Taylor Review Deliveroo’d

The hotly anticipated Taylor Review (Good Work: The Taylor Review of Modern Working Practices) was published last week, having been commissioned by Theresa May last autumn. Matthew Taylor was tasked with chairing a review of employment law practices, the rights of workers and the obligations of employers. It was deemed necessary in light of rapidly changing business models, particularly amidst concerns about exploitation in the so called gig economy (think Uber, CitySprint, Deliveroo all involved in recently publicised employment tribunal cases).

Employment Status

The Review made a number of recommendations in relation to employment status. It recommends that the existing three-tier approach to employment status should remain. However, in respect of the middle category of “worker” (being somewhere between self-employed contractor and employee) these should be renamed as “dependent contractors”. Also, for these workers/dependent contractors, the current requirement for them to provide personal service should be removed and replaced with a greater emphasis on control (with legislation to outline what is meant by “control” in a modern working environment).

On the same note, the Review notes that the various factors to be taken into account when determining an individual’s employment status (control, personal service, mutuality of obligations and whether the person is carrying a business undertaking) should be enshrined in updated legislation. There is also provision for a claimant to bring an employment tribunal claim to determine their status without incurring tribunal fees. Where an employer disputes that a claimant has employee or worker status, the Review suggests the onus should be on the employer to dispute.

Further relevant points

Here are some of the other employment law related recommendations:-

  • Extend the requirement to issue a written statement of terms and conditions to workers/dependent contractors in addition to employees. Make this a day-one requirement (currently employers have two months to arrange this) and include a description of statutory rights within the statement.
  • Today, an employee wishing to claim to an employment tribunal for a failure to issue a statement of terms and conditions must piggy back this onto another valid claim (e.g. unfair dismissal). The Review suggests making this a standalone claim for compensation (presumably attracting a fee for the employee). An employee can claim for 2 or 4 weeks’ pay.
  • Continuity of employment can be broken by any gaps in employment of one week or more – this should be extended so that only breaks of one month or more would break continuity.
  • To prevent seasonal workers being shorthanded on holidays, increase the reference period for calculating holidays for those whose pay is variable from 12 weeks to one year.
  • Individuals should have the option to receive “rolled-up” holiday pay which is effectively an extra payment (12.07%) on their wages instead of paid time off. This practice is currently unlawful as it incentivises employees not to take time off by paying them more money instead of taking holidays.
  • Allow zero hours contractors to request guaranteed hours after 12 months (is this is to be backed up with a sanction for employers who don’t grant such requests? Will there be a list of permitted grounds for rejecting the request akin to the flexible working request scheme?). (All questions which we don’t yet know the answers to).
  • Agency workers can request a contract of employment with the hirer after 12 months of engagement with the same hirer.
  • Anyone who has worker/dependent contractor status would be treated as employed for the purposes of the tax regime.
  • Consideration to be given to implementing a higher rate of National Minimum Wage (“NMW”) for non-guaranteed hours in a contract. Businesses would in essence have to pay a higher wage for the flexibility from which they benefit when using zero hours contracts.
  • The NMW legislation should be varied so that gig economy (“platform workers”) are categorised as performing “output work” and will not be entitled to NMW for each hour that they are logged into the app at times where there is not any work available.
  • Amend SSP rules so that it becomes a basic employment right which accrues with length of service. Employers should not have to honour the full 6 month entitlement for short service employees.
  • Provide enforcement powers to HMRC in respect of holiday pay (as they have already for SSP/NMW).
  • The Government should simplify the process for enforcing payment of employment tribunal awards by vesting the power in itself to pursue unpaid awards.
  • Review the information and consultation obligations so that these can be triggered when requested by just 2% of the workforce, as opposed to the current 10% required.

Summary

These are interesting times in the field of employment rights and workplace relations.

Watch this space as to which of these recommendations the Government implements.

Many of the suggestions are probably good to go straight off the shelf. Employers would be prudent to review the composition of their workforce to assess the likely implications.

However much thinking will need to applied to some of the suggestions before they will be capable of implementation.

Good luck to the draftsman!

