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

5 “Uber” important differences between a worker and self-employed contractor

Intro

Many of you will have heard that last week an employment tribunal ruled that two Uber taxi drivers were declared to be workers rather than self-employed contractors. With 40,000 Uber drivers now operating in the UK, this was a much anticipated decision around the country. But why?

What is a worker?

The difference between a worker and an employee is often confusing. All employees are workers, but not all workers are employees. An employee is subject to an employment contract which requires an employee to work, but also requires an employer to find that employee work. A worker is subject to a contract that requires them to work, however the business is not necessarily obliged to find them work. Take for example a zero-hours contract. Someone under a zero-hours contract would be a worker, but not an employee. The worker is obliged to work when asked to, but the business is not obliged to provide that work if it is not there. The difference between the two status can have serious consequences on the rights of the individual.

How does this compare with a self-employed contractor?

There is a third possible employment status, a self-employed contractor. A self-employed contractor will often be subject to an agreement, but this will require a job to be done, as opposed to offering hours of work. The way in which contractors carry out jobs, and the tools they use to do them, will be entirely up to the contractors. A self-employed contractor will be paid per job, as opposed to being paid monthly. They are not entitled to the same protection as workers.

Why is the status important?

It is easy to see how the boundaries between each status can be a minefield for employers and employment lawyers. It is not as simple as looking at the contract or agreement. Many contractual terms can be implied from how the contract is carried out, just to complicate matters further. The fact that Uber drivers were declared to be ‘workers’ entitles them to a number of rights to which they were not previously entitled.

What are the 5 key differences in how each is treated?

  1. A worker is entitled to receive paid annual leave. A contractor is not.
  1. A worker is entitled to rest breaks. A contractor is responsible for achieving their goal in the agreed time period.
  1. A worker is entitled to national minimum wage for the hours he or she works. Again, a contractor is paid the agreed price for the agreed work.
  1. A worker is protected by discrimination in the workplace and can raise an action in the employment tribunal. A contractor may raise a claim for harassment in the civil courts, but not in an employment tribunal.
  1. A worker is entitled to be auto-enrolled into the company pension scheme. A contractor is not.

Conclusion

It is clear therefor that a worker receives substantially greater protection in the workplace than someone who is self-employed. This is why the Uber drivers wanted to contest their status in the employment tribunal. What is also clear from the case is that the boundaries between the two are often blurred by a number of different circumstances. If you are unsure about the employment status of the people in your workplace it would be sensible to seek clarification from an employment solicitor.

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

Would you give a reference for Dr Nick Riviera? Providing references in regulated professions

Dr Nick Riviera, for the non-Simpsons fans among us, is a fictional character in The Simpsons.  Simpsons fans will remember his catchphrase “Hi everybody”.  He is a stereotyped shady doctor who performs medical procedures for cash.  Medical ethics go out of the window as does any regard for the wellbeing of his patients.  In one episode, one Dr Nick’s former patients can be seen with a leg for an arm and an arm for a leg – an insight into some of the good Doctor’s handywork.

If you were Dr Nick’s former employer, would you give a reference to his prospective new employer?  Bearing in mind that there is no general legal obligation to give a reference for ex-employees, would you be content with saying nothing and letting Dr Nick carry on ‘operating’ in the manner in which he does?

Many employers are familiar with the legal rules regarding references.  Let’s recap on the basics:-

  • There is no legal obligation to give a reference;
  • If an employer does agree to give a reference, a duty of care arises to ensure that the reference is true, accurate and fair – it must not give a misleading impression and an employer who breaches this duty can be liable to the ex-employee for compensation);
  • Many employers operate a general policy of giving only factual references with very basic details such as job title, start date and finish date.

What amounts to a misleading reference?

Case law has made clear that there is no requirement to give full chapter and verse about the employee.  However, being selective in the provision of information could result in a misleading impression.

What about regulatory considerations?

If the employee is registered with a professional body which is responsible for protecting public safety and upholding the public confidence in a particular profession, does that throw up any issues regarding references?  Potentially, yes.  For example, in Dr Nick’s profession, The General Medical Council provide helpful guidance about writing references which can be accessed here – here.

Scottish Social Services Council (SSSC) regulates many social service professionals in Scotland.  SSSC have Codes of Practice for both social service workers and for employers of social service workers.  One of the obligations imposed on employers of social service workers is to ensure that people are suitable to enter the social service workforce.  This is underpinned by a duty to seek and provide reliable references.

The law surrounding references is far from straightforward – take advice if you are in any doubt about what to say, or more importantly what not to say.

Bye everybody!

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

Who in Game of Thrones would make the best lawyer?

She was last seen evading the admiring glances of Tormund Giantsbane, who was delighted to find any female enter the Tinder radar of Castle Black.

