June 2018 – Employment Writes

Charlie Mullins: Peoples Hero?

Published on June 16, 2018July 8, 2018 by employmentwrites

mullins

The biggest employment law story this week is the Supreme Court’s decision in Pimlico Plumbers v Smith, a case I have alluded to previously.

To answer the question in the title of course Mullins is nothing of the sort. Before we get into the specifics it’s worth remembering how the case originated. A person (Gary Smith) contracted to work for Pimlico (and who did so exclusively) dad at that time done so for 6 years. He had a heart attack in January 2011 and sough to reduce his availability for work from five to three days. In March 2011 they refused that request and this was the basis of the entire claim. Irrespective of the legalities that is a ludicrous, unreasonable and oppressive decision by Pimlico Plumbers. Be that as it may in appealing an Employment Tribunal judgement to the EAT, Court of Appeal and ultimately to the Supreme Court Charlie has done a service to UK workers.

I do not want to discuss the legal reasoning in detail, this has been done extensively already by those more qualified than me, the best I have come across is this analysis by Sarah Fraser Butlin.

However, what I do think is helpful, even if not wholly novel, is the emphasis that the mere existence of a ‘substitution clause’ does not by itself mean a person cannot be a worker or employer for the purposes of Equality Act 2010. The Supreme Court set out that it would consider the dominant feature of the contract, which in this case was Mr Smith’s personal performance of work:

The tribunal was clearly entitled to hold, albeit in different words, that the dominant feature of Mr Smith’s contracts with Pimlico was an obligation of personal performance. To the extent that his facility to appoint a substitute was the product of a contractual right, the limitation of it was significant: the substitute had to come from the ranks of Pimlico operatives, in other words from those bound to Pimlico by an identical suite of heavy obligations. It was the converse of a situation in which the other party is uninterested in the identity of the substitute, provided only that the work gets done.

Whilst not ground breaking – the judgement itself was broadly conservative – I think this is a helpful reiteration of the law. An employer cannot rely on ‘sham’ or trivial contractual arrangement to avoid their workers obtaining rights of readdress as workers or employee (in the Equality Act sense).

By way of analogy, in the in the 1970s and 1980 many landlords sought to introduce sham requirements of their tenants (such as the right of a landlord to share accommodation, or even the same bed) not because of any desire to do so but because this would make the agreement a license rather than lease which attracted much lower degrees of legal rights. And so in the 1985 House of Lords case of Street v Mountford the emphasis was on the reality of the arrangement not just what the contract said. It did not decisively matter if a contract says it is a ‘license’ it could still be a lease. Likewise, even if a contract says there is a right of substitution – which if effective – would be likely to take a person outside of the protection to employment law does not mean there is one, or that it is a dominant feature of the contract and the courts will examine the realities of the contract ‘on the ground’. That is not a new development but it is a helpful reminder that even if a contract tells a worker they have no rights that doesn’t make it so.

One final aspect of the case to briefly comment upon is its supposed status as a gig economy case. Charlie Mullins has certainly been on the airwaves telling anyone who will listen that it was not and that Smith received a income of £80k. Darren Newman has said something similar: “It is also worth emphasising that this case really has nothing to do with the gig economy. Pimlico Plumbers (however this case eventually turns out) were providing reliable, regular and well-paid work to their plumbers. True gig economy cases tend to turn on whether there is any obligation to provide work at all and this case says very little about that.”

On the subject of the case itself Newman is undoubtedly right, but I do think this case is of some significance for the gig economy legal landscape – notwithstanding the right to supply work issue raised the right to substitution is very much relevant and will be an aid in future case (a case in point is the CAC’s 2017 Deliveroo decision).

So, all in all, by no means a monumental decision but a helpful one nonetheless. And Charlie Mullins is left with egg on his face which is also a plus.

Long Hours Culture

Published on June 8, 2018 by employmentwrites

shallow focus of clear hourglass I recently spoke to an old friend about how things were at work, she explained they were not good. A new manager had taken up post and would periodically require her to work long hours at short notice (literally needing to work through the night to make a deadline). She did so but when she explained that she could not do so again, at least not with adequate notice she found she was subjected to poor performance measures and strong intimations that she would be best ‘advised’ to seek alternative employment in the near future.

