Almost two years ago, I mentioned the English Court of Appeal’s decision in Uber BV & Ors v Aslam & Ors [2018] EWCA Civ 2748 on appeal from UKEAT/0056/17/DA), where individuals working as taxi drivers for Uber were to be classified as workers not self-employed individuals.
This decision was a significant defeat for Uber, but it was hardly going to be the last word in the story and so it proved. An appeal to the U.K. Supreme Court was always going to be on the cards and, on Friday 19 February, the Justices issued their judgement (see Uber BV & Ors v Aslam & Ors [2021] UKSC 5).
The Supreme Court was asked to consider two questions by Uber:
Whether the drivers (the Respondents) were “workers” providing personal services to the Second Appellant.
If the Respondents were “workers”, what periods constituted their “working time”.
The result? Uber drivers are workers not self-employed individuals. Essentially, the Supreme Court has approved the earlier decision of the English Court of Appeal.
Although Uber drivers won’t acquire full employment status, this decision is, nonetheless, highly significant. It will, for example, mean that Uber drivers will be protected under the National Minimum Wage legislation and the Working Time Regulations.
Paragraphs 94 to 102 of the Supreme Court’s decision are really instructive. The Court found the following matters extremely significant:
The rates of pay for taxi drivers was set solely by Uber
The contractual terms were dictated solely by Uber
Uber constrained or restricted the ability of drivers to decline jobs
Uber strictly vetted the type of vehicle which drivers could use for jobs and the technology used by drivers was “wholly owned” by Uber
The communication between a driver and a passenger was severely restricted by Uber in order “to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.”
As Lord Leggatt (who delivered the unanimous judgement of the Court) stated at paragraph 102:
“Taking these factors together, it can be seen that the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. Furthermore, it is designed and organised in such a way as to provide a standardised service to passengers in which drivers are perceived as substantially interchangeable and from which Uber, rather than individual drivers, obtains the benefit of customer loyalty and goodwill. From the drivers’ point of view, the same factors – in particular, the inability to offer a distinctive service or to set their own prices and Uber’s control over all aspects of their interaction with passengers – mean that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance.”
Worker is a term which is widely used in EU equality and employment law, but a single definition does not exist. As a result of the U.K.‘s long relationship with the EU, the term has entered the British legal systems and, in the interim period, Brexit will not change this fact.
In Allonby v Accrington and Rossendale College (Case C-256/01) [2004] ICR 1328; [2004] ECR I-873 the Court of Justice made the following observation:
“… there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration …”
In Syndicatul Familia Constanta v Directia Generala de Asistenta Sociala si Protectia Copilului Constanta (Case C-147/17) EU:C:2018:926; [2019] ICR 211, the Court of Justice of the EU was strongly of the opinion that the relationship between employer and worker was of a “hierarchical” nature. This was a view echoed by Lord Clarke in the Supreme Court’s decision of Hashwani v Jivraj [2011] UKSC 40; [2011] 1 WLR 1872 where he identified the relationship as one of “subordination” in favour of the person receiving the services.
That said, Baroness Hale in a later Supreme Court decision – Clyde and Co LLP and Anor v Bates van Winkelhof [2014] UKSC 32 – stated that “while subordination may sometimes be an aid to distinguishing workers from other self-employed people, it is not a freestanding and universal characteristic of being a worker”. This remark was quoted with approval by Lord Leggatt in the Uber decision at paragraph 74 of his judgement.
In other words, such a feature is merely to be deployed as one of the many possible tests that can be used by the courts to analyse a relationship between two parties.
The Employment Rights Act 1996
Section 230(1) of the Employment Rights Act 1996 contains the definition of who precisely is an employee i.e. someone who has a contract of service. If you don’t have this type of contractual arrangement (you’re not an employee), you may well be working under a contract for services. This is one of the most important distinctions in employment law in the United Kingdom.
Section 230(3) of the Act also defines in law an individual who is a ‘worker’. This can include someone who provides services under an employment contract – and, crucially, some individuals who fall into the self-employed category.
Conclusion
Individuals working under a contract for services – precisely because of their lack of employment status – are often denied access to the sorts of legal rights which employees routinely take for granted e.g. unfair dismissal protection, redundancy protection, family friendly rights.
There are notable exceptions (aren’t there always?): high earning British television celebrities (e.g. Lorraine Kelly) or a number of BBC news journalists have preferred to be treated as freelancers or self-employed persons. Why? They can then minimise their exposure to income tax liability in a way (often via the medium of personal service companies) that would not be possible because if they were employees they would almost certainly be taxed at source on a PAYE (pay as you earn) basis.
We have seen an explosion in the type of work that is often characterised or labelled as the ‘gig economy’. This work is often characterised by a distinct lack of employment rights; irregular working patterns; chronic insecurity; lack of long term career progression; and low pay. It is often impossible for such individuals to complete the necessary periods continuous service to acquire employment rights.
Companies such as Deliveroo, Lyft and Uber have become synonymous with the ‘gig economy’, as have whole sectors of the employment
There’s now a growing awareness on both the part of the UK Government (The Taylor Review) and the European Union (the forthcoming EU Directive on Transparent and predictable working conditions) that people on contracts for services deserve greater levels of work-place protection.
It’s not just in the UK that debates about employment status are currently playing out. At the tail end of 2019, it was with particular interest that, in 2019/20, I was following a story from the United States which highlighted many of the issues which I have just been discussing in this Blog.
The US State of California enacted a law, Assembly Bill 5 2019 or AB5 (known more popularly as the gig economy law) giving those individuals working in the gig economy more employment rights. The law came into force on 1 January 2020.
The Covid-19 pandemic has also exposed the lack of employment protection for workers and the self-employed. Only last March, I was writing about the fact that the U.K. Government’s reforms to Statutory Sick Pay would would not include approximately 2 million individuals – a situation that Frances O’Grady, General Secretary of the TUC was quick to highlight.
To mark Black History Month, my friend and colleague, Tony Adams recalls a forgotten chapter of the events around ‘Red Clydeside’ in 1919. This article was originally published in the Scottish Left Review.
The year, 1919, in Britain represents a high point in working class struggle and one un-matched since in its breadth and scale. Over 34m working days were not worked due to strikes compared to an average of 4.5m for each of the preceding four years. Two thousand soldiers, ordered to embark for France, instead mutinied and formed a Soldiers’ Union. Even the police force struck and demanded the right to unionise. Britain, it is said, was on the brink of a revolution. On 31 January that year a violent confrontation took place in Glasgow between the police and radical striking workers centred in and around the area around George Square. The workers were striking to demand a reduction of the working week from 54 hours to a 40 hour working week.
At a massive union rally in George Square on the day of the protest, the red flag was raised above 60,000 striking shipbuilding and engineering workers. Newspapers of the next day dubbed the demonstration which saw pitched battles between the police and strikers as ‘Black Friday’ or ‘Bloody Friday’. What began as a protest soon became a riot, with fighting across the city continuing throughout the night and 53 people were recorded injured. This dramatic incident and the leaders of the strike have been mythologised under the banner of ‘Red Clydeside’.
Meanwhile, a lesser known harbour race riot on Thursday 23, January 1919 in which black British colonial sailors were branded as unfair economic competitors by the national seamen’s unions and their local delegates, has been overlooked both in the personal and historical accounts of the general strike until more recently. The riot began in the yard of the mercantile marine office in James Watt Street where sailors gathered for their chance to be signed on to a ship. While waiting to see if they would be hired, competing groups of black and white sailors jostled and shouted insults at each other. This baiting descended into a pitched battle which spilled out of the yard onto the street. More than thirty black sailors fled the sailors’ yard pursued by a large crowd of white sailors. White locals joined the crowd which grew to several hundred strong. The rioters used guns, knives, batons and makeshift weapons including stones and bricks picked from the street. On being chased out of the hiring yard, the group of black sailors initially ran towards the nearby Glasgow sailor’s home on the corner of James Watt Street and Broomielaw Street. The white crowd smashed the windows of the sailor’s home and then invaded it. The two or three beat police officers in the harbour area were overwhelmed and an additional force of 50 police officers was called in. The large police force cleared the two set of rioters from the sailors home.
Though the staging of a general strike in Glasgow, its collapse following ‘Bloody Friday’ and the presence of tanks in the city centre the next day were far more eye-catching than the riot in the harbour a week earlier, the two events were explicitly inter-connected through the activities of the members of the leadership of the 40-hours strike movement. Emanuel Shinwell, leader of the Glasgow branch of the Seafarer’s was in addition, president of the Glasgow trades and labour council and chairman of the workers strike committee. Although a moderate, he advocated direct action in the most inflammatory terms in the days leading up to both the harbour riot and the mass protest of the 40-hours campaign. He and other strike leaders, such as William Gallacher, sought to encourage unskilled workers – including seamen – to take part in the sort of strike action that had been the province of the skilled workforce on wartime Clydeside. The two episodes ought to be viewed together as the harbour riot and the George Square demonstration occurred within a few days of each other. This proximity was much more than coincidental especially as the riot in Glasgow seaport, was soon followed by similar riots in South Shields, Salford, London, Hull, Liverpool, Newport, Cardiff and Barry.
