Nigel Moore ranked by Chambers and Partners 2019 for Employment Law

Chambers are delighted to congratulate Nigel on his ranking in this years Chambers and Partners which are announced today.

Nigel – Band 3

Called to the Bar after a number of years’ practice as a solicitor, and has since acted for both respondents and claimants in a range of contentious employment matters. He is well reputed in the market for his work in whistle-blowing claims and his practice extends to unfair dismissal, race discrimination and age discrimination claims, as well as TUPE, industrial action and restrictive covenants.

“He’s a very experienced in employment and he’s a good technical lawyer.”

 

 

Pimlico Plumbers Ltd & Mullins v Smith [2018] UKSC 29

In what is likely to be the leading authority on employment status for years to come, the Supreme Court today has dismissed the appeal of Pimlico Plumbers from the Court of Appeal decision that Mr Smith was a worker and not a self-employed contractor.

Mr Smith is a plumber who carried out work for Pimlico between 2005 and 2011. After suffering a heart attack in 2011, Mr Smith claimed to have been unfairly dismissed despite having presented himself as self-employed for VAT and income tax for 6 years. The facts of his engagement are complex, but the dispute between the parties centred around the legal categorisation of Pimlico’s business model. The model presented operatives to clients as working for the business, but at the same time the business internally sought to maintain that there was a legal relationship of self-employed independent contractor rather than employer and employee. The paperwork in this regard was confusing at best. The employment tribunal, EAT and Court of Appeal all reached the decision that Mr Smith was a ‘worker’ rather than a self-employed contractor. Today the Supreme Court judgment upheld that finding.

Whether or not someone is a worker or an employee is largely a matter of fact for the Tribunal to decide. Here Lord Wilson determined that, “the dominant feature of Mr Smith’s contracts with Pimlico was an obligation of personal performance …there were features of the contract which strongly militated against recognition of Pimlico as a client or customer of Mr Smith. Its tight control over him was reflected in its requirements that he should wear the branded Pimlico uniform; drive its branded van, to which Pimlico applied a tracker; carry its identity card; and closely follow the administrative instructions of its control room. The severe terms as to when and how much it was obliged to pay him, on which it relied, betrayed a grip on his economy inconsistent with his being a truly independent contractor.” The substantive claims will now proceed to be heard in the employment tribunal.

Although Charlie Mullins (the owner of Pimlico) prophesies that companies using self-employed contractors now face a ‘tsunami of claims’, this claim is most likely a gross exaggeration. As has always been the case, every individual case will require careful legal analysis of the true nature of the working relationship. The contractual label alone is not enough. The contract may term the relationship as one of self-employed contractor, but the substance of the obligation of personal performance is what counts. Here, there was criticism of “an irrelevant contract, cast in highly confusing terms”, necessitating proper scrutiny of the entire engagement. The famous judgment of Lord Templeman in Street v Mountford [1985] AC 809 comes to mind that “The manufacture of a five pronged implement for manual digging results in a fork even if the manufacturer, unfamiliar with the English language, insists that he intended to make and has made a spade.”

Companies routinely engaging self-employed contractors on any sort of routine basis would do well to potentially scrutinise and revise its contracts in light of this judgment. Individuals who feel as though they have been ‘strong armed’ into signing a contract declaring them to be self-employed, despite being heavily controlled by their company, may wish to consider negotiating a clearer and more honest working legal relationship. When it comes to drafting contracts that seek to control an operative whilst describing them as self-employed, the ‘careful choreography’ exercised by Pimlico is not enough to balance such inconsistent objectives. In future, contracts- be they for an employee, worker or self-employed contractor- should really call a spade a spade.

https://www.supremecourt.uk/cases/docs/uksc-2017-0053-judgment.pdf

Andrew Worthley

Constructive Dismissal: Appealing the Last Straw

Constructive Dismissal: Appealing the Last Straw

Can the rejection of an appeal against a final written warning constitute a ‘last straw’ for the purposes of a constructive dismissal claim? Not in the case of Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978, where the Court of Appeal determined that “such a process, properly followed…cannot constitute a repudiatory breach of contract, or contribute to a series of acts which cumulatively constitute such a breach.”

The appellant in this case had been involved in an altercation with a colleague and raised a grievance over the matter. This triggered disciplinary proceedings against her which were conducted by way of a combined grievance/disciplinary procedure. The outcome was a final final written warning against the appellant for inappropriate behaviour. She appealed this sanction, but due to a period of maternity leave and various other factors, the appeal was not concluded until some 15 months after the incident. When the appeal was finally rejected, the appellant brought a claim for constructive unfair dismissal, claiming that the rejection of her appeal was the last straw in a series of acts which, taken together, amounted to a breach of the implied term of trust and confidence.

