UK: Employment And Immigration Update (July 2018)

Employment

Can a dismissal be fair with no prior warning?

The Employment Appeal Tribunal (EAT) has overturned an initial unfair dismissal ruling of the Employment Tribunal (ET). Quintiles Commercial UK Ltd, a pharmaceutical agency, was found to be within its rights to dismiss A Barongo, an employee, with no prior warnings, for failing to complete two online training courses.

Facts of the Case

  • Barongo was employed by Quintiles Commercial UK Ltd as a medical sales representative beginning 1 October 2012.
  • On 5 January 2016, Barongo was dismissed on notice for failing to complete two compulsory training courses by the deadlines set by Quintiles.
  • Barongo did not deny these matters and admitted to the misconduct; however, in mitigation, he said that he had not intentionally failed to engage in the training, but that he had proritised other work commitments instead. In October 2015, Barongo was also on a performance improvement plan.
  • Barongo's line manager, Dempster, chaired the disciplinary hearing and did not accept the mitigating factors put forward by Barongo. Dempster concluded that the company's trust and confidence had been destroyed, and decided that Barongo should be dismissed, on notice, for gross misconduct.
  • Barongo appealed, and the appeal was heard by one of Quintiles' directors, Athey. Athey took the view that Barongo had been guilty of "serious" rather than "gross" misconduct; however, he also thought that the trust and confidence had broken down. Therefore, he upheld the decision to dismiss.

The Employment Tribunal

Barongo claimed unfair dismissal at the ET, which upheld his claim. The ET considered that the characterisation of Barongo's misconduct as "serious" rather than "gross" had significant implications in this case, stating that "once the misconduct is characterised as serious and not gross, it means the warnings are to apply". Barongo had no previous warnings in his file. The tribunal insisted that Quintiles could have issued any kind of warning, including a final written warning, and with the failure to issue a warning and the rejection of gross misconduct, they rendered the dismissal unfair. The tribunal also looked at Quintiles's own disciplinary policy and noticed that the original "gross" misconduct was not consistent with its own procedure, which expressly states, as a rule, that misconduct falling short of gross "does not warrant dismissal on the first occasion . . . [but] repeated instances of general misconduct in conjunction with a valid warning can however result in dismissal". The ET also found that issues relating to Barongo's performance, as opposed to just the charges of misconduct that had been brought against him, had been taken into consideration when making the decision to dismiss.

The Court of Appeal

Quintiles appealed to the EAT, which referred to the wording of the Employment Rights Act 1996, which sets out the law on unfair dismissal. The legislation states that a dismissal is capable of being fair if it is for a reason that "relates to the conduct of the employee" and there is no reference to the fact that the conduct needs to amount to gross misconduct. Therefore the tribunal's statement that a dismissal for something short of gross misconduct would be unfair if it was not preceded by warnings was a "fundamentally flawed approach". According to the EAT, the ET should have asked if Quintiles had acted reasonably in all the circumstances in dismissing Barongo for the misconduct, instead of being "unduly fixated" on the label given to the misconduct.

The EAT concluded that the tribunal had lost sight of the statutory test for unfair dismissal and had failed to take into consideration other relevant matters, such as the impact of Barongo's poor work record and the loss of trust and confidence in his ability to perform his role effectively. The EAT considered that the ET had imposed its own view as to the appropriate sanction, as opposed to assessing Quintiles's decision against the band of reasonable responses test, as it should have done. The case has been remitted to a new tribunal to be heard again.

Key points to note from this case

This case is a good reminder that when considering whether or not a dismissal is fair, the tribunal will consider whether an employer has acted reasonably in all the circumstances and will focus less on labels and whether or not conduct is labelled as gross or serious misconduct. However, employers should be cautious, as the EAT has not declared that the dismissal in this case was fair, just that it was not necessarily unfair. The new employment tribunal may conclude that dismissal without warning for not completing online training is not within the range of reasonable responses.

UK Supreme Court confirms worker rights for "contractor" plumber

In Pimlico Plumbers Limited and another v Smith, the Supreme Court has confirmed that the ET was entitled to conclude that Gary Smith, who worked under a contract that described him as an independent contractor, was a "worker" within the meaning of the Employment Rights Act 1996, the Working Time Regulations 1998, and the Equality Act 2010.

Smith worked for Pimlico Plumbers Ltd. as a plumber for almost six years. Following the termination of his agreement with the company, he issued several proceedings with the Employment Tribunal. Smith claimed, among other things, that he had been discriminated against following the rejection of his request to reduce his hours after he had a heart attack. The Employment Tribunal found that he was a "worker," which entitled him to basic employment rights. The findings meant that Smith could proceed with his complaints, and directions were made for their consideration at a later date.

