Category Archives: Grievance

Employed or Self-employed? Correctly Label the Employment Status in Your Business

to-be-or-not-to-beSUMMARY: How can your business avoid the employee/self-employed quandary that Hermes Couriers now faces?

Are workers receiving the thin end of the wedge where their rights are concerned? You would be forgiven for thinking the answer is quite possibly “yes” in the light of numerous news reports of recent weeks and months. To date, reports of poor treatment of staff have been made, in respect of Sports Direct and Amazon to name but two prominent businesses, it would seem that Hermes Couriers is the latest company to come under the media spotlight following the compilation of a dossier of complaints that its drivers are treated unfairly. The claims primarily allege that the company has failed to pay its drivers the National Minimum Wage (“NMW”).

Hermes Couriers’s initial response is that the drivers are self-employed workers and not employees and thus not entitled to the NMW. As an individual’s employment law rights differ depending on their employment status, it is imperative that a business correctly labels that status at the outset. With case law littered with examples of those individuals who are genuinely employed versus those who are genuinely self-employed, it is reasonable for businesses to think it is relatively easy to get the label right.

So why is there still room for dispute? Quite simply because case law has given rise to a number of tests/theories which are to be applied when deciding the question. As part of our quick guide series we have identified the six key questions to be asked by businesses in these times of doubt.

The 6 Key Questions:

1. Is it the expectation that the service is undertaken by the individual or does the individual have the right to substitute him/herself with another individual?

If there is no right of substitution (or there is a right but it is a very limited right) this is more consistent with the relationship being one of employment.

2. Is the business obliged to offer work and, when offered, is the individual obliged to undertake that work?

If the business can choose, without limitation, when it offers work and the individual is likewise at complete liberty to decide whether he/she will do the work which is offered, the relationship is more consistent with one of self-employment.

3. Is the individual expected to comply with the business’s policies and procedures (such as its disciplinary and grievance procedures), internal working practices (such as hours of work) and directions/instructions for undertaking the work?

Although it is fair to expect compliance with health and safety policies by both employees and the self-employed alike, the more integrated into a business’s working practices the individual is, and the greater the degree of overall control exercised by the business together point towards an employment relationship. Likewise, if the individual is a member of the business’s various schemes offered to employees (e.g. share option, bonus or medical insurance schemes), the relationship is more consistent with one of employment.

4. Does the individual bear any risk/have the ability to benefit from any profit?

Bonus arrangements aside, if the individual runs the risk of being out of pocket financially when undertaking work for a business, this will point toward the individual being in business on his/her own account and therefore self-employed.

5. Does the individual work solely for the business or for a variety of businesses?

In circumstances where an individual performs services for more than one business at any one time there is a greater likelihood of the relationship being one of self-employment than is the position where an individual works for a number of different businesses during any given period of time. However, a degree of caution should be applied when asking this question as the issue of part-time working can arise.

6. How do the parties term the relationship and who is responsible for accounting for tax?

This last question is one where businesses often fall into difficulties. The description applied to the relationship – even when it is agreed by both parties at the outset of the relationship – is not decisive. Just because an individual has described themselves as “self-employed” does not mean they are for employment law purposes. Similarly, where parties elect to adopt the tax practices of the genuinely self-employed (such as issuing invoices for services rendered) does not automatically mean the courts will find that no employment relationship exists.

When coming to a decision about a worker’s employment status, it is necessary to consider each of the six questions opposed to taking one in isolation to the others; this explains why businesses find themselves in some difficulty when determining the employment status of its workforce. Therefore, despite HMRC’s statement to the BBC in respect of Hermes Couriers which indicates key question 6 is going to be one that receives close scrutiny in determining the exact status of the drivers, it will be the complete picture that is scrutinised.

Only time will tell whether Hermes Couriers is correct in its assertion that its drivers are self-employed. In the meantime your business can avoid similar difficulties by conducting a review of any current arrangements and practices (utilising the 6 key questions above) for those engaged on a self-employed basis.

