Sintons Employment Law E-Bulletin Issue 58

• NHS 24 v Pillar UKEATS/0005/16 – Previous incidents which do not lead to disciplinary action can be included in investigatory reports in a subsequent disciplinary process
• Uber BV v Aslam UKEAT/0056/17/DA – Employment Appeal Tribunal confirms that Uber drivers are classified as workers
• ACAS releases guidance on mental health issues in the workplace
• The Parental Bereavement (Leave and Pay) Bill – new legislation to provide parents with paid leave following the death of a child

NHS 24 v Pillar UKEATS/0005/16 – Previous incidents which do not lead to disciplinary action can be included in investigatory reports in a subsequent disciplinary process

The Employment Appeal Tribunal (EAT) has overturned a tribunal decision which held that a misconduct dismissal was unfair on the basis that the disciplinary investigation considered previous incidents which were not dealt with under the disciplinary process.

The Claimant was a Nurse Practitioner and her role consisted of taking initial telephone calls from members of the public, asking appropriate questions and triaging patients based on this information. The Claimant referred a patient who had suffered a heart attack to an out-of-hours GP service as opposed to the emergency services. This was classed as a Patient Safety Incident (PSI) which amounted to gross misconduct and ultimately resulted in her dismissal.

Two previous PSIs for which the Claimant was responsible were included in the report compiled by the investigating officer prior to the disciplinary hearing, despite the fact that these earlier PSIs had been dealt with via training instead of disciplinary action. The Claimant argued that her dismissal was unfair due to the fact that these earlier PSIs were included in the report. The Employment Tribunal (ET) initially upheld her claim on the basis that the dismissal was procedurally unfair.

The appeal was successful on the basis that the EAT was not aware of any case where the defence failed due to an investigation which was too thorough. Disciplinary investigations must be ‘reasonable’ and the EAT did not consider the inclusion of the two earlier PSIs to fall foul of this test.

The test in terms of an investigation is one of sufficiency and as such, investigations only tend to fail where they have not gone into enough detail. She did not rule out, however, that there may occasionally be circumstances in which an investigation takes account of factors which it should not reasonably include.

This case is significant for employers who are undergoing disciplinary investigations with employees who have previously made mistakes worthy of disciplinary action, but such actions have not been dealt with under a disciplinary process. Whilst it is essential that employers do not mistake this with expired warnings or conduct meetings, this case provides useful clarification of the extent to which such past conduct could be taken into account.

Uber BV v Aslam UKEAT/0056/17/DA – Employment Appeal Tribunal confirms that Uber drivers are classified as workers

The EAT held that the earlier ET finding, that Uber drivers are workers for the purposes of their claims under the Employment Rights Act 1996, Working Time Regulations 1998, and National Minimum Wage Act 1998 was correct.

The Uber business runs on the basis of a smartphone app through which users order and pay for taxis within a particular territory. Uber’s employment model is based on casual working which does not commit independent workers to set hours, payments or rights. It considers itself to be a technology platform as opposed to a provider of transport services, arguing that it simply acts as agent for the drivers and, as such, treats them as self-employed.

The ET concluded that any Uber driver, who had their app switched on, was within the territory in which they were authorised to work (in this case, London) and was able and willing to accept assignments, was working for Uber under a “worker” contract.

Uber appealed, primarily on the basis that the ET had erred in law by failing to take into account the written contractual documentation which, they argued, was inconsistent with the claim that there was a worker relationship. The appeal was dismissed applying the earlier case of Autoclenz Ltd v Belcher and Ors [2011] ICR 1157 SC(E), concluding that the reality of the situation, regardless of any written documentation to the contrary, was that the drivers were workers.

The EAT noted that the drivers were subject to controls and arrangements that suggested that they were incorporated into the business. Whilst the drivers were not under an obligation to commit to work, once they signed into the app, they had an obligation to accept trips offered by Uber and they could not cancel trips once accepted without facing a penalty. Other factors which influenced the EAT’s decision included the fact that Uber carried out an interview and induction process to appoint new drivers, and that the divers’ customer rating and reviews were monitored by Uber.

The key question from the EAT’s perspective was who are the Uber drivers working for, when they are working? It was clear on the facts that the drivers were integrated into the Uber business and subject to a relatively moderate level of control. Whilst it is not uncommon for drivers in the taxi industry to be self-employed, this was clearly not the case in relation to the Uber app which has over 50,000 drivers using it in the UK.

As a consequence of this decision, Uber drivers will be entitled to a number of worker rights including paid holiday, rest breaks and the National Minimum Wage. This decision serves as a reminder to businesses operating systems of casual-style working arrangements that they cannot hide behind a specific structure set out in an agreement when the reality of the situation demonstrates a worker relationship. Businesses should review the arrangements they have in place to assess any potential risk.

Since the ruling, Uber announced that it was appealing and applied for permission to ‘leapfrog’ the Court of Appeal and go straight to the Supreme Court. This application has been refused and we therefore expect an appeal to be heard by the Court of Appeal during the course of 2018. The debate around the gig economy is therefore yet to be concluded…

Acas releases guidance on mental health issues in the workplace

Acas has issued new guidance to help employers understand the concept of mental health. It aims to change the negative stigma often attached to mental health issues by creating a more open and positive culture within the workplace.

The guidance suggests that a culture of openness in the workplace could essentially minimise mental health issues employees with mental health problems will often not talk openly at an early stage. This can lead them to deteriorate, something which could potentially be avoided.

An employee’s mental ill health can amount to a disability where it has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In such circumstances the employer will have a duty to make reasonable adjustments to help the employee at work.

It is also important for employers to remember that when it comes to recruiting new employees, it is unlawful to discriminate against job applicants because of a mental health condition which amounts to a disability.

Acas suggests that employers make an action plan to identify and tackle the causes of mental ill health in their workplace, educate staff so as prevent mental ill health and remove the negative stigma attached to it and put in place support processes for staff experiencing mental ill health.

The guidance also recommends that employers consider creating a mental health policy for staff to refer to when seeking guidance. This may be particularly advisable to larger employers who wish to ensure that their staff are fully aware of their commitment to tackling mental health issues in the workplace and who to contact if they require support.

The Parental Bereavement (Leave and Pay) Bill – new legislation to provide parents with paid leave following the death of their child

A Bill has been published which will entitle parents to two weeks’ paid leave following the death of a child. The Bill was initially presented to Parliament by MP, Kevin Hollinrake, in July this year and its second reading took place on 20 October.

The Bill entitles all employees, regardless of their length of service, to parental bereavement leave where they have lost a child was under the age of 18. Statutory parental bereavement pay will also be available for those employees with at least 26 weeks’ continuous service, and employers will be able to reclaim this from the government.

Whilst many employers choose to give employees compassionate leave in circumstances such as this, they are not currently legally obliged to do so. We will keep you updated as to its progression through Parliament.