Monthly Knowhow Case Law Update

Transcription

1 Monthly Knowhow Case Law Update This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered. March 2017 This is a summary of some of the most important cases reported in February It is not intended to be a full analysis of each and every case and some cases reported this month are not contained in this summary. We have made an editorial decision about which cases to include to ensure that the document remains manageable. Instructions Clicking on the Case name will take you to the actual case report. Clicking on "read more" will take you to our PM summary and action points/commentary 1

2 This edition includes: "NEED TO KNOW" EMPLOYMENT STATUS 1. Is a plumber a worker or self-employed contractor? Pimlico Plumbers v Gary Smith Read more (p3) TRADE UNION 2. Was there a breach of article 11 in recognising a non-independent trade union instead of an independent trade union? Pharmacists Defence Association Union v Boots Read more (p4) DISABILITY 3. Can a claim of disability harassment be argued successfully if the Claimant has not proved they are disabled? Peninsula Business Service Ltd v Baker Read more (p5) "NICE TO KNOW" DISABILITY AND RACE DISCRIMINATION 4. Is a reduction in workload a reasonable adjustment? Home Office (UK Visas and Immigration) v Kuranchie Read more (p6) RELIGION OR BELIEF DISCRIMINATION 5. Is it discrimination to refuse a request for five weeks holiday to attend religious festivals? Gareddu v London Underground Read more (p7) DISCRIMINATION 6. Does an unmarried partner have to 'opt-in' to be entitled to survivor's pension? In the matter of an application by Denise Brewster for Judicial Review (NI) Read more (p8) STRIKING OUT 7. Can a witness talk to a reporter while under oath in an employment tribunal? Chidzoy v BBC Read more (p8) SUBJECT ACCESS REQUEST 8. Court of Appeal overturns High Court ruling that a Subject Access Request can be refused Dawson-Damer v Taylor Wessing LLP Read more (p9) 2

3 "NEED TO KNOW" EMPLOYMENT STATUS 1. Is a plumber a worker or self-employed contractor? Pimlico Plumbers v Gary Smith Summary The Court of Appeal considered the appeal in this long running case, determining whether a plumber working for Pimlico Plumbers (Pimlico) was a worker or self-employed. The ET and EAT had previously determined that Mr Smith (S) was a worker for the purposes of the Employment Rights Act 1996 (ERA). Pimlico appealed. Facts S, a plumber, had worked for Pimlico between August 2005 and April Following a heart attack in January 2011, he claimed he was unfairly or wrongfully dismissed; as well as claiming direct disability discrimination; discrimination in failure to make reasonable adjustments; holiday pay; and unauthorised deductions from wages. In August 2005, S had signed an agreement with Pimlico which stated that he was a "subcontracted employee". The agreement stated that he was to work a five day week, completing a minimum of 40 hours, be of clean and smart appearance and wear a uniform with the company logo. There were provisions around availability for on-call work, annual leave and invoicing, stating that a deduction of 50% would be made if payment was received later than one month from job date, and would be written off after six months. Every operative had an ID card, and paid a rental charge of VAT per month for use of a company van. Soliciting or undertaking private work was a contravention of the contract, and would lead to dismissal and legal action. Operatives had to follow ten personal conduct guidelines, including arriving punctually and not using a customer's toilet or telephone. The 2005 agreement was superseded by a 2009 agreement, which included further details, along the same lines as the earlier agreement, and included the term "You are an independent contractor of the Company, in business on your own account. Nothing in this Agreement shall render you an employee, agent or partner of the Company and the termination of this Agreement (for whatever reason) shall not constitute a dismissal for any purpose" S agreed that he worked solely for Pimlico. He had discretion in the work he undertook for a customer, and could negotiate on price. He was unsupervised when undertaking the work, and could determine at what time he finished on any given day. The ET determined that S was a worker, but not an employee. The ET decided he fell into the worker category as: he undertook personally to provide work for Pimlico; there was sufficient obligation to provide his work personally; there was no unfettered right to substitute at will; and Pimlico exercised strict control in a number of aspects, including restricting S's right to work in a competitive situation suggesting he was not in business on his own account. On appeal, the EAT concurred with the ET, as the ET had taken all relevant matters into account and had correctly directed itself. Pimlico appealed to the Court of Appeal. Decision The Court of Appeal looked at all the relevant authorities on the case, and agreed with the ET and EAT for the reasons listed above. Action points/comments: As in previous "gig economy" cases, such as Farrah and Aslam v Uber, the courts will look beyond what is written in any contractual documentation to determine the substance of the agreement. 3

