02 November 2016

A round up of some of the important employment law cases decided during October.

Dahhan v Glasgow City Council

The Employment Appeal Tribunal (“EAT”) in Dahhan v Glasgow City Council had to consider whether an employment tribunal can set aside an otherwise valid Settlement Agreement on grounds that the employee lacked mental capacity to enter into it. The Claimant, Mr Dahhan, had raised race discrimination claims against the Respondent, then entered into a Settlement Agreement with them, and withdrawn the claims. He subsequently argued that at the time of signing the Settlement Agreement, he lacked mental capacity to make decisions and instruct solicitors, or to enter into a contract. He wanted to have the Settlement Agreement set aside, to have his tribunal claim reinstated, and to proceed with it. The EAT concluded that when faced with such an allegation, an employment tribunal does have power to assess that issue and decide whether or not the Settlement Agreement was valid, or on the other hand void due to the employee’s incapacity. If it is void then it can be set aside as it was not a proper contract at all, and will not have had the intended effect of having the employee give up his legal rights and claims.

Several issues arise which may require further consideration – if the Agreement is invalid, need the employee return the settlement payment he received? What if he has spent it? And how can employers, who think they are entering into a valid Settlement Agreement with an employee, or ex-employee, protect themselves and ensure that it cannot be subsequently challenged on grounds of lack of capacity?

Lee v Ashers Bakery Ltd

In the latest decision in the “gay cake” saga, Lee v Ashers Bakery Ltd, the Northern Ireland Court of Appeal confirmed that it was unlawful for a baker to refuse to prepare a cake with the slogan “support gay marriage” on the grounds that the slogan conflicted with the baker’s own Christian beliefs.

The Court of Appeal cut through some of the difficult and complex issues arising in this litigation (that the customer’s order was not rejected because of the customer’s sexuality at all) by holding that this was a case of “associative discrimination”. It did not matter what the customer’s sexual orientation was, the rejection of the cake order was nevertheless “on grounds of” (or because of) sexual orientation – the slogan itself was clearly aligned with the gay/bisexual community. The Court held that the baker’s freedom of speech was not affected, as no one could reasonably think that by preparing such a cake the baker was declaring personal support for the slogan, any more than a baker creating a Halloween cake would be showing support for witchcraft.

Although this is not an employment case, and is under Northern Ireland law, which is slightly different from the rest of the UK, this outcome is consistent with British authorities which suggest that “freedom of religion” cannot include the freedom to discriminate against others on grounds of a protected characteristic.

Sandle v Addeco UK Ltd

Need a dismissal be expressly communicated by an employer? Previous authority has suggested that an intention to dismiss might be inferred from the employer’s actions (for example sending a P45 and returning the employee’s personal items from the office). The EAT in Sandle v Addeco UK Ltd held that while this remained good law, the employer’s unequivocal intention to dismiss still had to be communicated to the employee in some way.

The Claimant was employed by an employment agency who placed her with a client for a long term assignment. The assignment came to an end. The employee did not make contact with the agency. The agency assumed she did not want any further assignments and did not contact her with any offers of work or seek to find work for her. She later claimed she had been dismissed by the agency and sought compensation for unfair dismissal. The tribunal found (upheld by the EAT) that it could not identify any communication by the employer, by words or actions, of an intention to dismiss, and as there had also been no resignation, the reality was that the Claimant was still employed by the agency. An unusual decision that stresses the importance of clear communication, and taking steps to bring a relationship to an end rather than letting things “fizzle out”.

Buchanan v Commissioner of Police of the Metropolis

In Buchanan v Commissioner of Police of the Metropolis the EAT had to consider the issue of justification of discrimination. The Equality Act allows in some cases (but by no means all) for an employer to justify acts of less favourable treatment – to show that its actions were a proportionate means to achieve a legitimate aim. For example, in a case of indirect discrimination, an employer whose “provision, criterion or practice” has put an employee at a disadvantage due to a protected characteristic, must justify that “provision criterion or practice”.

