shown the film when suffering from an impaired mental state because of stress that arose from his disability and that his dismissal amounted to discrimination arising from his disability.
The tribunal held that in light of all the medical evidence, the decision to dismiss was not justified.
On appeal, the EAT concluded that the employment tribunal had been entitled to find that:
  • the showing of the film was as a “consequence” of Mr Grosset’s impaired mental state due to his disability; and
  • the medical evidence showed that dismissal was not a proportionate means of achieving the legitimate aims of protecting children and ensuring disciplinary standards are maintained.
The EAT dismissed the appeal.

CitySprint courier should be classed as worker, says tribunal


A tribunal has found that a CitySprint bicycle courier should be classed as a worker, rather than self employed.                                              

This judgment in Dewhurst v CitySprint UK Ltd could have far-reaching implications for so-called “gig economy” employers that claim their workers undertake services on a self-employed basis and that they effectively run their own businesses.
The tribunal, which took place on Friday, found that Maggie Dewhurst should be entitled to basic employment rights such as holiday pay, sick pay and the national living wage.
She has worked for CitySprint for the past two years, during which time she has been classed as an independent contractor, despite her role being more like that of a worker.
She told the tribunal: “We spend all day being told what to do, when to do it and how to do it. We’re under their control.”
Tribunal judge Joanna Wade called CitySprint’s contractual arrangements “contorted”, “indecipherable” and “window dressing”.
She added: “It is CitySprint which has the power to regulate the amount of work available, and it keeps its couriers busy by limiting the size of the fleet.
“This gets to the heart of the inequality of bargaining power present in this relationship, and shows that this is not a commercial venture between two corporate entities, as claimed by CitySprint.”
The case echoes a recent “gig economy” case against taxi firm Uber, which took place in October last year. The tribunal found that Uber drivers should be classed as workers and therefore eligible for basic employment rights. The company intends to appeal.
There are also a number of other outstanding legal challenges with courier companies including Addison Lee, Excel and eCourier.
CitySprint said: “This case has demonstrated that there is still widespread confusion regarding this area of law, which is why we are calling on the Government to provide better support and help for businesses across the UK who could be similarly affected.”
Dewhurst said she was “delighted” with the tribunal decision “as it has set a legal and moral precedent that others can use to make similar claims”.
Jon Katona, vice president of the Independent Workers’ Union of Great Britain, which supported Dewhurst’s claim, said: “This is a huge victory for couriers, and workers everywhere who have been asked to sign their rights away for a job.
“It’s a warning to other companies that masquerading as a non-employer, or as a go-between for independent businessmen is over. You’re going to have to give your workforce the rights and protections owed to them according to the true working relationship, or we will come after you.”
CitySprint has not confirmed whether or not it will appeal the decision, but said it was reviewing the ruling “in detail”.
Late last year, the Government announced a review into workers’ rights in the gig economy, led by Matthew Taylor, chief executive of the Royal Society for the Arts.
Analysis of the judgment in Dewhurst v CitySprint UK Ltd, with an explanation of its implications for employers, is available on XpertHR.