Employment Law WELCOME TO THE JUNE 2018 UPDATE OF - Birketts
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W E LC O M E TO T H E J U N E 2 0 1 8 U P D AT E O F
Employment Law
I N T H I S I S S U E
Plumber held to be a ‘worker’ Quick fire: employment tribunal statistics
Quick fire: new GEO guidance on dress Zero hours employee employed under
codes ‘same type of contract’
Knowledge of the consequences of Immigration update
disability?
Dismissal without single act of gross
misconduct2 E M P LOY M E NT L AW JUN E 2018
This month’s ‘big news’ is the Supreme Court’s decision in
the Pimlico Plumbers appeal. Does it take us any further
forward in terms of establishing employment status?
We also look at a Court of Appeal decision with potentially significant implications for
employers with disabled employees, and a case in which the Employment Appeal Tribunal
considered whether summary dismissal was fair in circumstances where there was no single
act of gross misconduct.
Liz Stevens We also provide a round-up of recent employment law news as well as our monthly
Professional Support Lawyer immigration update.
01603 756474
liz-stevens@birketts.co.uk Thanks to all those who attended our recent mock tribunal events in Chelmsford and
Newmarket. We hope you enjoyed this opportunity to observe the workings of an
employment tribunal at close quarters, particularly the expert cross-examination by our
barristers.
Save the date
Cambridge | Abigail Trencher
abigail-trencher@birketts.co.uk In October we are running our popular annual employment law update seminars, see our
01223 326622 | 07983 385842 Events page for details of dates and locations: https://www.birketts.co.uk/events.
Chelmsford | Kevin Palmer I N T H I S I S S U E
kevin-palmer@birketts.co.uk
01245 211254 | 07771 517547 Plumber held to be a ‘worker’ Quick fire: employment tribunal statistics
Quick fire: new GEO guidance on dress Zero hours employee employed under
codes ‘same type of contract’
Ipswich | Catherine Johnson
Knowledge of the consequences of Immigration update
catherine-johnson@birketts.co.uk
disability?
01473 299174 | 07786 265654
Dismissal without single act of gross
misconduct
Norwich | Jeanette Wheeler
jeanette-wheeler@birketts.co.uk @birkettsllp Birkettsllp @birkettsllp
01603 756427 | 07983 519812
Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment3 E M P LOY M E NT L AW JUN E 2018
Plumber held to be a ‘worker’
The Supreme Court has rejected an appeal against the decision that
Mr Smith, a plumber working for Pimlico Plumbers, is a ‘worker’ and
not a self-employed contractor.
Pimlico Plumbers Ltd and Mullins v Smith [2018] UKSC 29
Facts
Mr Smith had worked for Pimlico Plumbers (PP) for around five and a half years before
PP ended the arrangement, approximately four months after Mr Smith suffered a heart
attack. He was engaged as an independent contractor of PP, but he brought claims
for unfair and wrongful dismissal, pay for medical suspension, holiday pay, unlawful
deductions from wages and disability discrimination.
An employment tribunal decided that Mr Smith was not an employee, meaning that
he could not pursue his claims for unfair and wrongful dismissal or pay for medical
suspension, but held that he was a ‘worker’ for the purposes of the other claims. Both
the Employment Appeal Tribunal and Court of Appeal rejected PP’s appeals against the
tribunal’s decision.
Supreme Court decision
The Supreme Court has now decided that the employment tribunal was entitled to
conclude that the plumber was a worker, dismissing PP’s appeal. Mr Smith only had a
There were a number of factors limited right of substitution to another PP operative, which was not inconsistent with
that were suggestive of ‘worker’ the obligation to provide personal service. There were a number of factors that were
status, rather than Mr Smith suggestive of ‘worker’ status, rather than Mr Smith working on his own account. These
included the requirement to wear a branded uniform, drive a branded van, carry an
working on his own account. identification card and closely follow the instructions issued by the control room. There
were also references in the contractual documentation to ‘wages’, ‘gross misconduct’
and ‘dismissal’, as well as onerous restrictive covenants applying after termination. In
addition, he was required to work a minimum of 40 hours per week.