4 In postscript comments to the case, the judge was critical of such a "difficult and important case" being decided entirely on written submissions, highlighting the importance of oral submissions in such a case. For more discussion on this case, please see Out-Law.com Back TRADE UNION 2. Was there a breach of article 11 in recognising a non-independent trade union instead of an independent trade union? Pharmacists Defence Association Union v Boots Facts The Pharmacists Defence Association Union (PDAU), an independent trade union, made a request in 2012 to Boots Management Services Limited (Boots) to be recognised for collective bargaining purposes under Part I Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act (TULRCA) Boots had recently entered into a recognition agreement with the Boots Pharmacists Association (BPA), a non-independent trade union, but in a very limited scope. The PDAU made an application to the Central Arbitration Committee (CAC) to be recognised by Boots, under para.11 of Schedule A1 of TULRCA. Para.11 allows the CAC to decide where an employer has rejected a request by a union. Boots objected under para.35, as it had already recognised the BPA. In January 2013 the CAC held that the application was admissible. Although it accepted that Boots was correct in that there was already an agreement with a union, it also determined that this would lead to a breach of article 11 rights for the PDAU and the members it had who worked for Boots. Boots applied for judicial review of the decision. In 2014 the decision was quashed, although still accepting that this was a breach of article 11 rights. The PDAU sought a declaration of incompatibility, and a judgment was handed down that the decision did not breach article 11. The case was heard in the Court of Appeal in November The PDAU's case was that the effect of para.35(1) is that "an otherwise valid application by an independent trade union to be recognised to negotiate about pay, hours and holiday can be stymied by the employer's recognition of a non-independent trade union in respect of other, entirely marginal, matters that give rise to a breach of its article 11 rights". Boots argued that article 11 does not confer rights on a trade union to be recognised for collective bargaining against the wishes of the employer, and that in any event article 11 had not been breached as the obstacle for in 35(1) could be removed by an application for the de-recognition of the BPA. Decision The court determined that "the right to bargain collectively with the employer is an essential element of the rights protected by article but...it does not follow that article 11 confers a universal right on any trade union to be recognised in all circumstances". A worker, or group of workers, from Boots could, under para.137 of Part VI of TULRCA, apply for de-recognition of the BPA. There was no breach of article 11, as there was a mechanism in place to allow for derecognition of a union. Action points/comments: The workers have the right to apply for de-recognition of the BPA, but the trade union does not, although it can support a worker or group of workers in their application, and anyone who does apply is protected from detriment. Back 4

5 DISABILITY 3. Can a claim of disability harassment be argued successfully if the Claimant has not proved they are disabled? Peninsula Business Service Ltd v Baker Summary Mr. Baker (B) was employed by Peninsula (P) providing legal advice and representation at tribunal hearings. He stated that he had a disability (dyslexia), but this had not been proved. P was concerned that B was taking on private cases and had subjected B to covert surveillance, which he was not aware of until provided with the report at a disciplinary meeting. He brought a claim to the ET of harassment relating to his disability. The ET upheld his claim and P appealed. Facts The Director of legal services was concerned that B wished to build up a private case load. In January 2014, B told his advocacy manager, Mr Ramsbottom (R) that he had dyslexia, the first time he had mentioned this at work. This was recorded in a file note. R wrote to B asking if he required any adjustments. B had an appraisal in February, in which his dyslexia and arthritis in his neck were discussed. In June, B told the allocations manager that he may not be able to cover a case as he had a disability of which R was aware. R replied to this , stating that now B had described the condition as a disability, P had to consider it more formally, and required information about how this would affect B's day-to-day activities. B sent R two pages, a covering letter for a psychologist's report, stating that B was dyslexic; and the conclusion of the report, stating that he had a specific learning difficulty (dyslexia). R acknowledged this, and told B he would request a confidential medical report from B's GP, to allow P to determine what adjustments needed to be made. In a conversation in the same month, the dyslexia was discussed by B and R, with B stating that it took him an "extremely long [time]" to do certain tasks. B was referred to Occupational Health; in August the doctor recommended reasonable adjustments and said that B was likely to be considered disabled. On 14 August, R questioned some of the doctor's views as he felt that B had "put words in the doctor's mouth", although a follow up report received on the 18 August proved that this was not so. Also on 14 August, the director of legal services, Mrs English (E) instructed a company to undertake cover surveillance on B, to discover whether he was undertaking private work. The report from the surveillance was received on 16 September; E gave the report to R on 22 September. R determined that there was enough evidence to prove that B was not devoting all of his time to P, although there was no evidence that this was because he was undertaking private work. B was invited to a disciplinary meeting on 3 October, with a copy of the report being sent to him. B claimed that the surveillance had made him feel paranoid, and had a profound effect on him. He brought a claim to the ET alleging harassment relating to disability. In the ET, E asserted that she was unaware of B's purported disability when she authorised the surveillance, and R was unaware of the surveillance. The ET rejected the proposal that E was unaware of previous conversations about B's disability, and made findings of fact that the true reason for the surveillance was that it was due to B's disclosure of a disability and "the decision was a reaction by Mrs English to her suspicions about the Claimant's reliance on a purported disability about which she shared the suspicions expressed by Mr Ramsbottom Nothing in the evidence supported the conclusion that the decision to carry out covert surveillance would have been made had the Claimant not asserted that he was disabled and asked for reasonable adjustments". It found as a fact that E was aware of B's disability. It did determine that the decision to put B under surveillance was not harassment, but telling B about it in the disciplinary did amount to harassment, with the effect of the notification being "an intimidating, hostile, degrading, humiliating or offensive work environment". The ET found that there was "more than sufficient evidence for the Tribunal to reach a conclusion that the Claimant was disabled", although it had not been asked to determine whether B had a disability, and that therefore there was a clear case of harassment related to disability. The ET found in B's favour. 5

