Sintons Employment Law E-Bulletin – Issue 68
- The right to use a substitute can be consistent with employee status – Chatfeild-Roberts v Phillips & Universal Aunts Limited: UKEAT/0049/18/LA
- French Court follows UK ruling that Uber drivers have “work contract”
- Ex-Team GB cyclist loses Employment Tribunal case against British Cycling and UK Sport
- A defamation complaint amounted to a protected disclosure for the purpose of a whistleblowing claim – Ibrahim v HCA International Ltd  UKEAT_0105_18_1309
- EAT provides clarity as to when the duty to make reasonable adjustments should arise – Lamb v The Garrard Academy UKEAT/0042/18
- Government carrying out consultation on extending redundancy protection for women returning from maternity leave and new parents
- Failure by the employer to put forward evidence about comparators in a discrimination claim does not always mean that adverse inferences should be drawn – Efobi v Royal Mail Group Ltd  EWCA Civ 18
The right to use a substitute can be consistent with employee status – Chatfeild-Roberts v Phillips & Universal Aunts Limited: UKEAT/0049/18/LA
The EAT has held in Chatfeild-Roberts v Phillips & Universal Aunts Limited that the right to use a substitute did not preclude the Claimant from having employee status.
Ms Phillips worked as a live-in carer for Mr Chatfeild-Roberts’ uncle. The second Respondent, Universal Aunts Limited was an agency who introduced the Claimant to the family. Ms Phillips worked for Mr Chatfeild Roberts for three years and was paid in gross, having to arrange the payment of tax and national insurance herself. When her engagement ended, she brought several claims and it fell to the Employment Tribunal to determine whether Ms Phillips was an employee.
At first instance, the Tribunal held that she was. Ms Phillips was initially engaged by Mr Chatfeild-Roberts for six months, but this was extended. She also ceased preparing invoices and was paid by standing order. Unlike the other carers employed by Universal Aunts Limited who worked on a rota system, she did not. The Tribunal therefore concluded that there was both sufficient mutuality of obligation (the obligation on an employer to provide work and the obligation on an individual to accept that work) and control and held that she was an employee.
As there were occasions where Ms Phillips would approach the agency to arrange a substitute, this decision was appealed. The EAT considered this issue when handling the appeal and upheld the decision of the Tribunal. As Ms Phillips had only arranged a substitute on her days off each week, for a period of jury service, and for periods of paid annual leave; the EAT applied the principle from the Pimlico Plumbers case and concluded that the right of substitution only when a contractor is unable to work can still be consistent with personal performance, and therefore does not preclude a finding that they are an employee.
This case ought to be borne in mind by employers engaging staff through agencies who can provide a substitute when they are unable to work. It is a useful reminder to always consider how a contractual relationship actually works in practice.
French court follows UK ruling that Uber drivers have “work contract”:
A French court has followed the recent UK decision that Uber drivers are workers by finding that a former Uber driver had a “work contract”. This conclusion was reached as the drivers depend on the Uber service for work.
As in the UK, where Uber were granted permission to appeal to the Supreme Court, they have signalled their intention to appeal to France’s highest appeal court.
While not a UK decision, this case signals that courts across Europe are consistently looking beyond the terms of the contract and at the reality of the relationship when dealing with issues surrounding employment status.
Ex-Team GB cyclist loses Employment Tribunal case against British Cycling and UK Sport
Jess Varnish, a former Team GB Cyclist, was unsuccessful in arguing that she was an employee of British Cycling and UK Sport at an employment Tribunal, meaning that she is unable to pursue claims for discrimination and unfair dismissal.
It was alleged by Varnish that the control exercised over her by British Cycling supported the argument that she was their employee. However, although she was provided with a financial grant by UK Sport and was a member of the elite training programme at British Cycling, she was free to leave this at any time. This was one of the key reasons that her case failed.
Ultimately, British Cycling and UK Sport were successful with their argument that they were not the employers of Jess Varnish, but that they had merely provided her with the “opportunity and a platform” to progress and be successful in cycling.
While it is possible that the finding may be appealed, the decision in this case is slightly similar to that in the recent Deliveroo case in which it was found that delivery riders for Deliveroo were independent contractors and not entitled to the rights afforded to workers and employees.
A defamation complaint amounted to a protected disclosure for the purpose of a whistleblowing claim – Ibrahim v HCA International Ltd  UKEAT_0105_18_1309
In this case Mr Ibrahim worked for HCAI Ltd as an interpreter in a private hospital. Following the circulation of rumours among patients and their families that he was breaching patient confidentiality, he met with a senior manager to ask her to investigate in order to ‘clear his name’ and ‘re-establish his reputation’. The subject of his grievance was that the accusations were falsely being made by colleagues. His complaint was investigated by the HR department at HCAI Ltd and rejected. Following his dismissal, Mr Ibrahim brought several claims to the Employment Tribunal, including one of detriment for having made a protected disclosure (‘whistleblowing’) under section 47B of the Employment Rights Act 1996 (ERA 1996).
