is it a contract of employment or not?

What are the essential characteristics of a contract of employment? This much discussed topic has been the subject of a great deal of judicial scrutiny in recent decades. Various tests such as “master and servant” and the “control test”, as well as characteristics such as “mutuality of obligation” and the “requirement for personal service” have jostled for supremacy and the topic continues to keep the courts busy.
One of the latest such cases, Troutbeck SA v White & Anor concerned a situation in which an employer had little day to day control over their employees’ work. Although many might regard this as a failure of one of the key tests the Court of Appeal found that the lack of control was no obstacle to there being an employment relationship. Troutbeck employed a couple to look after a small farm in Surrey which it had bought as an investment, and as a holiday retreat for its Nigerian owners. The parties entered into a written agreement which described the parties as employer and employee, provided that the couple (who also had other jobs) should live on site and set out what they would be paid. No tax or NI contributions were ever deducted from their pay. However, those familiar with employment law know that the definition of “an employee” for tax purposes does not necessarily correlate with being an employee for employment law purposes. The couple were very much left to decide for themselves how to go about running the farm. In due course Troutbeck decided to sell, and served notice. The couple claimed unfair dismissal and unpaid wages. Troutbeck denied that there was an employment contract.
The Employment Tribunal dealing with the case decided that the lack of day to day control meant there could not be a contract of employment. Both the Employment Appeal Tribunal and Court of Appeal found this to be wrong in principle. Sir John Mummery, who delivered the lead judgment in the Court of Appeal, asked the pertinent question of Troutbeck – if it is not a contract of employment then what is it? It was contended that it was a “commercial contract”. Remuneration was described as a “personal allowance” and in addition to describing the respondents as “employees” the document itself was described as “an employment agreement. While there was a low level of control, it was not completely absent and the Tribunal should have looked at all the facts in the round.


we are above the law – or are we?

Under the State Immunity Act 1978 (“the SIA”), sovereign states are not generally subject to the jurisdiction of UK courts and tribunals. The point is well demonstrated by the extraordinary extent to which the London Congestion Charge is ignored by diplomats. Disputes relating to contracts of employment, and related statutory rights, are carved out from that general immunity, subject to some exceptions. The upshot of those exceptions is that nationals of the sovereign state, and non UK nationals and residents employed in the UK by a sovereign state (for example embassy staff) cannot, under the 1978 Act, make unfair dismissal claims, discrimination claims or wages claims.
Thus it was that two Moroccans, one a cook working in the Sudanese embassy and the other a domestic worker in the Libyan embassy both had their claims (ranging from unlawful deductions to unfair dismissal) rejected by Employment Tribunals. Both appealed to the Employment Appeal Tribunal in Janah v Libya, arguing that they had been denied their right to a fair trial of their cases under the European Convention on Human Rights and analogous provisions of the EU Charter.
Under the Human Rights Act 1998, UK courts are obliged to read domestic legislation in a way compatible with rights under the Convention. Although accepting that there had been a breach of the right to a fair trial, this was not something the Employment Appeal Tribunal was prepared to do in a case where the SIA set out to restrict access to the court in defined circumstances. To read words into the SIA to reverse that intention would cross the critical line between interpretation and legislation.
The essential principle and scope of the Act is that it intends to restrict a right of access to the court in a situation in which that would otherwise be available. That is the inevitable effect of granting immunity from proceedings. Lord Rodger observed…that however powerful the obligation in sub-section 3 (1) of the HRA might be it did not allow the courts to change the substance of a provision completely, “to change a provision from one where Parliament says that X is to happen into one saying that X is not to happen”. Where Parliament has set out a clear list of those in respect of whom a plea of immunity will fail, and those in respect of whom it will succeed, it would in my view cross the critical line between interpretation and legislation to alter the list by removing one category from the “yes” camp, so as to place it in the “no” camp. Given that the overall approach is deliberately to limit access to justice in certain cases, there seems to me to be no proper interpretative scope for altering the criteria defined.
The EU Charter sets out general and fundamental principles, and domestic courts are required to disapply rules of domestic law which are incompatible with these, even in a dispute between private litigants.


