November 2016


Hello, we would like to share the latest news within Cluer HR as well as keeping you up to date with developments in the world of HR and employment law as they occur.

It’s all part of the service. We hope you find it useful. Your comments and suggestions are always welcome.

Risk of communicating a dismissal

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Can a dismissal be implied by the inaction of an agency employer to find work for its employee? No, held the EAT in Sandle v Adecco.

The employee was an agency worker employed by the agency but working on assignment at another company. When her assignment ended, the agency failed to take any steps to find her other work and assumed that she was not interested in further agency work.

The employee made no attempt to contact the agency, but subsequently brought a claim of unfair dismissal. On appeal, the EAT held that in the absence of any communication of dismissal by the employer and no resignation by the employee, there was no dismissal, nor could one be implied by the inaction of the employer. The employment relationship was, therefore, still continuing when the employee brought her claim, she could not prove she had been dismissed, and her claim failed.

To prove dismissal, the employer’s unequivocal intention to dismiss must be communicated to the employee.

Tribunal Accepts Limits To Flexible Working After Mat Leave

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We’ve talked in the past about flexible work requests which were rejected and amounted to sex discrimination and the care that needs to be taken when responding to flexible work requests. This month we have two recent unsuccessful cases where employment tribunals accepted that there is no absolute obligation on employers to accept new mothers’ requests to work flexibly on their return from maternity leave.

In Whiteman v CPS Interiors Ltd and others, the employment tribunal held that an employer properly handled a new mother’s rejected flexible working request to work from home.

Ms Whiteman, a designer for a company that refurbishes commercial premises, requested to reduce her hours on her return from maternity leave after having twins. Her employer accepted her request. However, the employer turned down Ms Whiteman’s request to work from home (apart from occasional office visits) and to do most of her work in the evenings (after 6pm). The employer considered that, although working at home primarily in the evenings might have been possible, it could not accommodate the homeworking request because:

  • its collaborative way of working often involves designers together in a room looking at technical designs; and
  • designs often have to be changed at short notice, something that would be difficult if the employee worked only at home in the evenings.

Ms Whiteman resigned, citing the handling of her flexible working request as the reason. She brought tribunal claims for breaches of the flexible working legislation, constructive dismissal and indirect sex discrimination. The employment tribunal rejected all her claims, stressing that there is no right to work flexibly

In Smith v Gleacher Shacklock LLP, the employment tribunal held that it was not indirect sex discrimination for an investment banking firm to require a mother to work full time.

Ms Smith, a single parent working as an executive secretary for a small investment bank, was returning from maternity leave. She asked to work three days per week in the office, followed by homeworking on Thursdays and not working on Fridays.

Following a meeting, her employer turned down her flexible working request because of the:

  • the impact on the firm’s ability to look after clients,
  • unpredictability of her role
  • tight timescales for various tasks
  • disproportionate pressure on the small team.

Recent examples were given of difficulties that would have occurred had Ms Smith not been in the office. The employer made various compromise suggestions, including that she could leave early for nursery runs and initially return on a part-time basis.

An agreement could not be reached and Ms Smith brought tribunal claims for indirect sex discrimination and breaches of flexible working legislation. She later resigned. The employment tribunal rejected Ms Smith’s claims. The tribunal accepted that requiring full-time working places women at a particular disadvantage compared with men because women are more likely to be sole parents than men.

The tribunal concluded that, in any event, the employer’s stance was justifed. The employer’s legitimate aim is to “ensure that its partners and clients receive high-quality, efficient secretarial support throughout the week, without problematic handovers”.

All these cases demonstrate that these situations are a bit of a mine field, but we’re here to help you navigate your way through it. Please don’t hesitate to get in touch if you’ve any concerns about flexible working arrangements in your business.

Asda workers win major step in equal pay claim battle

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More than 9,500 women who work at Asda have won a step forward in their battle for equal pay. An employment tribunal has ruled that the women, who mainly work at check-outs or stacking shelves, can compare themselves to higher paid men who work at warehouses.

The women feel they are paid less than others, despite their roles being of equal value. Asda said it “continued to strongly dispute the claims”. The difference in pay between the predominantly female staff who work in store, and the mainly male staff who work in the distribution centres, is between £1 and £3 an hour, the lawyers making the claim said. If the claims are successful, it could mean workers recovering more than £100m in back pay, going back to 2002, and pay rises in the future. ‘Far reaching implications’ “This is a dramatic victory for the workers we represent,” said Lauren Lougheed a lawyer in the employment team at Leigh Day, who is representing the Asda claimants. “Asda tried to argue that because the shops and distribution centres were in different locations, with different pay arrangements, that Asda could pay the men what they like. “However, the employment tribunal found that Asda, the employer of both men and women, could have made sure that there was equal pay between men and women if they wanted to, but chose not to. “This judgment will have far reaching implications on other supermarket equal pay claims including those we are bringing on behalf of around 400 Sainsbury’s workers who are in a similar situation.”

This case highlights how comparator jobs aren’t obvious, a suitable comparison for equal pay purposes was found between female workers instore and male workers working in distribution centres.

Tribunal Victory For Father Denied Full Pay During Shared Parental Leave

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Network Rail worker David Snell successfully brought a claim against his employer after the employer offered only statutory pay to male employees during shared paternity leave, whilst Mothers were given full pay.

Both Mr. Snell and his wife work for the same company, Network Rail. The couple planned to take advantage of shared parental leave, splitting parental leave between both parents, with Mrs. Snell taking 27 weeks’ leave, and him taking the last 12 weeks. On applying for the leave, Network Rail advised him that he was only entitled to statutory parental pay of £139.58 per week (available for up to 39 weeks). Mrs. Snell received full pay for 26 weeks.

The employment tribunal in Glasgow awarded the claimant £28,321.03 after Network Rail admitted its policy was discriminatory. It has since reduced women’s maternity leave entitlement to statutory payment only “to ensure fairness”.

This is particularly relevant to any businesses who enhance maternity pay i.e. go over above statutory maternity pay. If they do and they then have men taking shared parental leave within their business and they don’t apply equivalent same pay terms, they could be at risk of equal pay claims.

Uber Taxi Drivers Have Now Obtained “Worker” Status

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The employment tribunal have, in what is a fundamental and complex area of employment law, decided that Uber taxi drivers are to be given the status of “worker”. The tribunal did not however, provide Uber drivers with the status of employee. The term “worker” is defined in section 230 Employment Rights Act 1996 (ERA 1996) as a contract of employment or any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.

Considerations for Employers

This case serves as an important reminder for employers of all sizes. A tribunal will look at the reality of an employment relationship as opposed to solely relying on the terms inserted into complex legal agreements. In the case of Uber, the tribunal commented upon the “fictions” and “twisted language” utilised within the legal documentation. Therefore, even if an employer invokes complex legal documentation with the purpose of evading worker status, such a status can still be argued to exist should the reality dictate so. The decision in the Uber case is certainly specific to the facts of the case and in particular, the length of complex legal agreement and language used in order to confirm self-employment. It is likely that the decision may be subject to an appeal given its impact upon the business model of Uber. However, the current decision dictates that employers should review their employment practices to ensure that any legal documentation and employment status is consistent with the reality of the situation.

Christmas Availability of Cluer HR

Please note that the Cluer HR offices will be shut from 5.00pm on Friday 23rd December 2016 until 9.00am on Tuesday 3rd January 2017.

However, retained clients with an urgent query may contact a Cluer HR Adviser from 9.00am to 5.00pm between Wednesday 28th December 2016 and Friday 30th December 2016 on the temporary emergency number or usual email.

Cluer HR Blogs

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