Contact Details

If you would like more information or advice on employment status issues please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Is Caste Discrimination a Workplace Consideration?

 

DiscriminationSUMMARY: Chandhok and another v Tirkey establishes that race discrimination can include caste discrimination.

Caste discrimination in the workplace

The recent Employment Appeal Tribunal (“EAT”) decision in Chandhok and another v Tirkey (“the Tirkey case”) caused a bit of a stir. Whilst many of us focused on the significant award of nearly £184,000 made to the claimant, a domestic worker, in relation to her minimum wage claim, the case was of greater importance as it considered the issue of caste discrimination in the workplace. Until now there has been much debate as to whether a worker who had suffered caste discrimination had the right to legal redress.

Caste usually refers to social levels in certain cultures and racial groups. The impact is that individuals’ positions in society are fixed by birth or occupation and are hereditary. For example, an individual’s caste could be determined by the occupation of their forefathers.

In 2010 the Government-commissioned report on caste discrimination (“the 2010 report”) recognised that caste discrimination could be an issue for employers. This was the case even though from a legal perspective the concept was not expressly addressed in the Equality Act 2010, which only makes reference to “race” which includes “colour; nationality; ethnic or national origin”.

Examples of workplace caste discrimination

The 2010 report did however provide examples of workplace caste-based unfair treatment, bullying and harassment. These included:

  • Exclusion from work social events and networks.
  • Humiliating behaviour such as “women of so called upper castes not taking water from the same tap from where the so called lower caste person drinks”.
  • Bullying and harassment by superiors which also affected promotion, task allocation and dismissal.  Examples given included:
    • Not permitting someone of a low caste to take holiday when requested.
    • An individual being promoted to manager but his team not accepting his authority because he was of lower caste than them.
  • Recruitment – if employees are taken on by recommendation, this could be because they are of the same caste.
  • Task allocation – a higher caste manager was alleged to allocate better paid work to higher caste employees.

The equal treatment principal

Whilst employers are fully familiar with the legal requirement that all workers must be treated equally regardless of a protected characteristic under the Equality Act 2010, caste discrimination has always been a grey area.

Caste discrimination is a type of race discrimination

The Tirkey case has however provided some long awaited clarity, confirming that caste discrimination can be classified as a type of race discrimination. This case also provides a clear (if extreme) example of caste discrimination in the UK – on the particular facts it was found that Ms T was the victim of unlawful harassment on the ground of her race (as well as other successful claims).

The facts of this case are as follows:

  • Ms T worked for Mr and Mrs C as a domestic worker. Her caste (which is inherited and immutable) is the Adivasi, which is known as a “servant caste”. Adivasis have been recognised as being at the lowest point of almost every socio-economic indicator, and are frequently equated with Dalits (once known as “untouchables”). Ms T claimed that Mr and Mrs C treated her badly and in a demeaning manner, and that this was in part because of her low status which was infected with considerations of caste.
  • The employment tribunal was told that over a four and a half year period Ms T:
    • worked an 18-hour day, seven days a week;
    • slept on a foam mattress on the floor;
    • was prevented from bringing her Bible to the UK and going to church;
    • had her passport held by Mr and Mrs C and she had no access to it;
    • was not allowed to call her family; and
    • was given second-hand clothing instead of choosing her own clothes.

This is (we hope) an extreme situation which does not involve a normal employer/employee relationship. Employers should however be aware that caste discrimination can and does occur in many business situations.  The 2010 report stated that caste awareness in Britain is concentrated amongst people with roots in the Indian subcontinent, who comprise five per cent of the population.