McCririck age discrimination case fails

On 13 November the Central London Employment Tribunal handed down its reserved decision in the case of McCririck v Channel 4 Television Corporation and IMG Media Limited. Given the celebrity status of the Claimant the case attracted a good deal of attention. IMG took over the contract to broadcast all terrestrial coverage of horse racing commencing 1 January 2013. In doing so it displaced the incumbent, Highflyer, for whom McCririck had worked since 1996 and previously with Channel 4 since 1984. As part of its pitch for the contract IMG said that they wanted to introduce a more analytical and journalistic approach to coverage. However IMG management, and former BBC employee Carl Hicks in particular, took the view that Mr McCririck did not fit the brief. Ultimately the Tribunal agreed and held in its judgment:
Mr McCririck was dismissed because of his persona emanating from his appearances from celebrity television shows, and the associated press articles resulting from them, together with his appearances as a broadcaster on Channel 4 Racing where, as he accepted, his style of dress, attitudes, opinions and tic tac gestures were not in keeping with the new aims, and his opinions seen as arrogant and confrontational…
All the evidence is that Mr McCririck’s pantomime persona, as demonstrated on the celebrity television appearances, and his persona when appearing on Channel 4 Racing, together with his self-described bigoted and male chauvinist views were clearly unpalatable to a wider potential audience. The tribunal is satisfied that the respondent had the legitimate aim of attracting a wider audience to horseracing.

However Mr McCririck claimed in evidence that, particularly in his appearances elsewhere, such as on Celebrity Big Brother, he was adopting a “pantomime persona” that was positively encouraged by Channel 4 executives so that, in effect, they could not have it both ways.
The judgment provides an extraordinary insight into the details of a tender for a significant television sports contract. Much of the narrative is of great interest to a racing fan such as me. From a legal perspective the detail is light on the application of the law to the facts. It is significant that, although barely noted in mainstream reporting, since all those whose contracts were not renewed were over 50, the onus shifted from Mr McCririck to Channel 4 and IMG. Instead of the claimant establishing that there was age discrimination, the respondents had to show that there was not. An unsatisfactory aspect of the decision is that there is no analysis of this aspect and it seems to be assumed that there was age discrimination. However, that discrimination was justified because the approach adopted was a proportionate means of achieving a legitimate aim, namely extending the appeal of horseracing to a wider audience.


calculating a week’s pay?

Toni & Guys (St Paul’s) Ltd v Georgiou looks at the proper calculation of a week’s pay for the purposes of both the basic and compensatory awards following a finding of unfair dismissal and addresses the impact of the employer’s conduct on compensation.
The familiar hairdressing brand operates its business on a franchised basis. In 2002 Mrs Giorgiou took on a franchise for a business based at premises in Newgate Street, London EC1. In 2011 the franchised business was sold to a Ms Law. As part of the deal it was agreed that Mrs Giorgiou would be employed as a hairstylist. Her statement of terms and conditions described her remuneration as follows:
Your earnings are variable and are on a commission only basis and you will receive 34% all your net takings payable monthly in arrears by cheque/credit transfer as detailed on your pay statement. We, however guarantee that your earnings will not fall short of the current minimum wage in force for the hours worked.
Mrs Giorgiou and Ms Law disagreed about what constituted a week’s pay. At the Employment Tribunal it was noted that her payslip showed pay for July 2011 in the sum of £741.57 net. This suggested a net weekly rate of about £220. However Mrs Giorgiou claimed, and it was accepted by the Tribunal, that the pay was artificially low because the period included two lengthy suspensions, during which she had her name blackened and lost goodwill with her own personal clients. Ms Law had capriciously diverted work away from her and, ultimately, sacked her. Without these factors her pay would have been £265 net per week equating to £294 gross.
However, was it right to take into account the employer’s conduct when calculating a week’s pay?


is it any wonder that incompetence thrives?

