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Gig economy

adrian_fryerWorker status is the holy grail in the gig economy, including the fields of taxi rides, food delivery and courier services. Workers are entitled to certain employment rights such as the national minimum wage and paid holiday, whereas the genuinely self-employed are not. Section 230(3) of the Employment Rights Act 1996 defines a worker as someone who works under a contract of employment or another contract ‘where the individual undertakes to do or perform personally any work…for another party who…is not…a client or customer of…the individual’. Case law has expanded on this definition and looked at issues such as mutuality of obligation, control, integration into the business and personal service.

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Injury to feelings

adrian_fryerIf an employee wins a discrimination claim, the employment tribunal will award compensation for injury to feelings. There are three bands: top band for the most serious cases (currently £26,300 – £44,000); middle band for serious cases not worthy of a top band award (£8,800 – £26,300) and bottom (£900 – £8,800) for less serious cases including one off incidents. The award is based on the effect of the discrimination on the employee, rather than the gravity of the discrimination. The EAT highlighted this important distinction in Komeng v Creative Support.

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Discrimination at work?

adrian_fryerAmy harasses Bill if she does something in relation to a protected characteristic (race, sex, disability etc) which has the purpose or effect of violating Bill’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. If Amy harasses Bill ‘during the course of employment’ then the employer will be vicariously liable for her conduct unless they can show that they took all reasonable steps to prevent it.

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Secret recordings in the workplace

adrian_fryerIn unfair dismissal cases, both the compensatory and basic awards can be reduced by the tribunal, potentially to zero, based on the employee’s conduct before dismissal. Secret recordings of meetings by an employee can be admissible evidence in cases if the tribunal thinks it is relevant. However, secretly recording a meeting might amount to misconduct, depending on the employer’s rules.

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Harassment in the workplace

adrian_fryerHarassment has been in the legal news again this month.

Anthony harasses Belinda if he does something in relation to a protected characteristic (race, sex etc) which has the purpose or effect of violating Belinda’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The connection between the protected characteristic and the conduct is key. The burden of proof – who must prove what – is important in discrimination cases too. If an employee can prove facts from which, in the absence of another explanation, a tribunal could conclude harassment has occurred, then the burden of proof shifts to the employer to show that it did not happen. The Employment Appeal Tribunal (EAT) has looked at both these issues in Raj v Capita Business Services.

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Robert Maddocks

Partner

Robert qualified as Solicitor in 2008 and joined Bermans in July 2019. He then became a Partner in the Employment team in 2022.

He has previously worked for industry recognised legal providers, including an employment boutique firm in Manchester.

He is known for delivering strategic and commercial advice to clients and advises clients in different sectors. He has also contributed to industry journals and national press with articles on employment law issues.

Robert has acted for a wide range of clients ranging from OMB’s to large national and international companies, however he has a particular focus on owner managed SME’s.

Robert regularly advises on complex internal HR and employment law issues as well as business re-organisations, restructures and TUPE transactions. He is particularly experienced at representing clients in the Employment Tribunal and regularly appears as an advocate.


Email: Robert.maddocks@bermans.co.uk

Tel:  0161 827 4617

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Employment Law: Holiday Pay

adrian_fryerIf employees are underpaid for their holiday, they can bring an unlawful deduction from wages claim. A claim must be submitted within 3 months of the underpayment, or the last in any series of deductions. In the case of Bear Scotland v Fulton, the Employment Appeal Tribunal said that a break of three months or more between deductions will break the series. This significantly limits how far back employees can go, because holidays will often be three months or more apart.

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Employment Law: Veganism

adrian_fryerAccording to a recent survey of 1000 vegan employees and 1000 employers, almost half of vegan employees have felt discriminated against by their employers. 31 per cent said they had felt harassed at work or treated unfairly due to their veganism. The survey also revealed that almost half of employers did nothing to accommodate their vegan employees. The results suggested that employees were encouraged to keep their views to themselves and to fit in at company functions which had limited menu choices.

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Employment Law: Unfair dismissal and permanent health insurance (PHI)

adrian_fryerPHI provides employees with pay during long term sickness or incapacity. Policies can define incapacity differently. Some policies define it as an employee’s inability to return to their actual job. Some policies define it as an inability to return to any job. Sometimes the courts get involved if the parties don’t agree on the meaning of the policy terms, as was the case in ICTS v Visram.

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