Jack Boyle
Associate Solicitor, Employment
@EmpLawyerJack
www.blackadders.co.uk

Blackadders’ award winning employment team present: Preparing 4 Change

Thursday 24th August
Dundee and Angus College, Arbroath
12.15pm registration for 12.30pm start (finish at 1.30pm)
Free seminar

4 hot topics
4 engaging presenters
4 key steps

Are you prepared for change?
Do you know what the future holds?
Are you aware of the potential risks?
Do you want to avoid a fine of up to €20,000,000?

For the answer to these questions (and more!) come along to this free seminar in Arbroath College on 24 August at 12.30.

#Preparing4Change

Gender Pay Gap
Following the introduction of the Gender Pay Gap Regulations in April 2017, Jack will give an update looking at the implications of these regulations. To whom do they apply? What needs to be reported? What is included in the calculation of pay? This is an issue which is currently topical even in Hollywood as actress Robin Wright was recently reported to have demanded the same pay as co-star Kevin Spacey in the popular “House of Cards”.

General Data Protection Regulations
With under a year to go until the new data protection regulations come into force in the UK, lots of questions are arising.  Does GDPR apply to me?  Is there any change in how I can use data?  Do my policies and procedures need to be updated? What happens if I do not comply with GDPR? Ruth will give a brief outline on the impact of these regulations and discuss the key steps employers should be taking. 

Subject Access Requests
What are they? What are the processes? What information about an individual employee can and cannot be withheld? Andrew will discuss the changing law surrounding subject access requests and why employers should be careful about what they say about their employees.

The Art of the Reference
When asked about an ex-employee, what can you say? More importantly, what can’t you say? Is there a duty to tell the truth? Simon will discuss the law relating to references and give some helpful guidelines for best practice for employers.

All you need to know on these key topics in under an hour.
If you go to one seminar this year, choose this one.
If you go two, come along twice.

If you are interested in attending, please RSVP to:
lesley.rorrison@blackadders.co.uk

 

 

National Minimum Wage – All Night Long

To some people, being paid to sleep might sound like a “dream” job.

However, for others, night-time obligations such as being on call are part and parcel of the job, even if they do get to sleep for part or all of the night. These types of working arrangement throw up some important considerations, not least in relation to pay and in particular National Minimum Wage (“NMW”).

NMW – when payable?

Employees are entitled to be paid NMW when they are working. How does this apply for those who do sleepovers or similar night working arrangements? Are such employees deemed to be working the whole night (even if sleeping), or just when they are awakened to respond to a “call”? Well, surprise surprise, the classic legal answer applies – it depends.

Recent case

The issue of NMW for sleepover/on call work has been the subject of much litigation.   Given the potential financial implications of the topic it is likely that there will be more litigation in the future. The Employment Appeal Tribunal recently heard three such cases reported in a conjoined judgment (Focus Care Agency Ltd) v Roberts.

Relevant factors

The EAT highlighted that every case will turn on its own facts and that a number of factors are relevant to when a person will be regarded as working for NMW purposes. Examples of relevant factors include:-

  • Whether the employer is subject to a contractual or regulatory requirement to have the employee present during a particular period.
  • The extent to which the employee’s activities are restricted by the requirement to be at the employer’s disposal (so can they nip out for fish and chips as they please?).
  • The degree of responsibility taken by the employee (e.g. compare the limited responsibility of being present on premises to call emergency services in the event of an emergency compared with a night sleeper in a care home who might face more personal responsibility in night duties).
  • The immediacy of the requirement to provide services if an emergency occurs (does the employee decide whether and how to intervene in an emergency or is the employee woken as and when required by someone else with immediate responsibility?).

One thing that is certain is that this topic is devoid of certainty. That seems to be the nature of the beast and where the tribunals are clear that a multifactorial approach is required, every case will turn on its own facts. The bullet points above were considered relevant factors in the Roberts case. Needless to say there will be other relevant factors.

If you are in any doubt about payment for sleepover shifts, take advice.

Jack Boyle
Associate Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

TUPE – Employee Liability Information

  • X-mas bonuses were wrongly described as non-contractual

  • No breach of the Reg. 11 obligation

Regulation 12 of the TUPE Regulations 2006 gives rise to a rare situation where Employer A can sue Employer B in the employment tribunal.