6 Decision The EAT held that the ET had erred in law. B had not proved he was disabled for the purposes of the Equality Act 2019 (EqA), he had only asserted this which the EAT held is not sufficient for the purposes of the Act. It held that Mrs English had not ordered the surveillance because of a protected act, and found that the ET had erred in law making findings outside of its remit. The EAT substituted its own judgment. Action points/comments: The protection against discrimination for disability in the Equality Act 2010 (EqA) applies only to those who are disabled, those who are associated with someone with a disability, and those who are perceived to have a disability. It does not cover those who purport to have a disability. Back "NICE TO KNOW" DISABILITY AND RACE DISCRIMINATION 4. Is a reduction in workload a reasonable adjustment? Home Office (UK Visas and Immigration) v Kuranchie Ms Kuranchie (K) is originally from Ghana, and has worked for the Home Office since April 2006 subsequently being promoted to Assistant Director. K has dyspraxia and dyslexia, and is disabled for the purposes of the EqA. In early 2013, K spoke to her line manager and explained her disability and how the lack of adjustments meant that she was having to work long hours to get her work done. Her line manager agreed to arrange for specialist equipment and a static desk. K requested a flexible working arrangement where she would work compressed hours of 36 hours over four days, which was approved. In May 2013 K's line manager changed, and in July K showed her new manager a dyslexia report dated August It is from this date in 2012 that the Home Office accepted that K had a disability. The Home Office continued giving K the same volume of work as her colleagues. K brought claims of disability discrimination, arguing that the Home Office should have reduced her workload as a reasonable adjustment, and direct race discrimination due to her performance review rating. The ET found that there was a provision, criterion or practice (PCP) of giving K the same volume of work as her colleagues, and that this placed K at a substantial disadvantage compared to her non-disabled colleagues as she had to work longer hours to complete the same work. There was no suggestion that reducing K's workload would not be a reasonable adjustment. It found that the Home Office was in breach of its duty to make reasonable adjustments. With regard to the race claim, K alleged that in her 2012/13 review, her then line manager had placed her in the 'top 20%' category, which had been downgraded to the 'middle 70%' category by the panel. The independent panel member had previously been K's line manager, and had "a racist tendency". The ET dismissed the race claim, as there was not sufficient evidence to determine whether this downgrading was due to race. The Home Office appealed the disability discrimination claim and K cross-appealed the race discrimination claim. The EAT dismissed the appeal on disability discrimination. The PCP and disadvantage to K had been established, and the critical question was whether the Home Office had taken such steps as were reasonable. The specialist equipment and compressed working week did not remove the disadvantage. Although K had not requested reduced workload prior to the ET, this did not prevent the ET from considering it as a reasonable adjustment. The EAT allowed the race discrimination cross appeal and flagged that the ET should also have considered unconscious or subconscious bias. The ET took the two-stage enquiry approach laid out in Igen Ltd v Wong. The burden was on K to prove that the Home Office had committed an unlawful act of discrimination in the absence of an adequate explanation. If this is proved, the burden shifts to the Home Office to provide a non-discriminatory explanation for the treatment. 6

