Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.
Employment status
Richards v Waterfield Homes Ltd and another [2022]
Mr Richards, a carpenter, was engaged by Waterfield Homes from 2010 to 2018 on a self-employed basis. He was paid through HMRC’s Construction Industry Scheme (CIS), which is a tax mechanism unavailable to employees.
In 2018, Waterfield was advised to move its contractors to employment contracts, as its contractor contracts would not pass HMRC scrutiny. Mr Richards was given a new employment contract (as were its other contractor colleagues), which stated his continuous service began from 2018. Mr Richards argued his service commenced in 2010 when he had first started with the company; in other words, that he had been an employee of the company throughout the time that he had been working for them.
The Employment Tribunal at first instance found that, even where the facts show multiple indicators of employment status, if there is only one indication of self-employment, this is determinative of the issue. Put simply, Mr Richards was self-employed since this was the true intention of the parties.
The claimant appealed.
The Employment Appeal Tribunal (EAT) found the tribunal had erred in its decision. It held that the parties’ intentions do not alone determine employment status and that the first tribunal was incorrect in placing too much emphasis on intentions. While the parties’ intentions may be persuasive, they are neither conclusive nor sufficient in determining employment status where this notable evidence to the contrary.
Using this approach, together with existing case law in this area, the EAT determined that the claimant was indeed an employee. It went on to state that, given the facts, the self-employment status used by the parties was “manifestly” false.
Having determined the claimant was an employee, the EAT has remitted the case for the substantive hearing.
Disciplinary appeals & vanishing dismissals
Marangakis v Iceland Food Ltd
The claimant, Ms Marangakis, was summarily dismissed by Iceland for gross misconduct.
She submitted an appeal through the company’s internal procedure, indicating that she wished to be reinstated, and also sent an email stating she no longer wanted to be reinstated as she felt the mutual trust with her employer had been broken.
She reiterated at the appeal hearing that she did not want to work for Iceland anymore.
Following the hearing, Iceland took the decision to allow the appeal, and informed Ms Marangakis she was being reinstated with backpay and continuity of service. Iceland then substituted the previous decision to dismiss summarily with a final written warning.
Ms Marangakis subsequently failed to return to work and was dismissed by Iceland.
Ms Marangakis brought a claim for unfair dismissal based on the initial, pre-appeal decision to dismiss her summarily.
The Employment Tribunal found against Ms Marangakis. The claim was dismissed on the grounds that the original dismissal had effectively “vanished” due to the appeal decision.
The claimant appealed.
The EAT agreed with the tribunal at first instance and dismissed the appeal. Where an employee has availed of their contractual right to appeal, the parties are given to have agreed that in the event an appeal is successful, the dismissal will vanish and, regardless of the employee’s wishes, they will be treated as having never been dismissed. Instead, the employee would need to have withdrawn the appeal.
Ms Marangakis had argued that she had withdrawn from the appeal. The tribunal found she had not unequivocally done so and had in fact continued to participate in the appeal process.
Disability discrimination
Hilaire v Luton Borough Council
Mr Hilaire was employed by Luton Borough Council. During a restructuring and redundancy process in 2013, Luton Borough Council permitted at-risk employees (including Mr Hilaire) to apply for roles within the new structure. The employees were required to attend a ‘ring-fenced’ interview for the role.
Mr Hilaire suffered a disability (depression). He brought a claim against his employer on the grounds that the requirement to attend a job interview put him at a substantial disadvantage due to his disability, and that it would have constituted a reasonable adjustment to offer him the job without attending an interview.
The Employment Appeal Tribunal disagreed with the finding of the first tribunal. The EAT held that requiring employees to attend a job interview constituted a provision, criterion or practice (PCP) that put Mr Hilaire at a disadvantage due to his disability. Medical evidence proved his difficulties with memory, concentration and social interaction. This would have the effect of disadvantaging him in the interview process.
However, the EAT specified that it was not simply a question of whether Mr Hilaire could attend an interview, which was the approach taken by the first tribunal. Rather, the issue was whether Mr Hilaire was able to fully participate in it without disadvantage due to his disability. Consideration had to be given to the extent to which his disability restricted his participation, and whether this was more than trivial or minor.
On the facts, the tribunal found Mr Hilaire could have engaged with the process if he had wanted to do so, but evidence showed he would not have attended an interview in any case as he believed his managers were conspiring to dismiss him. Since he chose not to engage in the process due to reasons that were not related to his disability, the claim failed.
The EAT also clarified that simply offering the job to Mr Hilaire (or in these circumstances, any employee with a disability) as part of the redundancy process without interview would not be considered a reasonable adjustment. While this would have alleviated the disadvantage to employees with a disability, it would have negatively impacted other affected employees. Reasonable adjustments should remove the particular disadvantage caused by the relevant PCP, but should not give employees with disabilities an advantage over and above removing the particular disadvantage. As such, removing him from the process would have been unfair to others in the redundancy pool.
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Last updated: 30 November 2022
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals