Sintons Employment Law E-Bulletin – Issue 66

• Paying part-time workers 50% of full pay for being on duty for 53.5% of full-time hours amounted to less favourable treatment – British Airways Plc v Pinaud [2018] EWCA Civ 2427
• Workers who do not apply for the minimum annual leave due during a year do not automatically lose the right to it – Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V. v Tetsuji Shimizu (Case C-684/16 – ECLI:EU:C:2018:874)
• The Tribunal is entitled to use a “realistic and worldly wise” approach, advocated in Autoclenz, when determining employment status – Addison Lee Ltd v Lange & Ors [2018] UKEAT 0037_18_1411
• The Tribunal was right to dismiss a disability discrimination claim on the ground that one facet of the Claimant’s PTSD was a tendency to steal – Wood v Durham County Council [2018] UKEAT/0099/18/OO
• Department for Work and Pensions publishes ‘Recruiting, managing and developing people with a disability or health conditions – A practical guide for line managers’
• The Tribunal was wrong to reject an employee’s argument that there was an implied term preventing his employer from dismissing him on capability grounds when he was entitled to long-term disability benefits – Awan v ICTS UK Limited [2018] UKEAT/0087/18/RN

Paying part-time workers 50% of full pay for being on duty for 53.5% of full-time hours amounted to less favourable treatment – British Airways Plc v Pinaud [2018] EWCA Civ 2427

In British Airways v Pinaud, the Court of Appeal held that paying a part-time worker 50% of full pay for being on duty for 53.5% of full-time hours amounted to less favourable treatment.

The Claimant was employed under a part-time contract which stipulated that she would work 14 days on and 14 days off and be available to work 130 days per year. By comparison, a full-time worker would be required to be on duty for six days and off for three, meaning that they would be available for 243 days per year. The Claimant was therefore required to be available for 53.5% of the days of a full-time worker but was receiving only 50% of full-time pay. The Respondent argued that the Claimant had actually worked fewer days than her comparator.

The Tribunal found that the requirement of the part-time worker to be available for work 53.5% of full-time hours amounted to less favourable treatment, and that this could not be justified as it would have been viable for the Respondent to increase the Claimant’s pay to 53.5% of that of a full-time worker.

The Respondent’s appeal on justification was allowed, with the EAT finding that statistical analysis of the impact of being available needed to be considered before it could be determined whether increasing the rate of pay would have been disproportionate. However, as it was again held that there had been less favourable treatment, the Respondent appealed this finding to the Court of Appeal.

This appeal was rejected by the Court of Appeal, who held that the requirement that a part-time worker be available for 53.5% of the days of a full-time worker, in return for 50% of the pay, was prima facie less favourable treatment. The case was remitted to the Tribunal to consider the Respondent’s justification defence, and if that is rejected, the remedy to be awarded. It should be noted that Bean LJ said that were the Tribunal to award compensation of 3.5% salary for the period of loss claimed, if it was accepted that the Claimant worked fewer days than her comparator, this “would be a very surprising conclusion”. The decision reached by the Tribunal will be used to determine 628 similar claims against the Respondent.

This decision should be noted by employers who engage staff on a similar part-time basis, it highlights the importance of ensuring that the hours they are required to work and the level of pay that they receive are properly aligned.

Workers who do not apply for the minimum annual leave due during a year do not automatically lose the right to it – Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V. v Tetsuji Shimizu (Case C-684/16 – ECLI:EU:C:2018:874)

The CJEU has held in Max-Plank-Gesellschaft v Shimizu that unless the employer is diligent in giving the worker the opportunity to take the leave due under EU law, they will not automatically lose the right to it.

The Claimant worked at a private scientific support institution in Germany until 2013. He brought a claim for unpaid holiday from 2011 and 2012. Under German law, as in English law, untaken leave does not carry over from one year to the next. This case was referred to the CJEU by the German Federal Labour Court.

The CJEU held that in accordance with the Working Time Directive, untaken leave should not be automatically lost by a worker who has failed to exercise his right to take it, unless the employer can prove that they have ‘diligently’ brought to the worker’s attention their right to do so. The burden of proof here rests with the employer. Therefore, it is not necessary to require employees to take leave, but employers must accurately inform them of this right and give them sufficient time to exercise it.

Furthermore, even though the scientific institution in question was a private one, the CJEU held that the right to paid leave was enforceable between private parties, rather than only against State bodies as it is in the EU Charter and does not stem solely from a Directive.

Employers should bear this decision in mind and ensure that they make their staff aware of their right to annual leave and give them enough time to exercise it.

The Tribunal is entitled to use a “realistic and worldly wise” approach, advocated in Autoclenz, when determining employment status – Addison Lee Ltd v Lange & Ors [2018] UKEAT 0037_18_1411

The Claimants in this case were private hire drivers, who entered into an arrangement under which they would hire liveried cars from an associate company of Addison Lee. Under the agreement, each driver was provided with and had to log in to a personal computer called an XDA which automatically allocated work to them. They had to give reasons if they refused a job and there were sanctions in place for failing to do so.

Despite the Claimants’ contractual documents describing them as independent contractors, the Tribunal held that they were workers for the purposes of the Working Time Regulations 1998 and the National Minimum Wage Act 1998. The Respondent appealed this decision, arguing that the Tribunal had erred in disapplying parts of the agreement in arriving at the decision that there was an obligation on the drivers to do some work.

This argument was rejected by the EAT, which held that the Tribunal had been entitled to apply the abovementioned approach and arrive at the conclusion that the Claimants were workers. The EAT also rejected the Respondent’s appeal relating to working time, in turn confirming that each Claimant was deemed to be ‘working’ while they were logged into their XDA.

There have been a number of similar decisions in recent years and this should not be ignored by employers operating within the gig economy. The case indicates that the Tribunal will look not only at the contractual documentation but also at the practices ongoing in determining employment status. Failing to properly determine workers’ employment status has the potential to expose employers to a significant number of claims for unpaid wages and holiday pay.

The Tribunal was right to dismiss a disability discrimination claim on the ground that one facet of the Claimant’s PTSD was a tendency to steal – Wood v Durham County Council [2018] UKEAT/0099/18/OO

In Wood v Durham County Council, the EAT concluded that the Tribunal had been right to dismiss a claim for disability discrimination, based on one facet of the Claimant’s disorder that gave him a tendency to steal.

The Claimant in this case was dismissed by the Respondent after receiving a fixed penalty notice for shoplifting from Boots the Chemist. He subsequently brought a claim for disability discrimination, averring that he was suffering from PTSD with dissociative amnesia. It was alleged that the shoplifting accusation and subsequent fixed penalty notice had arisen as a result of his amnesia as he had forgotten to pay for the items that he had placed into a bag.

It was accepted by the Respondent that the Claimant was suffering from PTSD and was, therefore, disabled. However, it was averred that as a tendency to steal is an excluded condition under Regulation 4(1)(b) of the Equality Act (Disability) Regulations 2010, the Claimant’s claim should fail. The Tribunal accepted this argument and as a result, the claim failed.

The Claimant appealed against this decision but the EAT reached the same conclusion as the Tribunal.  It found that as the claim hinged on the Claimant’s tendency to steal which, while potentially a result of his amnesia, was excluded as a condition by the relevant legislation, the appeal must be dismissed.

This decision may prove useful for any employers who are faced with disability discrimination claims based on similar facts.

Department for Work and Pensions publishes ‘Recruiting, managing and developing people with a disability or health conditions – A practical guide for line managers’

On 21 November 2018, the DWP published the above guide, which is part of the Disability Confident campaign. The guide provides useful guidance for employers on ways in which line managers can make suitable reasonable adjustments for staff if necessary; it also provides tips for managers on creating an inclusive working environment.

The examples of appropriate reasonable adjustments provided by the guide are:

• ‘A more flexible working arrangement, for example, allowing someone to work from home or changing their hours so they don’t have to travel to work in the rush hour;
• Arranging more one-to-one supervision or additional training, or providing a mentor;
• Making a physical change to the workplace or workstation, for example, changing a desk height, or moving office furniture to improve access;
• Altering assessment procedures – such as giving extra time, providing assistive technology or offering a ‘work trial’ instead of a traditional formal interview; or
• Providing extra equipment or assistance, for example, a new chair or specific software.’

The guide also suggests keeping a log of any adjustments made in order to facilitate a review between the employer and the staff member. The importance of communicating with the person who may require an adjustment is also highlighted, as they will be best placed to determine what, if anything, they may require.

Useful advice on facilitating a person’s return to work is also provided, with the following examples of adjustments given:

• ‘A phased return to work initially working certain days a week or having shorter days for a period of time (and adjusted duties during that time);
• Re-designing a person’s job role; or
• A move to a different role.’

The guide provides other helpful tips for employers on assisting, where necessary, members of staff with a disability and while recommended as part of a voluntary scheme in Disability Confident, should be borne in mind by all employers to help them in operating appropriate practices.

Click here for a link to the guide.

The Tribunal was wrong to reject an employee’s argument that there was an implied term preventing his employer from dismissing him on capability grounds when he was entitled to long-term disability benefits – Awan v ICTS UK Limited [2018] UKEAT/0087/18/RN

In this case, the EAT held that there was an implied term preventing the Respondent from dismissing the Claimant for incapability where their doing so impacted his entitlement to long-term disability benefits.

The Claimant was initially employed by American Airlines at Heathrow Airport and under his contract was entitled to contractual sick pay and had the benefit of a long-term disability benefit plan. This plan stipulated that the Claimant would no longer be entitled to the benefits should his employment cease. The Claimant was signed off on sick leave on 14 October 2012 as he was suffering from depression. The department in which the Claimant worked was then outsourced to the Respondent and the obligations under the benefit plan were TUPE transferred.

The Claimant never returned to work and on 28 November 2014 was dismissed on the grounds that he was permanently incapable of carrying out his role. His condition had failed to improve, and it had not been possible to agree on any adjustments that may enable the Claimant to return to work. During some of his time off on sick leave, the Claimant had been receiving payments under the long-term disability benefits plan.

The Claimant alleged that the decision taken by the Respondent to dismiss him while he was entitled to these benefits was unfair and amounted to direct discrimination on the grounds of his disability under s15 Equality Act 2010. The Tribunal rejected these arguments, finding that the dismissal was both fair, and a proportionate means of achieving a legitimate aim, meaning that there was no unlawful discrimination.

The EAT ound that the Tribunal had erred in reaching this decision, and that dismissing the Claimant in order to deny him the benefits that the plan meant for him to receive, was contrary to the purpose of the plan itself. It was also held that a term could be implied into the contract that “once the employee has become entitled to payment of disability income due under the long-term disability plan, the employer will not dismiss him on the grounds of his continuing incapacity to work.” It was therefore concluded that the Tribunal had been incorrect to conclude that the employee’s dismissal was fair and a proportionate means of achieving a legitimate aim. The questions were remitted to a new Tribunal to be reconsidered.

This case should be considered by employers who provide such a benefit, when deciding how best to deal with employees who have been off work on long-term sick leave.