Wednesday, 17 December 2014

Judicial review of fees for employment tribunals dismissed....again!

Lamentably, for impoverished claimants, Unison's judicial review application, challenging the legality of employment tribunal fees, was dismissed this morning by the High Court; the reasons will appear on BAILII today.

Monday, 15 December 2014

Some injury to feelings awards deemed 'taxable'...Will this mean grossing up?

The First Tier Tribunal (Tax Chamber) in Moorthy v Revenue & Customs Commissioners has decided that some injury to feelings awards will be taxable.

Any payment made "directly or indirectly in consideration or in consequence of, or otherwise in connection with" the termination of employment was said to be taxable under s.401 Income Tax (Earnings and Pensions) Act 2003.

The First Tier Tribunal drew a distinction between cases where injury to feelings compensation is paid where it is, or is not, "directly or indirectly in consideration or in consequence of, or otherwise in connection with" the termination of employment.

No doubt this definition of Byzantine complexity will further darken the already murky waters for practitioners when attempting to grope for a settlement whilst trying to work out tax liabilities for their client.

Monday, 8 December 2014

Judge resigns after racist remark about a woman called Patel

An immigration judge has been forced to resign as a district judge after making a racist remark about a crime victim reports The Guardian.

Richard Hollingworth was hearing a case of harassment at Preston magistrates court when he told officials to bring the victim, Deepa Patel, to court because he wanted to complete his sentencing that afternoon.

The prosecutor, Rachel Parker, said she thought it was too short notice and didn’t know whether Patel could get the time off work.

Hollingworth asked where she worked, and Parker said she did not know. The judge replied: “It won’t be a problem. She won’t be working anywhere important where she can’t get the time off. She’ll only be working in a shop or an off-licence.”

However, Hollingworth remains an immigration judge, something that leaves CPS officials “astonished”. That role may be short-lived, as the judge’s outburst is being considered by Lord Justice Gross, the senior presiding judge for England and Wales.

Friday, 5 December 2014

Plumber deemed a worker - Pimlico Plumbers v Smith.

A plumber who wore a 'Pimlico' Plumber's uniform, drove a van and  payment was made to Pimlico was deemed a 'worker and not an employee' in Pimlico Plumbers v Smith.

In upholding the decision that he was not an employee, the EAT held the employment tribunal had been entitled to have regard to the Claimant's financial risk, the degree of autonomy as to quotations and how work was carried out. It was also of significance that both parties acted as though the Claimant was self-employed.

The terms of the agreement between the Claimant and Pimlico as found by the Employment Tribunal, included the following;
1.                  The Claimant was a self employed operative described as an independent contractor of the Company, in business on your own account.  Nothing in this Agreement shall render you an employee, agent or partner of the Company and liable to account for his income tax and value added tax and social security contributions.

2.                  He was required to provide all his own tools, equipment, materials and other items required.

3.                  The Claimant accepted personal liability for work undertaken by him.

4.                  The Claimant was required to provide insurance.

5.                  Normal Working Hours consisted of a 5 day week, with a minimum of 40 hours.

6.                  There was no express provision permitting the Claimant to provide a substitute in respect of services he had agreed to provide.

As a matter of practice Pimlico permitted operatives to transfer work to other operatives but there was no unfettered right to substitute another operative.

The Employment Appeal Tribunal derived the following principles from the authorities;
In considering whether a person is a limb (b) worker the starting point must be the words of the statute and that there is no one formula or characteristic than can be said to be determinative.
1.                  The Court or Tribunal must take a holistic approach and may take account of matters such as the degree of subordination of the worker to the ‘employer’ and the degree of his integration into the ‘employer’s’ business and also whether the contract between employer and ‘worker’ was in essence a contract between two independent business undertakings; the extent to which the ‘worker’ carried out work other than for the ‘employer’ and his right to do so.

2.                  The employer of a person integrated into the employer’s workforce and carrying out work for that employer is in no sense his customer or client.

3.                  If a ‘worker’ carries out work for more than one ‘employer’ he can nonetheless be a limb (b)  worker of one or more such employers if the statutory criteria are met.