It is important to note that the Glasgow harbour riot was the first instance of a spate of rioting focussed upon black residents in British ports which reached its height in June of that year. It was also part of the wider picture of industrial strife which has been simmering below the surface on Clydeside and other heavily industrialised regions throughout the war years and into 1919.
During these riots, crowds of white working class people targeted black workers, their families, black owned businesses and property. One of the chief sources of the violent confrontation in the run- down port areas was the ‘colour’ bar implemented by the sailors’ unions campaigning to keep black, Arab and Asian sailors off British ships in a time of increasing job competition. The imposition of a ‘colour bar’ on black workers at Glasgow and elsewhere around Britain’s seaports to protect white British sailors’ jobs illustrates the disregard for sections of the working class among many of those who considered themselves protectors of the organised workforce. Historically expressions of racist hostility have been tied to questions of employment. Hostility towards groups of fellow workers among trade unionists was nothing new. The opposition of white union members to the employment (in some cases) of cheaper overseas merchant sailors, violently demonstrated at Glasgow harbour, bears comparison to the wartime industrial action on Clydeside which aimed at preventing the ‘dilution’ of skilled with unskilled job losses and the permanent undercutting of ‘engineers’ wages.
The sea port riots of 1919 in which white crowds attacked black workers, their families and communities, have long presented a painful conundrum as they prefigure a century of conflict and harassment of people of colour in Britain. The causes of the riots are located in the interplay between on-going strikes, riots and other collective violence elsewhere in Britain and the Atlantic basin as well as the local context and meanings (including housing shortages and unemployment). In this light, the British riots appear less an isolated eruption ‘proving’ British racism, as they have often been portrayed. They were part of a broader political movement of resistance against post-war betrayals. This made the role of service and recently demobilised men a significant factor in the riots, one which was commented upon in many local press accounts of the violence. It is also clear that the specific grievances of the white sailors were not the only issues in the riots. The sense that the great sacrifices of the war years had been futile was being experienced at a national level as post-war shortages in housing and increased competition in the job market were the first results of mass demobilisation. Wider frustrations were being focused on the black community in Britain as a means of release. That the authorities in part recognised this is often apparent from the light sentences meted out to the white rioters in various centres around the country. However, there is also an element of racial antipathy revealed by the official response to the riots.
The fear of violence in the immediate post-war period became a worldwide phenomenon, and not without reason. The level of global unrest in the late 1918 and 1919 is also worth considering as it provides a wider context in which the race riots in Britain may be discussed. The Bolshevik revolution in Russia in 1918 provided governments worldwide with a spectre of the overthrow of the state in a situation of crisis. The attempted revolts of the Spartakist movement in Berlin, the establishments of soviets in Bavaria, Hungary and Czechoslovakia and the socialist revolt in Austria fuelled the worldwide fear of Bolshevism. It was not merely in the ‘defeated’ nations that unrest occurred for the politicising effect of war service and the strains placed on every day society by the war resulted in riots in the United States, the Caribbean, Africa as well as in Britain. As one of Scotland’s leading expert calls for a permanent fixture to remember the demonstration which took place on 31 January 1919, the black sailors of the Glasgow harbour riots deserve a place to be commemorated too because there is a single working class in Britain by historic right and present participation.
Tony Adams is a lecturer and EIS equality rep at City of Glasgow College. He has published in the Asian Times, Caribbean Times, Morning Star and Weekly Journal. Jacqueline Jenkinson’s ‘Black 1919 Riots, Racism and Resistance in Imperial Britain’ (Liverpool University Press, 2009) is the best available study of the issues.
By Saad Niaz, Anna Stevenson, Kaspar Stewart and Jodie Williams (Editor: SJ Crossan)
To put it simply equal pay is when both men and women who perform equal work get paid equally. This is set out in the Equality Act 2010 which we will discuss later in this post. If you are an employer, it is extremely important to take note of this. It does not only apply to salary. But it takes into consideration all terms and conditions in their contract such as holiday entitlement, bonuses, pay and rewards schemes, pension and any other benefits your company may offer (Equality and Human Rights Commission, 2019).
Now we would think that in this day and age both men and women would be getting paid equally, unbelievably, in 2019 the data from Britain’s largest companies should that men are still mostly getting paid a lot more than women. Even with the amount of campaigns that women’s groups are bringing forward, the startling figures show that 78% of Britain’s biggest companies have a pay gap favouring men (Petter, 2020).
The Beginning of Equal Pay
Shockingly, this has been a problem for over 40 years. Prior to 1970, women in the UK, especially in the private sector, were on different and lower rates of pay, no matter what their skill levels were (Wage Indicator, 2020).
In 1968, women who were sewing machinists at Ford’s Dagenham Factory went on strike as they argued that their work demanded the same amount of skill and effort as work carried out by Eastman cutters and paint spray operators, even though their job had been graded higher. This strike sparked a movement and before we knew it, we had many other equal pay strikes throughout Britain. This led to the formation of the National Joint Action Campaign Committee for Women’s Equal Rights (NJACCWER) who then went on to organise a big equal pay demonstration in May 1969.
The Ford Dagenham Factory strike also motivated the Women’s Liberation Movement to take more action. They continued to fight for equal pay of equal value and also and sexual discrimination both in the workplace and at home. One of their main slogans was simple but effective “Equal Pay for Equal Work”. Two of their other demands included equal education and training as well as free 24-hour childcare. This was being fought for to allow women to be financially independent from their father, husbands and other males.
Barbara Castle MP, who was UK Employment Secretary of State at the time and eager to address the obvious unhappiness and distress caused by the issue, promoted the Equal Pay Act 1970. This allowed equal pay claims to be made by women who were working in the private and public sector. This act will be discussed further in this article. When this legislation was brought out, it really highlighted the problems in the workplace to do with equal pay and women (Wage Indicator, 2020).
It was said that women should be paid less for two reasons, first, because their work was less skilled than men’s and in return should be paid less and second, because a woman’s wage does need to support other dependents. We can see how these assumptions would make anyone unhappy within the workplace. Many women have to support other people besides themselves such as children, parents etc.
Legislation
The first legislation which directly addressed equal pay was the Equal Pay Act 1970. This act was passed in 1970 but later came into force in 1975, and was introduced to “prevent discrimination, as regards terms and conditions of employment, between men and women” (Equal Pay Act 1970). This legislation arose after a series of high-profile strikes took place. These strikes were crucial in highlighting the inequalities in pay between men and women. (NEU, 2019)
The Equal Pay Act 1970 along with many other acts such as the Sex Discrimination Act 1975 was replaced by an umbrella act in 2010 called the Equality Act. The Equality Act 2010 set to update and simplify previous legislation.
The Equality Act 2010 and the Equal Pay Statutory Code of Practise both include the equality of terms provisions, which states that employees/individuals have a legal right to equal pay, for equal work, as compared to employees of the opposite/same sex. Additionally, pay is not limited to just contractual pay, as it includes any element of a pay package and/or any employment benefits. Pay, for example, would cover bonuses, company cars, hours of work, overtime rates etc.
The Act further states that an individual/employee can bring forward a claim for equal pay if that individual meets the criteria of equal work in comparison to a comparator. Moreover, a comparator can be further defined as an individual who is/was employed by the same employer (or associated employer) at the same work environment or at an environment where there is identical terms and conditions. (The Law Society, 2015)
The Equality Act further defines equal work and separates it into three categories; like work, work rated as equivalent and work of equal value. Determining like work involves two stages, of which the first is to determine whether the comparator is employed in work of a similar nature with consideration to the skills/effort/knowledge required to carry out the work.
Like work
Once like work is established then the next stage is to assess whether any existing differences are not of any practical importance i.e. are differences, of crucial importance in the performance of the job regardless of job description. Additionally, at this stage particular attention is paid to the frequency of occurring differences and to the nature/extent of any differences. Employers responding to a claim must then sufficiently demonstrate that crucial differences of practical importance exist, justifying difference in pay.
Work rated equivalent
Work rated as equivalent is when work is evaluated in terms of how demanding it is and is determined under a job evaluation scheme, which ultimately makes a decision based on multiple parameters such as skill and responsibility, with a stronger focus on the demands related to work. A job evaluation scheme analytically assesses the relative value of a job and typically utilises a scoring-based system to determine equal work. These schemes must be fair, non-discriminatory and not influenced by any stereotyping. ACAS provides free information on how to design and implement a job evaluation scheme.
Work of equal value
The final and third way of determining equal work, is by determining if the comparators work is of equal value, with specific reference to the demands of work made on that individual, such as the physical/emotional effort involved in work. Furthermore, work may not be particularly similar however it may be of equal value as the demands of such work is equal. This category is similar to the category of work rated as equivalent, however work rated as equivalent takes an analytical approach whereas determining equal value is centred around a more methodical and logical approach where often an industry expert is needed to clarify whether effort, skills, decision-making etc are of equal value. (Equality and Human Rights Commission, 2019)
Key Industrial Actions
It is also important to note, that any or all three stage of equal work can be used as comparison methods when bringing forward a claim. Additionally, when a claim is brought forward to an employment tribunal, the tribunal will determine the case based on its own facts so a decision for equal work in another case might not be relevant. Furthermore, an equal pay claim must be brought forth either when the individual is at the work whereby there is unequal pay or six months after leaving that position. However, if the time limit is exceeded it may be possible for the claim to be heard in ordinary courts such as the high court. Also, before launching a claim to the employment tribunal, employee/individual must before seek advice from ACAS and complete the ACAS Early Conciliation notification form before commencing. (Equal Pay Portal, 2020)
As we know, in 1970, the Equal Pay Act was passed, forbidding unequal pay and working conditions between men and women. However, the Act did not actually come into place until 1975. As previously mentioned, the need for this type of legislation was given huge impetus by the women’s industrial action at the Ford-car manufacturing plants in 1968 and also by legislation introduced by Barbara Castle in 1970. Further important industrial actions were conducted in the 1970s and 80s in which both men and women fought for their workers’ rights regardless of gender, ethnicity and class.
The Night Cleaners Campaign (1972-1975)
Three important campaigns/strikes that helped allow the Equal Pay Act to come into force were the Night Cleaners Campaign, the Grunwick Film-Processing Laboratories strike and the Miners’ strike.
During the early 1970s, and prior to this, many women across Britain were working late night shifts cleaning offices. These women were some of the most badly paid and were often taken
advantage of in the workforce. Contract cleaning was introduced, and the situation worsened – companies began to compete against each other over price which resulted in costs being cut and lower wages for the women. May Hobbs was a cleaner who had to experience this discrimination and played a key role in in initiating the struggle for better pay and conditions. She also allowed for union recognition to increase in which more protection was granted for women working in this industry.
This particular strike was in regard to Asian women working as film processers in Grunwick laboratories, the unfairness they were facing in this particular industry. In 1976 Jayaben Desai resigned from her job and instigated a strike along with other working-class Asian women. The protest was in regard to pay inequality, unreasonable overtime arrangements and even racist company practices. She led this strike for two years and within this period there were many violent affairs between the protesters and the police. Desai went to the extreme measures of going on a hunger strike outside the Trades Union Congress which resulted in her union membership being suspended. The Grunwick strike was key in raising the profile of Asian women living and working in the UK. Its highlighted class and ethnic divisions in the workforce. Jayaben Desai showed passion and desire in her protests which increased the recognition of how important women’s work is in terms of industrial organisation.
The Miners’ Strike (1984-1985)
In the 1980s, the mining industry was key for thousands of workers across Britain who worked in this field. In 1984 miners went on strike in protest against the planned closure of numerous mining pits and the lack of discussion about this from the government. This would result in hundreds of lost jobs, taking a big hit at the income of many families across the UK. Women became involved in this by forming groups among the families of these miners and adding vital support to the strike. Women Against Pit Closures (WAPC) was formed, essentially putting feminist ideologies into practice – the male dominated industrial dispute allowed for women to empower themselves and take a public role in campaigning against it. Communal feedings of families in April and May 1984 allowed for the group to grow even further as it began to take on a more explicitly political role. During the strike, numerous local support groups were organised which arranged demonstrations, influenced MPs, addressed public meetings and shone exposure onto the poor conditions of miners to the wider public.
Recent Stories Regarding Equal Pay
As mentioned previously, equal pay is the right for both men and women to be paid the same when doing the same or equivalent, work. Equal pay has been an aspect of UK sex discrimination law since the Equal Pay Act 1970 and now the Equality Act 2010, as well as EU primary and secondary legislation. Although equal pay has been the law for 50 years a significant difference in pay between male and female employees still exists in today’s world of work (CIPD, 2019).
The Equality Act 2010 incorporates an equality clause into employment contracts which means that employers have a duty to ensure that men and women are paid equally for carrying out the same work or work of equal value (Crossan, 2020). In November 2018, a survey by Young Women’s Trust (YWT) found unequal pay is widespread with 20 per cent of women reporting being paid less than male colleagues for the same or similar work (Gallagher, 2019).
In today’s world of work there are various women standing up for themselves to fight for the equal pay that they legally deserve. However, according to the Young Women’s Trust more than 50% of women said they would not feel confident enough to challenge their employer even if they knew they were wrongfully being paid less than a male colleague (Gallagher, 2019).
In order to fight for equal pay people all over the world dedicate one day a year to raise awareness of the gender pay inequality. Equal Pay Day is the point in the calendar at which the average man has earned the amount the average women will over the course of the year. Data from the Office for National Statistics (ONS) shows women’s total earnings were 17.3 per cent lower than those of men in 2019, down from 26.9 per cent in 1999 (CIPD, 2019).
Kay Collins
A recent equal pay case involved Kay Collins a former head chef for employer Compass Group UK & Ireland discovering she was being paid around £6,000 less than one of her male colleagues who was less experienced, less qualified and had a far less senior title. Collins was shocked by this news as she had more than 10 years’ experience than her male colleague so asked her employer to confirm this and after the employer confirmed this was the truth Collins gave her employer the chance to resolve the issue internally. However, they did not comply so she took it upon herself to raise an official grievance which could take up to three years to carry out and would see her lose her job in the process. The employment tribunal found that in most respects Ms Collins’ work and her male colleague’s contained differences of ‘no practical importance’ and most of their responsibilities were ‘substantially the same’ and that Ms Collins ‘appeared to shoulder greater responsibility’ than one of her male comparators in some respects. Therefore, Collins won her claim against Compass Group on the majority of the grounds upon which the employer had consistently said that Ms Collins did not do ‘like work’ to that of her male colleagues. Indeed, Compass Group’s own witnesses accepted that their own evidence on a number of these grounds was inaccurate (Gallagher, 2019).
Carrie Gracie and the BBC
Another recent equal pay case involved the BBC’s former China editor Carrie Gracie who resigned from her post after discovering a male in a comparative role to hers was being paid far more. The BBC admitted Gracie had been told she would be paid in line with the north America editor, Jon Sopel, whose salary is in the £200,000-£250,000 range, but after she accepted the role her pay turned out to be £135,000. Jeremy Bowen, the BBC’s Middle East editor, is paid between £150,000 and £199,999. Gracie won her claim about gender pay inequality, received an apology and a pay-out from the corporation, which she decided to donate to a charity that campaigns for gender equality (Sweney, 2018).
Conclusion
So, it can be said that even after all these years, equal pay problems are still here and it doesn’t seem to be going away anytime soon regardless of all the work women are doing and no matter how many cases they win. We can only hope that one day, we will live in a world where men and women will be paid equally for equal work.
By Louise Aitken, Siobhan Donaghy, Kieran Flynn and Elisha Masini (Editor: SJ Crossan)
Introduction
Privacy is a human right and both the Scotland Act 1998 and the Human Rights Act 1998, implemented provisions of the European Convention on Human Rights (Article 8) directly into national. The employment contract, consequently, is not in any way exempt from human rights issues (see the judgement of the European Court of Human Rights in Bărbulescu v Romania 5 September 2017 (Application no. 61496/08). The European Union (EU) has also had a major influence on the development of privacy laws e.g. General Data Protection Regulations.
Privacy has become a major issue in recent years, particularly due to the rise of social media use. The increasing use of IT systems and the internet by organisations and their employees are key factors in the expansion of laws regarding privacy.In Bărbulescu, the employer had violated the employee’s rights to privacy in terms of Article 8 of the European Convention in the way that it had monitored the company’s email system. Privacy in the work-place is a major issue for both employers and employees. Some of the most important areas of law that govern privacy are to be found in the areas of human rights, data protection, and freedom of information.
It is very important to establish from the outset that employees do not have an absolute right to privacy and there may be situations within and outwith the work-place where the employer has a legitimate interest in the activities of their employees – especially if such behaviour could amount to gross misconduct.
Gross misconduct
Gross misconduct relates to serious behaviour on the part of the employee that is deemed so bad that it destroys any relationship or trust between the employer and the employee. Gross misconduct warrants instant dismissal without any notice or pay.
Section 94 of the Employments Rights Act 1996 states that an employee has the right not to be unfairly dismissed.
Section 95 of the Employment Rights Act 1996 states that an employment contract can be terminated by means of the company through purpose of the employee’s conduct. Such a dismissal or termination of contract should be viewed as a fair dismissal (Section 98: ERA 1996).
Acts or omissions by the employee which would be classified as misconduct, such as theft, alcohol or drug use, poor discipline, continually missing work without justification or poor performance are all potential exceptions to this right.
Sexting
Matt Simpson former officer in the Cumbria police force is one of many who have been caught out due to things such as inappropriate text messages. In 2020, PC Simpson was dismissed from the force after he was found to be having a secret, sexual relationship while on duty. It first came to light after the new partner of the female, with whom Simpson was involved, found text messages that had been sent to her. The new partner of Simpson’s lover then went to the police authorities with this information to make a formal complaint.
A hearing was held to establish if PC Simpson was guilty of any wrongdoing. The panel found that this was a dereliction of Simpson’s duties and he was guilty of gross misconduct – not only due to having this relationship during the time when he was meant to be working but also due to him using confidential police system to uncover information about the women purely because he was “curious”. As well as this Mr Simpson also visited the female around 20 times when on shift and had vital police equipment with him while visiting such as a body camera and a taser device. The fact that this whole affair had come to light via Simpson’s private text messages was neither here nor there: this was an aspect of Simpson’s private life in which his employers had a legitimate interest and he had been carrying out his romantic activities during his employment.
A link to the story on the BBC website can be found below:
In PC Simpson’s case, he clearly performed his duties inadequately and was guilty of very poor discipline. He was aware of the consequences of his actions. By involving himself with the female, he was making himself unavailable at times such as an emergency. Dereliction of duty is defined as the failure to fulfil one’s obligations. Here, PC Simpson clearly failed to do his job in a proper and professional manner and he could have been potentially negligent should an emergency have risen.
A further example of an employee committing acts of misconduct occurred in Adesokan v Sainsburys Supermarket Ltd [2017] EWCA Civ 22. Mr Adesokan was hired by Sainsbury’s as a Regional Operation Manager when he was in charge of ‘Talkback Procedure’, a key company policy which involved all members of staff giving information in confidence about their working environment and relationships with other colleagues. Mr Adesokan discovered that his HR manager had tried to manipulate the Talkback scores within his region by sending an email to five store managers telling them to seek feedback only from their most enthusiastic colleagues. Mr Adesokan asked the HR manager to “clarify what he meant with the store managers”, but the HR manager never responded. Mr Adesokan failed to follow this matter up and he was later dismissed by his employer for not taking action to confront the HR manager’s deliberate “manipulation” of the survey data.
A subsequent investigation into the matter led to Mr Adesokan’s eventual summary dismissal for “gross negligence on his part which is equivalent to gross misconduct”. Mr Adesokan brought a claim for breach of contract with regard to his notice period. The English High Court found that although he was not dishonest, his failure to take active steps to remedy the situation had damaged Sainsbury’s trust and confidence in him, which was sufficient to warrant the sanction imposed. The English Court of Appeal subsequently affirmed the decision of the High Court.
The Adekosan case was remarkably similar to that of PC Simpson where no other option was available to the employer as there was a complete loss of trust.
Activities outwith working hours
What individuals do with their own time is largely their choice (as long as they stay on the right side of the law). It is exceedingly difficult, however, for many people to do much these days without using social media or a mobile phone. Activities which used to be very much private are, consequently, at a much greater risk of public exposure in the virtual world in which we find ourselves living in 2020.
Employees can carry out many activities in private that may get them in trouble with their employers and have serious consequences for them. This might include, for instance, acts of gross misconduct committed in private which result in reputational damage to the employer. Consequently, the employer may have no alternative but to contemplate dismissal of the employee.
There is a lot of case law with regard to employees being dismissed from situations that have happened outside the workplace, an example would be the well-known case of X v Y [2004] EWCA Civ 662.
The facts of the case are as follows:
A charity employee who worked with young offenders committed an indecent act with another male in a public toilet at a motorway service station. He was put on the Sex Offenders’ Register as a result of receiving a police caution. The worker had not been straightforward with the Police when they asked questions about his job and, compounding this, he failed to inform his employer about the situation. Later, his employer decided to terminate his contract and the dismissal was once deemed to be fair. The reputational harm which the employer suffered due to the fact of the employee’s failure to be completely honest about what had happened was an enormous element of the decision to dismiss.
The English Court of Appeal was firmly of the view that the employee’S argument that he had a right to privacy (on grounds of his sexual orientation) in terms of Article 8 of the European Convention on Human Rights was not applicable here as the indecent act was not of a personal nature due to the fact it had been carried out in a public toilet.
Doctor Beck
In some cases, however, it may be problematic to dismiss the ‘offending’ employee who may be involved in activities which come under the protected characteristics of the Equality Act 2010 e.g. philosophical beliefs or freedom of speech laws in terms of the European Convention on Human Rights.
One example of this was reported by The Independent regarding Dr Gunnar Beck, a German national and a candidate for the Alternative for Germany (AfD), a far right political party.
Dr Beck was employed at School of Oriental and African Studies (SOAS), (part of the University of London) as a law lecturer. A number of his students and colleagues were enraged after discovering that he was an AfD candidate for a German seat in the European Parliamentary Elections in 2019.
Students and fellow lecturers organised protests arguing that Dr Beck should be fired from his position and for his employer to justify its part “in facilitating his far-right politics”. His colleagues from the School of Law stated that they vehemently oppose the AfD and its policies and wished to dissociate themselves completely from the people who support and advocate the Party.
The members of AfD are well-known for making provocative remarks concerning the actions taken by the Nazis. They targeted climate change activist, Greta Thunberg as part of their attempts to deny climate change.
Employees at the University of London went on to say that they were making their views public since they “recognise the importance of not being complicit in the normalisation of reactionary, right-wing populism.” A declaration by the students’ union at the university asked why Beck chose to work at a university “who hold and support so many of the identities he wants to see diminished”.
The Acting General Secretary of the University and College Union, Paul Cottrell stated that:
“The AfD is an extreme right-wing, racist, anti-immigration party that has no place on UK campuses. We are shocked that a member of academic staff from SOAS could be involved with a party like this which stands for policies utterly incompatible with the values of diversity, tolerance and internationalism at the very heart of SOAS as an institution.”
Dr Beck informed The Independent that his reason for supporting the AfD was because “there is no other Eurosceptic conservative party in Germany”.
He also went on to say that the AfD are “not a Nazi nor a fascist party.” Dr Beck stated that he was an advocate for freedom of speech and would defend anyone’s rights to it and any claims of him being a white supremacist, Islamophobe or fascist were outrageous.
Subsequently, Dr Beck was elected as 1 of 10 German MEPs from the AfD Party, but he was not dismissed from his position at the university.
A representative of SOAS stated:
“We find the policies of the AfD on a range of matters to be abhorrent. They conflict with the fundamental values we hold as an institution. We recognise the anxiety caused to staff and students as a result of this situation.”
However, they added that:
“As an academic institution, we are committed to the rights of academic freedom of speech within the law, despite the painful choices to which it gives rise. We encourage members of our community to tackle these issues through robust debate.”
This story regarding Dr Beck’s private affairs is an excellent illustration of employers not being able to fire an employee for acts committed in private due to protected characteristics (i.e. political beliefs) of the Equality Act 2010.
Both Dr Beck and the University of London have undoubtedly suffered reputational damage. Beck has suffered reputational damage in the eyes of his fellow lecturers and students because he is a member of AfD; and the university has suffered reputational damage for employing him in the first instance and subsequently for not dismissing him after the revelation about his political activities came to light.
That said, the University of London was in something of a difficult position because Dr Beck would probably have launched a legal challenge in terms of the Equality Act 2010. He would doubtless have protested that his political activities were a protected characteristic (philosophical beliefs). It would then have been up to an Employment Tribunal and, potentially, the higher courts to determine this issue. There was also the possibility that the university would have been accused of suppressing the right to freedom of speech.
A link to the story in The Independent can be found below:
As previously discussed, reputational damage is a big concern for organisations. Employers have also had valid fears about risks to their’ reputation as a result of work place misconduct that becomes widely publicised in e.g. the media. These fears have been increased with the surge in social media use today.
Employees are now far more likely to be found behaving in questionable ways or making offensive remarks online, which can attract a large audience or readership very quickly. Social media platforms, such as Facebook, Instagram, Twitter and WhatsApp (where responses can be instant) can represent something of a nightmare for an employer. It is important to remember that social media, if abused, can have a significant impact on relationships within the work place and could result in serious legal consequences.