Pimlico Plumbers appealed this decision to the Employment Appeal Tribunal, then to the Court of Appeal, but were unsuccessful. They then appealed to the Supreme Court.

Personal Performance and the Right to Substitute

The dominant feature in this case was the significance of Smith's right to substitute. For Smith to qualify as a worker, it was

necessary for him to have undertaken to personally perform his work or services for Pimlico.

The Supreme Court agreed with the Employment Tribunal's finding that the dominant feature of Smith's contractual relationship with Pimlico was an obligation of personal performance. Although he had the ability to substitute with another of Pimlico's plumbers, i.e., someone bound by the same obligations to which he was subject, he did not have the right to substitute at his discretion. Therefore, the Court agreed that Smith was required to provide personal service, contrasting the facts of the case with a situation in which another party is interested in the work being done and not the identity of the substitute. According to the Court, Smith would fall under the definition of a worker in the relevant legislation unless it could be demonstrated that Pimlico was a client or customer of his.

Client or Customer?

Smith was able to reject work and was able to accept outside work if none of the company's clients offered him work. He also bore some of the financial risk of the work he produced and the manner in which he undertook his work was not supervised. However, these points did not override the facts that were presented showing that Pimlico was not a client or customer. These included the requirement for Smith to wear a branded uniform, carry an identity card, and drive a branded van. In addition,

Pimlico had control over the administrative aspects of any job Smith undertook as well as when and how much he was paid.

The post-termination restrictive covenants within his contract, which also contained references to "wages," "gross misconduct" and "dismissal," also pointed to his not being an independent contractor. Unanimously dismissing the appeal, the Supreme Court held that it was reasonable for the Employment Tribunal to conclude that Smith was a worker and that Pimlico could not be regarded as a client or a customer, with the relationship of subordination being a key factor in that decision.

Key points to note from this case

The Court's judgment adds to the increasing case law on employment status. It also demonstrates, once again, that where there is a clear relationship of subordination, the courts are inclined to make a finding that employment rights exist regardless of the presence or absence of terms or factors that may point to an independent contractor arrangement. Now might be a good time to review the contractual documentation you have in place with independent contractors and to reflect and consider the nature of the contractual relationship that exists with them to ensure it accurately reflects what happens in practice.

World Cup fever in the workplace

The 2018 World Cup is now in full swing, and the frenzy that surrounds this event can create low productivity for businesses, with staff focused on watching games—or perhaps debating the pros and cons of the recently-introduced video assistant referee (VAR)—instead of working. During the 2010 World Cup, a study found that the United States lost $121 million in economic output; however, this is minimal in comparison to the United Kingdom's (UK) estimated loss of £5.5 billion.

Regardless of the accuracy of these estimates, the World Cup need not spell the end of productivity in the workplace and presents an opportunity for employers to take advantage of the positive impact the event can have on staff morale. This sporting event can be used as an opportunity to not only help bond immediate departments but also an entire organisation.

There is, of course, no single prescribed way to manage potential productivity issues, as much depends on the type of organisation, the number of employees, and the makeup of the work-force. The best method for employers may be to take an informal approach, allowing decisions to be made depending on the employee's workload or the company's needs at a particular time, as opposed to implementing a formal policy.

In the UK, the Trades Union Congress (TUC) has suggested a number of ways for employers to manage productivity and create a positive impact. The TUC suggests:

  • talking to staff in advance about arrangements for key matches;
  • arranging for matches to be shown on company premises, if appropriate;
  • allowing staff to work from home;
  • allowing flexible working hours so staff can either come in late or leave early with the intention of making up the time; and/or
  • being as flexible as possible with annual leave requests.

Employers that are more willing to fully embrace World Cup fever could also decorate offices with flags, relax dress codes, allow football shirts to be worn, or as is quite common, arrange an office sweepstake if legally permitted in the relevant location. (I'm participating in the latter and have promised to use part of any winnings to buy my colleagues one packet of biscuits to share.)

Ultimately, some of the suggestions above may not be practical for all employers, and it will be important that employers strike the right balance between celebrating the World Cup and ensuring staff are still productive. Whichever option is chosen, many employers find that allowing some level of flexibility during the relatively short duration of major sporting events helps to ensure minimal disruption in the workplace. Taking positive steps to manage the work environment whilst the World Cup is on could also have a valuable effect on employee relations.

In other news...