Equality and diversity initiatives can be beneficial

Employers with robust management initiatives around equality and diversity should be in a position to prevent unlawful discrimination on the grounds of a worker’s caste.  Main considerations for any equality and diversity strategy should involve the following:

  • Having a top level commitment to equality and diversity in the workplace.
  • Ensuring there is an equal opportunities policy in place which makes it clear that discrimination, bullying and harassment will not be tolerated. Employees should be made aware of the existence of the policy and the likely sanctions for breaching it.
  • Making sure equality training is an integral part of any training programme.
  • Analysing business decisions and practices which could have the effect of discriminating on the grounds of any protected characteristic including race (caste).  Areas for review include: discipline and grievances; recruitment; promotion; pay and reward; terms and conditions; and access to training.
  • Investigating complaints of discrimination, bullying and harassment under the grievance procedure or, where relevant, the anti-harassment and bullying policy.
  • Having strategies which ensure that the workforce is diverse and is representative of the areas/communities from which it is drawn.
  • Monitoring the effectiveness of the equal opportunities policy.
  • Taking remedial action where inequality is identified.

Those businesses that strive to remove workplace bias will find themselves much better off in terms of staff morale, productivity and access to untapped talent.

Cases

Chandhok and another v Tirkey [2015] IRLR 195

Contact details

For more details about discrimination in the workplace, developing workplace equality and diversity strategies and training please contact:

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

Early Conciliation – A New Era – Q&A

Handshake (123rf ref 9932791)We think we have underpaid ten of our employees. Someone mentioned early conciliation – what’s that all about?

Early conciliation (EC) is a new process and is intended to give parties the opportunity of settling disputes through ACAS to avoid tribunal claims. EC for most types of claim became mandatory from 6 May 2014. It covers, for example; the following types of claim; unfair dismissal, breach of contract, discrimination and equal pay, protection from a detriment and in the situation you describe, unlawful deduction of wages.

How will we know if conciliation has started?

There are five stages to the EC process:

  • Stage 1: The claimant must contact ACAS to provide notification of their intention to bring a claim and will provide your details.
  • Stage 2: The ACAS EC officer (CO) will contact the claimant to clarify the complaint.
  • Stage 3: The CO will then contact you to see if you would like to participate in conciliation.
  • Stage 4: If both parties are willing to discuss settlement there will be a period of conciliation for up to a period of one month. This period can be extended for up to 14 days with both parties’ agreement, where there is a prospect of settlement occurring. The CO will explore the options for resolution without the need for a tribunal hearing. This could include the claimant withdrawing the claim or conversely, you paying compensation or in dismissal cases, considering reinstatement or re-engagement. ACAS cannot make any judgment or provide you with legal advice.
  • Stage 5: The CO will end the EC process and issue a certificate where at any time it appears that there is no reasonable prospect of achieving settlement. If settlement is reached the CO will prepare a COT3 setting out the terms of the settlement.

Do we get a choice?

Yes. Each party can choose whether or not to participate. If either party refuses to enter into conciliation an EC certificate will be issued to confirm this is the case. You can also withdraw from the process at any time. A claimant is not prevented from bringing a claim if they choose not to participate in the EC process so long as they initially contact ACAS.

Do we have to pay for the service?

No. It’s free.

Will there be ten separate EC periods in this case?

Not necessarily. If one of the employees in the group of ten has already complied with the EC requirements in relation to the same dispute and the claims are similar, the others will not need to comply with this obligation.

When can the employee bring the claim?

The claim cannot be brought until the CO has provided a unique EC reference number. The EC period can give the claimant a longer time period in which to bring a claim of up to one extra month, with a possibility of a two-week extension.

As we have lots of minor tribunal claims each year, do you have any tips for managing early conciliation?

We would recommend that you have one point of contact in your HR Department or at a senior management level for dealing with ACAS. This should be publicised as it is possible employees may give their line manager’s details to ACAS.

You can of course nominate your legal representatives to deal with the CO. This may be advisable where the claim is likely to be complex or the amount of money involved is high. In any event, legal advice may assist at any stage of the EC process to help you understand the merits of the potential claim and decide whether settlement is the right way to proceed bearing in mind ACAS cannot advise you. Not all cases will be suitable for settlement but where they are, EC provides an early cost free mechanism for doing so on a confidential basis.

Contact Details

For more details about Early Conciliation please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice. 

