UK: CABLE: Current Awareness Bulletin - November 2016

Last Updated: 30 November 2016
Article by Graham Mitchell

Clyde & Co's UK employment team brings you CABLE, a monthly bulletin keeping you up to date with recent legal developments.

Employment Status

Aslam and others v Uber BV and others ET/2202550/15 - Uber drivers are workers

The employment tribunal found that Uber's desire to control its brand image had led to a level of control which caused worker status to arise as the drivers were not acting totally independently and autonomously, as self-employed contractors would.  Although the contractual documentation suggested that Uber is a technology company that merely puts drivers in touch with customers who then contract with the driver, in reality the Uber drivers are workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998.

Practical point

An individual's employment status is assessed on the basis of the reality of the relationship and in particular the control exerted in practice, and not just on what the documentation says.

Note that this is only a first instance decision, so it is not binding on other tribunals or courts.

Click  here for a detailed update on this case. 

Maternity Pay

Campus Living Villages UK v HMRC & Sexton – If SMP is included in a settlement payment, make this clear in the Settlement Agreement

At the time of her dismissal for redundancy, Ms Sexton was pregnant. Although when negotiating to settle her unfair dismissal and pregnancy discrimination claims through ACAS, Ms Sexton calculated her claims as including a sum 'in respect of maternity pay entitlement', HMRC subsequently stated that Ms Sexton was entitled to a Statutory Maternity Pay ("SMP") payment.

The tax tribunal concluded that although the settlement sum may have included an element of maternity rights, it was clear from the final breakdown of the payments that it did not include Ms Sexton's entitlement to SMP, and no National Insurance Contributions had been deducted or paid in respect of SMP.

The tax tribunal clarified that irregular or one-off payments, such as an annual bonus, count towards the employee's earnings for SMP calculation purposes. 

Practical point

The Settlement Agreement must specifically state that it includes the payment of SMP. Any relevant tax and NICs in respect of SMP must be deducted and paid in order for an employer to discharge its obligation to pay SMP.

When one-off payments are made to employees within the SMP calculation reference period, they will be treated as the employee's earnings for the purposes of calculating the amount of SMP payable. 

Click  here for a detailed update on this case. 

Unfair Dismissal

Bandara v British Broadcasting Corporation UKEAT/0335/15 - Invalid final written warning cannot be relied on

The tribunal found that when making the decision to dismiss Mr Bandara, the manager unreasonably took into account a previous final written warning which was manifestly inappropriate as neither of the charges relating to that warning against him constituted gross misconduct according to the definitions in the BBC's disciplinary policy.

The Employment Appeal Tribunal said that to assess the reasonableness of the employer's decision to dismiss, tribunals must examine to what extent the employer relied on a manifestly inappropriate previous warning.

Practical point

When considering whether to dismiss an employee who has an active warning on file, check that the earlier warning was appropriate before relying on it.

If the employee has an earlier warning on file but their dismissal is on account of stand alone gross misconduct, make this clear in the dismissal letter. 

Working time

Grange v Abellio London Ltd - Right to a rest break is infringed even if there is no explicit request and refusal

Mr Grange monitored the arrival and departure times of a bus service and regulated the service. Initially his working day was eight and a half hours with half an hour unpaid and treated as a rest break, although it was often difficult for him to take that break. Subsequently, Abellio changed this to an eight hour day without a break. Mr Grange raised a grievance which was rejected.

The EAT concluded that for a worker to enforce a rest break, it was not necessary to have an explicit request for such a break then refusal. Although workers cannot be forced to take rest breaks, employers must proactively ensure that working arrangements allow them to take rest breaks to avoid a claim arising. 

Practical point

Employers must ensure that working arrangements allow for workers to take breaks. Many workers in high-pressured environments do not take rest breaks and although they have not complained that the right has been denied to them, they can still raise a complaint later and seek to enforce this right. 

Redundancy

Thomas v BNP Paribas Real Estate - Insensitive redundancy consultation may make a dismissal unfair 

Mr Thomas had over 40 years' service and was a senior director. When he was identified as at risk of redundancy, he was put on garden leave.  

The tribunal and EAT were very critical of the "perfunctory and insensitive" manner in which the employer approached consultation. The EAT concluded that the way Mr Thomas had been treated suggested that the outcome of the process was predetermined and that this could make the dismissal unfair. The case will now be re-heard by a new tribunal. 

Practical point
Consider carefully how to deal with senior employees at risk of redundancy especially at the beginning of the redundancy consultation process and in particular what access they have to systems and clients, and whether it is reasonable to put them on garden leave.

Data Protection 

The Government has confirmed that the UK will be implementing the EU General Data Protection Regulation in May 2018 which will mean a number of key changes to data protection rules. However, it is unclear what amendments if any will be made to data protection laws after the UK has left the EU. 

Click here for a detailed update on this topic, and here for the Information Commissioner's Office's 12 steps guide to preparing for the new rules.

Corporate Offences

The Criminal Finances Bill 2016-17 has been presented to Parliament and had its first reading in the House of Commons. One of the key elements of the Bill is the introduction of a new corporate offence of failure to prevent staff facilitating tax evasion. 

Rights for Organ Donors

The Organ Donors (Leave) Bill 2016-17, which will make provision about leave for individuals donating body organs for transplant, has been presented to Parliament and is expected to have its second reading in January 2017, depending on Parliamentary time as this is not a government initiated Bill.  The Bill will guarantee employees who are living organ donors the right to paid time off to allow them to recover. Employees' terms and conditions and rights will also be the same on their return to work.

CABLE: Current Awareness Bulletin - November 2016

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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