Employee Liability Information (“ELI”) – the law

Where a TUPE transfer takes place (be that a business transfer or a service provision change – change of contractor), the outgoing employer is obliged to provide the incoming employer with certain pieces of information about the transferring employees. This information must be supplied at least 28 days prior to the transfer and is known as employee liability information. The required information includes “those particulars of employment that an employer is obliged to give to an employee pursuant to section 1 of the 1996 Act.” These duties are imposed by TUPE Regulation 11.

Consequences of non-compliance relating to ELI

TUPE Regulation 12 allows the incoming employer in a TUPE situation to raise a claim against the outgoing employer for any failure by the outgoing employer to comply with Regulation 11. The remedy for such an action can include compensation of up to £500 per employee in respect of whom the failure applies.

The recent case

Reported cases of this nature are rare. However the recent decision in Born London Limited v Spire Production Services Limited is one such case and one which throws up an “interesting” result/warning for those businesses inheriting employees under TUPE. Very briefly, the outgoing employer (Spire) told the incoming employer (Born) that Christmas bonuses were non-contractual. After the transfer the employees alleged that the bonuses were contractual. Born raised proceedings alleging that this inaccurate disclosure by Spire was in breach of Regulation 11. They were unsuccessful on the basis that while Regulation 11 does require disclosure of the statement of particulars of employment, within that statement of particulars can be contractual and non-contractual matters. Accordingly, it did not follow that referring to something as non-contractual which was in fact contractual amounted to a breach. Essentially, the branding of something as “non-contractual” is additional information beyond the scope of what is required by Regulation 11.

What can we take from this case?

Firstly, the case did not produce a satisfactory result in the sense that the outgoing employer provided, on the face of it, untrue information to the incoming employer but the incoming employer was not protected by Regulation 11. Secondly, and perhaps more importantly, the case emphasises the importance of carrying out thorough due diligence when inheriting employees under TUPE. If there is contractual documentation in place regarding the transfer, the incoming employer should insist on appropriate warranties/indemnities to protect against such anomalies.

If you are acquiring employees from another business, take advice.

Jack Boyle
Associate – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

Blackadders Employment Team Scoops Prestigious “Excellence in Client Care” accolade: GoT Legal Award, GoT Excellent Clients, GoT Game of Thrones trip to plan

Last night, the Scott & Company Legal Awards 2017 took place at the Assembly Rooms, Edinburgh. Over 70 entries made the shortlist in a year which attracted a consistently high number of firms. Blackadders were one of 40 firms named as finalists and were ultimately crowned winners of the Excellence in Client Care Award 2017.

In support of this award, clients had stated that the Blackadders’ employment team are “the best in their field”“highly efficient and very approachable” as well as “cost effective and extremely knowledgeable”.

“Nothing is ever too much trouble for the team and they always go above and beyond what is expected of them. They provide as close to a 24/7 service as I have encountered and we would not consider using anyone else.”

“The team are refreshingly different from their competitors and are forward-thinking, approachable and enthusiastic. The team’s blogs and tweets are always relevant, relatable and entertaining.”

The judging panel stated that the judging process had been very difficult, given the high calibre of entries in all categories. However, ultimately, the panel felt that the Blackadders’ employment team were the best in their category. In addition to dealing with a number of “high value cases” over the past twelve months and giving an excellent client care service, the judges stated that Blackadders’ employment team offered “a fresh and innovative approach to employment law which made them stand out as leaders in their field.

Simon Allison, Head of the Employment Team, stated that he was surprised and extremely honoured to have won the award, given the high standard of the fellow finalists. He dedicated the award to his team on the basis that they had worked exceptionally well together on various projects over the past year and were, in his view, thoroughly deserving of the award.

In addition to this award, Andrew Wallace won the Highly Commended Award for Rising Star of the Year 2017.

Last year, Simon took the team to Dublin to celebrate their success at the Legal Awards. 2016. Prior to the 2017 awards ceremony, Simon had taken a bet with his team that, if they won, he would take them on the Game of Thrones tour in Belfast but that, if they lost, they would be doing the Eight Peaks Challenge with him. Last night’s result spells an expensive month for Simon (who was last seen googling the cheapest means of transport to get to Westeros).

