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Employment Case Law Update October 2021

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Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.

 

Unfair dismissal

Mrs A Rodin v Dhillons Management Services Limited

The claimant was employed by DMS1, an HR supplier now known as Dhillons Management Services.

It was unclear when her employment with the company started, although she was noted as managing certain client accounts for 16 years, and in 2016 she was employed as an HR trainer.

Mrs Rodin started her maternity leave on 19 June 2017 and expected to return to work on 19 March 2018.

However, from August 2017, she no longer received her statutory maternity pay entitlement. In September, DMS1 started to be taken over by Dhillons Management Services; this was a different company although it was owned and run by the same people as DMS1. Mrs Rodin was then sent her P45, and was dismissed without being given reasons or notice.

Mrs Rodin contacted the company about her outstanding maternity pay. She claims she was told by the company owner, Mr Dhillon, to “go to the Job Centre for any future money”, which she did but the Job Centre could not assist as it was her employer’s responsibility to pay her maternity pay. She reverted back to Mr Dhillon, without response.

She said she believed the problem arose because her employer could not transfer her to the new company, and while she claimed Mr Dhillon said she could work for the new company, this would mean losing her maternity pay and benefits.

Mrs Rodin told the tribunal that as a result of her employer refusing to help her, she became stressed and depressed, which in turn reduced her breastmilk production. She was prescribed sleeping pills, a high dose of antidepressants and had to attend therapy.

Mrs Rodin brought claims against her former employer for pregnancy and maternity discrimination.

The tribunal found in favour of the claimant, deciding that she had been treated unfairly because of her pregnancy. The impact of this treatment was further worsened by the company’s refusal to contact Mrs Rodin or resolve the issues with maternity pay.

The tribunal judge said: “Mrs Rodin had no job during her maternity leave and this had a detrimental and adverse impact upon her health and wellbeing and this adversely impacted her ability to feed her child, which caused additional distress.” 

Although the company had no dedicated HR department of its own, it was nonetheless deemed to be “not unsophisticated” and the tribunal judge held that there was “no excuse” for the employer not to know the law, particularly since its business was to advise on HR functions.

The tribunal ordered both companies to pay a total of £50,720, with £12,500 for injury to feelings due to comments made by the office manager suggesting Mrs Rodin’s claim was “somehow exaggerated”.

Employer takeaways

Employers are reminded of the rights of workers on maternity leave, which are designed to provide additional protections to prevent discrimination and unfair treatment, maternity pay issues and termination without notice or good reason. Employers should therefore ensure they have effective support and consultation procedures in place when dealing with employees on maternity leave.

 

Unlawful indirect discrimination

Follows v Nationwide Building Society

The claimant, Ms Follows, was employed by Nationwide Building Society (NBS) under a home-working contract and also had caring responsibilities for her disabled mother.

During a redundancy process, NBS imposed a requirement that any workers that would remain in their role should not be working from home. This meant Ms Follows would have to give up her home-working arrangement.

Ms Follows wanted to continue under her existing contractual terms, which provided for her to work in the office 2-3 days a week, due to her caring responsibilities.

Ms Follows was later dismissed.

The tribunal at first instance held that NBS had unfairly dismissed Ms Follows, and that NBS was liable for indirect disability discrimination and indirect sex discrimination.

Employer takeaways

The key takeaway for employers is the risk of unlawful indirect discrimination if the requirement for office-based working disadvantages employees with caring responsibilities for disabled dependents.

Although this is a first tribunal decision and therefore not a binding precedent, the decision is a timely reminder of how workplace policies can constitute indirect discrimination, since it was the employee’s mother who was disabled and not the employee herself.

 

Worker Status

Stuart Delivery Ltd v Augustine

This is a further ruling from the Court of Appeal on the issue of worker status in the gig economy.

Mr Augustine was a courier for Stuart Delivery. He delivered goods by moped by accepting jobs on an ad-hoc basis or signing up to work at particular times known as ‘slots’.

The working arrangement involved use of Stuart Delivery’s app by Mr Augustine and other couriers who had signed up to the app and been approved by the company.

Couriers, including Mr Augustine, could post notifications on the app for unwanted delivery slots, which other couriers could opt to fill. Couriers would not know which other courier would take up a released slot and they could not nominate individual couriers to fill a particular slot.

If the slot remained unwanted, the original courier would have to carry out the work or be liable for the consequences of missing the slot.

When the working relationship ended, Mr Augustine asserted his status as a worker. He claimed he was protected under the Working Time Regulations and as such, unauthorised deductions should not have been taken from his pay.

Stuart Delivery disagreed, arguing that he was not a worker.

The employment tribunal at first instance and the Employment Appeal Tribunal both upheld Mr Augustine’s claims. Stuart Delivery appealed to the Court of Appeal on the grounds that earlier case law on the right of substitution had been misunderstood by both tribunals.

The question was whether the courier’s ability to release a slot to other couriers via the company’s app constituted a sufficient right of substitution to remove the obligation on the courier to perform his work personally, thereby falling short of the definition of a worker.

The Court of Appeal dismissed the appeal and confirmed that the earlier tribunals had been correct on the facts in finding that the courier had been a worker within the definition of s230 Employment Rights Act 1996.

While the couriter could offer time slots to other couriers, as he had signed up to cover the slots, he remained obliged to perform the work personally. As such, he would be considered a worker under employment protection legislation, despite having a limited right of substitution.

Employer takeaways

This latest decision on the issue of gig economy worker status follows earlier rulings which consider the reality of a situation when determining employment and worker status.

 

Need assistance?

If you have a question about employment case law and the impact of tribunal and court decisions on your business, DavidsonMorris’ experienced employment lawyers can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.

 

Last updated: 26 October 2021

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