When an employer applies a provision, criterion or practice (PCP) which places an employee at a substantial disadvantage compared to those without a disability the duty to make reasonable adjustments is engaged. This can include a requirement to work substantial or excessive hours. An employer must in such a circumstance consider what reasonable adjustments that are reasonable in all the circumstances.

Two recent cases explore this issue and both are beneficial to workers (if they happen to be disabled, that is).

Carreras v United First Partners Research

In Carreras a disabled worker who worked 12-15 hours a day had an accident and was absent for a few weeks. He returned bit only worked for at most 8 hours a day. After a few months he volunteered to do extra hours and before long he was regularly scheduled to do late nights two days a week and on a weekly basis he was specifically requested by the employer to do so. Mr Carreras then complained of this regular requirement which made him feel unwell, for reasons partially unrelated to this complaint following this an argument with the business owner took place and Mr Carreras resigned.

In the Employment Tribunal’s decision the claim of a failure to make adjustments was rejected because although it was accepted he was disabled and that the employer was aware of the disability the was no PCP to work long hours. The tribunal found that an expectation did not amount to an obligation, and it was only if there was an obligation to work these hours that this would constitute a PCP. On appeal the EAT, and later the Court of Appeal, rejected this finding. In giving judgement Lord Justice Underhill (para 31) explained that:

In my view the term “requirement” does not necessarily carry a connotation of “coercion” in the sense understood by the Tribunal. On the contrary, it may, depending on the context, represent no more than a strong form of “request” … The allegation there is not that the Claimant was explicitly ordered to work in the evenings, or subjected to other explicit pressures which had the effect of depriving him of any real choice; rather it is that it was made clear by a pattern of repeated requests that he was expected to do so, and that that created a pressure on him to agree. Mr Rahman in his oral submissions accepted that such a state of affairs could in principle constitute a PCP – more particularly, a “practice” – within the meaning of section 20 (3) of the 2010 Act, but he said that that did not amount to a “requirement” and was not the case which the Respondent had to meet. For the reasons which I have given, I do not agree: the equiparation of “requirement” with “coercion” is a gloss on what was pleaded.

In short, even without a formal requirement to work longer hours the expectation and/or pressure to do so may amount to a PCP of an employer which engages – if other requirements -are met – the duty to make adjustments.

Home Office v Kuranchie

Kuranchie concerned another failure to make adjustments. Ms Kuranchie was disabled by reason of dyslexia and other impairments and the employer had knowledge of this. At the employee’s request a number of adjustments were made, such as the provision the specialist equipment at consolidating her full working week into four instead of five days.

At tribunal , despite not having requested this directly from the employer previously, the claimant put forward the argument that by reason of disability she worked at a slower pace then would have been the case but for her disability. This meant that she was required to perform the same amount of work as her non-disabled peers but that the working hours required to perform this work was greater, meaning Ms Kuranchie had to work longer hours than her peers. Whereas in Carreras it was the expectation of working longer hours that was the PCP in Kuranchie the PCP Employment Tribunal found that:

The Respondent had a provision or practice of giving the Claimant the same volume of work as her colleagues. This placed her at a substantial disadvantage compared to her non-disabled colleagues because it took her longer to complete the work due to her disabilities. As a result, she worked longer hours than her colleagues in order to complete the work. The Respondent should have made the reasonable adjustment of reducing her workload in order to avoid the disadvantage.

On appeal the judgement of the Tribunal was upheld and it is right that they did although it seems to me that the case could more easily framed as a discrimination arising from disability claim.

However, what is clear from both Carreras and Kuranchie is that where for reasons arising and related to disability a employee needs to work longer hours or, alternatively, when there is a general expectation to work long hours that places a disabled person at a substantial disadvantage (for example, they are more tired) then this can provide a legitimate basis for a disability discrimination complaint.

And the non-disabled?

