Employment Bulletin – January 2019

Government unveils its Good Work Plan to upgrade employment rights

The government has unveiled what it describes as the "largest upgrade in a generation to workplace rights".

Ministers say the extensive new measures contained in its Good Work Plan will give businesses greater clarity on their obligations and ensure the enforcement system is fair and fit for purpose.

The new legislation will close a loophole by repealing the Swedish derogation - which currently allows agency workers to be employed on cheaper rates than permanent counterparts.

It will also extend the right to a day one written statement of rights to workers, going further to include detail on rights such as eligibility for sick leave and details of other types of paid leave, such as maternity and paternity leave.

The maximum employment tribunal fines for employers who have shown malice, spite or gross oversight will quadruple from £5,000 to £20,000

The government will also extend the holiday pay reference period from 12 to 52 weeks, ensuring those in seasonal or atypical roles get the paid time off to which they are entitled.

The measures are based on the findings of the independent Matthew Taylor review of the impact of modern working practices, with 51 of the 53 recommendations being implemented.

Other key changes include:

• ensuring tips left for workers go to them in full
• ensuring workers are paid fairly by providing agency workers with a key facts page when they start work, including a clear breakdown of who pays them, and any costs or charges deducted from their wages
• enforcing vulnerable workers' holiday pay for the first time
• introducing a list of day-one rights including holiday and sick pay entitlements and a new right to a payslip for all workers, including casual and zero-hour workers
• introducing a right for all workers, not just zero-hour and agency, to request a more predictable and stable contract, providing more financial security for those on flexible contracts
• introducing a new naming scheme for employers who fail to pay employment tribunal awards
• taking further action to ensure unpaid interns are not doing the job of a worker.

Ministers say they want to reflect the reality of the modern working relationships as expressed by the Taylor review.

This means acknowledging that banning zero hours contracts in their totality would negatively impact more people than it helped, and that the flexibility of 'gig working' is not incompatible with ensuring atypical workers have access to employment and social security protections.

Read the government's Good Work Plan

Supermarket's dismissal of diabetic over incontinence incident ruled unfair

A supermarket acted unfairly when it dismissed a lorry driver with diabetes after he had urinated in a delivery yard due to urge incontinence.

That was the decision of the Employment Tribunal in an unusual case relating to disability discrimination.

The driver suffered from type 2 diabetes. One of the symptoms of that condition was urge incontinence (a sudden and urgent need to empty the bladder). On arrival at one of the supermarket's depots, the driver had suffered a sudden need to urinate.

Fearing that he would not reach the toilet in time, he used the delivery yard. He was dismissed for gross misconduct and breach of health and safety policies and regulations.

The supermarket did not specify what the policy and regulations were and did not seek any medical evidence.

The driver appealed and produced medical evidence that supported his case, but the supermarket upheld his dismissal.

The Employment Tribunal concluded that the supermarket's investigation was inadequate and was not within the band of reasonable responses. It held that the dismissal was unfavourable treatment arising from the driver's disability within the terms of the Equality Act 2010.

It ordered the supermarket to reinstate him and awarded him compensation.

The supermarket appealed, saying the tribunal's conclusions could not stand in the light of CCTV footage showing that the driver had urinated on pallets of trays used for the delivery of food.

The Employment Appeal Tribunal also ruled in favour of the driver. It held that the CCTV was inconclusive, yet the supermarket leapt to conclusions about unnamed and unspecified health and safety regulations. The operative cause of the driver's dismissal was disability rather than misconduct.

The lack of any reasonable investigation was a critical issue in the tribunal's ultimate decision that the dismissal was unfair.

Uber to fight on after losing appeal over 'drivers are workers'

Uber says it will continue its legal fight against the ruling that its drivers should be classed as workers.

It made the statement after the Court of Appeal upheld an Employment Tribunal decision in 2016 that drivers were entitled to workers' rights including the minimum wage.

The tribunal at the original hearing heard that Uber paid drivers weekly, based on the fares charged for trips undertaken, less a service fee for the use of its booking app.

Uber argued that it was merely acting as an agent and that drivers entered into binding agreements with passengers to provide them with transportation services.

The Employment Tribunal ruled against Uber. It concluded that any driver who had the app switched on and was within the territory in which he was authorised to work, and was willing to accept assignments, was working for Uber under a "worker" contract.

It held that any supposed contract between driver and passenger was a pure fiction, bearing no relation to the real dealings and relationships between the parties.

Both the Employment Appeal Tribunal and the Court of Appeal have upheld that decision.

Uber says it will now take its case to the Supreme Court, arguing that most drivers had been self-employed before its app existed. A spokesperson said: "Drivers who use the Uber app make more than the London living wage and want to keep the freedom to choose if, when and where they drive."

Employee who stole fails with disability discrimination claim

The law provides wide-ranging protection against disability discrimination but that does not extend to employees who've been found guilty of stealing.

This was illustrated in a recent case involving an employee who worked for a County Council.

The employee was found to have taken some items from a shop without paying. He was accused of shoplifting and served with a fixed penalty notice.

The council dismissed him following the incident, so he brought a claim of disability discrimination. He claimed the shoplifting incident happened because he was suffering from post-traumatic stress disorder and dissociative amnesia (PTSD).

The council accepted that his illness amounted to a disability but pointed to the fact that stealing was excluded from protection under Regulation 4(1)(b) of the Equality Act (Disability) Regulations 2010.

The Employment Tribunal found in favour of the council. It held that the employee's claim of disability discrimination had to fail because a tendency to steal was excluded from the Regulations as a protected condition.

The Employment Appeal Tribunal upheld that decision.