Consequences
This decision comes as no great surprise; few (if any) were expecting Pimlico’s appeal to
Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment4 E M P LOY M E NT L AW JUN E 2018
succeed. As with all ‘status’ cases, the decision is highly fact specific. The court’s judgment
does not provide us with any further clarity on the question of employment status and
the applicable legal tests. It serves to emphasise once again the scrutiny the tribunals
will apply to the terms of any contractual documentation, set against the reality of the
The court’s judgment does not relationship between the parties.
provide us with any further
In the meantime, the Independent Workers Union of Great Britain (IWGB) has won the
clarity on the question of right to seek judicial review of last year’s decision by the Central Arbitration Committee
employment status... that Deliveroo riders are not ‘workers’ for the purpose of seeking trade union recognition
in the workplace. Deliveroo is also now reportedly being investigated by the Work and
Pensions Committee as part of its inquiry into the gig economy.
Q U I C K F I R E
New GEO guidance on dress codes
The Government Equalities Office (GEO) has published new guidance on dress
codes and sex discrimination for employers, employees and job applicants.
The new guidance Dress codes and sex discrimination: what you need to know,
was promised by the government following a parliamentary inquiry into dress
codes, which was conducted as a result of extensive media coverage in 2015 of
a receptionist sent home for refusing to wear high heels. The guidance provides
advice for employers on their legal responsibilities when introducing a workplace
dress code policy, and advice for employees on what action they can take if they
consider their employer’s policy to infringe their rights.
The guidance confirms that dress codes can be legitimately enforced by
employers, but any less favourable treatment because of sex could amount to
direct sex discrimination. The standards imposed on men and women do not
have to be identical, but should be equivalent.
Employers are recommended to consult with staff and trade unions when
introducing or amending a dress code, and should take into account the health
and safety implications of any dress requirements. Notably, the guidance advises
against gender specific prescriptive requirements, such as a requirement to
wear high heels, and prohibiting religious symbols that do not interfere with an
employee’s work.
Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment5 E M P LOY M E NT L AW JUN E 2018
Knowledge of the
consequences of disability?
The Court of Appeal has recently considered whether it was
necessary for an employer to be aware of the consequences of a
disability, to establish liability for discrimination arising from disability.
City of York Council v Grosset [2018] EWCA Civ 1105
Facts
Mr Grosset was the head of English at a secondary school operated by the Council. He has
cystic fibrosis, which was exacerbated by stress caused by the additional demands of an
increased workload. He was dismissed for gross misconduct after showing a class of 15
Provided the employer is and 16 year-olds an 18-rated film. Mr Grosset claimed that this was a momentary error of
aware of an individual’s judgement caused by the level of stress he was under.
disability, it is not necessary An employment tribunal dismissed his claim for unfair dismissal, but held that he had
for the employer to know of the suffered discrimination arising from disability. Medical evidence available to the council
link between the misconduct at the time of dismissal did not suggest a link between Mr Grosset’s misconduct and his
disability, but further evidence available by the time of the tribunal hearing did suggest
and the disability... that there was such a link. The tribunal was satisfied that Mr Grosset’s disability had
caused or resulted in the act of misconduct, meaning that the Council had treated him
unfavourably (by dismissing him) because of something arising in consequence of his
disability. Provided the employer is aware of an individual’s disability, it is not necessary
for the employer to know of the link between the misconduct and the disability. The
Council’s appeal was dismissed by the Employment Appeal Tribunal.
Court of Appeal decision
The Court of Appeal also dismissed the council’s appeal. It rejected the argument that the
council was only liable if the claimant could show that it was aware of the link between
It is always advisable for the misconduct and his disability; it was sufficient that such a link had been established by
employers to obtain medical the medical evidence. The court further held that the discrimination could not be justified:
Mr Grosset’s dismissal was not a proportionate means of achieving a legitimate aim. In
evidence to establish the
upholding the tribunal’s decision on justification, the court noted that had the council
effects and consequences of met its obligation to make reasonable adjustments and reduced the work pressure on Mr
an individual’s disability... Grosset, he would not have been subjected to the same level of stress.
Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment6 E M P LOY M E NT L AW JUN E 2018
Consequences
This decision confirms that employers can be found liable for disability discrimination,
even when they are unaware of the link between an individual’s actions and their disability.
It is always advisable for employers to obtain medical evidence to establish the effects and
consequences of an individual’s disability, including any potential effect on their behaviour.
It is also more likely that an employer will be able to show justification in defence of such a
claim if they have fully complied with the duty to make reasonable adjustments.
Dismissal without single act of
gross misconduct
The Employment Appeal Tribunal (EAT) has considered the fairness
of a summary dismissal, in circumstances where the employee had not
committed a single act of gross misconduct but a series of acts of misconduct.
Mbubaegbu v Homerton University Hospital NHS Foundation Trust, UKEAT/0218/17
Facts
The claimant was a consultant orthopaedic surgeon, dismissed for gross misconduct after
15 years of service with an unblemished disciplinary record. An external investigation had
found that the claimant, along with four others in the department, had failed to follow
new departmental rules. Following a further investigation, the claimant was informed that
disciplinary action would be taken against him in respect of 17 allegations. At the time of
the disciplinary hearing, there had been no further reported incidents in respect of the
claimant for a period of 16 months.
The claimant was summarily dismissed for gross misconduct. His appeal against the
Trust’s decision was not upheld. His claims for unfair dismissal, wrongful dismissal
and race discrimination were dismissed by an employment tribunal. The tribunal (by
a majority) accepted that the decision to dismiss was within the range of reasonable
responses on the basis that the claimant could not be relied upon to change his behaviour
in the future, notwithstanding that 16 months had elapsed with no further incidents.
Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment7 E M P LOY M E NT L AW JUN E 2018
EAT decision
The EAT dismissed the claimant’s appeal, confirming that it is not necessary for there
... it is not necessary for there to be one particular act that amounts to gross misconduct for a summary dismissal to
be fair: “It is quite possible for a series of acts demonstrating a pattern of conduct to be
to be one particular act that
of sufficient seriousness to undermine the relationship of trust and confidence between
amounts to gross misconduct employer and employee”. The disciplinary panel had found some of the claimant’s actions
for a summary dismissal to to be grossly careless and negligent, and were concerned that a final written warning
would not be sufficient because the claimant’s actions had shown that he was wilful in his
be fair...
approach. According to the EAT, these findings clearly demonstrated that the relationship
of trust and confidence was undermined.
Consequences
This decision provides a good illustration of the principal that a series of acts of
misconduct can, when taken together, amount to gross misconduct in certain
circumstances. For such a dismissal to be upheld as fair, it is important that the
disciplining manager/panel reaches a decision based on the employee’s actions
collectively undermining the relationship of trust and confidence.
... these findings clearly
demonstrated that the
relationship of trust and Q U I C K F I R E
confidence was undermined.
Employment tribunal statistics
The latest employment tribunal quarterly statistics have been published by the
Ministry of Justice, for the period January to March 2018. The statistics show a
continuing increase in the volume of single employment claims, following the
abolition of employment tribunal fees last year. The number of single claims has
increased by 118% compared with the same quarter of 2017, when fees were still in
place. Receipts of multiple cases decreased by 40%. The number of claims disposed
of by the employment tribunals has decreased overall by 9% compared with the
same period last year, with just 10% of claims ultimately succeeding at a hearing.
Over the same period, a total of 4,700 fee refund applications were received, with
4,400 paid (totalling nearly £4m).
Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment8 E M P LOY M E NT L AW JUN E 2018
Zero hours employee employed
under ‘same type of contract’
The Employment Appeal Tribunal (EAT) has considered the
question of whether a part-time lecturer engaged under a zero-hours
contract can compare himself to a full-time permanent employee,
for the purposes of establishing a claim under the Part-Time Workers
(Prevention of Less Favourable Treatment) Regulations 2000.
Roddis v Sheffield Hallam University UKEAT0299/17/2603
Facts
Mr Roddis was employed as a part-time lecturer on a zero-hours contract. He brought a
claim against the university under the Part-Time Workers (Prevention of Less Favourable
Treatment) Regulations 2000 (the Regulations), seeking to compare himself to a
permanent, full time lecturer for the purposes of claiming less favourable treatment on the
grounds of his part-time status.
At a preliminary hearing, an employment tribunal held that Mr Roddis had not identified
an appropriate comparator for the purposes of the Regulations, finding that the two
individuals were not employed under the same type of contract. Mr Roddis appealed this
decision to the EAT.
EAT decision
The EAT upheld the appeal, finding that Mr Roddis and his comparator were both
employed under the same type of contract. They were both found to be employees,
employed under a contract of employment. The Regulations sets out four types of
A contract is not of a different contracts regarded as being different to one another. A contract is not of a different type
type simply because the simply because the terms and conditions it lays down are different, otherwise this would
terms and conditions it lays defeat the purpose of the legislation.
down are different...
Consequences
Key to this decision is that the zero-hours lecturer was an ‘employee’, who happened to be
employed under a zero-hours contract of employment. This meant that he was entitled
Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment9 E M P LOY M E NT L AW JUN E 2018
to compare himself to a full-time permanent lecturer and could pursue his claim in the
employment tribunal. Working under a ‘zero-hours’ contract does not give an individual a
separate status for the purposes of the Regulations. The situation would be different if the
Working under a ‘zero- individual is found to be engaged as a worker under a zero-hours contract, rather than an
hours’ contract does not give employee, as this would qualify as a different type of contract under the Regulations.
an individual a separate
status for the purposes of the
Regulations. Immigration update
EU Settlement Scheme - FAQs
On 21 June 2018 the Government announced further details of the new settled status
scheme for EU nationals. These still need to be approved by Parliament.
Clare Hedges
How do I apply?
Senior Associate
01223 326605 Applications will be made online. You will need to prove your identity and provide
clare-hedges@birketts.co.uk evidence of your residence in the UK. If you would prefer not to send away your passport/
id card, you will be able to use an app to upload this. However at the current time this app
only works on Android phones (not iPhones).
The Government will automatically check HMRC and DWP records for proof of residence.
If these are inconclusive then you will be invited to provide further documentary evidence.
There will be a list of preferred evidence and then alternative acceptable evidence of
residence. The Government has said it will take a flexible approach, but of course it
Janice Leggett remains to be seen how this will be implemented in practice.
Immigration Consultant
Finally a criminal record check is required. Criminal conduct will be treated differently
01245 211277
depending on whether it occurred before or after 31 December 2020, with stricter rules
janice-leggett@birketts.co.uk
applying after this date.
Will I have to prove I have been exercising EU Treaty rights?
The Government has said that to obtain settled status you just need to have been living in
the UK for five years. They will be looking to grant applications rather than to refuse them.
The government has said Whereas students and self-sufficient individuals currently have to provide evidence that
that to obtain settled status they held comprehensive sickness insurance before they can get a permanent residence
document, this will not be required for the new settled status.
you just need to have been
living in the UK for five years.
Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment1 0 E M P LOY M E NT L AW JUN E 2018
What if I have not been in the UK for five years?
In this case you will generally get “pre-settled status” instead. The Government has said
this will allow you to stay in the UK for a further five years, after which you are expected to apply
for settled status.
When can I apply?
The scheme is still in the testing stages. There will be a phased roll-out of the scheme from
The government expects the late 2018. We are still waiting for details of how this roll-out will work.
scheme to be fully open by The Government expects the scheme to be fully open by March 2019. The deadline to apply
March 2019. The deadline to is 30 June 2021.
apply is 30 June 2021. How much will it cost?