  • The rise of the gig economy has been driven by the explosion of online platforms and apps. The benefits of the freelance life include flexibility and control for those that are not necessarily in a position to commit to a full-time job. A recent study found that 6 percent of full-time, permanent employees, equivalent to 1.56 million individuals, have plans to leave their current job to join the gig economy within the next year. A further 28 percent of full-time employees would like to make the transition but don't have the confidence to do so due to concerns surrounding sourcing enough money to support their lifestyle.
  • A Canadian national who worked in Scotland claims she was subject to bullying and harassment over a period of 10 years. DeeAnn Fitzpatrick worked at Marine Scotland's Scrabster office. In 2010, she claims the worst of the abuse occurred, which included her being taped to a chair and gagged as a warning to keep quiet due to her whistleblowing about a threatening and misogynistic culture at the quango's office in Scrabster. A photograph of the incident, allegedly taken by one of the two men accused of being responsible, has been widely circulated on the Internet. Fitzpatrick has taken her case to an employment tribunal.
  • The EAT upheld an ET's decision that an employer had discriminated against a disabled employee when it issued her with a written warning concerning her attendance levels. O'Connor had been employed by DL Insurance Services Ltd, in a customer support role since June 2005. In June 2009, she made a request to work flexibly due to her illness having an effect on her working patterns. The company accepted her request and implemented reasonable adjustments. In 2013, O'Connor had significant absences from work as a result of her disability; her absences were six times over the threshold of the company's sickness absence policy, as she had 60 days' absence over a 12-month period. Despite the absences being related to her disability, the company decided to issue O'Connor a written warning lasting 12 months, and as a result, her sick pay was suspended. O'Connor issued a claim in the ET for discrimination arising from disability. The ET ruled that the employer had failed to establish that its action was a proportionate response to her absence. As the warning placed O'Connor at risk of further disciplinary action and losing sick pay during the duration of the warning, the ET found that she had been treated unfavourably as a consequence of something arising from her disability. The company appealed to the EAT, which upheld the ET's decision.

Immigration

A number of changes to the Immigration Rules were laid in Parliament on 15 June 2018. The below changes are due to come into effect on 6 July 2018, when further detailed guidance will be published online.

Changes to the Tier 2 cap

The Home Office is removing the restriction on the number of doctors and nurses who can be recruited from overseas through the Tier 2 visa route. This is in order to ensure that gaps are filled in frontline services.

The Home Office has also requested that the independent Migration Advisory Committee review the Shortage Occupation List

(an official list of occupations for which there are not enough resident workers to fill vacancies).

Tier 1 (Exceptional Talent) visa

This route allows international leaders to work flexibly in the UK without the need for a sponsoring employer. In January 2018, the Home Office doubled the size of the route, and they are looking to widen its scope further to ensure that the UK attracts more of those with exceptional talent, including those in the fashion, television, and film industries.

Electronic visa waiver

Improvements are being made to the electronic visa waiver (EVW) system so that travellers from Oman, the United Arab Emirates, Qatar, and Kuwait can present their EVW in either electronic or paper form, allowing for a smoother journey to the United Kingdom.

New Turkish settlement rules

New rules for Turkish nationals are being introduced to allow businesspeople, workers, and their family members to obtain indefinite leave. Qualifying Turkish nationals will be able to settle in the United Kingdom after five years' residency under the Turkish European Community Association Agreement (ECAA) rules as either an ECAA businessperson or ECAA worker (or equivalent points-based system routes), as long as the most recent period of leave was under the ECAA.

Obtaining settled status: Three "simple" requirements for EU citizens to stay in

United Kingdom after Brexit

As you may already know, European Union (EU) nationals will need to make an application to continue to remain in the UK after Brexit. Until now, there has been much speculation on what the application process will look like. The government has issued statements saying that it will be straightforward and very user friendly.

On 21 June 2018, Home Secretary Sajid Javid clarified the government's "default" position, which would be to grant, not refuse, settled status. A statement of intent has also been issued by the government, which provided further details and will be used to seek comments from established user groups who will help develop the scheme.

It has been confirmed that EU citizens and their family members who are resident in the United Kingdom before the end of the implementation period (31 December 2020) will be able to apply for settled status under the EU settlement scheme.

EU citizens and their family members do not need to do anything immediately. There will be no change to their current rights until the end of the implementation period on 31 December 2020. The deadline for applications to the scheme for individuals resident in the United Kingdom by the end of 2020 will be 30 June 2021.

Individuals with indefinite leave to remain, as well as Irish nationals, will not need to apply. Rights for citizens of Norway, Iceland, Liechtenstein, and Switzerland are still being negotiated.

Those applying under the scheme will need to complete three steps. They must prove their identity, show that that they live in the United Kingdom, and declare that they have no serious criminal convictions.

The planned fee for individuals applying under the scheme is £65 (£32.50 for children under the age of 16). Those who already have valid permanent residence or indefinite leave to remain documentation will be able to exchange it for settled status for free.

The Home Office will check the employment and benefit records held by the government, which will mean that proof of residence will be automatic for many.

Getting settled status will allow EU citizens to continue to live and work in the United Kingdom and will ensure that these individuals have access to public services and public funds as well as apply for British citizenship, if they meet the requirements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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