Mr Ibrahim’s whistleblowing claim was dismissed by the Tribunal. It was held that a complaint of this nature could not give rise to a breach of a legal obligation under s43B(1)(b) ERA 1996. It was also held that Mr Ibrahim had not made his complaint with a reasonable belief that it was ‘in the public interest’, which is a requirement of s43B(1). This conclusion was reached on the grounds that he had made his complaint with the aim of ‘clearing his name and re-establishing his reputation’.
Mr Ibrahim’s appeal to the EAT was dismissed. The EAT agreed with the Tribunal in that Mr Ibrahim’s complaint did not have the ‘public interest’ element required by s43(B)(1). However, the EAT disagreed with the Tribunal that a complaint of this nature did not fall within s43B(1)(b). It was concluded that the ‘legal obligation’, referred to in this section, can include tortious duties such as those contained in the Defamation Act 2013.
Employers ought to bear this case in mind when dealing with allegations of defamation from their employees. Based on this decision, it is possible that such an allegation may amount to a protected disclosure under s47B of the ERA 1996.
EAT provides clarity as to when the duty to make reasonable adjustments should arise – Lamb v The Garrard Academy UKEAT/0042/18
Ms Lamb was a teacher who told her school that she was suffering from post-traumatic stress disorder (PTSD), which could be triggered by difficult situations, on 18 July 2012.
When Ms Lamb brought a claim for disability discrimination, including a claim of failure to make reasonable adjustments, the Tribunal allowed her claim for reasonable adjustments from 21 November 2012. Despite the fact that Ms Lamb had informed the school of her PTSD on 18 July 2012, it was concluded that the school did not have knowledge that she was disabled until 21 November 2012 as that was one year after the symptoms first appeared and therefore the long-term element of the definition of disability was satisfied. Consequently, the school’s duty to make reasonable adjustments was found not to have arisen until this date.
Ms Lamb appealed and the EAT allowed her appeal. It was held that as the school had actual knowledge of her disability on 18 July 2012, when Ms Lamb informed them of it, the duty to make reasonable adjustments arose on this date.
This case should serve as a reminder to employers to take the appropriate action as soon as you become aware of an employee’s disability. If in doubt as to whether an employee is in fact disabled employers should get medical and legal advice. Employers should be aware that whether or not an employee is disabled is a matter of law and so it is not always wise to rely on the position of Occupational Health, or even a GP,
Government carrying out consultation on extending redundancy protection for women returning from maternity and new parents
The government is currently considering extending the protection afforded to women on maternity leave who are selected for redundancy. Currently, in accordance with regulation 10 of the Maternity and Parental Leave etc Regulations 1999, a woman on maternity leave who is selected for redundancy must be afforded priority over other redundant employees when the employer offers suitable alternative employment.
The proposal being considered would see this right extended to women who have returned from maternity leave in the previous six months, as well as women currently on maternity leave. In addition, the extension of the right to women who have informed their employer of their pregnancy is being considered.
Finally, the extension of the right to those returning from adoption, shared parental and longer periods of parental leave is also being considered by the government.
It is hoped that there will be a response to the consultation by 5 April 2019 so it would be worthwhile for employers to review the response when it is given and make plans to deal with any changes to the legislation.
Failure by the employer to put forward evidence about comparators in a discrimination claim does not always mean that adverse inferences should be drawn – Efobi v Royal Mail Group Ltd  EWCA Civ 18
The Court of Appeal has held that a tribunal must only draw adverse inferences from an employer’s failure to provide evidence about comparators once the Claimant has established a prima facie case of discrimination.
Mr Efobi was a black Nigerian, employed by Royal Mail as a postman, who also held post-graduate qualifications in Information Systems and Forensic Computing. He wanted to move into a management or IT role with Royal mail and had applied for many posts, always unsuccessfully. As a result, he brought a complaint of direct race discrimination.
In response to this, Royal Mail did not provide any evidence about the identity or qualifications of the successful candidates for the roles that Mr Efobi had applied for. However, Mr Efobi made no effort to obtain such information. At first instance, the Tribunal held that Mr Efobi had not shown facts from which discrimination could be inferred and therefore his claim failed.
Mr Efobi appealed to the EAT who held that the Tribunal ought to have considered whether inferences could be drawn from Royal Mail’s failure to provide information about the successful candidates. On appeal, the Court of Appeal disagreed with the EAT’s finding and held that the burden of proof lay with Mr Efobi to prove his claim at the first stage, and that he had failed to provide sufficient information to enable the characteristics of any proposed comparator to be identified by the Tribunal.