We have also watched her smoulder in a steaming-hot bath tub with a naked and apparent platonic Knight-peer, Jaime Lannister, the Kingslayer.

Whilst her past with Renly and Jaime leads her Facebook relationship status to read “It’s complicated”, her confused emotions do not detract from the fact that, in my view, Brienne of Tarth possesses many of the essential characteristics which would make her the best lawyer in the Seven Kingdoms.

Brienne of Tarth would make the best lawyer in Game of Thrones.  And here is why:

Honesty and integrity

In a profession reliant on its officers being good to their word, who better to oversee the course of justice than the wielder of the “Oathmaker”? All good lawyers have an ethical duty to be honest. Brienne prides herself on her honesty and her integrity. She is the one character who, throughout the series’, cannot be said to have deceived anyone to aid an ulterior motive or to support her own personal agenda. Her integrity is visibly seen in her quest to become a knight. She is a stickler for procedure. Even when she meets Stannis Baratheon, for whom she has been relentlessly searching for to avenge the death of Renly, she maintains her cool, follows procedure and offers Stannis with the opportunity for some last words with no one else around to hear them. This unfailing integrity would be required in the legal profession.

Loyalty

When confronted with uncontrollable members of the Stark clan who had pillaged their own people, Brienne has no issues with giving them their just deserts. This is because she knows her loyalty lies with Catelyn Stark specifically and not the Stark clan as a whole. She has no ambitions of her own and acts only in Catelyn’s best interests. Brienne can already see where the boundaries of a conflict of interest lie. Throughout the series’ she shows immense loyalty to both Renly and Catelyn Stark, and goes so far as to state that their deaths do not release her from her vows. Brienne would do anything for her clients, and would generally always put their needs ahead of her own.

Resilience

Brienne’s loyalty is exemplified in her resilience when undertaking tasks on behalf of Catelyn and Renly. It is safe to presume she would show the same determination when undergoing work for a client. The fact that Arya and Sansa Stark are presumed dead does not deter Brienne from searching for them. Where many had failed previously, Brienne is successful in locating both of them relatively quickly. Even when she is told by Sansa that she does not want her help, Brienne stays in close contact with her to ensure her safety and to be there when she did need assistance. Many again would have given up at this stage, exemplifying that her perseverance often eventually brings success.

Fearless

It is fair to say that Brienne is not one to shirk away from getting her hands dirty and certainly not one to back away from a fight. Throughout the series’ she separately takes on two of the best swordsmen in the land in the shape of Jaime Lannister and the Hound. Despite facing formidable opponents, her resilience is rewarded on both occasions. An opponent who is easily underestimated is always a dangerous one and this applies in legal circles too. Brienne’s self-belief and fearlessness would ensure that she strives to obtain the best result for her clients.

Poker face

I personally would never want to play poker with Brienne. Her facial reactions give very little away. Who can forget that emotionless, over-the-shoulder smoulder which she shared with Jamie Lannister in that bath tub? Even when thrown in that pit with a bear and nothing but a wooden spoon to protect herself, her expression remained stoic. An important part of being a lawyer is being able to detach yourself emotionally from any situation which allows you to remain objective. You require to stay cool under pressure and not lose focus of what you are arguing for. Combine this trait with Brienne’s fearlessness, and who else would you want fighting your corner in a courtroom?

Conclusion

So she can’t ride a fire-breathing dragon. Nor can she come back from the dead or harness the fire magic.  However it’s Brienne of Tarth who possesses the characteristics required to make her the best lawyer in the Seven Kingdoms.

Brienne’s unhinged loyalty and fearless approach to confrontation would make any client comfortable in her shadow. She would literally (and figuratively) fall on her sword for her client.

Forget about “Game of Thrones”. Brienne of Tarth is the “Dame of Tomes”.

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

Employment Termination Payments Reforms to tax treatment but £30,000 exemption to remain

Proposals in relation to the tax treatment of termination payments are set to take effect from April 2018.  HMRC is currently consulting about the draft legislation which is to underpin the reforms.

Under the proposed new system, the first £30,000 of any payments resulting from termination of employment will remain exempt from income tax.  In addition, termination payments will continue to have unlimited exemption from employee national insurance contributions (NICs).

Notable changes include the payment of employer NICs on payments above the £30,000 threshold (which are currently exempt).  Notice payments are also to be subjected to income tax and NICs in all cases where payment is made in lieu of all or part of the notice period.  This is aimed at removing any ambiguity under the current system where non-contractual payments in lieu of notice create a slightly grey area in terms of tax.

Any payments which are made towards injury to feelings will also subject to tax under the new system thus removing the current uncertainty over this type of payment.

