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The status of those working in the ‘gig economy’, whether they are genuinely self-employed or, in reality, workers or employees with greater employment law rights, has become a highly charged issue – and one increasingly the subject of legal challenge, notably involving Uber, Citysprint and Pimlico Plumbers in recent years. The ongoing review into modern employment practices commissioned by the UK Government, and being led by Matthew Taylor, has also kept the issue in the headlines, with the final report due later this year.

At the heart of the issue is whether the true nature of the relationship between companies and the individuals who provide a service for them is consistent with the self-employed label often used in the relevant contracts. Those in the gig economy may work as couriers, drivers or tradespeople, may wear uniforms, and in many cases are the company’s main interface with its customers. However, they also often work flexible hours and are free to decide when to clock on and off.
Continue Reading Can contracts for those working in the gig economy move with the legal tide?

In Newbound v Thames Water Utilities Ltd, the Court of Appeal has restored an Employment Tribunal’s decision that the Claimant was unfairly dismissed for a breach of his employer’s health and safety procedures.

The case is a reminder that, although an employer’s decision to dismiss must only be within a band of reasonable responses to be fair, that band is limited. In particular, dismissals for misconduct are likely to be outside the band of reasonable responses where there is a disparity in treatment between employees and where the rules relied upon have not been sufficiently well publicised.

The facts of the case

Mr. Newbound had been employed in sewer maintenance by Thames Water for 34 years. In summer 2011, Mr. Newbound was assigned to an annual inspection of a sewer in East London. He discussed the work with his manager beforehand and it was agreed that the work would be conducted with the benefit of breathing apparatus feeding air from above ground. They then went through the safe system of work form, SHE4, which applies to more complex tasks. The SHE4 was a new document and stipulated that breathing apparatus must be used. Mr. Newbound was to work alongside Mr. King (a contractor) and Mr. Andrews, “the competent person in charge”, responsible for health, safety and entry.

Whilst on site, Mr. Newbound, Mr. King and Mr. Andrews discussed whether they in fact needed the breathing apparatus. Following a gas test, they took the view that they did not. This subsequently came to Mr. Newbound’s manager’s attention.


Continue Reading Just how wide is the band of reasonable responses for misconduct dismissals?

In Donelien v Liberata, the Employment Appeal Tribunal (“EAT”) has held that an employer did not have constructive knowledge of an employee’s disability, even though further steps could have been taken to investigate her condition.

Background

Under the Equality Act 2010, employers are obliged to make reasonable adjustments to help disabled employees overcome disadvantages

In the case of Norman and others v National Audit Office UKEAT/0276/14, the Employment Appeal Tribunal (“EAT”) confirmed that flexibility clauses in employment contracts which seek to give employers the right to make unilateral changes to the contract’s terms will be interpreted restrictively against employers.

In reaching its decision, the EAT overturned an Employment

The Court of Appeal decision in Crawford and another v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 provides guidance as to the procedural standards required in misconduct cases in which dismissal is likely to impact on the employee’s ability to pursue his/her chosen career. The case also highlights the need to consider very carefully both the appropriateness of suspension during a disciplinary investigation and whether there are grounds for reporting matters to the police.

Continue Reading Disciplinary action and suspension for misconduct: guidance from UK Court of Appeal

In Duncombe and others v Secretary of State for Children, Schools and Families [No.2], the UK Supreme Court has decided that a teacher employed by the Secretary of State for Children, Schools and Families to work in a European School in Germany enjoyed the protection against unfair dismissal contained in the Employment Rights Act

In Grainger plc and others v Nicholson the EAT has given guidance on what might qualify as a ‘philosophical belief’ for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 (the “Regulations”). In the case, the Employment Appeal Tribunal (“EAT”) held that a belief in the existence of man-made climate change and the need to cut carbon emissions was capable of amounting to a philosophical belief which would qualify an employee holding that belief for protection from discrimination under the Regulations. However, importantly, the EAT made clear that it would be necessary for any claimant to establish that their adherence to the philosophical belief in question is genuine.

Continue Reading Guidance on discrimination on the grounds of philosophical belief