7 The ET found that K had not discharged the burden placed on her, and therefore failed at the first stage. The EAT disagreed. The ET had sight of statistical evidence that part-time, disabled or minority ethnic staff were less likely to receive a performance bonus, which could show a pattern of treatment, and it should have been alive to the possibility of unconscious discrimination. The ET should not have rejected the race complaint at stage one of the test. This was remitted back to the ET for consideration. Comment: Reducing workload may not always be a reasonable adjustment, but employers have a duty to make any adjustments which are reasonable in the circumstances. In this case, it was reasonable to consider this as an adjustment, despite K not raising the question before the case came to Tribunal, as the other adjustments made had not removed the disadvantage to K. Back RELIGION OR BELIEF DISCRIMINATION 5. Is it discrimination to refuse a request for five weeks holiday to attend religious festivals? Gareddu v London Underground Mr Garredu (G) is a Roman Catholic from Sardinia, Italy, living in the UK. Each August, he and two brothers, plus other extended family, return to Sardinia to attend religious festivals. G has worked for London Underground since 1990, and between 2009 and 2013 he was permitted to take five weeks off in the summer to return. In 2013, he was told that he would not be permitted to take five weeks continuous leave, and would be permitted a maximum of 15 working days only in the summer holiday period. As he had pre-existing plans for 2014, these were honoured, but his 2015 request for extended leave was refused. G claimed at the ET that it is part of his religion or belief to attend ancient religious festivals during this period. The ET found that, while participation in these festivals may constitute a manifestation of religious belief, the specific five week period did not. G did not attend the same saints' festivals every year, and attended only nine of the 17 he listed in It determined that the assertion had not been made in good faith, and wanting the five weeks leave related to "family arrangements rather than his religious beliefs or their manifestation". G appealed the finding. The EAT decided that the ET had not been perverse in its decision. As G had not attended the 17 festivals every year, the ET was entitled to come to the conclusion that the assertion that he must attend these festivals was not made in good faith. The ET made no determination about G's belief, and did not hold it against him that he desired to worship with his family. The decision was a test of the "genuineness of his assertion that he was required to do so over a period of five weeks". The appeal was dismissed. Comment: This is a case that turns on its own facts. Attendance at religious festivals could be a genuine manifestation of belief, and employers must take care to consider the reasons behind each request carefully. Failure to allow leave which is a manifestation of religious belief could amount to discrimination, most likely indirect. Any refusal of such leave would have to be justified, as a proportionate means of achieving a legitimate aim. Because the allegations were knocked out on the basis that they were not made in good faith, London Underground did not have to justify refusal of the leave. However, at the EAT, the arguments on justification were described as "particularly strong", and would likely have included consideration of the fact that other members of the team also wanted to take holiday during the summer period. Back 7

8 DISCRIMINATION 6. Does an unmarried partner have to 'opt-in' to be entitled to survivor's pension? In the matter of an application by Denise Brewster for Judicial Review (NI) Ms Brewster (B) had lived with her partner, William Leonard "Lenny" McMullan for ten years before December They became engaged on Christmas Eve Two days later, Mr McMullan died suddenly at the age of 43. Mr McMullan had been employed by Translink, the company that provides Northern Ireland's public transport services, for 15 years. He had paid into the local government pension scheme. In 2009 the regulations for the scheme were amended, allowing a co-habiting partner to become eligible for survivors benefits, but only if they had been nominated by a member. B had not been nominated by Mr McMullan, although she believed he had completed a form. A decision was made not to award B a survivor's pension, and she applied for judicial review of the decision. The High Court in Northern Ireland found that the requirement for nomination constituted unlawful discrimination, contrary to article 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), when read in conjunction with article one of the First Protocol. The Northern Ireland Local Government Officers' Superannuation Committee (NILGOSC) and the Department for the Environment of Northern Ireland (DENI) appealed the decision, and the Court of Appeal allowed the appeal. B appealed to the Supreme Court. The Supreme Court found that the nomination requirement was disproportionate. The Court understood the procedural requirements to ensure a "genuine and subsisting" relationship existed, but not the nomination process. The Supreme Court made a declaration that the requirement for nomination be disapplied, and ruled that B is entitled to a survivor's pension. Comment: For more information and commentary on this case, please see Out-Law.com Back STRIKING OUT 7. Can a witness talk to a reporter while under oath in an employment tribunal? Chidzoy v BBC Ms Chidzoy (C), a journalist who had worked for the British Broadcasting Corporation (BBC) for 30 years, had brought a claim to the ET of harassment, victimisation and sex discrimination. The case had been listed for 11 days commencing 6 February 2017 when an application was made to strike out the claim. C was coming to the end of giving evidence in the claim. On 9 February the ET took a short comfort break, before which C was warned that she must not discuss her evidence or any aspect of the case with any person during the adjournment. C had been given this warning prior to every adjournment in the case. On this occasion, C was alerted that this would likely be the final time she would receive this warning, as her evidence was coming to an end. When the case resumed after the break counsel for the BBC advised she had a serious matter to raise, that C had been seen conversing with a journalist in the adjournment. C's solicitor had offered to speak to the journalist, and provide witness statements; he had then left C and the journalist talking together on their own. Several people witnessed the discussion and overheard parts of it, specifically the use of the word "Rottweiler". This appeared to relate to C's evidence prior to the adjournment, around the Dangerous Dogs Act, and C being referred to as "Sally Shitzu". Rules 37(1) (b) and (e) of the Employment Rules of Procedure allow a claim to be struck out where: (b) it is scandalous, vexatious or has no reasonable prospect of success; or (e) it is no longer possible to have a fair hearing in respect of the claim or response. 8

