The Court of Appeal has confirmed this month that Uber drivers are workers rather than self-employed, in Uber v Aslam. The drivers’ contracts described them as independent contractors. They had to undertake an interview and an induction. They had to perform the work personally. Drivers used their own vehicles, but Uber stipulated appropriate brands and presentation standards. In providing jobs, Uber controlled the key information. They would provide drivers with a passenger’s first name but no surname, contact details or destination. Uber had complete control of the fares. Financial penalties could be incurred for departing from Uber’s suggested route.
Is an employer responsible for the actions of an employee who has ‘gone rogue’ and deliberately posted sensitive employee data online? Yes, the Court of Appeal has said in Morrisons v Various Claimants. Mr Skelton was an internal auditor at Morrisons. He had been recently disciplined and held a grudge against the company. He took sensitive personal data relating to thousands of employees and posted it online. He then told newspapers it was there. The data included names, bank details and salary information.
The holiday season might have ended, but holiday pay remains a hot topic. In Flowers v East of England Ambulance Trust, the Employment Appeal Tribunal looked at whether voluntary overtime should be included in holiday pay. Employees should be paid their ‘normal remuneration’ when they take holiday. But is voluntary overtime ‘normal’ pay?
Mr Tabberer and his colleagues were electricians. They were originally employed by Birmingham City Council. Their employment transferred several times by way of TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) over the years. At the time of the tribunal claims, they were employed by Mears. The employees were contractually entitled to receive an Electricians’ Travel Time Allowance, though the historical reasons for the allowance no longer existed. Mears varied the employees’ contracts to remove the allowance, saying it was outdated.
A study by the University of the West of England argues that the working day is extended during commutes by advancements in technology. The study looked at 5,000 passengers commuting into London. Many employees were using their commuting time to send work emails from their phones and tablets.
Is it disability discrimination if an employer deals with an ill health retirement procedure badly? Not necessarily, the Court of Appeal has said. Mr Dunn was employed by the Ministry of Justice. He had depression and a serious heart condition. He applied for ill health early retirement. The process was handled badly and was unnecessarily bureaucratic. But was this poor treatment because of his disability (direct discrimination) or something arising in consequence of it (discrimination arising from disability)? The employment tribunal said yes, but the Employment Appeal Tribunal disagreed.
Are care workers who ‘sleep in’ at work entitled to the national minimum wage for the whole of their shift? In Mencap v Tomlinson-Blake, care workers had to spend the night at or near their place of work. They were expected to sleep for most of that period. They might be woken if their assistance was needed. Were they entitled to the minimum wage even when they were sleeping?
Can a tribunal make an employee choose their ‘best ten’ allegations in a discrimination claim?
Not usually, said the Employment Appeal Tribunal in Tarn v Hughes. Dr Tarn was a GP. She brought claims for sex and pregnancy discrimination. She had agreed a list of issues with the employer, which contained 21 acts of alleged direct discrimination, 19 of harassment and 6 of victimisation.
Is every medical condition a disability? And if an employee mentions a medical condition, does that mean the employer knew that the employee was disabled? Not necessarily, said the Employment Appeal Tribunal in Mutombo-Mpania v Angard Staffing Solutions. The employer supplied agency staff to Royal Mail. The employee had essential hypertension (high blood pressure) for which he took medication. However, in recruitment paperwork, the employee said that he did not have a disability and did not need adjustments. He worked late shifts at Royal Mail and had done some night shifts. When he was moved to night shifts, the employee wrote saying his ‘health condition’ prevented him working nights. After that, the employee failed to show up on four occasions in less than a month. He was then told he would not be given more work.
When is notice not notice? When it is ambiguous, said the Employment Appeal Tribunal in East Kent Hospitals v Levy. The employee worked in the records department. She had a poor sickness absence record. She applied for a role in the hospital’s radiology department, which she was offered subject to pre-employment checks. She wrote to her manager giving one month’s notice, which her manager accepted in writing.
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