The employer successfully applied to strike out her claim. The judge at first instance decided that the disciplinary process and its outcome were unarguably reasonable and so there was no reasonable prospect of the appeal outcome constituting a ‘last straw’. On appeal, the EAT recognised a complication arising from the authority of Addenbrooke v Princess Alexandra Hospital NHS Trust UKEAT/0265/14, which had stated, ‘if there is subsequently conduct which, taken together with the employer’s earlier fundamental breach, causes the employee to resign or plays a part in the decision of the employee to resign, the later act effectively reactivates the earlier fundamental breach’. Although the appeal was dismissed, the Court of Appeal granted leave to appeal so as to properly review the ‘last straw’ doctrine and its interaction with the re-activation of ‘waived’ or ‘affirmed’ breaches.

The Court of Appeal this week dismissed the appeal and affirmed the well-known earlier decision of the Court of Appeal in London Borough of Waltham Forest v Omilaju [2005] ICR 481. The pertinent part of Lord Justice Dyson’s judgment in that case was cited in full as follows,

“19. … The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase ‘an act in a series’ in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant. 

  1. I see no need to characterise the final straw as ‘unreasonable’ or ‘blameworthy’ conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.
  1. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle. [Emphasis supplied]”

Effectively therefore, if the conduct complained of is continued by a further act or acts, in response to which an employee resigns, they can still rely on the totality of the conduct in order to establish the necessary fundamental breach. The obvious observation otherwise is that “it would be extraordinary if, by failing to object at the first moment that the conduct reached the Malik threshold, the employee lost the right ever to rely on all conduct up to that point.”

That being the case however, Underhill LJ agreed that the appeal outcome in the instant case was incapable of forming part of a cumulative breach. Had the conduct of the disciplinary process been seriously unfair, a tribunal would very likely have held that that was a sufficient repudiatory breach in itself, without the need to refer back to events of a different character some time previously. The appellant was – of course- entitled to believe the outcome to be wrong; but the true test is objective, and a fair disciplinary process cannot, viewed objectively, destroy or seriously damage the relationship of trust and confidence between employer and employee simply because the outcome was not desired by the employee.

For cases of constructive dismissal therefore, legal advisers (and tribunals) should ask themselves the five questions posed by Underhill LJ as follows:

(1)              What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2)              Has he or she affirmed the contract since that act?

(3)              If not, was that act (or omission) by itself a repudiatory breach of contract?

(4)              If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? If it was, there is no need for any separate consideration of a possible previous affirmation.

(5)              Did the employee resign in response (or partly in response) to that breach?

As Underhill LJ observed although none of the questions are conceptually problematic in and of themselves, “answering them in the circumstances of a particular case may not be easy.” The Magdalen Chambers employment team are on hand to assist for those difficult cases.

Burden of Proof under the Equality Act 2010: Ayodele v Citylink Limited & Napier [EWCA] Civ 1913 a Return to Orthodoxy after Efobi v Royal Mail Limited.

Further to my article on 9th October 2017 the Court of Appeal has considered the effect of section 136 of the Equality Act 2010 in the case of Ayodele v Citylink Ltd. The point arose as an additional ground of appeal before the Court of Appeal as a consequence of the EAT’s decision in Efobi.
Their Lordships considered not only the well-known, pre-Efobi, domestic law on this point but also the Opinion of Advocate General Mengozzi in CJEU case C-415/10 Galina Meister v Speech Design Carrier Systems GmbH, which supported the view that in EU law the initial burden lies on a claimant and that this maintains a fair balance between the rights of claimants and those of defendants or respondents.
Singh LJ at paragraph 93 of his Judgment in Ayodele said “I can see no reason in fairness why a respondent should have to discharge that burden of proof unless and until the claimant has shown that there is a prima facie case of discrimination which needs to be answered” Singh LJ was reinforced in that view by reason of the Opinion of the Advocate General in Galina Meister. Further comment was made that there was no material before the Court of Appeal that tended to show that there was a mischief that Parliament intended to remedy by the altered wording in Section 136. It was concluded that the change in wording was because the earlier legislation was not entirely clear that what should be considered at the first stage was all the evidence, from whatever source it had come, and not only the evidence adduced by the claimant. This had been clarified by the Court of Appeal in Madarassy. The changing of the wording was a “tidying up” exercise and not intended to change the law in substance. It was concluded that the pre-Efobi decisions of the Court of Appeal remained good law and that the interpretation in Efobi is wrong and should not be followed.
There is, however, an important point still to be drawn from Efobi, namely the clear warning given to Respondents of the possibility that an adverse inference might be drawn if they do not call alleged discriminators, without a good explanation, to give evidence.
It should be noted that the Court of Appeal has not determined whether permission to appeal should be granted in Efobi and as such there may be further developments.