Well done Simon, Jack and Andrew – Excellence in Client Care Award 2017 and Rising Star of the Year Award 2017!

The Replacement: The Cause, The Claws & The Flaws

Did any of you catch the BBC’s latest drama, The Replacement?

It started off as the same old story. Ellen becomes pregnant. Ellen identifies her maternity leave cover post, Paula. Paula commences her duties prior to Ellen finishing up and seems like the perfect hire – enthusiastic, personable, super-competent. In fact, Paula takes to her myriad of duties much like Superwoman.    And that is when Ellen begins to worry that Paula has another agenda.

Ellen begins to suspect that Paula is after her clients, her job, her colleagues, her friends and even her baby. Before long, Paula has sharpened her claws. And before the first episode had even finished, every beat in the female psycho-thriller playbook had been pulled out of the bag.

Without giving too much away, there are accusations of baby-stealing, pill-popping and being “pushed” down a set of stairs. And the expression “hot-wiring airbags” will never seem the same again.   However there are some major flaws with The Replacement.

Without being a stereotypical, know-it-all employment lawyer, my three key flaws all relate to Ellen’s employer and, more specifically, her creepy boss, David Warnock:

1. An employer is not permitted to allow an employee to work during the two weeks’ (extended to four weeks for some factory/workshop workers) commencing the day on which child birth occurs. An employer who does so is guilty of an offence. How long was Ellen actually on maternity leave for? When Ellen had the fateful first meeting back with the equally creepy client, Vernon, he makes the point that Ellen (who had already returned to work, albeit to hack into Paula’s computer and set up a fictional client with the elusive Georgia) had barely been back for four weeks. Whether or not Ellen was actually permitted to use her statutory two weeks’ leave is probably insignificant given the fact that she was clearly back to work much sooner than was reasonable in the circumstances. Surely an employer with half an ounce of common sense could tell that she came back far too soon.

2. Similarly shortly after the birth, Ellen visits the office to meet with Creepy David. “I don’t want you to put yourself under any pressure to return to work because of Kay”, says David. “No”, assures Ellen, “I want to be here.” Ellen proceeds back to work, albeit again that “work” involves creeping on Paula’s daughter’s Facebook account and spying on her boss and maternity leave cover, Paula. An employee is entitled to work for up to 10 KIT (“keeping in touch”) days during maternity leave, without bringing their maternity leave to an end. Were these KIT days used? Probably not.

3. Lastly, when Ellen returned to work, she was sidelined from her old project, the library. Ellen asked about the library project and was told by her boss, “Paula’s handling it. Vernon has got used to her. That’s all.” This was the same project about which there had been a debate – skylight or no skylight? Do you remember skylight-gate? When Paula first opposed Ellen’s idea about the skylight, she later reinstated the idea (only to discover her colleague’s dead body being shoved through the skylight). The law is clear that an employee who returns to work within 26 weeks of maternity leave is entitled to return to exactly the same job, on the same terms and conditions. Creepy David had obviously never heard of that and Ellen’s request to return to the library project went out of the window (or should that be skylight?).

So basically I can forgive Ellen for turning into MacGuyver and hot-wiring these airbags as I presume that architects must have a basic engineering knowledge and Ellen must have completed her motor electronics course in an earlier episode….

And I can even forgive Paula for pushing her colleague out of the window – let’s face it, line managers can be difficult. After a dramatic showdown involving a kidnapped baby, sleeping pills and smashed window screens, she confessed all and was led away in handcuffs. She got what she deserved.

However it is Creepy David who cannot be forgiven. So he likes group hugs with his female colleagues. And he makes inappropriate remarks about his female colleagues’ appearance. But as far as employment law goes, the flaws are unacceptable.

I am away to watch something more realistic now…. like The X-Files.

Simon Allison
Partner – Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

“Someone’s sitting there, pal…” Reasonable adjustments in the context of disabled bus users

Employment lawyers will be familiar with the concept of reasonable adjustments insofar as they relate to the employment relationship.