Social media misuse by employees has become a frequent and complicated issue for employers to address. Although social media can be an extremely valuable resource for organisations, it can also pose a serious challenge to both employees and employers. Inappropriate social media misuse e.g. racial or sexual harassment could lead to employers being held vicariously liable for their workers’ misbehaviour.
When an employee misuses social media, firms need to know how to respond and handle it. Therefore, it is vital for companies to devise a clearly defined social media policy by which employees abide. It is important that employers notify workers about the nature of these policies and the potential ramifications of any violations.
So, when employers want to act against employees who make offensive remarks, such disciplinary action should come as no surprise. Such remarks can cause embarrassment, at best. At worst can hurt a firm’s reputation and lose them customers. Even if the remarks were posted years ago, they can still come back to haunt the employer and the employee.
The difficulty of dealing with social media use by employees for organisations can be seen in the case below.
Creighton v Together Housing Association Ltd ET/2400978/2016 Mr Creighton was dismissed for tweets which were made three years earlier. He had made negative remarks about colleagues and his boss on Twitter. The claim that Mr Creighton posted offensive remarks on Twitter resulted in his dismissal for gross misconduct even though he had worked with the organisation for 30 years.
Held: The Tribunal further clarified that the disciplinary policy of THA included “defaming the company or undermining its image by the use of social media” as an example of gross misconduct. The appeal panel rejected Mr Creighton’s appeal to the decision, arguing that he was aware or should have been fairly aware of the implications of his conduct as the disciplinary policy of the company.
There are more and more cases of social media defamation – which emphasises a need for extremely specific social media rules and regulations in the terms and conditions of an employer.
Employees are going to be very foolish if they assume it’s a credible argument to claim that social media comments happened outside working hours, were believed to be posted on an account that is supposed to be “secret” or posted years earlier, which Mr Creighton found out.
The importance of having a social media policy
As previously mentioned, establishing a solid social media policy is vital for an organisation. From the workers’ viewpoint, it is important that they are aware of the existence of such a policy, understand its substance and also recognise any potential consequences for failing to follow its rules.
Employers are also urged to review and update social media policies on a routine basis. New platforms and technology continue to be developed at a quick pace today and to maintain the knowledge of social media is simply made part of induction and training methods.
It is extremely necessary for an employer to make clear to its employees the kind of conduct which may justify dismissal. Usually, this may be done via a section in the employee handbook which addresses the consequences of misconduct in the workplace.
Additionally, an acceptable induction technique for new personnel may centre on the kinds of behaviour which the corporation would not condone. Regular refresher training for current and long-term personnel may be beneficial and, in large organisations, this would be a necessary function of the Human Resources Department.
Panera Bread
There was a huge news outbreak when a Panera Bread employee leaked a video of a man laughing hysterically that’s racked up almost 1 million likes (now that’s a lot), as a plastic packet of frozen macaroni and cheese is dropped into a boiler, burst open and then poured into a bowl geared up to serve to customers. The lady who posted the clip offers a thumbs-up in the hat that marks her as a worker of Panera Bread.
The clip introduced a wave of complaints in October 2019 from dissatisfied clients of a chain recognized for “fast casual” eating commonly perceived as a step in quality above other quickly made or fast food meals. Commenters stated they expected more than warmed-from-frozen dishes, or — as one critic put it — “glorified hospital food.”
Unfortunately for the employee she later posted on Twitter stating, ‘lol I lost my job for this’. The employer was clearly very unhappy at the negative media attention and being ‘outed’ for lying to its customers and providing them with low quality food.
Conclusion
In conclusion, employees should be incredibly careful of what they are doing or how they areusing social media during or outwith their working hours as their employers will have the right to investigate any implications arising from employees’ misconduct.
One of most likely repercussions arising from employees’ misconduct in privacy cases, is that the business and those involved will experience reputational damage. Whether this reputational damage is a result of offensive language in a tweet, forms of bullying in a Whatsapp groupchat or even now a TikTok exposing behind the scene practices of a company – there can be significant consequences. The preponderance of evidence shows that how employees conduct themselves in what they may consider private, has a major effect on workplace relations.
References
Adesokan v Sainsburys Supermarket Ltd [2017] EWCA Civ 22
Bărbulescu v Romania 5 September 2017 (Application no. 61496/08)
startups, (2019) ‘Employee privacy and employee confidentiality: Know the laws’ Available at: https://startups.co.uk/employee-privacy/ [Accessed: 28 April 2020]
By Shannon Clark, Robbie Graham, Salwa Ilahi, Jenna Murray and Ethan Robinson (Editor: SJ Crossan)
Introduction
The above picture shows people in Britain standing on their street participating in the ‘clap for carers’ which now takes place every Thursday.
In the past, seeing all of your neighbours standing clapping and banging pots and pans together every Thursday at 8pm would seem a bit odd. However, this is now the norm and we will go onto explain how this has become the case.
On the 31 December 2019, the Wuhan Municipal Health Commission announced reported a number of cases of pneumonia in the Wuhan, Hubei Provence (WHO, 2020) and so began a Worldwide pandemic. The cause of these cases of pneumonia were eventually found to be caused by a virus called the Coronavirus. The virus has been found to cause an incredibly infectious respiratory disease, also known as COVID-19, which has sent many businesses and economies spiralling into free fall as they come to terms with the impact of the disease.
It has changed the way that almost everyone in society has to go about their daily lives as they have now been advised not to leave their home unless absolutely necessary and if they do need to go out, stay 2 metres apart from everyone at all times. For many it has also brought about change to their working lives as a vast amount of workers are not either having their contracts terminated, working from home or been placed on a fairly new concept in UK Employment Law known as Furlough.
In this article, we will go onto explain the main changes that have taken place as a result of the coronavirus pandemic and how they have impacted on workers, businesses and employment law in the United Kingdom.
Coronavirus update
At the time of writing this article (April 2020), the number of confirmed cases of the coronavirus in the UK was approximately 162,000. While this number is not substantial in terms of the total number of workers in the UK, it has led to around 80% of the workforce in the UK (and across the world) having their jobs impacted by the pandemic. This is due to the fact that many countries, including the UK, have ordered non-essential shops and businesses, for example clothes retailers, pubs and restaurants, to close and stay closed until it is safe for them to re-open. As a result of this, there have been over 1.2 million new unemployment benefit claims in the UK since the beginning of the outbreak (Hope, 2020) and it is expected that around 8 million people will apply to the governments furlough schemefor funding (Osborne & Kellowe, 2020), which we will discuss later in this article.
Sick Pay
In the Employment Rights Act 1996, Section 230 (1) defines an employee as an individual who has a contract of service. As a result of this status, such individuals are entitled to employment protection and benefits such as the right to receive either contractual sick pay or statutory sick pay (Crossan, 2017). In relation to COVID 19, those entitled to contractual sick pay must follow their workplace’s usual protocol when reporting that they must self-isolate. Employees can self-certify for the first 7 days of absence however, they are required to get a note from NHS 111 or a doctor if they must isolate for more than 7 days (ACAS, 2020).
Typically, those described as workers or individuals on a contract for services are not entitled to the same level of protection. This leaves them unable to claim any form of sick pay. Due to the recent outbreak of COVID-19, the inability to claim sick pay could be argued to be one of the main causes of stress and financial worry for individuals due to the uncertainty and lack of information on how this virus is spread. As noted by ACAS (2020), this worry could now be said to be somewhat alleviated, as of 13 March 2020, the UK Government decided that both employees and workers must receive statutory sick pay from their first day of self-isolation if:
They have coronavirus
They have symptoms of coronavirus
Someone they live with has coronavirus symptoms
They have been informed to by NHS 111 or a doctor
Despite this, it should be noted that this change in policy will not be extended to the self-employed. Furthermore, for employees, contractual sick pay is often much more generous than statutory sick pay and it would therefore be beneficial for employees (if able) to claim this through their place of work instead of opting for SSP. In order to be eligible to receive statutory sick pay, employees must be earning at least £120 per week (BBC, 2020) and, as highlighted by the Office for National Statistics, the annual survey of hours and earnings has shown that around 1,766,000 individuals in the UK make less than £120 per week (ONS, 2020). This means that many workers will simply fail to qualify for SSP – such as those on zero hours contracts as they are unable to accrue enough hours; as well as over half of workers aged 65 and above. This leaves such individuals vulnerable to stress and money worries and may even encourage those suffering from viral symptoms and who are considered ‘key workers’ to attend work in order to make ends meet. This is particularly alarming as those aged 65 and above are more susceptible to infection from covid-19 (Hunt, 2020).