UK Employment Appeal Tribunal rejects Uber appeal

 

The ride-hailing firm Uber has lost its appeal against a ruling that its drivers should be classed as workers with minimum-wage rights, in a case that could have major ramifications for labour rights in the growing gig economy. Read the full judgment.

https://www.gov.uk/employment-appeal-tribunal-decisions/uber-b-v-and-others-v-mr-y-aslam-and-others-ukeat-0056-17-da#content

Burden of Proof under the Equality Act 2010 and Adverse Inferences

Burden of Proof under the Equality Act 2010 and Adverse Inferences: Efobi v Royal Mail Group Limited (Judgment handed down on 10 August 2017). 

Prior to the advent of the Equality Act 2010 the burden of proof under the earlier legislation was stated by the Court of Appeal in Igen v Wong [2005] EWCA Civ 142. The first stage was that the Claimant had to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed, or is treated as having committed, the unlawful act of discrimination. If that initial burden was established by the Claimant, the legislation then required the Respondent to show that unlawful discrimination had not occurred.

Section 136 of the Equality Act 2010 provides:

“136 Burden of proof

(1)     This section applies to any proceedings relating to a contravention of this Act.

(2)     If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3)     But subsection (2) does not apply if A shows that A did not contravene the provision.

…”

It is of note that the explanatory notes referred to in the Preamble of the Act state that “…the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act…”

In Efobi v Royal Mail Group Ltd UKEAT/0203/16/DA, a race discrimination case under the Equality Act 2010, the EAT considered the interpretation of S136 after the tribunal at first instance applied Igen v Wong. The EAT held that section 136 does not put any burden on the Claimant and that it was explicit in not placing any burden on the Claimant. S136 requires the Tribunal to consider all the evidence, from all sources, at the end of the hearing so as to decide whether or not there are facts, from which in the absence of an explanation, it could conclude that there had been discrimination. This therefore means that S136 prohibits a submission of no case to answer at the close of the Claimant’s case because the Tribunal has to evaluate all of the evidence, including that of the Respondent, before considering whether there is sufficient evidence to require the Respondent to show that discrimination did not occur.

Laing DBE J acknowledged that this was not the way the Explanatory Notes to the Equality Act 2010 interpreted S136 and although they can be used to aid construction of the statute they cannot be treated as reflecting the will of Parliament, which is to be deduced from the language of the statue in question. It was further acknowledged that this was not the way that the burden of proof had been understood in cases starting with Igen v Wong but the statutory provisions under consideration in those cases were worded differently to the Equality Act 2010.

Efobi is also a salutary warning to Respondents that choose, without explanation, not to adduce evidence of matters in their own knowledge in that they run the risk that the Tribunal may draw an adverse inference when considering whether S136(2) has been satisfied. In Efobi there was very little evidence adduced before the Tribunal as to the race and national origins of the successful candidates and the Respondent had not called, as witnesses, any of the staff who made decisions in relation to Claimant’s application for promotion. Although not referred to as part of Laing J’s discussion, Lord Sumption’s Judgment in Prest v Petrodel Resources Ltd [2013] UKSC 34 and Wisniewski v Central Manchester Health Authority CA [1998] PIQR P324 were cited in argument.

In Wisniewski, a clinical negligence case in which the Senior House Officer on call did not give evidence, Brooke LJ derived the following principles in relation to inferences:

(1)       In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2)      If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3)       There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4)       If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.

Conclusion

Efobi has not only clarified that there is not a burden of proof on the Claimant as part of S136(2) but has also highlighted the need for Respondents to adduce evidence if they do not want to run the risk of an adverse inference being drawn as to why a witness has not been called or why disclosure of other evidence has not been provided. It should, however, be noted that before an inference on any particular issue can be drawn there must be some evidence before the court or tribunal on that issue. Accordingly, Efobi is a clear warning to Respondents who do not call alleged discriminators, in the absence of a good explanation, to give evidence.