The proposals are intended to strike a balance between supporting those who lose their job and safeguarding against abuse of the £30,000 exemption.

The consultation closes on 5 October 2016 and can be viewed here.

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

Key differences between “without prejudice” conversations and pre-termination discussions

Settlement agreements can be a very effective, amicable way of bringing a problematic employee’s employment to an end. There are generally 2 ways to initiate these discussions. One is through a “without prejudice” conversation. The other is through a “pre-termination negotiation”. Whichever road the employer chooses can have consequences that are worth considering.

Without prejudice conversation

A without prejudice conversation can only arise when there is a dispute between the employer and the employee. This may be in the form a grievance or some other kind of dispute. If there is no dispute, any such conversation will be admissible in the courts. The key facts to remember are as follows:

  • There needs to be a dispute
  • The fact that negotiations have taken place can be used in the future as evidence, but not the content of those negotiations
  • The inadmissibility of these conversations can be waived if both parties agree
  • It is difficult to remove privilege on the basis of the conduct of parties – a party must act with “unambiguous impropriety” before the privilege is removed.

Note too that the content must be a genuine attempt to settle a dispute. If a communication merely sets out a party’s right and does not make an offer to negotiate, despite the fact it is marked “without prejudice” this information may well be admissible in the courts.

Pre-termination negotiation

A pre-termination negotiation does not require a previous dispute between the employer and the employee, but the privilege only arises in cases of unfair dismissal. It is a discussion between employer and employee, designed to bring the employee’s employment to an end amicably. If the matter gives rise to discrimination, whistleblowing or any other automatic unfair dismissal claim, the privilege will not stand. The key facts to remember are as follows:

  • This only applies in respect of unfair dismissal claims
  • The fact the discussions themselves have taken place is inadmissible
  • The inadmissibility cannot be waived by both parties
  • It is easier to remove privilege than a “without prejudice” conversation– it only requires “improper behaviour” by either party

Note too that both types of conversations can be waived if there is to be an application for costs going forward.

Pros and Cons

There are pros and cons to the privilege arising for both of these types of discussion, the particulars of which are complicated. Employers have been undone by not being aware of the differences in the past. Remember to look before you leap and think before you speak. Don’t prejudice yourself by using “without prejudice” incorrectly.

If you require any assistance on which type of procedure to use, please get in touch with us at Blackadders and keep your eyes peeled for our free seminar in October.

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

More “sickies” in the sunshine?

Medical practitioners have recently motioned for the current period for self-certification of absence to be extended to 14 days.  Under the current system, an employee can self-certify for absences from work for up to seven days (including weekends).  Where the absence extends beyond seven days, the employee is required to provide a “fit note” from his or her GP certifying him or her as unfit for work.

The rationale behind the motion is to free up valuable GP time to focus more appointments on people with acute or chronic conditions.  It is understood that a large number of GP appointments are taken up with employees who have reached the end of the current seven day self-certificate period, who remain unfit for work and who need a GP to sign a “fit note” to cover the employee until they are well enough to return.  A GP has the same appointment time for every patient and they do not have advance notice of the reasons behind each appointment.

The more cynical employers out there might be of the view that doubling the period available for self-certification doubles the scope for abuse of the system.  Doubtless there are employers who see regular patterns of absence with employees returning to work just before the requirement to visit the doctor for a fit note is triggered.  Equally, there will be many hard working, conscientious employees out there who beat themselves up about using a rare sick day when they can barely move out of bed!

Would this development have a huge practical significance?  Employers will certainly be well advised to revisit their absence management procedures if this development gets approval.  Employees should be required to personally telephone their line manager or HR department before their allotted start time on each day of self-certified absence to detail the reason for the absence and expected timescale for return to work.  Employers should also keep track of their sick pay provisions – an employee who is only entitled to the minimum statutory sick pay (currently £88.45 per week) is less likely to take a two week sickie than an employee who is entitled to full pay.  The proposal is unlikely to make any impact on the shorter absences, for example, in respect of Mr Friday night/Monday morning who pulls a sickie due to a hangover.

Employers should also remember that disciplinary action can be taken against malingerers.  Where an employer has evidence which contradicts an employee’s explanation for absence, the disciplinary procedure may need to be invoked.  Dishonesty is potentially misconduct.  An employee who exaggerates or lies about their health to justify an absence is dishonest.  Some may be of the view that it is easier to get away with a “sickie” during a period of self-certification than it would be at a later stage when a doctor’s line is required.  However, there was a recent case in the Employment Appeal Tribunal where the employer was judged to have fairly dismissed an employee for lying about the reasons for absence, even where the employee’s absence was backed up by an occupational health report.

If the proposal does go through, employers should be (as a minimum) amending their absence reporting procedures to bring these up to date.

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