The law behind the case

FirstGroup plc v Paulley is a case concerning reasonable adjustments in the context of public service provision. Under the Equality Act 2010, a provider of services to the public is, in certain circumstances, under a duty to make reasonable adjustments for any service users who are disabled.   This duty arises where a provision, criterion or practice of the provider places disabled persons at a substantial disadvantage in relation to a relevant matter when compared with non-disabled service users.

The facts of the case

In this case, Mr Paulley was disabled and attempted to get on a bus operated by FirstGroup (“FG”). The designated disabled seat was already occupied by a passenger with a sleeping child in a pram. The driver asked the passenger to move but she refused, despite clear signage saying “Please give up this space for a wheelchair user”. The signage did not make any threats or reference to enforcement on the basis that FG preferred a more customer friendly approach. The operator’s policy was that people could be asked to move from disabled spaces but if they refused the disabled person would not be permitted to board the bus. That is what happened here and Mr P had to wait 20 minutes for the next bus. The driver was not expected to wrestle the lady and pram out of the seat.

The outcome of the case

Mr P raised a court claim of discrimination alleging failure to make reasonable adjustments. He was initially successful and won £5.5k in damages. FG appealed successfully on the basis that it was not reasonable to expect drivers to force non-disabled users out of a seat. It also acknowledged that a non-disabled person might have reasonable grounds for not vacating the space and drivers could not be expected to assess such reasonableness.

The case went all the way to the Supreme Court which found that while it would not be reasonable to have an absolute policy requiring drivers to force non-disabled users out of disabled seats, FG had not done enough by their policy of simply asking passengers to move from the disabled seat without anything further. The Court held that the policy should have required the driver to use “best endeavours” to encourage the reluctant passenger to move. For example, the driver could rephrase the original polite request as a requirement or even stop the bus to pressure the passenger into moving. Given the tight schedules on which buses operate, one can see the potential for such an approach leading to passenger dissatisfaction. However such peer pressure could well be sufficient to guilt the reluctant person into moving.

As one of the Lords put it, there was no ideal solution in this case, merely a number of unsatisfactory ones. Those with faith in the goodness of humanity would hope that cases of this nature will be few and far between, though perhaps that is wishful thinking.

What can we learn from this case?

The case does highlight a useful example of the application of the Equality Act beyond the employment law sphere in which it is most commonly quoted.

Please do not treat this as an invitation to occupy a disabled seat on the bus and see what the driver does about it!

Otherwise the wheels on the bus may not go round and round…

Jack Boyle
Associate – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

What does the future have in store for Employment Tribunal Fees?

After launching their review in June 2015, the Ministry of Justice (MoJ) finally published their review on employment tribunal fees at the end of January. With so many uncertainties in the fold, it is not going to be easy balancing the many competing interests. On the one hand you have the undeniable fact that the number of tribunals has dropped significantly since the introduction of fees, suggesting that there is a potential issue with access to justice. This is combined with the fact that most employees requiring to use the service have been made unemployed and are likely to want to be careful with their finances. On the other hand you have the employers’ legal fees for dealing with spurious employment law claims caused by a lack of deterrent to raise such claims. An employee is rarely going to agree with an employer’s decision to dismiss, no matter how fair it is. Why should an employer have to pay more to an employee for a claim with no merit? This argument is combined with the fact that each claim places a burden on the tax payers’ money.

 

The SNP have indicated a clear desire to abolish these fees north of the border, but currently appear to be somewhat distracted, and there are ongoing wide ranging court and tribunal reform consultations bubbling away in the background. With so many uncertainties and differing opinions, the government is never going to please everyone.

What the MoJ have found 

  • The government has found that the fees paid by claimants have contributed between £8.5 million and £9 million a year in income. This is in line with what was expected when the fees were introduced and is money that would otherwise be required to be paid by the taxpayer.
  • They have found that 48% of people who engage in the free ACAS Conciliation Period avoid the need to go the tribunal.
  • Of those that do need to proceed to an employment tribunal after the ACAS Conciliation Period, between 3000-8000 people did not go on to the tribunal because they could not afford to pay. As well as genuinely not being able to afford to pay these fees, this group of people may not have continued with their claim as a result of not being aware of the ‘Help with fees’ scheme, nor the Lord Chancellor’s exceptional power to remit fees or simply a general unwillingness to reduce areas of non-essential spending.

