Lessons from LapDancers

Many businesses try to avoid liabilities as employers by taking on workers on a freelance or self-employed contractor basis. They then carefully draft contracts to justify that status.  There’s always a risk though that the worker will claim employment rights anyway, saying that the main employment tests of ‘mutuality of obligation’, ‘control’ and ‘personal service’ are satisfied.

In Stringfellow Restaurants Ltd v Quashie in the Court of Appeal, Ms Quashie was a lap-dancer who was dismissed by Stringfellows. The Club argued that she was not an employee and could not therefore claim unfair dismissal.

The Employment Appeal Tribunal took the view that Ms Quashie provided the services personally (she could not send in a substitute) and that even though she was only engaged per shift, she worked under an 'umbrella contract' with the expectation of future shifts, and so there was sufficient mutuality of obligation for an employment relationship to arise. Furthermore Stringfellows exercised ‘control’ over her because they imposed disciplinary fines on lap-dancers who breached their rules.

However the Court of Appeal took the view that even though there were mutual obligations of some kind in place when she was actually working, she was still not an employee because she negotiated her own fees with clients and took the economic risk of being out of pocket on any particular night.

This case emphasises the need for careful drafting if you want to avoid employment liabilities arising by calling workers ‘self-employed’ instead. The differences in view of the EAT and Court of Appeal show how problematic this question can be, even for rather less exotic businesses than Stringfellows.

James Carmody

RECULVER SOLICITORS     

Tel: 0207 324 6271 | Fax: 0207 477 2276 | info@reculversolicitors.co.uk

12-16 Clerkenwell Road, London EC1M 5PQ

www.reculversolicitors.co.uk | www.kent-employment-solicitors.co.uk | www.croydon-employment-solicitors.co.uk

Reculver Solicitors Ltd (Company No. 6910066) | Solicitors: James Carmody*, Carol Aylott, Kate Henry.

Regulated & authorised by the Solicitors Regulation Authority, SRA No. 565284 (*Director)

Heads up for 2013

Heads-Up for 2013:

Happy New Year!  Here is a brief heads-up for developments in Employment Law in 2013:

·         The Enterprise and Regulatory Reform Bill is shuffling through parliament. Worryingly, this will enable Tribunals to impose financial penalties against employers of up to £5,000 where there are ‘aggravating features’. It will also permit employers to have "protected conversations" with employees about severance, but that is unlikely to be much different to ‘without prejudice’ conversations now.

·         From the 1^st February 2013 Tribunal limits will go up, with a week's pay for statutory redundancy payments and basic award for unfair dismissal increasing from £430 to £450, and the maximum award for compensatory awards in unfair dismissal going up from £72,300 to £74,200

·         The much-criticised Employee-shareholder contracts announced by George Osborne in the Autumn will be introduced (see reculversolicitors.co.uk/1019.htm )

·         In March 2013 unpaid parental leave will increase to 18 weeks (from 13 weeks up to the 5^th birthday). The limit on how much parental leave can be taken a year is 4 weeks. Take up of this right appears to have been low so this change is unlikely to make much difference in practice.

·         In March 2013 CRB checks will change to ‘Disclosure & Barring Service’ checks and will be portable between employers, and which will save fluffing around getting repeat CRB / DBS checks every time someone changes jobs when they work with children or vulnerable adults.

·         In April 2013 the collective consultation period will reduce to 45 days where 100 or more redundancies are proposed. For most employers though who do not make more than 20 redundancies, there will still not be a prescribed consultation period.

·         In April 2013 the HMRC will introduce ‘Real-time information’ for payroll (see hmrc.gov.uk/rti/index.htm) which is likely to vex employers and accountants alike.

·         In April 2103 the Statutory maternity, paternity, adoption pay will increase apparently by a princely 1% from £135.45 pw. Statutory sick pay will also go up.

·         In the summer 2013 it seems that fees for bringing employment tribunal claims may be introduced. Presumably unemployed claimants (ie most claimants) will get dispensation from the fees, and the already over-worked Tribunal service will have another layer of administration to contend with. Whether this idea will be quietly dropped in the same way as no-fault dismissals (see reculversolicitors.co.uk/1023.htm) remains to be seen.