Right to be Accompanied – ACAS Code to be amended

FG Solicitors - Right to be accompaniedSUMMARY: An Employment Appeal Tribunal has held that the choice of companion is absolute when an employee has the right to be accompanied and, subject to the companion being a fellow worker or trade union official, does not need to be reasonable.  The ACAS Code will be amended accordingly.

Legal Background

Most employers are aware that employees have the right to be accompanied by a fellow worker or trade union official at a disciplinary or grievance meeting.

The ACAS Code currently suggests that it would not be reasonable for an employee to be accompanied by a companion whose presence would compromise the hearing or who was based in a remote geographical location.

However, the ACAS Code does not have statutory force.  It is the wording of the legislation that should always take precedence as can be seen by this case.

Facts of this case

The employees requested to be accompanied by Mr L, a union official, at a grievance meeting.  The employer refused the request, so they were accompanied by a different companion at the meeting.

The employees subsequently brought claims that their right to be accompanied had been breached.

The Employment Appeal Tribunal’s (EAT) decision

The EAT, overturning the Employment Tribunal’s decision, held that the employees could not waive their right to be accompanied and that they had an absolute right to choose their companion, so long as the companion was a trade union official or fellow worker.  By not permitting the employees to be accompanied by their choice of companion, the employer had breached their rights which were set out in legislation.  This was the case even though the employees had agreed to be accompanied by a different companion and despite the ACAS Code indicating that there were circumstances in which an employer could reject an employee’s choice of companion due to unreasonableness.

The EAT however considered that the effect of the breach was minimal and that compensation should reflect this; it suggested that the employees could be awarded a nominal sum of around £2.  The legislation states that a failure to allow a worker to be accompanied attracts an award of compensation of up to 2 weeks’ pay (which is currently capped at £450 per week).  It will be for the Employment Tribunal to decide the exact amount of compensation on the above facts.

Subsequently, ACAS has announced that it intends to amend the ACAS Code to reflect the EAT’s decision.

What does this mean for employers?

Employers should always ensure that they permit employees to be accompanied at grievance or disciplinary meetings by their choice of companion, so long as the companion is a trade union official or fellow worker.  If the companion may prejudice the hearing, employers should not generally insist on the employee having a different companion.

Employees have a free-standing right to bring a claim for a breach of their right to be accompanied.  However, given that the compensation for such claims is likely to be low, and that a tribunal fee will need to be paid before such a claim can be brought, such claims are likely to be an unattractive for most employees.  Employees may take their chances in rolling such a breach into a decision to bring a claim for unfair dismissal or constructive unfair dismissal instead, where the potential compensation awards are significantly higher.

We would therefore always advise taking legal advice if an employer is considering rejecting an employee’s choice of companion.

Case: Toal and another v GB Oils Ltd UKEAT/0569/12, 22 May 2013.

Contact Details

For more details about this case or the right to be accompanied please contact:

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice. 

Employee’s Successful Victimisation Claim After Numerous Unsuccessful Discrimination Claims

Paperwork Frustration (123rf 9725484)

SUMMARY: The Employment Appeal Tribunal (EAT) has overturned an Employment Tribunal decision by holding that an employee was victimised after the employee raised numerous grievances and tribunal claims over a 5 year period.

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Effective Disciplinary and Grievance Investigations and Hearings


Sherlock (123rf ref 10449419)

 

Date: 13 June 2013

Time: 8am-10am

Venue: Floyd Graham & Co offices

Cost: Free

 

 

Staff misconduct or employee complaints?

Effective investigations and hearings which follow a fair and legal process are key to avoiding costly tribunal litigation in these types of cases.

Join us to observe active role play which will expose some of the common pitfalls.

Take away practical advice and learn about:

  • What an investigation should consist of including evidence gathering
  • Holding a hearing
  • Complying with the ACAS Code of Practice on Discipline and Grievance
  • Handling problem areas such as reluctant witnesses and absent employees
  • How to avoid costly tribunal claims

To avoid disappointment reserve your place by email: fgmedia@floydgraham.co.uk.

We look forward to welcoming you to our next seminar.