January 20, 2017

UK - CABLE: Current Awareness Bulletin

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

Employment Status

Dewhurst v CitySprint UK Ltd   ET2202512/2016  - Cycle couriers are workers

Although the cycle courier's contract stated that she was a self-employed contractor, the employment tribunal looked at the reality of the situation and concluded that the claimant was a worker because she:

  • was economically and organisationally dependant on CitySprint, and was working for them rather than for herself
  • lacked autonomy to determine the manner in which she performed services and had no chance to dictate the terms
  • was not providing services to anyone else.

The courier therefore succeeded in her claim for paid holiday.

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, rather than 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. 

Employment Status - PAYE

RS Dhillon and GP Dhillon Partnership v HMRC ([2017] UKFTT 17 (TC) - Tax Tribunal: haulage drivers are employees 

The tax tribunal considered the relationship between the parties in the round and concluded that, notwithstanding the detailed provisions of the franchise agreements, the drivers were employees on short-term contracts. There was no good evidence that the drivers were running their own businesses, and the reality was that the partnership was dictating the terms of the relationship.

Practical point
The tribunal made it clear that, in borderline cases, it would take into account an express statement of mutual belief and intent that it was a self-employment relationship. A written document governing the terms of relationship will always be helpful in such cases.

Unfair Dismissal

Stratford v Auto Trail VR Ltd UKEAT/0116/16 - Dismissal decision fair despite employer taking history of expired warnings into account

The Claimant was dismissed after his 18th disciplinary offence, which was classed as misconduct and not gross misconduct. At the time of his dismissal, a previous final written warning had expired. The employer considered the employee's history of expired warnings and believed that there would be future misconduct issues.

The EAT concluded that the employer was entitled to take these issues into account and that the employee was fairly dismissed. The employee's previous misconduct, the fact that he had received a warning and the fact that that warning had expired were all relevant to, although not determinative of, the question of whether the employer acted reasonably.

Practical point

When considering whether to dismiss an employee for misconduct, it can sometimes be a fair dismissal to take into account the employee's previous misconduct despite the final written warning given in respect of such misconduct having expired. This will depend on the particular facts.

This case highlights that it is important to have carefully drafted disciplinary policies which deal with "repeat offending".

Disability Discrimination

Taylor v Ladbrokes Betting and Gaming Ltd UKEAT/0353/15 - Whether type 2 diabetes is a progressive condition 

The EAT has considered the employee's argument that type 2 diabetes should be treated as a progressive condition and therefore deemed to be a disability under the Equality Act 2010.

To assess this, the correct question was whether the condition was likely to result in a substantial adverse effect on normal day-to-day activities. Even if there is a small possibility of the employee's condition deteriorating in the future, that is sufficient to make it "likely" and may result in the employee having a disability.

Practical point

It should not be assumed that type 2 diabetes is a progressive condition under the Equality Act; indeed neither type 1 or type 2 diabetes are given as examples of a progressive condition in the Guidance.

The EAT did not explore the extent to which the individual's control over their lifestyle should be taken into account when assessing the long term effect of a condition.

Gender Pay Reporting

The final draft version of the gender pay gap reporting regulations has been published. Supporting guidance is expected later this month.

Click here for a detailed update on these regulations.