Prior to lockdown in March 2020, Gregg’s, the UK high street bakery retailer, unlike many other big businesses, announced that they would pay all staff contractual sick pay if they were required to self-isolate due to suffering Coronavirus symptoms (BBC, 2020). This approach is in huge contrast to the likes of JD Wetherspoon, which prior to quarantine, announced that all of its 43,000 staff would be subject to regular statutory sick pay rules if they had isolate in order to prevent the spread of Covid-19. This meant that not all Wetherspoons’ staff would be entitled to SSP and those that do qualify would only be paid after four or more days absence in a row which would have meant being entitled to receive less than £100 per week (Webber, 2020).
Furloughing
With the toll of the coronavirus pandemic and the lockdown that has ensued, it has left many individuals unable to work due to the variety of ways that they can be affected by the virus. It is essential that these workers are still able to receive some sort of wage to support them during these difficult times. This is where the furlough scheme can assist those who cannot do their jobs. It is a “granted leave of absence” to enable the employment of these individuals to continue despite the current circumstances (Hodgkin, 2020). Lawrie (2020) explains the way in which the furlough scheme works; meaning that an employer can claim 80% of an employee’s wages from the government up to a limit of £2,500 and the company is not under any obligation to fulfil the other 20% of the wage.
This provides a sense of security for these employees as they are reassured that their job is safe and that they can still receive some financial protection if they have been affected by the virus personally or if their employer is unable to provide them with work during these uncertain times.
However, the furlough scheme, which came into effect on 1 March 2020, is only a temporary measure with an initial duration of 4 months. An extension of this can be granted (only if necessary) and the minimum furlough period that an employee is to be placed on is 3 weeks in a row – although they may be entitled to be furloughed more than once (HM Revenue & Customs, 2020).
It is important to note that, when an employee is on furlough, they are not to perform work for their employer and after furlough has ended, the employer is not obliged to retain on the employee, raising the possibility of redundancy (Lawrie, 2020).
The opportunity to benefit from furlough applies to individuals regardless of whether they hold full time/permanent status or not, and this extends to apprentices, workers, individuals on zero hours contracts, agency workers and temporary employees (ACAS, 2020). The way in which a furlough agreement is made is by the employer approaching the the employee or worker for permission – unless there is a lay-off clause included in the contract. The affected employee/worker would then be required to sign a written agreement to this effect. As the West Cheshire & North Wales Chamber of Commerce (2020) explains that failure to secure an employee’s consent to furlough could lead to claims of a contractual breach or constructive unfair dismissal, which is not an ideal position for either party to be in.
“Two-thirds of British businesses have already used the government’s scheme since it was announced last month” reported Bernal (2020) and a prominent example is British Airways, one of the UK’s biggest airlines. The airline worked with the Unite union to furlough 80% of its workforce, which is approximately 36,000 of its employees (Harding, 2020). This major decision applies to a range of their staff, including engineers and cabin crew, and was expected due to the inevitable effect that coronavirus has had on British Airways (Webber, 2020). Instead of being made redundant, the furlough scheme is a means of offering protection for an individual’s job and part of their income. Many workers and employees will surely be glad of the scheme’s existence.
Pay Rise
The UK National Minimum wage and National Living wage was set to increase by 6.2% for 2.8 million people on 1 April 2020 (with this being announced in December 2019). This would be give full time workers an annual pay rise as the National Living wage will rise from £8.20 to £8.72. This would apply to those aged 25 and above. The increase of the minimum wage for 21-24 year olds has risen from £7.70 to £8.20; 18-20 year olds will see the rate rise from £6.15 to £6.45; and for 16-17 year olds there was to be a rise from £4.35 to £4.55. (UK Government, 2020).
However there where discussions that this wage increase may be postponed but this was rejected even though this new living wage will not effect furlough workers as they won’t see the impacts of this on their wages for quite some time. The businesses that haven’t furloughed their workers are being begged to continue in paying the ‘real living wage’ as it is essential to these workers risking their health and safety to come to work. Many companies have begged to have the rise delayed and postponed due to the fact that the coronavirus pandemic which is currently taking place has caused huge financial impact across the UK effecting the economy with smaller businesses suffering the most. It is understandable as to why the government and businesses would wish to delay the increase as this non-essential businesses during the coronavirus have closed e.g. restraints and pubs, thus these business have no money coming in to pay their staff the new minimum wage no less the one that we currently had. This new wage could mean that funds and savings in the business could run dry as they pay their staff furlough wages which could result in these businesses to suffer even with permanent closures of businesses across the UK. But to the millions of key workers whom are working all over Britain giving essential help during the Covid-19 pandemic are still on their living wages and this rise is essential to keep them afloat. (Sheldon,2020).
Amey plc refuses to offer higher sick pay to workers amid the Covid-19 pandemic
The previous living wage was just not enough for people to live on which is the reason that this increase was so important, as it helped make sure that the working class have a good standard of living, but most would say that it is still not good enough and many will not see the benefits until the pandemic is over as furloughed staff are one due 80% of their salary meaning that in the current situation their is even more stress, this can be said as not only are key workers not getting the wage that they deserve for their hard work that is keeping the UK afloat, but many working class citizens are left nothing near the end of the month and this also goes for essential workers, such as NHS staff such as Hakeem Lawal who is a father of three started working as a cleaner for the NHS and has been working there since 2018 with no sick pay provided by his employer , he says “it was very hard because at the end of the month – more or less a week before the end of each month – you are waiting with nothing in your account at all” as well as the fact that the chemicals that he used to clean the facilities where very dangerous for his lungs, meaning that not only was he struggling financially to support his kids but he is aware that the job he is doing is harming himself and he has no safety net if these chemicals where to make him sick and have him off work (BBC News, 2020). It is also going to be more of a struggle for those working at home as it has meant that energy bills are rising as electricity is on far more often as people aren’t turning it off when going to work with a prediction from ‘Energyhelpline’ reckoning that household bills are likely going to rise by 30%.(Jones,2020). The living wage rise would have been greatly appreciated for families that will be struggling financially through the pandemic and self isolation nut if there are only getting 80% of their salary it could result in those who are already struggling to be put in an even worse situation with debt.
On 24 March 2020, during a trade union negotiation surrounding the topic of sick pay for refuse collectors (waste collectors), the head of Human resources at Amey plc (a services company that focuses on improving and maintaining the roads, railways and airports amongst other things) said that the company believed the Coronavirus is “less severe” than normal influenza and because of this they would not be providing their workers with unique sickness benefits (additional sick pay) if they choose to stay at home during the pandemic (Booth, 2020). The GMB trade union, who were arguing in favour of better sick pay for refuse collectors at the negotiation were shocked by Ameys comments regarding the coronavirus, they argued that it is unfair for these key workers to only be offered the minimum amount of sick pay (£94 per week).
Following the GMB’s defence of the waste collectors, Simon Schumann-Davies (the head of human resources for Amey) claimed that Coronavirus was significantly less severe than other diseases and stated that there would be no change in the sick pay that they offer to their workers: “we are applying exactly the same rules regarding sickness benefit as we would for any other condition in that we will be paying contractual entitlement.” (Davies, 2020)
In response to this Keith Williams from the GMB argued that Amey are forcing their workers to put their health at risk as they would financially suffer by choosing not to come to work and only receive statutory sick pay.
Following the barrage of criticism that Amey received for their actions towards their workers, a company spokesperson stated (on 31 March) that workers who decide to self-isolate will receive full pay. Shortly prior to this announcement, Amey had issued a statement clarifying that the opinions of Simon Schumann-Davies did not reflect its position on the pandemic. (Sumner, 2020). With the increasing severity of this situation it was inevitable that any decision by the company not to allow sick pay for workers would provoke an intense, public backlash and this, undoubtedly, forced them to change their policy.
Conclusion
The Covid-19 pandemic has had a massive impact on almost everyone – and will continue to do so for the foreseeable future. It has changed the way that workers in the UK go about their daily home and work life and has brought about massive amounts of uncertainty. However, some of that uncertainty may have been removed due to the factors explained in this article, such as changes to SSP and the UK government’s furloughing scheme as employees and workers can be, somewhat, helped financially during these unprecedented and difficult times.
HM Revenue & Customs, 2020. Check if you can claim for your employees’ wages through the Coronavirus Job Retention Scheme. [Online] Available at: https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme [Accessed 28 April 2020].
Lawrie, E., 2020. Coronavirus: What does it mean if I’ve been furloughed by work?. [Online] Available at: https://www.bbc.com/news/explainers-52135342 [Accessed 27 April 2020].
By Stephanie Crainey, Ross Codona and Briege Elder (Editor: SJ Crossan)
Introduction
Sport is often viewed as a special entity whereby the law and legal systems do not directly interfere with its rules (Laver, 2020). Therefore, the rules under which a particular sport is played are not an area where the legal system will usually interfere.
The government in the United Kingdom has adopted this non-interventionist approach to sport, meaning there is no general law for sport. Instead regulation is left to the National Governing Bodies (NBGs) (Bennett, 2019).