9 The BBC argued that the ET had given clear warnings to C at each adjournment, and that she engaged in discussion with a journalist despite this, which, it argued, meant it was no longer possible to have a fair hearing. The ET agreed that "firm, clear and unequivocal instructions" had been given to C. She had representation, and her solicitors should have fully understood the importance of not engaging in discussion while giving evidence. The ET found as a matter of fact that C was "engaged in discussion about the case and her evidence". It concluded that "[this] constitutes unreasonable conduct". The ET determined that it was no longer possible in the circumstances to hold a fair trial, and that a fresh hearing would not be a proportionate response. C's evidence was almost completed and any new ET would be aware of the circumstances of the first, and would "be faced with...doubts as to the trust that could be placed in the way the case was being presented by or on behalf of the Claimant". The ET determined that C was guilty of unreasonable conduct, and the claim was struck out. Comment: This case highlights the importance of ensuring that rules are followed regarding discussing evidence while under oath. Here, despite being half way through an 11 day hearing, the case was struck out. More information on this case and speaking to the media can be found on our HR Network TV programmes: Case struck out after witness talked to reporter while under oath 10 March Media presence at tribunal be careful what you say 10 March Back SUBJECT ACCESS REQUEST 8. Court of Appeal overturns High Court ruling that a Subject Access Request can be refused Dawson-Damer v Taylor Wessing LLP Mrs Dawson-Damer (D) and her adopted children, beneficiaries of a trust in the Bahamas, served a subject access request (SAR) in August 2014 on Taylor Wessing LLP (TW), solicitors and data controllers for the trust. In September 2014, TW responded, stating that the personal data was covered by legal professional privilege, and exempted from disclosure under Paragraph 10 of Schedule 7 of the Data Protection Act (DPA). TW did not provide the information requested, as it held that it would not be reasonable or proportionate to carry out a search to determine which information was subject to legal professional privilege (and therefore does not have to be disclosed), and that some of the information was in unstructured manual files, which were not a "relevant filing system" for the purposes of the DPA. The High Court refused to make an order for compliance with the subject access requests. D appealed on three grounds: 1. The extent of legal professional privilege; 2. Whether any further search would involve disproportionate effort; and 3. Whether the judge was entitled to refuse the request because D intended to use the information in legal proceedings against the trustee. The case was before the Court of Appeal in November The Court of Appeal took a different view to the High Court, and made conclusions that: 1. The legal professional privilege exception applies only to documents which carry legal professional privilege for the purposes of English law (and here the claim was being made in the Bahamas); 2. TW had not shown that to comply with the request would involve "disproportionate effort", as all it had done so far was review its files and further compliance would not involve disproportionate effort; and 3. The judge was wrong to decline to enforce the request on the basis that the appellants intended to use the information obtained pursuant to in in their Bahamian proceedings. The case was remitted back to the Chancery Division. Comment: SARs are very commonplace, and this judgment will not assist employers in reducing the burden of dealing with them. The request cannot be disproportionate, but courts will require that this is established. The fact that the process of finding the personal data is costly or time consuming is not necessarily a reason for not complying with an SAR. The judge 9

10 in this case stated that "disproportionate effort must involve more than an assertion that it is too difficult to search through voluminous papers". Back FEEDBACK Please provide any feedback on this update by ing This will help us to shape future editions of this monthly case law update. 10