Employers necessarily gather, store and use personal data about applicants and employees and so must comply with the Data Protection Act 1998. Halliday v Creation Consumer Finance Ltd considers what sort of compensation should be awarded if that information is misused. It arose in the context of consumer credit finance. After Mr Halliday bought a new television on credit, there began something of a saga. The credit company, CCF, was ordered to delete the information they held on Mr Halliday and pay him £1500 compensation and costs for breaches of the Act. Initially they mistakenly paid the sum into the wrong bank account, but then made the payment correctly and attempted to get the money back from the bank. When the bank refused, they started proceedings to try to claw back the double payment from both the bank and Mr Halliday. Next, they made a further mistake and passed information to Equifax, with the result that anyone checking Mr Halliday’s credit rating for a period of four months would have seen a debt of £1500 owed to CCF without a credit agreement governing it.
Mr Halliday successfully counterclaimed for these further breaches of the Data Protection Act but was awarded only nominal damages. On appeal to the Court of Appeal, he argued that nominal damages, or even nominal damages plus damages for distress were not an effective remedy. He also proposed that damages for distress should be assessed in the same way as compensation for injury to feelings in discrimination cases (applying Vento guidelines).
Lady Justice Arden, while confirming that that an individual can be awarded damages for distress arising from a contravention of the Act, pointed out that it was “not the intention of the legislation to produce some kind of substantial award”. She remarked that that the breach complained of was a single episode, had not led to any actual damage to Mr Halliday’s reputation and that there was no evidence of injury to feelings or distress over and above what might normally be expected “from frustration at these prolonged and protracted events”. In the circumstances nominal damages of £1 plus £750 for distress were “appropriate and sufficient”. She went on to reject any analogy with discrimination claims which, she said, are liable to involve distinct and well-known distress to the complainant.
In the meantime the Information Commissioner is doling out swingeing fines for data protection breaches.


getting appeals right

In Blackburn v Aldi Stores Ltd the Employment Appeal Tribunal looked at whether a failure to provide an adequate appeal in a grievance procedure could amount to a breach of mutual trust and confidence and thus a constructive dismissal, and concluded that it could.
Mr David Blackburn commenced work with Aldi in 2006 as a light goods vehicle driver. He is a retired police officer and his background was as a vehicle examiner and health and safety trainer. Throughout his employment at Aldi he had concerns about health, safety and training at the depot where he was based. He raised his concerns in particular with Mr Gallivan, the deputy transport manager. It was accepted in evidence that on one occasion Mr Gallivan waved him away, swore at him, said the training was “shit” and told him to “fuck off home”. In fact the depot came out well in audits of vehicle inspection and health and safety.
However there was another flare up with Mr Gallivan in June 2009 and this led to Mr Blackburn raising grievances concerning both Mr Gallivan and a section manager, going back over some time. Normally, under the company’s written procedure, the section manager would have been the person to consider the grievance, but as it concerned him, the next person for it to go to was the logistics manager. But there was no logistics manager – so the regional managing director, Mr Heatherington, dealt with the grievance instead. He met twice with Mr Blackburn, notes were taken and the meetings were recorded. He also spoke with potential witnesses. He reported his findings in detail and upheld the grievance in part. Mr Blackburn was not satisfied and appealed, copying his notice of appeal to the managing director. Remarkably, Mr Heatherington dealt with the appeal himself, holding a brief appeal meeting.
What happened at that meeting was disputed, with Mr Blackburn saying that he was barely permitted to speak and was given a dressing down. Mr Heatherington put forward a rather different version. Mr Blackburn maintains that he was told by Mr Heatherington that his decision was final and he had to accept it. He also alleged that Mr Heatherington had told him that he was anwerable to no-one and that he was in overall charge.
Six days later, Mr Blackburn resigned and started constructive dismissal proceedings. Having started the claim on the basis of a breach of mutual trust and confidence, permission was sought to add an allegation that the grievance procedure had been contractual and there had been a breach of an express term – but this was refused.


discrimination, appeals and returning to work after maternity leave

A Ms Little joined Richmond Pharmacology in 2006 as an evening receptionist. In 2009 she was promoted to the post of full-time sales executive. Richmond operates in a highly competitive marketplace, relying on personal contacts and dealing with the running of pharmaceutical trials.
In September 2009 Ms Little went on maternity leave prior to the birth of her second child. As is often the case in such circumstances she applied for a flexible working arrangement on her return to work in August 2010, specifically Monday to Wednesday, 9.00 a.m. to 3.00 p.m. and remote access when she was at home on Thursdays and Fridays. Her request was rejected on the ground that “it was not feasible for a sales executive to operate on a part-time basis”.
Ms Little appealed the decision but resigned before the appeal hearing was arranged. She was asked to reconsider her resignation until the appeal hearing could take place. The hearing took place three days later and she was offered a three-month trial on the terms she had requested. She refused and confirmed her resignation.
Ms Little brought an employment tribunal claim, alleging constructive unfair dismissal and indirect sex discrimination. The effective date of termination of employment was 19 July 2010 and the claim form was presented on 29 October 2010 so the unfair dismissal claim was out of time. The discrimination claim survived because it was “just and equitable” to allow it to proceed.
Discrimination claims can be both resisted and established on the basis that there is a relevant provision, criterion or practice (PCP) which is applied to a particular job. In this case the relevant PCP was that sales representatives must work full time. That is what she was told when she applied for flexible working. On its face such a requirement would place women at a disadvantage by comparison with men on the basis of disparate impact. However the PCP had been disapplied on appeal, at least to the extent of permitting the three-month trial. Had this “cured” the discrimination resulting from imposition of the PCP?