We will keep you updated on these and other developments throughout the year.

James Carmody

RECULVER SOLICITORS     

Tel: 0207 324 6271 | Fax: 0207 477 2276 | info@reculversolicitors.co.uk

12-16 Clerkenwell Road, London EC1M 5PQ

www.reculversolicitors.co.uk | www.kent-employment-solicitors.co.uk | www.croydon-employment-solicitors.co.uk

Reculver Solicitors Ltd (Company No. 6910066) | Solicitors: James Carmody*, Carol Aylott, Kate Henry.

Regulated & authorised by the Solicitors Regulation Authority, SRA No. 565284 (*Director)

Volunteers not covered by discrimination law

If you are a charity or take on unpaid interns then the Supreme Court’s decision that an unpaid volunteer was not covered by discrimination law will offer some comfort.  (X v Mid Sussex Citizens Advice Bureau).

X was a CAB volunteer, who signed a volunteer agreement which stated that it was 'binding in honour only and not a contract of employment or legally binding'. She often failed to turn up and the CAB asked her to leave. She brought a disability discrimination claim. As volunteer, she was outside the scope of the protection under the Disability Discrimination Act and the Equal Treatment Directive. ‘Occupation’ did not cover voluntary activity and only covers employment and self-employment. The decision also covers the Equality Act 2010.

What this decision does not address is when an intern / volunteer argues that they are in reality a worker or employee for the purposes of the National Minimum Wage and employment legislation. See our earlier bulletin at: Unpaid Interns. If your organisation takes on unpaid interns or volunteers, it is worth considering these questions carefully.  

Work Smarter: Click here to read about our Employer Protection Scheme to help run your business more efficiently and protect your business against Tribunal claims.

See this bulletin online.

Facebook Face-Off

Hot on the tails of press reports of threats of legal action by Lord McAlpine against Twitter account users, comes the case of Smith v Trafford Housing Trust in which Mr Smith was demoted for airing his views on gay marriage on Facebook.

The High Court held that his demotion was a breach of contract. The Court took the view that it was clear that his views on gay marriage were nothing to do with the Trust. Equal opportunities employers have to accept that their staff may have widely different religious and political beliefs which not everyone will agree with. Mr Smith's moderate expression of his personal views on his personal Facebook wall at out of working hours were clearly nothing to do with his employment with the Trust. Also, Facebook (unlike perhaps LinkedIn) was not a work-related context.

Compare that to Gosden v Lifeline in 2011 in which Mr Gosden sent an email from his home computer to a former colleague’s home pc which contained racist and sexist material but telling the recipient to pass it on. He got sacked as a result and could not rely on the his right to privacy under the Human Rights Act.

In the present case Mr Smith was awarded a mere £98. When he was demoted, he could have resigned and claimed constructive dismissal, but chose not to. Mr Smith had agreed instead to work in a different capacity for less money under a new contract with the Trust. His losses for ‘wrongful dismissal’ from his job as a manager were limited to financial losses during the contractual notice period, which came to a paltry £98.

In addition to illustrating the perils of using social media, this case also illustrates that even when a Claimant wins, they may still not win very much at all.  See http://www.reculversolicitors.co.uk/1013.htm 

Work Smarter: Click here to read about our Employer Protection Scheme to help run your business more efficiently and protect your business against Tribunal claims.  

www.reculversolicitors.co.uk  

: www.kent-employment-solicitors.co.uk

| www.croydon-employment-solicitors.co.uk  

Permanent Health Insurance and Dismissal

A minority of employers offer permanent health insurance (‘PHI’) to cover a proportion of their employee’s salary (normally up to 75%) in the event that they go on long term sick leave. However can the employer then dismiss the employee for a reason connected with the long term sick leave?  

In Lloyd v BCQ Ltd, in the EAT this month, Mr Lloyd was dismissed due to ill health. He claimed that BCQ was in breach of an implied term that it would not dismiss him if he lost his PHI as a result. It was not possible to imply a term that BCQ would not dismiss due to long term sick if he would lose PHI cover a result (as per Aspden v Webb's Poultry and Meat) because Mr Lloyd's contract contained an "entire agreement" clause.