However, with the turn of a new decade and the economic crash caused by the COVID-19 pandemic, some major issues in sports law have arisen, including whether an athlete is an employee or worker, the terms and conditions governing athletes and their use of social media platforms. Can these issues possibly be addressed, never mind resolved?
Is an Athlete an employee or a worker?
Above British cyclist, Jess Varnish (right) who is currently involved in legal action against British Cycling and UK Sport over her employment status
The question of an individual’s employment status is always up for debate no matter which profession we are discussing. The focus of this question, in recent times, is mainly focused around the gig economy. This type of work might involve individuals providing a service e.g taxi driver (Uber) or food delivery (Nicholson, 2019).
However, due to the nature of the work (short-term and very insecure), gig economy workers are not usually granted the same rights and protection as employees under UK employment law.
Attempts have now been made to address this situation: in 2017, Matthew Taylor, Chief Executive of the Royal Society of Arts and former Downing Street adviser, was commissioned by the UK Government to conduct an independent review on modern working practices; and in the US State of California, Assembly Bill 5 was passed into law in 2020 giving gig economy workers employment status. The Taylor Review looked at the growth of the UK gig economy and considered its implications for worker rights and responsibilities (Nicholson, 2019). Despite the widespread attention that the Californian Assembly Bill 5 and the Taylor report both received, there is still not sufficient clarity surrounding the status of workers who provide services in the gig economy.
In 2018 the issue of employment status and sport received a lot of media attention when former Great Britain cyclist, Jessica Varnish argued that she ‘should be considered an employee of British Cycling or of the funding agency, UK Sport.’(McGowan, 2019). The world silver medallist set out to prove she was, in fact, an employee in order to enable her to sue British Cycling and UK Sport for both wrongful dismissal and sexual discrimination, after she was dropped by team GB before the 2016 Olympics. Shane Sutton, former British Cycling director, was found to have used sexist language toward Varnish, although he denied these claims. Sutton later left his post with British Cycling.
Unfortunately, for Varnish, she lost her claim for wrongful dismissal at the Employment Tribunal in early 2019. Put simply, the Tribunal held that she was not an employee of either British Cycling or UK Sport and, therefore, she was not entitled to bring such a claim. Varnish has now appealed to the Employment Appeal Tribunal.
The appeal hearing could either overturn the decision of the Tribunal or order a new hearing to take place. Varnish stated:
“Iwant to give others the opportunity to hold to account employees of governing bodies, who they interact with on a daily basis, and have significant control over their careers and opportunities.”
She added:
“I continue to think it’s unfair that athletes still have no structured means to do this, and I hope this appeal will be the first step towards affecting change, and bring about a fairer, more modern and high performance system in the UK where athlete welfare is not just a sound bite, but something that we all believe in.” (McGowan, 2019).
In response to her statement, a British Cycling spokesmen added:
“We very much regret that Jess has been advised to pursue the route of an employment tribunal when other avenues were available to her….. We will continue to represent what we believe are the best interests of every rider currently supported through the high performance system, and all those in our sport who hope to one day compete at an Olympics or Paralympics.” (McGowan, 2019).
Employment rights: employees vs workers
Determining the question of Jessica’s Varnish’s employment status (employee or worker) is vital to this case as it will decide what employee rights she is entitled to (if any).
True, most workers are protected against unlawful discrimination in terms of the Equality Act 2010, and harassment and victimisation in relation to ‘whistle-blowing’ actions (reporting of wrong doing in the work place). However, you must be an employee in order to be protected from unfair and wrongful dismissal (CIPD, 2020)
Section 230 of the Employment Rights act 1996 defines an employee as “an individual who has entered into or works under a contract of employment.”
Over many years, UK courts and Tribunals have developed specific tests that must be fulfilled in order to assess an individual’s employment status (Crossan, 2017). These include:
Mutuality of obligation
The control test
The economic reality test
The organisation or integration test
The definition of a worker (which is a wider concept than an employee) can also be found in different pieces of legislation e.g. the National Minimum Wage Act 1998 and the Working Times Regulations 1998. The Chartered Institute of Personnel Development (CIPD) defines a worker as:
‘an individual who undertakes to do or perform personally any work or service for another party, whether under a contract of employment or any other contract.’(CIPD, 2020).
Although the CIPD definition is based on the Employment Rights Act 1996, the definition of worker varies from statute to statute.
As in other parts of the UK employment market, the employment status of athletes will often be a contested concept, meaning that the various tests listed above will have to be deployed by the courts and Tribunals to resolve the issue. It is notable that a large part of Jessica Varnish’s original Tribunal action focused on the control test i.e. she had to follow the training regime laid down by British Cycling in order to be eligible for continued funding from UK Sport.
Athletes in the world of social media
Social media is a great way for an athlete to connect with their existing fans. As well as this, it also allows you, the individual fan to connect with others whom you have never met, such as other fans of your team/sport, or supporters from your hometown etc. Athletes, amateur and elite, can have their use of social media restricted and regulated through provisions contained in Standard Player Contracts.
This is completely understandable from the point of a view of an employer or sponsor because an athlete’s online activities/posts may bring about critical, reputational harm and financial loss to partnered clubs and associations. Athletes’ contracts may contain certain restrictions on what they can and can’t post on social media. However, these restrictions may or will vary from specific social media targeted polices (“blackout” before during and after games), to more general restrictions which cover wider aspects of an athlete’s behaviour (Social Media In Sport: Top Tips, 2020).
Clubs and organisation are urged routinely to remind athletes with regard to what is appropriate and inappropriate online behaviour. This can incorporate a reminder to athletes that, while they are not participating in the activity, they still have commitments to the employer and sponsors and are expected to stick to an agreed code of conduct – just as though they were working. Athletes may have both a personal and professional social media account, but the restrictions and requirements that they are expected to adhere do not change.
Social media allows athletes to secure sponsorship. Platforms such as Facebook, Instagram and Twitter are just some of the ways to reach thousands of people who you would not normally be able to target.
In the UK, athletes and brands must take care when posting promotions and sponsored posts. This is regulated by the Advertising Standards Authority and the Committee of Advertising Practice Codes. The CAP code requires that all advertising is easily identifiable.
In 2012, professionalfootballers, Wayne Rooney and Jack Wilshire broke this requirement after they posted a tweet under Nikes campaign slogan ‘#makeitcount’. The two athletes failed to make it clear that the tweets were in fact from Nike’s marketing communications. For an athlete or any individual using social media for promotional purposes, they must add ‘#spon’ or ‘#ad’ to a post, something which both Rooney and Wilshire failed to do. This helps to make the advertising easily identifiable and prevents anyone from failing to meet the requirements (Social Media In Sport: Top Tips, 2020).
A delicate balancing act
Guidelines for athletes to follow for social media may vary from each profession. It’s no surprise that what Athletes post can be seen potentially by millions of people around the world. There is a need to ensure that, before posting any content, they are happy with what they are about to upload. Are they happy for the post to be linked back to them and be easily accessible forever? Would they be happy if the post was to end up appearing somewhere which was not intended e.g TV, gossip magazines/blogs? It can be a very delicate balancing act.
It is important to respect yourself, your sport and the club/organisation of which you are part. Anyone, especially a public figure (such as athletes), must ask themselves, how might this be portrayed or received by my followers? Will this reflect negatively upon their “role model” status? Could my post effect sponsorship for them or the sport?
These are just a few guidelines that Scottish athletes have to consider Athletes must also ensure that the amount of time they are spending on social media is not affecting their performance. All of these factors are essential when considering what content to upload and share with your followers on social media. Ultimately it’s all about having respect for your audience and yourself.
Maternal/paternal rights for athletes
Many employees receive family-friends benefits which include parental leave or childcare. Diageo, for example, is a UK beverage company which recently introduced female employees to be offered a minimum of 26 weeks fully paid maternity leave under a new global policy (Rennie and Beach, 2020). The vast majority of employees, by contrast will receive just the statutory minimum maternity pay.
Maternity rights
Sporting bodies are generally falling behind in creating Family-Friendly policies which is inconsistent with modern attitudes towards athletes’ rights. Many British athletes e.g Jessica Ennis-Hill and Jo Pavey are parents, yet have still made a successful return to sport.
UK Sport Guidance states thatif a female athlete becomes pregnant they can continue to receive World Class Programme funding and support during pregnancy and after child birth. She (the mother) and her performance director are expected to agree a new appropriate training and competition programme that would map the athlete’s return.
Three months after childbirth, the sports performance director is encouraged to undertake a review with the athlete in order to assess them on her commitment to the agreed plan. By the end of the three months, if the athlete has made the decision that they in fact do not want to return to the sport, then they would be given a notice period depending on the length of time that they had been involved on the World Class Programme before they were then removed from funding (Falkingham, 2020).