The cost will be £65 per person for those age 16 or over and £32.50 for under-16s.
Anyone who already has a permanent residence document, or indefinite leave to remain,
can apply for free. There is also no charge to move from pre-settled, to settled status.
Applicants will not be required to pay the Immigration Health Surcharge.
What documentation will I receive to prove my new status?
You will not receive a physical document. Instead you will be able to get proof of your
status through an online service. Presumably the Home Office will update its guidance on
... you will be able to get proof right to work and right to rent checks accordingly.
of your status through an
What will my rights be?
online service.
Settled status will mean you are eligible for public services such as healthcare and schools,
public funds and pension.
Once you have settled status, you can leave the UK for up to five years and return again
with your settled status intact.
What about EU nationals arriving after we leave the EU?
The agreement with the EU provides for an “implementation period” from 30 March 2019
to 31 December 2020. EU nationals who arrive during this time will be expected to apply
for “pre-settled status” and then eventually progress to settled status as appropriate.
But what if there is no deal?
Even if we were to exit the EU with no deal (at least theoretically possible as nothing has
been signed to date), the fact the Government has made such clear assertions upon which
people are entitled to rely, means they would struggle to renege on this commitment.
What about non-EU EEA nationals?
The Government intends for the scheme to also apply to nationals of Iceland, Lichtenstein,
Norway and Switzerland, but this still needs to be formally agreed.
Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment1 1 E M P LOY M E NT L AW JUN E 2018
What about Irish nationals?
Irish citizens may choose to apply for settled status, but they will not be required to do so
as they have a separate right of residence in the UK that is not related to EU membership.
Doctors and nurses to be taken out of Tier 2 visa cap
The cap on restricted Certificates of Sponsorship (“RCoS”) has been causing problems for
employers since December 2017. In particular the NHS has complained that it has been
unable to sponsor junior doctors from overseas.
To alleviate the situation, from 6 July 2018, doctors and nurses will be removed from the
cap. This means there will be no restriction on the number of doctors and nurses who can
be employed through the Tier 2 visa route. As a result the NHS should be able to recruit
the doctors it has been waiting for.
.... from 6 July 2018, doctors Whilst we are still awaiting the publication of new sponsor guidance, we anticipate that
and nurses will be removed sponsors will simply use unrestricted CoS for roles in SOC codes 2211 (doctors) and 2231
(nurses). NHS trusts which plan to take advantage of the new rules should check how
from the cap. many unrestricted CoS they currently have available in their sponsor management system
and should be prepared to pay £200 to have any request for an increased allocation expedited.
Currently around 1/3 of RCoS are used by the NHS (and around 40% of all Tier 2 visas
are for NHS staff). Taking these workers out of the cap means that from July, those RCoS
should be available for other employers.
However given the number of people who have been waiting for RCoS, we do not expect
the backlog to clear any time soon and we believe it will continue to be difficult to obtain
RCoS for roles with a salary of below for example £40k.
Tier 1 Exceptional Talent widened
The Tier 1 Exceptional Talent visa route is open to up to 2,000 people per year. It
is designed to provide visas for leading talent in the fields of science, humanities,
engineering, medicine, digital technology or the arts.
From 6 July 2018 it is being widened to include top fashion designers. Applications must
be endorsed by a specific sector body. For fashion this will be the British Fashion Council
The Tier 1 Exceptional under the endorsement remit of Arts Council England (“ACE”).
Talent visa route... is being Changes to the criteria applied by ACE will also open the scheme to a wider range of film
widened to include top and TV applicants.
fashion designers. At a time when Tier 2 visas are under pressure, employers who have a star candidate in
a relevant field would be well advised to consider whether the Tier 1 Exceptional Talent
route might be suitable instead.
Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment1 2 E M P LOY M E NT L AW JUN E 2018
Sponsored scientific researcher
From 6 July 2018 there will be a new visa route under Tier 5 (Temporary Worker –
... there will be a new Government Authorised Exchange Scheme), for sponsored scientific researchers to come
visa route under Tier 5 to the UK for up to 24 months. This replaces the old Sponsored Scientific Researcher
Initiative.
(Temporary Worker –
UK Research and Innovation (UKRI) will engage with sponsored researchers within its
Government Authorised
own organisation and endorse select Independent Research Organisations to hold a Tier 5
Exchange Scheme), for Licence. Those already endorsed are:
sponsored scientific • Babraham Institute • Quadram Institute Bioscience
researchers to come to the • John Innes Centre • The Welding Institute
UK for up to 24 months.
• The Pirbright Institute • The Sainsbury’s Laboratory, Norwich
• The Francis Crick Institute • Wellcome Trust Sanger Institute
• Diamond Light Source Ltd • National Institute of Agricultural Botany (NIAB)
• Plymouth Marine Laboratory • Natural History Museum
The route is suitable for academics, researchers, scientists, research engineers or other
skilled research technology specialists. They must be filling a supernumerary role.
They may give lectures (not amounting to a formal teaching post), act as an examiner,
undertake skill development/knowledge transfer, undertake a period of work-based
training/work experience/internship/placement or work on research collaborations.
New start-up visa route
The Home Secretary has recently announced a new “start-up” visa route for people who
want to start a business in the UK. The route has been designed following advice from the
Migration Advisory Committee and feedback from the tech sector and other stakeholders.
It will replace the Tier 1 (Graduate Entrepreneur) visa, which currently enables foreign
national graduates (who graduated within the last two years) to apply for an endorsement
from an authorised UK university or Department for International Trade as part of an elite
global graduate entrepreneur programme.
The new entrepreneur route is expected to launch in spring 2019 and will “widen the
The new entrepreneur route applicant pool of talented entrepreneurs and make the visa process faster and smoother
for entrepreneurs coming to the UK”. Further details will be announced in due course.
is expected to launch in
spring 2019... Reminder re Croatian nationals
As explained in an earlier update, from 30 June 2018, Croatian nationals will be able to
work freely in the UK and will no longer require worker authorisation.
Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employment1 3 E M P LOY M E NT L AW JUN E 2018
Illegal working penalties
The Home Office continues to clamp down on illegal working. The latest quarterly report
shows 990 illegal workers were found across the UK between 1 October and 30 December
2017 – a 17% increase on figures released in the previous quarter. As a result, 624 penalties
were issued to employers, amounting to £11.6m in fines in just a three month period.
Right to work checks remain essential for employers. We can support employers with a
right to work check masterclass and mock audits. Please contact our Immigration Team
for further details.
Right to work checks remain
essential for employers. Stream-lined application process for students
The Home Office has expanded the list of countries from which students will be able
to benefit from a streamlined Tier 4 visa application process. The Home Office reserves
the right to see full evidence and will continue to request samples at random, but the
relaxation of the rules should speed up applications at this peak time of year.
This light-touch to documentation will apply to students from:
• Argentina • Kuwait
• Australia • Malaysia
• Bahrain • The Maldives
• Barbados • Mexico
• Botswana • New Zealand
• Brunei • Qatar
• Cambodia • Serbia
• Canada • Singapore
• Chile • South Korea
• China • Thailand
• The Dominican Republic • Trinidad and Tobago
• Indonesia • United Arab Emirates
• Japan • United States of America
Tier 4 sponsors should nevertheless continue to ensure they are holding all documents
required under Appendix D of the Tier 4 sponsor guidance.
Tier 4 sponsors should …
ensure they are holding all For further information on any of the matters covered in this update, please contact
documents required under Clare Hedges or Janice Leggett in our Immigration Team.
Appendix D”
Clear Legal Advice Cambridge | Chelmsford | Ipswich | Norwich www.birketts.co.uk/employmentYou can also read