In this case the EAT considered a claim of “discrimination arising from disability”, another type of discrimination claim. The question for the EAT was – what does the employer need to justify? The EAT concluded that where the employer has a policy which it simply applies to the Claimant, it is the policy that needs to be justified. However, if the policy has to be interpreted and applied, taking into account the particular circumstances of the employee, with discretion to act in more than one way, then it is not good enough for the employer to merely justify its underlying policy; it must justify the actual way the policy was applied in the particular case – it is the treatment of the Claimant in all the circumstances that must be justified. This sets a higher bar for employers when seeking to justify otherwise discriminatory conduct.

Aslam and Farrar v Uber BV and Others

In Aslam and Farrar v Uber BV and Others, an employment tribunal had to consider whether Uber drivers in London had any employment rights. Uber argued that the drivers were not its employees, nor were they workers and entitled to protection of the minimum wage and working time provisions. Rather they were independent business people with their own businesses. Uber was not (they said) itself running the business of providing transportation services, rather they were providing a “platform” to enable the drivers to operate and grow their own transportation businesses. The tribunal extensively examined the paperwork entered into between the company and the drivers, and the company and the passengers. They also heard oral evidence.

In a damning judgement, the tribunal noted that the “grimly loyal” evidence of Uber’s main witness was contradicted by their own paperwork and publicity, comments made in interviews etc, much of which suggested that Uber was indeed in the business of providing transportation services. The contracts and documents prepared by Uber contained (said the tribunal) fictions, twisted language and even “brand new terminology”. The suggestion that Uber in London was actually 30,000 small business owners using a common platform was said by the tribunal to be “faintly ridiculous”. The tribunal noted that the customers are found by Uber and passed on to the driver, and that there are strict rules about how the driver deals with the customer. The tribunal carried out a full analysis of what the law requires for “worker” status, and applied that to the facts of the case. The tribunal concluded that the drivers were in fact engaged in Uber’s business, not as employees, given the lack of mutual obligations, but at least when they were available for work they were “workers” within the relevant definition, and entitled to all the rights that come with that.

While the decision is clearly fact-sensitive, it is one which will have implications throughout the “gig economy” and shows a strong reluctance on the part of the tribunal to accept that the individual Uber drivers, who were subject to a whole range of rules and requirements by Uber, were in fact “genuinely self employed”. The decision is likely to be appealed, probably a number of times, but any businesses who engage individuals on casual or “self-employed” arrangements would be well advised to take stock and review the risks inherent in their current approach.

McFarlane and another v easyJet Airline Company Ltd

Finally, an employment tribunal has considered a claim by employees who argued their employer had failed to make necessary arrangements to accommodate their breastfeeding: McFarlane and another v easyJet Airline Company Ltd. The Claimants had asked their employer to roster them on flights for no more than 8 hours at a time, so as to allow for milk to be expressed. The employer refused as it was not practical to guarantee that no shift would be over 8 hours. The tribunal found they had imposed a “provision criterion or practice” that crewmembers had to comply with the assigned roster and that they may be required to work for more than 8 hours at a time. This put the particular claimants at a disadvantage and amounted to indirect sex discrimination. The tribunal concluded that easyJet was not able to justify their requirements as there was no reason a bespoke roster could not be created for these employees to ensure no more than 8 hours’ duration. The claims therefore succeeded.

Again, while the facts may be particular to this case, the decision does highlight the risks for employers in taking an inflexible approach to breastfeeding mothers, perhaps due to sweeping generalised assumptions about how easy it may be to accommodate them. It may in effect be necessary to make “reasonable adjustments”; there are also complex provisions relating to suspension on grounds of maternity, which would be triggered if the employer is unwilling or unable to accommodate breastfeeding. Certainly this decision emphasises that it is not the case that mothers returning to work will need to give up breastfeeding, and employers would be well advised to consider their own approach, and take expert advice.

Contact: Douglas Strang Senior Associate dst@bto.co.uk T. 0141 221 8012