What the MoJ are proposing

Amount of the fee

It has been proposed that, despite the drop in the number of tribunals, the current financial amounts for tribunal fees will remain. The MoJ’s reasoning behind this is that the fees, as they stand, have contributed an expected amount to the fee income pot, but more importantly the MoJ believes that any such fee must be significant in size. The MoJ argues that a significant fee is required to make a claimant seriously consider their options. It makes claimants assess whether they should explore other avenues such as ACAS Conciliation. It requires them to seriously consider the strengths and weaknesses of their case before continuing to the tribunal. The MoJ was also keen to point out that a successful claimant at the tribunal is normally refunded any tribunal fee.

The fee structure 

Although other fee structures were discussed, the MoJ has decided that the current 2 tier fee structure should continue. The MoJ supports the philosophy that those who have more complicated cases, and who therefore use more tribunal time, should pay more for the service.

Increase in people qualifying for “help with fees”

Currently claimants with either low capital or low monthly income can qualify for the “help with fees” scheme. This can result, for a claimant who cannot afford to pay the fees, in the fee being waived or reduced. The area that the MoJ intends to develop is the use of these fee exemptions. The philosophy of creating a greater awareness of the support available to claimants unable to afford the fees was exemplified last year. The previously over-complicated “fees remission” (a term often associated with illness) scheme was renamed “help with fees” which does exactly as it says on the tin. A simplified structure was also introduced. A consultation on how to progress this scheme further has been launched and will close in March 2017. It has been suggested that the minimum gross monthly income threshold increase from £1,085 to £1,250. This is in line with the National Living Wage. This increase, and an intended increase in publicity and awareness of the scheme, is aimed at helping those who genuinely cannot afford to progress a claim.

The review highlights the exceptional powers of the Lord Chancellor to remit fees. Currently these are not publicised much at all, but can be very useful for a claimant. Take for example a situation where a claimant is over the capital threshold allowing them entitlement to “help with fees”, but can show that their essential expenditure means that they cannot afford to progress with the claim, then the Lord Chancellor must remit the fee. It is submitted in the review that not enough claimants are aware of these powers and this is likely to change going forward.

Insolvency matters

Lastly, as a result of the review, the government has also already removed fees for cases where the claimant would be paid an award from the National Insurance Fund. This means, among other situations, that there will not be a fee for any redundancy payment claims where the company has become insolvent.

What’s the answer?

It would take a brave person to go against a government review that has taken 18 months to complete. For me, some kind of fee is necessary to avoid relentless, spurious claims being made by disgruntled employees. Defining how much claimants are required to pay will always be problematic. It may be that the current £1,200 is too much for a recently unemployed claimant to contribute, but I agree with the MoJ that a substantial fee is required to make a claimant seriously consider his or her options.

For now, whilst the government’s review of fees has concluded, this is not the end of the matter on tribunal fees. As has been mentioned above, the SNP’s desire to abolish fees seems evident. It seems a matter of time before this chapter unfolds. Similarly UNISON’s appeal to the Supreme Court is expected to be heard on 27 & 28 March 2017. A further judgment on tribunal fees can be expected in the fullness of time.

So two things in the chapter are certain:

Firstly this is not the last we’ve heard on tribunal fees.

Secondly you can expect more change going forward.

Andrew Wallace
Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

I’ve just settled all my lawsuits…Or have I?

A word of caution about the wording of settlement agreements can be taken from the recent case of DWP v Brindley.  All too often, parties to an employment tribunal claim will expend a significant amount of time and effort during any negotiations surrounding the case.  If settlement is ultimately agreed, parties can breathe a deep sigh of relief knowing that they avoid the uncertain and costly realm of the employment tribunal.  However, in that moment of relief when settlement is verbally agreed, it is important to keep an eye on the ball when documenting the settlement terms.  Think about the settlement wording and the issues which the employer is seeking to cover within the settlement.