I consider the above rules to be sensible but at common law there is very little protection for workers. By way of example, consider the case of the junior doctor in Johnstone v Bloomsbury Health Authority [1992] QB 333. As a matter of contract the worker, a junior Doctor, was required to work a 40 hour week and, on top of that, overtime of up to a further 48 hours (so up to 88 hours a week in total). When faced with the contrast between the express term of contract (to work up to 88 hours work) and the implied term to take reasonable care for the safety of employees the court fund it very difficult to determine that the implied term persisted in the wake of the explicit term. This was resoled by what Hugh Collins called Brown Wilkinson’s “eloquent solution” (Employment Law, 2nd Ed., Oxford, 2010) in that the 48 hours overtime was discretionary and as such that discretion was impliedly qualified by the implied duty to take reasonable care for an employee’s wellbeing.. In short, the exercise of the discretion engaged the implied duty of care. However, as Collins notes, ” if the contract imposed an absolute obligation to work a further 48 hour’s overtime, there could be no breach of the implied term.” So, the more retrograde explicit term requiring excessive hours attracts little to no protection under the common law contract principles (Deakin, Labour Law suggests such a contract could be nullified on public policy grounds or under Unfair Contract legislation).

Of course, aside from common law a worker will – for the time being at least – be able to gain some protection from working time regulations, notably the maximum number of hours work and minimum rest breaks between shifts but for how long will there such protection given the glee with which some Brexiteer’s have talked up EU ‘cutting red tape’ after March 219.

Employment Tribunal Fees to Return

Published on June 7, 2018 by employmentwrites

Frazer Last year’s monumental decision by the Supreme Court in Unison ruled that the introduction in 2013 of fees for claimants to bring discrimination, unfair dismissal and other employment claims was unlawful.

This was an excellent decision, for which Unison deserve a lot of credit. In the aftermath I discussed this case with colleagues and the Government’s likely response and expressed the view that I expected fees to return.

In a worrying sign Lucy Frazer MP, a barrister and Under Secretary of State of State for Justice has today answered a written parliamentary question as follows (emphasis added):

On 26 July 2017, the Supreme Court handed down judgment in the case of R (Unison) v Lord Chancellor in which the court quashed fees in the Employment Tribunals and the Employment Appeal Tribunal. Employment Tribunal fees were stopped in light of the judgment and, on 15 November a scheme to refund all those who had paid was launched. A review is being conducted on how we charge fees in light of Unison details on the proposed approach will be published in due course.

What is unfortunate is that the response makes clear the review is not to consider “whether fees should be charged” but simply “how we charge fees in the light of Unison.” The response does not set out the level (or to whom the fees will apply, claimant, Respondent or both) but it makes clear the Government intends fees to in some form return. That response itself suggests Unison is not being adequately grappled with. To quote Lord Reed’s constitutional commentary in the case

At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.

Given this constitutional role of Courts and Tribunals in upholding laws as something more than just “dead letters” isn’t the more fundamental question which Frazer’s answer evades whether fees should be charged at all?

Around the Unions

Published on June 5, 2018 by employmentwrites

tuc Three stories that caught my interest this week:

TUC

As the TUC celebrate its 150th year birthday it has published research showing that there is a generational pay deficit for younger workers as it also launches union recruitment plans targeted at younger workers. Write up here. There are some positive signs in the report and associated strategy but, fundamentally, the whole exclusive membership processes of the unions, and the lack of continuity of employment is an area upon which serious thought and cooperation needs to be given – time for a Bridlington II?

PCS

PCS’ dispute at ACAS has gained a fair amount of recent attention after ACAS conciliators voted for – and have taken — a number of days strike action over enforced changes and inadequate resources. ACAS have now belatedly seen sense and in negotiations have agreed to offer assurances on job grading and agreed to recruit additional staff. PCS’ release is here.

UCU

The UCU conference saw bizarre scenes has union officials (represented by Unite) at the conference threatened to walk out after delegates sought to debate a motion calling for the General Secretary’s resignation and censure. LibCom was the first online source I saw to cover this which has since been picked up by mainstream media.

For my part I find myself sitting on the fence on this, clearly the GS is not just a ‘union official’ but presumably if the pensions dispute requires member anger should this not be directed at the NEC?