Permission to appeal has been sought from the Court of Appeal and a Judicial Decision on the papers is currently awaited.

James Bax

Magdalen Chambers

 

Working: employed or gigging? 

We lawyers have been arguing about the status of ‘employees’ since the dawn of the first codified employment legislation in this country and the advent of the industrial tribunals. Cases such as Ready-Mixed Concrete v Minister of Pensions & National Insurance [1968] QB 497 and Carmichael v National Power Plc [2000] IRLR 43 gave us the irreducible minimum of obligations without which no contract of employment can exist.’ Factors such as the mutuality of obligations between the company and the individual, the control exercised by the ‘employer’ over the individual on a day-to-day basis, the individual’s level of integration within the company, and the economic reality of the situation. This is so vitally important because not all those ‘employed’ are in fact ‘employees’ and therefore do not have access to the same rights, such as the national minimum wage, paid holiday, sick leave, etc.

The statutory definition is set out in section 230(1) Employment Rights Act 1996 (‘ERA’). This section states: an ‘employee’ is: ‘an individual who has entered into, or works under, a contract of employment’. Section 230(2) defines a contract of employment as a contract of service.  For comparison a self-employed person may refer to themselves as working under a Contract for Service.

The Court of Appeal held in Protectacoat Firthglow Ltd v Milkos Szilagyi [2009] EWCA Civ 98 and the Supreme Court affirmed in the case of Autoclenz Ltd v Belcher and Others [2011] UKSC 41, that despite any label given to a relationship by the parties, the Court should look behind that agreement and examine the actual nature of the working relationship.

That was all well and good but in more recent years we have seen an explosion in a new type of ‘employment’, with the advent of the zero hours contract and the ‘gig economy’. According to one definition, the ‘gig economy’ is: ‘a labour market characterised by the prevalence of short-term contracts or freelance work, as opposed to permanent jobs’. Taking opposing partisan viewpoints- it is either a working environment that offers flexibility with regard to employment hours, or a form of exploitation with very little workplace protection.

Recent caselaw includes Dewhurst v CitySprint UK Ltd ET 22025/2016, a first instance tribunal decision which held that Ms. Dewhurst was a worker not self-employed, and Aslam, Farrar & Others v Uber & Others ET 2202551/2015, another first instance decision which is awaiting the appeal hearing listed in the EAT in September 2017, where the tribunal determined that:

The notion that Uber is a mosaic of 30,000 small businesses linked by a common platform is to our minds faintly ridiculous… simple common sense argues to the contrary.’

The Court of Appeal handed down judgment in Pimlico Plumbers Ltd & Another v Smith [2017] IRLR 323 earlier this year stating that Mr. Smith was a worker qualifying for sick pay rather than a self employed contractor.

At the time of writing Deliveroo’s case is being assessed by the Central Arbitration Committee with regard to the national minimum wage and holiday pay.

Yesterday, the ‘Taylor Review of Modern Working Practices’ entitled ‘Good Work’ was published. It is an extensive document that includes proposals some of which will be able to be rolled out easily and quickly, others will require extensive drafting and Parliamentary process, but it is at least perhaps an indicator of the direction of travel. Some of the key proposals in my view are:

  • Keeping the distinction between employees and workers, but renaming workers who are not employees ‘dependant contractors’ page 35;
  • Amending the legislation cited above to include the case law principles;
  • Placing more emphasis on control within the definition of worker- page 36;
  • Amending the NMW to make it clear that gig-economy workers allocated work through an app are undertaking a form of output work and will not have to be paid the NMW for each hour logged on when there is no work available- page 38;
  • Extending the right to a written statement of terms and conditions to workers as well as employees- page 39;
  • Requiring written statements to be given on day one of employment;
  • Extending written statements to include a description of statutory rights;
  • Giving agency workers the right to request a direct contract with the end user after 12 months on an assignment- page 48;
  • Giving those on zero-hours contracts the right to request guaranteed hours after 12 months;
  • Giving HMRC enforcement powers for sick and holiday pay- page 59;
  • Allowing Claimants to bring a claim to the tribunal (without an issue fee) to determine employment status as a preliminary issue prior to any substantive claim- page 62;
  • Placing the burden on the employer in the tribunal to prove that the Claimant is not an employee or worker- it is currently the other way round.

We will have to see how much of this becomes law and what the appellate courts make of the cases before them in the mean time, but it seems that there is still no clear definition of ‘an employee’ thanks to both social and technological advances.

Any one wishing to find out more about their potential employment rights, should contact Sarah Hornblower in Chambers.