Usually, any employment tribunal settled with the assistance of ACAS will require a COT3 (a form of settlement agreement) to be issued.  This will be drafted and adjusted by the parties and then ultimately issued by ACAS in a final form for signature.

In Brindley, this is exactly what happened.  The claimant’s case was settled by COT3 Agreement.  The COT3 was drafted and signed.  The case alleged discrimination due to an absence related final written warning.  Shortly before the COT3 was signed, the claimant employee (who was still employed by the employer against whom the claim was brought) was given a second final written warning concerning absence.  The claimant raised a further tribunal claim arising out of the second final written warning which was given before the COT3 was signed to settle the first tribunal claim.  The employer sought to have the second claim struck out on the basis that it was covered by the terms of the COT3.

The Employment Appeal Tribunal disagreed and allowed the claimant to proceed with the second claim.  The COT3 covered all claims included within the original tribunal case along with all other relevant claims arising from the facts of the proceedings up to the date of the agreement.  The wording of the COT3 was not wide enough to cover any claims arising from the second warning which was a new circumstance.  The second warning did not form part of the “facts of the proceedings” of the first case and was thus outwith the scope of those claims covered by the settlement.  Had the settlement agreement covered “all matters arising from the claimant’s employment” up to the date of the COT3, the second claim might well have been barred.

This serves as a useful reminder to take advice when documenting any settlements and to use wording which is sufficiently wide to cover all claims arising out of employment (not just the specific circumstances of the claim which is being settled).   If in doubt, call Blackadders’ employment team.

Jack Boyle
Associate Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

Assault after office Christmas party in Hilton lobby Employer NOT vicariously liable

It’s that time of year again where office Christmas parties are high on the agenda.  A chance to have some festive bants with your colleagues, enjoy a few/a bucket load of drinks, strangle a cat on the karaoke, throw some shapes on the dance floor… and in the case of some employees, take things too far.

Lawyers frequently advise on the legal issues associated with workplace events and parties.  In particular:-

  • Office parties will potentially be considered as an extension of the workplace;
  • Any unlawful acts committed by employees at such events could be “within the course of employment”
  • Employers are liable (vicariously) for any unlawful acts carried out by employees within the course of their employment
  • This means that where employee A wrongs employee B at such an event, employee B can sue either employee A or the employer.
  • Employers are well advised to take all reasonable steps to ensure that staff know the expected standards of behaviour at such events (cue that annual all staff email from HR reminding us all to have fun, but not too much fun).

A timely decision was issued by the High Court this month in the case of Bellman v Northamton Recruitment Limited [2016].  In this case, the claimant (Mr Bellman) was employed by the company.  After their annual Christmas party (to which staff and partners were invited), approximately half of the party moved on to a hotel and continued drinking until the small hours.  This was not a pre-planned extension to the party.  In the lobby of the Hilton Hotel, Mr Major, managing director of the company, punched Mr Bellman twice in the head (bizarrely, the two men had been childhood friends).  Mr Bellman fell and struck his head on a marble floor resulting in brain damage.  Mr Bellman, who is unlikely to return to paid employment, sued the company on the basis that the company had deeper pockets than Mr Major (or rather their insurers had deeper pockets).

The issue for the court was whether, when the punches were thrown, Mr Major was acting within the course of his employment.  The court decided that the assault was not within the course of employment.  Why?

  • The assault was committed after and not during the organised work event.
  • The visit to the Hilton was an “impromptu drink” – many employees went home after the party finished.
  • The judge held that this was not to be regarded as a seamless extension of the party.
  • Those who went to the Hilton were on a voluntary, alcohol fuelled “frolic” of their own.

This decision will be welcomed by employers in that it offers some guidance in relation to where we draw the line with the concept of “within the course of employment”.

However, cases are always fact sensitive and this case should not detract from the usual warning that employers can be liable for alcohol fuelled antics at work related social events.  See my colleague Simon’s wise words here –  https://www.linkedin.com/pulse/christmas-cracker-youll-wish-you-never-pulled-why-i-hate-allison?trk=prof-post

Jack Boyle
Associate Solicitor
@EmpLawyerJack
www.blackadders.co.uk