SUMMARY: An employer’s and senior executive’s disagreement over pay did not amount to “some other substantial reason” and the employee was therefore unfairly dismissed. Continue reading
The limits on Tribunal compensation increase today: Continue reading
SUMMARY: In a recent case, the Employment Appeal Tribunal (EAT) (overturning an Employment Tribunal decision) held that a decision on an internal appeal to overturn a decision to dismiss and instead demote the employee still amounted to dismissal. Continue reading
SUMMARY: Is a lifelong medical condition a disability under the Equality Act 2010?
The Employment Appeal Tribunal (“EAT”) recently made findings in relation to TUPE-related dismissals and the remedy of re-engagement in Manchester College v Hazel and another. We consider each of these aspects separately, both of which are of importance to employers.
The Court of Appeal has confirmed that although OFCOM had fairly dismissed Mr Leach “for some other substantial reason” (SOSR) and in particular, a breakdown of trust and confidence, this reason should not be used arbitrarily when in reality, the reason for dismissal is something else.
Leach v The Office of Communications (OFCOM)
The Court of Appeal has confirmed that although OFCOM had fairly dismissed Mr Leach “for some other substantial reason” (SOSR) and in particular, a breakdown of trust and confidence, this reason should not be used arbitrarily when in reality, the reason for dismissal is something else. Continue reading
The government’s commitment to improving employment law continues with the introduction of tribunal fees during the summer of 2013. This is despite employee groups opposing the plans on the basis they will prevent access to justice and deter workers from bringing valid claims. Business groups also considered that any fees system should explicitly seek to deter weak or vexatious claims. The rationale however behind the introduction of the fees is not to prevent claims according to the government but to require tribunal system users to bear some of its costs. Continue reading
In order to reduce overheads the employer needed to reduce the headcount of its field service engineers, of which the Claimant was one, from 11 to 10. In order to make its selection the employer relied upon detailed redundancy selection criteria to include disciplinary records; performance and flexibility; skills and ability; and competency in the role. Continue reading
The dismissal of two employees connected to the Baby P case have been held to be fair despite the fact that the employees were originally given written warnings. The employees were subsequently subjected to second formal disciplinary proceedings for the same allegations and by new management, the result of which was their dismissal from the London Borough of Haringey.
The employment status of an individual is important for a number of reasons. From an employment law perspective, certain legal rights only apply if an individual is an employee. For example, rights on termination of employment such as the right not to be unfairly dismissed and the protection of the ACAS Code of Practice on Disciplinary and Grievance Procedures.
Whether an individual is an employee is determined by consideration of a number of factors including:
- mutuality of obligation; and
- the “employer’s” control over the employee.
When deciding whether an individual is an employee, the actual relationship will be looked at as well as the terms of any written agreement.
In the case of Quashie v Stringfellows Restaurants Ltd, the Employment Appeal Tribunal (EAT) considered the employment status of a lapdancer. Miss Quashie had claimed that she had been unfairly dismissed when Stringfellows terminated her employment for drug taking/dealing. She would only be able to have her claim heard for unfair dismissal if she was held to be an employee.
The Employment Tribunal decided on the evidence that Miss Quashie was not an employee. This decision was overturned by the EAT on the basis that there was mutuality of obligation between Miss Quashie and Stringfellows. In particular:
- Miss Quashie had to perform at the direction of Stringfellow’s management;
- Stringfellows had to provide the opportunity for Miss Quashie to dance;
- Stringfellows imposed a requirement to dance on the stage at various times during the night without pay;
- Stringfellows was also obliged to exchange the vouchers she earned into sterling, deducting only that which had been agreed between them;
- Miss Quashie would be fined and money deducted from her pay if for example, she did not turn up to work; and
- There was no scope for her to send a friend to do the work for her.
In summary, the provision of the opportunity to attract customers was very definitely a mutual benefit.
The EAT went on to find that in addition to there being mutuality of obligation and as such, employment status on the nights that Miss Quashie worked, this mutuality of obligation also extended between the periods that she did not work. This meant that she had accrued one year’s service for the purpose of bringing a claim for unfair dismissal. The case has been returned to an Employment Tribunal to now decide if she has been unfairly dismissed.
This case highlights once again the importance of taking into consideration all of the surrounding circumstances when determining employment status. Employers should be wary of what the actual status of their workers is given the legal and other associated responsibilities that an employer has where an employment relationship is held to exist
If you would like any further advice on matters concerning employment status, please contact Rachael Jessop using the contact information below.
Rachael Jessop, Solicitor
+ 44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.