The importance of worker status

Employment specialists are going to have to wait and see what the legal ramifications of Brexit will be. It is pointless trying to gaze into a crystal ball. But as we reach the end of 2016, we can reflect on the year’s significant case law. I don’t propose to go through cases ably dealt with in previous practice notes, but to flag up interesting cases of potentially wide application.

Worker status has been big in 2016. Aslam, Farrar and others v Uber BV Ltd, Uber London Ltd and Uber Britannia Ltd (2202550/2015), the Uber worker status and whistleblowing claim, was headline news. The drivers were found to be workers rather than self-employed, permitting the hearing of their claims (see this article for further analysis).

The Working Time Directive created this intermediate ‘worker’ status, with more protection than self-employed people, and less than employees. However, with no actual definition of worker status, case law has had to step in.

Fenoll v Centre d’aide par le travail ‘La Jouvene’ [2016] IRLR 67 concerned a disabled person attending a work rehabilitation programme at a centre to rejoin the labour market. Following its judgment in Union syndicale Solidaires Isère (C'‘428/09), the European Court of Justice stated that the employment relationship occurs where ‘for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’ – a very wide view which here included a person admitted to a work rehabilitation centre. This principle, on future applications, may open the door for many others not traditionally seen as workers.

Grange v Abellio London Ltd [2016] UKEAT 0130/16/1611 is a timely reminder of why worker status is important. The Employment Appeal Tribunal found that a worker need not have to make a request for a rest break in order to have been refused one – an employer giving an instruction to work without taking a rest break should be construed as a refusal as ‘entitlement to a rest break is intended to be actively respected by employers’ – and that the regulations required ‘common sense construction’.

This year also saw the Court of Appeal decision in Lock v British Gas Trading Ltd (No 2) [2016] IRLR 946, which established that pay for annual leave should also include results-based commission on top of salary.

Guidance on injunctions

Injunctions in restraint of trade were subject to guidance from the Court of Appeal in D v P [2016] IRLR 355. If parties enter into a contract of employment with open eyes, they ‘should ordinarily be held to their bargain’, and an injunction should be the starting point when considering remedy as ‘the damage potentially sufferable by a covenantee such as D by a breach of the relevant restraint will usually be unquantifiable and will rarely, if ever, provide the covenantee with an adequate substitute for an injunction’.

Unfair dismissal

A dismissal cannot be inferred from an employment agency’s failure to find work for an employee (Sandle v Adecco UK Ltd [2016] UKEAT/0028/16/JOJ). Dismissal must be unequivocally communicated by the employer to the employee.

Constructive dismissal was examined in Grewals (Mauritius) Ltd v Koo Seen Lin [2016] IRLR 638, where the Privy Council emphasised the importance of a contractual analysis: ‘When constructive dismissal is in question, the acid test is not whether the employer intended to dismiss; it is whether he has by his conduct, objectively judged, repudiated the contract. If he has, the employee is entitled, by accepting the repudiation, to treat the conduct as constructive dismissal.’

Bandara v British Broadcasting Corporation [2016] UKEAT 0335/15/0906 is a reminder of the correct approach to unfair dismissal for misconduct. The employee, under a final written warning (which as a finding of fact was held to be manifestly inappropriate), had been dismissed for subsequent misconduct. The EAT held the tribunal had erred as it had sought to consider the final written warning as if it had been a valid written warning.

The tribunal must not ‘put forward a hypothesis of its own’; it must ‘examine the reasoning of the employer’. The task is to ‘examine whether the employer relied on the final written warning’, paying attention to the weight given. If it treated the warning as background, a dismissal could, on the proper application of section 98(4) of the Employment Rights Act 1996, be fair. However, ‘if the employer attached significant weight to the warning, for example starting from the proposition that the employee was to be dismissed for any significant misconduct because he was already subject to a final written warning, then it is difficult to see how the employer’s decision can have been reasonable’.

Associative discrimination

The nexus between those ‘associated’ with one another for the purposes of associative discrimination (under the victimisation provision in section 27 of the Equality Act 2010) was the issue in Thompson v London Central Bus Company Ltd [2016] IRLR 9. Could being a fellow member of a union, active in combating racism, qualify?

The EAT stated that the issue was ‘whether in the mind of the putative discriminator the protected act of a third party was part of the reason for the treatment of the employee’ and that ‘it is entirely possible to conceive of a situation where an employee’s membership of an organisation, which had protested about protected acts, might cause an employer to treat the employee in a detrimental way. The question is fact-sensitive.’

Sean Jones QC has suggested that ‘if you know an employment lawyer, they are probably in need of a hug’. I would second that, along with an extra-large helping of festive cheer as we get ready to face an uncertain 2017.

In memoriam, Guy Laurence Mitchinson, 1962-2016. He was not a lawyer, but my most avid reader. Much loved and much missed.

Snigdha Nag is a barrister and senior lecturer at City Law School

@CityLawSchool

www.city.ac.uk/law