Employment Law E-Bulletin Issue 49

• Dewhurst v CitySprint UK Ltd ET/2202512/2016: A bicycle courier is a ‘worker’ of a courier firm for the purposes of the Employment Rights Act 1996
• Hampshire County Council v Wyatt UKEAT/0013/16: Medical evidence not an absolute requirement for personal injury awards in discrimination claims
• Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School UKEAT/0101/16: Guidance on when work stress may be a disability and costs awards against parties with little or no money
• United Lincolnshire Hospitals NHS Foundation Trust v Farren UKEAT/0198/16: Practicability of re-engagement order: focus must be on employer's belief in dishonesty

Dewhurst v CitySprint UK Ltd ET/2202512/2016: A bicycle courier was a ‘worker’ of a courier firm for the purposes of the Employment Rights Act 1996

Some key employment rights are only provided to people who are regarded in law as 'employees', however, many other rights are provided to a wider category of 'workers' as defined in the Employment Rights Act 1996. In this case, it was held that a cycle courier engaged by a courier business as a self-employed contractor was a ‘worker’ and therefore entitled to holiday pay.

Ms Dewhurst works as a cycle courier for CS Ltd (“the Company”), working four days a week from 9:30 am to 6:30 pm. At the start of the day she speaks to a controller and logs into the Company’s electronic tracking system and only logs out at the end of the day. The controller, using the tracking system, allocates jobs to couriers throughout the day. The Company recruits couriers under a document entitled ‘Confirmation of Tender to Supply Courier Services to Citysprint Ltd’, which purports to treat them as self-employed contractors.

The tribunal considered it significant that the substitution of work clause was so prescriptive that, in reality, Ms Dewhurst could only swap jobs with a colleague. The tribunal also noted that the very title of the contract aroused suspicion that it was the work of an ‘army of lawyers’ and highlighted the inequality of bargaining power. The reality of Mr Dewhurst's working conditions made it clear that she was integrated into the Company’s business. She was expected to work when she said she would; she was given directions throughout her working day; she was instructed to smile and wear a uniform; and she was told when she would be paid and how much, according to the Company’s calculations. Thus, she succeeded in her claim for two days’ holiday pay as the tribunal found she was a ‘worker’, working on the Company’s behalf.

In reaching its conclusion, the tribunal relied on the principle in Autoclenz Ltd v Belcher, which allows a tribunal to depart from the wording of the contract and look at the reality of the situation if there is a contradiction. Whilst this judgement sets no legal precedent (being a first instance Employment Tribunal decision), it is important as a further indication of the way in which so-called 'gig economy' cases may be determined, following the recent decision in the tribunal proceedings involving the taxi provider Uber.

Hampshire County Council v Wyatt UKEAT/0013/16: Medical evidence not an absolute requirement for personal injury awards in discrimination claims

Compensation is the principal remedy in successful discrimination claims and can also include a financial award for personal injury. When assessing compensation in respect of personal injury, tribunals will ordinarily refer to the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (“the Guidelines”). Under the Guidelines, each classification of injury has a suggested range for compensation.

The claimant was a carer employed by Hampshire County Council. She was subject to disciplinary allegations which resulted in a short period of suspension triggering depression. She was also ‘disabled’, as defined by the Equality Act 2010, by reason of dyslexia. She was ultimately dismissed due to her absence and successfully brought claims for disability discrimination and unfair dismissal. She was awarded £15,000 for injury to feelings and also £10,000 compensation for personal injury (being her depression). The council appealed against the level of these awards, arguing that they were excessive in the absence of medical evidence.

Although there is no legal requirement, the EAT noted it was usually advisable to have medical evidence in such cases. However, on the facts of this case the Claimant’s depression was triggered by her suspension and there was sufficient evidence from other sources to justify the personal injury award made.

The EAT concluded that it was permissible for a tribunal to make a personal injury award for depression in a disability discrimination case in the absence of medical evidence. This was so even though there were issues as to the causation of the injury. The EAT similarly held that there was no prerequisite for medical evidence in an unfair dismissal case when assessing future working prospects.

Despite the finding, the EAT stated that it is usually advisable to obtain medical evidence about causation and prognosis. Although this case concerns remedy it also serves as a useful reminder to employers that they may need to make adjustments to internal procedures, such as suspension meetings for disabled employees.

Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School UKEAT/0101/16: Guidance on when work stress may be a disability and costs awards against parties with little or no money

The EAT has given guidance on when stress caused by difficulties at work may amount to a disability, and the issues a tribunal should consider when making a costs award against an individual who lacks the means to pay but may be able to in the future.

Mr Herry, a Design and Technology teacher, brought a number of allegations against his employer, including disability discrimination. He claimed that his disabilities were dyslexia, stress and depression. The tribunal held that he had not shown that his dyslexia had a substantial adverse effect on his ability to carry out day-to-day activities. Further, he had provided little or no evidence that his stress had any effect on his ability to carry out normal activities. The tribunal found that, from the evidence, it appeared that Mr Herry's illness had been a reaction to difficulties at work rather than a mental impairment, and he therefore failed to fall under the definition of ‘disabled’ under the Equality Act 2010.

On a second point, the EAT held that the tribunal had been wrong to make a costs order against Mr Herry on the basis that it expected his financial position to improve in the future, as they had not given proper consideration to what his future earning capacity would be. The tribunal had failed to consider whether it was proportionate for the claimant to pay all the employer's costs, which were over £100,000. The tribunal had failed to explain why it had not considered capping the award, or ordering that the claimant pay only a proportion of the costs.

The EATs guidance in this case on the appropriate circumstances for an employer to attempt to enforce an unpaid costs award by way of a statutory demand is useful. Whist service of a statutory demand may be relatively straightforward (and cheap), if the result is the employee’s bankruptcy then this is unlikely to assist the employer in recovering said sums given that an award for costs is not a preferential debt. Consideration should therefore be had as to the employee’s ability to actually pay the costs awarded before an employer seeks to serve such a demand.

United Lincolnshire Hospitals NHS Foundation Trust v Farren UKEAT/0198/16: Practicability of re-engagement order: focus must be on employer's belief in dishonesty

Where an employment tribunal upholds an employee's unfair dismissal claim, it will go on to consider possible remedies; such as an order for re-engagement ordering the employer to give the employee a job comparable to his old job and to make good any loss of earnings from date of dismissal to the date of re-engagement. When considering re-engagement the tribunal must consider, amongst other factors, whether re-engagement is practicable for the employer and whether the employee caused or contributed to some extent to their dismissal.

Ms Farren was a long-serving Staff Nurse employed by the respondent in A & E. During the course of a particularly stressful overnight shift, she administered Diazepam medication to four patients without prior prescription by a doctor and failed to properly complete records. She was dismissed for her conduct.

The tribunal found that the dismissal was unfair and there had been an assumption of guilt from the outset, which had impacted on the investigation and procedural fairness. Ms Farren sought re-instatement or re-engagement. The Respondent argued that it could no longer trust Ms Farren. The EAT upheld the Respondent’s appeal against the tribunal’s decision in the first instance that re-engagement outside of A&E was just. The matter was remitted for review in the same tribunal.

It was held that where an employer has put in issue that it has lost trust and confidence in the claimant, an employment tribunal, in assessing whether or not it is practicable to order re-engagement, must ask whether the employer genuinely and rationally believed that the claimant had been dishonest. It is not for the employment tribunal to ask whether the employer had established that the employee was in fact dishonest and then apply its own conclusion to their honesty and trustworthiness when determining the practicability of the order. It is the employer’s view that will therefore be tested.