Employment Update - March 2019

Cases:

Employment status:

In the case of Chatfield-Roberts v Phillips & Universal Aunts Limited both the ET and the EAT found that the right to a substitute was still consistent with employees status. The Claimant worked for Phillips as a live in carer for three years and while she accounted for her own tax and national insurance, she had stopped sending invoices to after the initial 6 months of the engagement. The Claimant approached the second Respondent to arrange for a substitute (rather than arrange herself) when she could not work. As the substitute was only used when the Claimant was unable to work (her weekly days off, holidays, for which she was paid, and jury service) the EAT found that this was consistent with personal performance of the contract and as such satisfying employment status. This is a step away from the traditional view that when a substitute could be utilised it indicated a lack of employee status.

Protected Disclosures:
Raising allegations in a formal grievance, that colleagues had falsely blamed the Claimant for breaches of confidentiality, was held by the EAT in Ibrahim v HCA International to be a complaint of defamation and as such a complaint that a person had failed to comply with a legal obligation. This satisfied part of the test to enable the Claimant to proceed with a protected disclosure claim although he ultimately failed due to a finding that his allegations were personal and not in the public interest. It did however show a wider interpretation of the first limb of the test.

Equal Pay:
In the ongoing Asda equal pay claims (Asda Stores Ltd v Brierley) the Court of Appeal has found that for equal pay purposes, female supermarket staff can compare themselves with men working in the warehouse distribution centres despite operating under a different management structure. The female staff in customer facing roles need are arguing that their work is of equal value to that of the warehouse staff. One requirement is to select actual comparators from establishments at which “common terms are observed”. The Court found that this was still the case despite different structures, confirming that this aspect of the claims was a hypothetical test.

Religious Discrimination:
The dismissal of a teacher from an ultra-orthodox Jewish nursery due to her refusal to lie about living with her boyfriend was not discrimination on the grounds of religion or belief, said the EAT in Gan Menachem v de Groen. The fact the teacher lived with her boyfriend outside marriage was in contravention of the nursery’s beliefs. It was the nursery’s beliefs that were relevant, rather than a protected characteristic of the teacher. It reiterated the fact that legal protection from discrimination on such grounds as religion or belief only covers the religion or belief (or lack of) of the alleged victim (the teacher in this case) and not that of the discriminator.

Other news:

Payslips

With effect from 6th April 2019 the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018 will change how UK employers provide payslips to their workforces.

It will create an obligation to provide itemised payslips to every worker on their payroll, and not just those classified as ‘employees’. This means that agency staff, bank staff, casual staff or zero hours staff will all have a right to a payslip on or before their payday.

The new legislation will also require payslips to contain details of the number of hours the worker is being paid for where their pay varies based upon the number of hours worked. Such payslips will have to show hours worked either as (1) a single, combined amount, or (2) an itemised list of hours worked for different rates of pay.

For more information on any of the developments above or indeed any employment related matters please contact Louise Carr at lca@nexussolicitors.co.uk or Craig McCracken at cmc@nexussolicitors.co.uk or call 0161 819 4900.