Gordons Legal Employment Update – 28 April 2017

Employment Tribunal awarded £2 in compensation for breach of the right to be accompanied

In the case of Gnahoua v Abellio London Ltd, the Employment Tribunal held that the Respondent had breached the Claimant’s right to be accompanied when it refused to allow his chosen companions to accompany him at a disciplinary appeal hearing.

The Claimant was subject to disciplinary proceedings after being found looking at an iPad while his bus was in motion.  The Claimant was represented by a Unite official at the disciplinary hearing, but informed the Respondent that he wished to be accompanied at the appeal hearing by two brothers who had formed the PTSC union. The Respondent explained to the Claimant that, whilst it was happy with someone from the PTSC union representing the Claimant, it would not allow these brothers as it had previously banned them from representing its staff at hearings. The Respondent further explained the reasoning behind its decision, in that one brother had used threatening behaviour towards members of staff and both brothers’ had shown examples of dishonesty. In addition, one of the brothers was a former employee of the company, but had been dismissed for “harassment and intimidation” of another member of staff.

The Employment Tribunal accepted that the Respondent had breached the Claimant’s right to be accompanied, but awarded the Claimant £2 in compensation as the Respondent has “strong grounds” for the refusal.

Comment: Previous case law has made it very clear that, as long as the companion meets the statutory definition, the choice of companion should be the employee’s.  However, it is likely that in similar circumstances where an employer has similar grounds any award will be minimal.

Employment Tribunal can construe contract in wages claim

In the case of Weatherilt v Cathay Pacific Airways Ltd, the EAT contradicted an earlier decision and held that an Employment Tribunal has jurisdiction to construe a contract of employment and decide on whether an implied term exists in the context of a wages claim under Part II of the Employment Rights Act 1996 (‘ERA’).

The Claimant brought a claim of unauthorised deduction from wages under Part II of the ERA. The question in this case was whether the Claimant’s contractual sick pay should include elements reflecting two allowances.  The Employment Tribunal dismissed the claim finding that sick pay did not need to be interpreted under the contract. On appeal, the Respondent relied on the earlier EAT decision in Agarwal v Cardiff University to argue that the Employment Tribunal had no jurisdiction to interpret a contract of employment or imply terms into it.

The EAT concluded that the EAT in Agarwal had reached a decision without a proper consideration of other binding case law including, for example, Delaney v Staples. The EAT noted that in Delaney, it was held that the Employment Tribunal is required to determine a dispute ‘on whatever ground’ as to the amount of wages properly payable under what is now Part II ERA.  Therefore, as an interpretation of a contract was fundamental to the operation of S.13 ERA, the Employment Tribunal did have jurisdiction to construe a contract of employment.

Comment: There is a logic to the EAT’s decision this time around as it would leave a hole in an Employment Tribunal’s jurisdictional range if it was unable to construe a clause in a contract – a point which is central to the question of whether a deduction had been authorised.

Appeals – Employment Status

In the case of Pimlico Plumbers Limited and Another v Smith, the Court of Appeal dismissed Pimlico’s challenge and determined that it could find no flaw in the Employment Tribunal’s decision that Smith’s relationship with the Company was that of a worker. In reaching its decision, the Court of Appeal summarised the principles that apply when deciding whether or not the ‘personal performance’ requirement has been met:

• An unfettered right to substitute another person to do the work or perform the services is inconsistent with an undertaking to do so personally.
• A conditional right to substitute another person may or may not be inconsistent with personal performance depending upon the conditionality. It will depend on the precise contractual arrangements and, in particular, the nature and degree of any fetter on a right of substitution or, using different language, the extent to which the right of substitution is limited or occasional.
• By way of example, a right of substitution only when the contractor is unable to carry out the work will, subject to any exceptional facts, be consistent with personal performance.
• By way of example, a right of substitution limited only by the need to show that the substitute is as qualified as the contractor to do the work, whether or not that entails a particular procedure, will, subject to any exceptional facts, be inconsistent with personal performance.
• By way of example, a right to substitute only with the consent of another person who has an absolute and unqualified discretion to withhold consent will be consistent with personal performance.

Although there was evidence that plumbers could sometimes swap jobs, Smith has no right to substitute another operative to carry out his work and was contractually obliged to work for a minimum number of hours each week.  

Comment: The Court of Appeal is binding authority and therefore this will serve as a key authority for future cases.

Data Protection Changes

The new General Data Protection Regulation (EU) 2016/679 (‘GDPR’) is due to come into force on 25 May 2018 and will replace the Data Protection Act 1998.

Organisations who process data, need to ensure that their data processing activities, processes and documentation comply with the GDPR by this date as there will be severe penalties for failure to comply – including fines equivalent to 4% of an organisation’s annual turnover, suspension and bans from processing data.

Typically, the type of documentation that we would expect to be in place as a minimum would be a privacy notice/fair processing notice, privacy policy and data protection policy. Even if organisations currently have this documentation in place, they will need to be updated to ensure compliance with the GDPR requirements. Other documentation may also be required, depending on an organisation’s data processing activities, including data sharing and data processing agreements with third parties.

If you would like further advice on your organisations current process and documentation, please do not hesitate to get in contact with Jessica Cumming, on the following number 0113 227 2118, or a member of the Employment Team.

Guidance for Institute of Apprenticeships

The government has published guidance on the operation plan for the Institute of Apprenticeships. In particular, it details how the new body will operate, carry out its functions and improve the quality of the apprenticeships.  The Institute supports the plan to create three million apprenticeships by 2020.

The guidance covers:

• Reforms to improve the quality of apprenticeships;
• Regulating the quality of apprenticeship standards and assessments;
• Collaborating with partners to drive quality across the apprenticeships system;
• Delivering reforms to technical education; and
• Implementing the new system.
• For a link to the guidance, please click here.

Save the Date!

You should have received an email inviting you to our next employment law seminar, which will be held from 2pm on Thursday 25th May at Cedar Court Hotel, Rooley Lane, Bradford.

To find out more, click here or contact Emily Dewsnap at emily.dewsnap@gordonsllp.com quoting EMPLOYMENT SEMINAR in the subject line.

If you require any further information on the above developments then please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.