In this case the issue of substitution became relevant:

100.   The relevant authorities in determining whether a person was an employee or worker including those of Ready Mixed Concrete and Market Investigations were considered in the Supreme Court by Lord Clarke in Autoclenz [2011] ICR 1157.  At paragraph 19 Lord Clarke stated:
“Three further propositions are not I think contentious:

i) As Stephenson LJ put it in Nethermere (St Neots) Ltd v Gardiner [1984] ICR 612, 623,

‘There must … be an irreducible minimum of obligation on each side to create a contract of service’.

ii) If a genuine right of substitution exists, this negates an obligation to perform work personally and is inconsistent with employee status: Express & Echo Publications Ltd v Tanton (‘Tanton’) [1999] ICR 693, per Peter Gibson LJ at p 699G.

iii) If a contractual right, as for example a right to substitute, exists, it does not matter that it is not used. It does not follow from the fact that a term is not enforced that such a term is not part of the agreement: see eg Tanton at p 697G.

The essential question in each case is what were the terms of the agreement.”

The vital paragraph in relation to 'limb b' workers such as the present case deals with the relevance of the right to provide a substitute worker and whether it makes any difference if that right is unfettered or not:

'120.   I apprehend that in this regard the position of putative employees and limb (b) workers is similar; Premier Groundworks was a case involving limb (b) workers rather than employees. Even if the Respondent could establish that the Claimant had a contractual right to delegate his work or to provide a substitute the Claimant would still be considered to be a limb (worker) because his right was not unfettered.'

Wednesday, 3 December 2014

Reasonable adjustments database - examples to be aware of

A Database of 'Reasonable Adjustment' Claims
I have listed some judgments below and the types of reasonable adjustment claims which have worked before in the ET. Contact me if you know of any others......

Reasonable Adjustments:

Paying for private medical treatment to enable the Claimant to return to work and cope with the difficulties she had been experiencing at work.

Croft Vets v Butcher Appeal No. UKEAT/0430/12/LA UKEAT/0562/12

Allocating some of the disabled person's duties to another person;

Transferring him to fill an existing vacancy

Returning to work on a phased return/and or in a temp role -   Fareham College Corporation v Walters Appeal No. UKEAT/0396/08/DM UKEAT/0076/09

Altering hours of working or training;
Costco Wholesale UK v Newfield UKEAT/0617/12/KN - reducing hours
and Secretary of State for Work and Pensions v Higgins. Appeal No. UKEAT/0579/12/DM

Assigning him to a different place of work or training;
Newcastle City Council v Spires UKEAT/0334/10/ZT

Allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;
working from home - Secretary of State for Work & Pensions v Wilson UKEAT/0289/09/DA

Giving, or arranging for, training or mentoring (whether for the disabled person or any other person);
Acquiring or modifying equipment;
Modifying instructions or reference manuals;
Modifying procedures for testing or assessment; - Burke v The College of Law & Anor [2012] EWCA Civ 37
Providing a reader or interpreter;
Providing supervision or other support.''
Failure to provide psychiatric services - Croft Vets v Butcher Appeal No. UKEAT/0430/12/LA UKEAT/0562/12

Dismissal - Fareham College Corporation v Walters (see above).
In this case, the employer laid itself open to criticism and a finding that it failed to
make reasonable adjustments.  Its conduct provides a list of ‘actions to be avoided
at all costs’:  

• The manager dealing with the capability procedure did not have any knowledge
or understanding of the claimant’s underlying condition;
• The respondent did not have up to date medical reports as to the claimant’s
position or prognosis;
• The manager who concluded that it was unlikely that the claimant would be
able to return to her position on a full time basis was unable to explain the
reasoning which led him to that conclusion;
• The respondent failed to consider that allowing the claimant to return using a
phased return or in an alternative role might only be necessary in the short
term, and therefore in dismissing the possibilities due to the difficulties such
steps would have on educational delivery, failed to demonstrate that the
adjustments were not reasonable under s.18B.

Chief Constable of South Yorkshire Police v Jelic UKEAT/0491/09/CEA
chronic anxiety syndrome - 1) he should have been deployed into a non client-facing officer role rather than retired.