a trade union with no members

In Akinosun (on behalf of General & Health Workers Union) v The Certification Officer the Employment Appeal Tribunal (Mr Justice Langstaff – President) upheld the refusal of the Certification Officer to list GAHWU as a trade union (from which follow a number of legal consequences, including the possibility of recognition for collective bargaining). The decision came down to the interpretation of the statutory definition of a trade union.

Section 1 of the Trade Union and Labour Relations Consolidation Act 1992 is headed “Meaning of Trade Union” and states:

In this Act a trade union means an organisation, whether temporary or permanent…which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers associations…

Section 2 of the Act provides that the Certification Officer must keep a list of trade unions. It is a question of fact whether or not an organisation fits the description of a trade union. It follows that if the purposes of the organisation do not include the regulation of relations between workers and employers then the Certification Officer cannot certify the organisation as a trade union, notwithstanding any declaration which may have been made. Further, a union carries out collective work for its members. Therefore an organisation which exists to provide representation at internal hearings would not, for that reason alone, be a union.

Mr Akinosun and Mr Adelaja were directors of a company called ERRAS Ltd (an acronym for Employment Rights Representation and Advisory Services), which offered representation to health workers, at a fee. No one from ERRAS could accompany workers at grievance or disciplinary hearings – it not being a union – which was a bit of a gap in the service offered. They therefore set up the General and Health Workers Union (GAHWU), with which they shared an office and facilities with the intention, they said, of the administration of the union being taken over by elected officers, once the union had some members.


no longer in force

Just a reminder – two repeals effected by the Enterprise and Regulatory Reform Act 2013 came into force at the beginning this month. These are:

– The removal of the provisions of the Equality Act 2010 relating to employers’ liability for third party harassment: and
– Changes to civil liability for employers who breach health and safety law.

In a bit more detail, removal of liability for third party harassment will take the situation back to where it stood prior to the Equality Act, under Pearce v Governing Body of Mayfield School; Macdonald v Advocate General for Scotland [2003] ICR 937 whereby an employer can only be held liable for harassment of one of its employees by a third party (such as a customer, service user or client) if the reason for the failure to prevent harassment was itself discriminatory. The government felt that the mischief addressed by the Equality Act 2010 did not require a cure, but that if that were wrong, employees could use other avenues, such as a general personal injury claim, constructive dismissal or under the Protection from Harassment Act 1997.


unreasonable refusal of alternatives to redundancy

In January 2012 I reported the decision of the Employment Appeal Tribunal in the case of Readman v Devon PCT concerning whether or not it was reasonable for a specific employee to reject alternatives to redundancy which would have been accepted by a reasonable employee. The EAT decided that Mrs Readman was entitled to reject the offers, thereby overturning the decision of the Employment Tribunal. I pointed out at the time that when, according to the EAT, the Tribunal got its analysis fundamentally wrong, it demonstrated just how hard it is for employers to get things right when trying to apply fair procedures
That observation has been well and truly reinforced by the decision of the Court of Appeal – Devon Primary Care Trust v Readman. The Court considered two issues – whether an Employment Tribunal had been wrong to decide that a nurse had lost the right to a redundancy payment by unreasonably refusing an offer of suitable alternative employment, and how that question should be addressed. After 30-odd years mainly spent working in the community the employee was working as a modern matron. On facing redundancy, she was offered three options – two jobs at a lower grade (which were not suitable) and a job at the same grade, but working in a small hospital.
Although it had correctly looked at the question from the employee’s subjective point of view, the Tribunal had got it wrong, by failing to consider all the relevant facts properly including the employee’s preference for working in the community rather than a hospital, and the possibility that the reason for refusal was because she wanted to emigrate to Canada.
However, the Employment Appeal Tribunal had also got it wrong.