In any case, the EAT said that even if such a term could be implied, it would only apply where the dismissal was "without reasonable and proper cause". There was no reasonable prospect of Mr Lloyd returning to work due to his sickness, so it was reasonable proper to dismiss him.

This case will be a comfort to those few employers who offer PHI as a benefit but who still want flexibility to dismiss where appropriate.

Work Smarter: Click here to read about our Employer Protection Scheme to help run your business more efficiently and protect your business against Tribunal claims.

James Carmody

RECULVER SOLICITORS      

Tel: 0207 324 6271 | Fax: 0207 477 2276 | info@reculversolicitors.co.uk

12-16 Clerkenwell Road, London EC1M 5PQ

www.reculversolicitors.co.uk | www.kent-employment-solicitors.co.uk | www.croydon-employment-solicitors.co.uk

Reculver Solicitors Ltd (Company No. 6910066) | Solicitors: James Carmody*, Carol Aylott, Kate Henry.

Regulated & authorised by the Solicitors Regulation Authority, SRA No. 565284 (*Director)

Unsavoury employees with unsavoury beliefs?

What can you do when you discover that your employee holds unsavoury political opinions? If the employee breaches your equal opportunities policy, you may be able to bring disciplinary action against him. But can you dismiss him anyway?

Discrimination on the basis of religious or philosophical belief breaches the Equality Act 2010. Belief in climate change disaster can be a protected philosophical belief (Grainger plc v Nicholson), though wearing a poppy is not (Lisk v Shield Guardian). In order to qualify as a protected philosophical believe it must be:

·         genuinely held;

·         not be an opinion or viewpoint based on the present state of information available;

·         be related to a weighty and substantial aspect of human life and behaviour;

·         attain a certain level of cogency, seriousness, cohesion and importance;

·         be worthy of respect in a democratic society, and not incompatible with human dignity or in conflict with the fundamental rights of others.

Where does that leave the employee with unsavoury political views? In Redfearn v UK this week, Mr Redfearn was a bus driver dismissed by Serco when he was elected Councillor for the BNP, citing safety concerns about the risk of him attracting attack. He was unable to claim unfair dismissal due to his length of service and his race discrimination claim failed.

The European Court of Human Rights held that the UK does not give adequate protection from dismissal on the grounds of political party membership, that his right to freedom of assembly under Article 11 of the ECHR was infringed and that he should have had protection against dismissal connected to political party membership.

As a result, even unsavoury political views may become protected under the Equality Act 2010. Employees who propound extreme political beliefs may not have protection if they interfere with the fundamental rights of other colleagues, for example. However employers will have to think very carefully when considering dismissal as a result.

Work Smarter: Click here to read about our Employer Protection Scheme to help run your business more efficiently and protect your business against Tribunal claims.

James Carmody
RECULVER SOLICITORS      
Tel: 0207 324 6271 | Fax: 0207 477 2276 | info@reculversolicitors.co.uk
12-16 Clerkenwell Road, London EC1M 5PQ

www.reculversolicitors.co.uk | www.kent-employment-solicitors.co.uk | www.croydon-employment-solicitors.co.uk

Disability Discrimination: Can a tendency to infections amount to a 'disability'?

It’s not always easy for employers to determine whether an employee’s medical condition amounts to a disability as defined by the Equality Act 2010.

The official definition is a "physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities".  Conditions such as Cancer, HIV infection or Multiple Sclerosis are automatically deemed disabilities.

The Act states that where an impairment is subject to treatment, then you look at the effect of that condition without the treatment; for example someone using a hearing aid or someone with diabetes which is being controlled by medication or diet.

However in Sussex Partnership NHS Foundation Trust v Norris last month, the EAT held that a life-long condition, controlled by medication, making Mr Norris more prone to infections, is not sufficient to satisfy the definition of disability under the Equality Act, even if at least one such infection caused a substantial adverse effect on his ability to carry out normal day-to-day activities.

The guidance on disability is lengthy (see Disability Guidance). The cautious approach for employers confronted with an employee with a suspected disability is to consider reasonable adjustments just in case, and to take legal advice if in any doubt.

Work Smarter: Click here to read about our Employer Protection Scheme to help run your business more efficiently and protect your business against Tribunal claims.