Paternity rights
In 2019, the England Cricket team had its biannual tussle with rivals Australia. Batsman, Joe Denly, a new recruit to the England ranks, left the field at the end of the first 5 days of the final Test Match at the Oval in London. The athlete drove 60 miles to be with his wife for the birth of their daughter. The following day, Denly was back on the field facing the Australian bowlers. Joe then went on to create the highest score to date, only narrowly missing out on a Test century (Jackson and Brenner, 2018 and Anderson et al, 2019).
Denly’s story is a happier example than the experience of former Manchester United’s French star, Anthony Martial. The star was fined £180,000 and shamed publicly in 2018 for missing a week of training after flying to be his wife in order to support her through a difficult labour and welcome their son into the world. Two of the days in which he was away were dedicated to travel alone (Jackson and Brenner, 2018 and Anderson et al, 2019).
Sporting success is valued more than family. The famous one liner,“winners never quit and quitters never win” is one which athletes find so important. So much so that, in the 1990s, the President of Oakland athletics, Billy Bean missed his partner’s funeral in order to continue playing a game (Anderson et al, 2019).
These types of incidents sit completely at odds with decent treatment of employees. Organisations are increasing the length of time woman get full maternity pay. A study by the University of Birmingham found that only 9,200 new parents (just over 1% of individuals entitled) shared parental leave in 2017-18. However that rose to 10,700 in the financial year 2018-19. Companies now seem more willing to offer other options to just maternity leave, in the hope of recruiting and retaining high calibre employees (Birkett and Forbes, 2018).
How has Coronavirus has affected sport?
Law in sport is no different to ordinary law in that sporting organisations and sponsors have to respect and obey the rules. This has been particularly highlighted during the current COVID-19 pandemic crisis.
Coronavirus has caused major sports leagues and events around the world to cease current activities or cancel upcoming events due to strict lockdown rules (The Independent, 2020). COVID-19 has forced governing bodies to try to intervene and protect institutions within their area, for example, FIFA (the governing body of football) has set up a £121 million relief fund for its 211 national associations (Keegan, 2020)
The lockdown laws which come as part of the pandemic haven’t just affected international bodies but also had an affect domestically. In Football, national leagues such as the Premier League in England have come to a halt until further notice ,whilst some other leagues around Europe declared their seasons over or null and void as they have in Ligue 1 (France) and the Eredivisie (The Netherlands).
The halting of sporting activities isn’t the only implication of this crisis: it has had a major impact on the employment of all those involved in sport directly or indirectly.
In the UK, furloughing has been introduced to try and help businesses to pay their employees. The furlough scheme means that the UK Government pays 80% of employees’ wages up to a ceiling of £2500 a month (HMRC, 2020).
This causes issues, however, for many professional, sporting institutions, as many athletes are earning far above £2500 a month. Therefore such individuals are ineligible to be furloughed placing sporting institutions under serious financial strain should players refuse to take wage cuts. FC Sion, a football team in Switzerland, were forced to terminate the contracts of 9 footballers after they refused to take pay cuts (BBC, 2020b)
In other instances, the furlough scheme has been supported and it has had the desired effect. The McLaren Formula 1 team main drivers Carlos Sainz and Lando Norris have taken pay cuts in order to support their fellow employees on the team (Galloway, 2020)
Added to this, the UK Health Protection Regulations 2020 have prevented sports such as Formula 1, Football, Boxing or Rugby being performed because of current social distancing restrictions. Whilst this has had a detrimental effect on the sporting world as a whole, it has provided a boost in less traditional fields. E-sports have increased in prominence since the cancellation/postponement of traditional sporting events. Formula 1, in particular, has capitalised on the potential E-sports platform. Formula 1 has been hosting ‘virtual’ Grand Prixs where a mixture of current drivers, figures in the sport, other sportsmen or celebrities race against each other by using the official Formula 1 video game (Dixon, 2020).
The reaction has been positive as a reported 3.2 million viewers witnessed the inaugural virtual Grand Prix, the stature of many of those involved is testament to its success as prominent figures in world sport such as Thibaut Courtois, Ciro Immobile and Sir Chris Hoy have all competed in the virtual Grand Prix (Dixon, 2020)
The cancellation of major sporting matches and events is causing massive implications financially and logistically. In Rugby there had been suggestions that games in France could be played behind closed doors should the league be started again. Club owners highlighted objections to this, in particular, the owner of ‘Stade Toulouse’ would potentially lose millions of Euros before the end of the season should games be played behind closed doors (Ultimate Rugby, 2020).
The UK Health Protection Regulations 2020 have caused major financial implications to sporting institutions across the country. Leeds United, a football club competing in the English Championship, is set to miss out on lucrative financial benefits of promotion to the Premier League. Being promoted to the Premier League guarantees Clubs a large sum of prize money worth millions. However, the following season they spend in the premier league promises them close to £100 million even if they finish last place (Winters, 2020). This level of money could help Leeds United recover from its financial deficit. At the time of writing, all games have been postponed for the foreseeable future meaning that there is a lack of certainty as to what happens next.
Logistically on a global scale COVID-19 has caused the disruption of massive global events that take years of organisation to have now been postponed. Although some of the postponements are only estimated to be a year, the cost can still be detrimental. Reports claim that a one year delay of the Olympics could result in £2.3 billion in further costs (Mail online, 2020).
Conclusion
COVID-19 has emphasised key aspects of employment law, even at an elite level in sport there is more protection being employee rather than being a worker or self-employed. Many members of clubs and teams in different sports have agreed pay cuts. However, they are still being paid. This situation isn’t the same for professional golf: players are registered as self-employed. Footballers are still being paid or have at least agreed a deferral of wages or a temporary pay cut, but nevertheless, their employment contract still protects them during this time of major uncertainty. Golfing stars such as Rory McIlroy and Tommy Fleetwood do not have this protection unlike football stars such as Harry Kane and Raheem Sterling.
It is clear that UK employment law needs to do more in determining an athlete’s employment status. The UK Government must also work harder to protect athletes and their rights. Due to the catastrophic pandemic, not only will sports organisations and clubs suffer but also their athletes. The only certainty in these most uncertain times is that Covid-19 is likely to generate a plethora of future legal disputes which will shape our legal landscape, especially in the world of sport, for some time to come.
BBC, 2020a. Coronavirus: How The Virus Has Impacted Sporting Events Around The World. [online] Available at: <https://www.bbc.co.uk/sport/51605235> [Accessed 22 April 2020].
BBC, 2020b. FC Sion sack nine players for reportedly not taking pay cut because of coronavirus crisis. Available at: https://www.bbc.co.uk/sport/football/51980881 [Accessed 22 April 2020].
HM Revenue & Customs, 2020. Check if you can claim for your employees’ wages through the Coronavirus Job Retention Scheme. [Online] Available at: https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme [Accessed 22 April 2020].
By Rachael Holton, Ryan Kelly, Amy McWilliams and Jamie Watt (Editor: SJ Crossan)
As a society, we understand the concept of employment. You offer to work for an individual or an organisation in return for payment. Nonetheless, the status of employment, the kind of work and what kind of contract you have can take many forms. What are these different types of employment status? Well, as per Section 230(1) of the Employments Rights Act 1996, an ‘employee’ refers to a person who has gone into or works under a ‘contract of employment’. However, this is not the only type of employment status that exists, and this is a common misconception of today’s generation. In the workforce, some individuals are classed as ‘workers’ or ‘self-employed’. What is the difference?
Differences in Employment Status
For the most part, an employee works under what is referred to as a ‘contract of employment or service’. The agreement will list the basic rights of a worker, for example, whether it is temporary or permanent work, annual leave and working hours. An example is displayed below:
You could be forgiven for believing that this was the most widely recognised kind of ‘work’ or employment. According to figures from the Office of National Statistics, however, just 13% of the workforce in London are classed as ‘employees’, with over 27% working in the gig economy (Rodgers, 2018).
An employee essentially works under a contractual agreement. However, in any case, the rights vary to that of an employee, who is typically qualified for additional, and dissimilar sorts of rights. A worker must finish the work themselves except if they are offered consent to subcontract the work. A business will frequently utilise such and individual to help for a set timeframe, giving them enough work to fill their days over the length of their contract (Rodgers, 2018).
Conversely, a self- employed individual is classed as a subcontractor, who maintains their own business and, in this manner, assumes full liability for everything that accompanies that status. They work for themselves, implying that a great part of the time employment law, unfortunately, does not cover them (Rodgers, 2018).
The issues arising from an individual’s employment status can be seen in the case of Knight v Fairway & Kenwood Car Service Ltd UKEAT/0075/12/LA. The claimant was a cab driver working with the respondent organisation under written terms. If he paid the present lease and gave appropriate notices, he could work, or not, as he wished with no antagonistic outcomes under the agreement. He left the respondent organisation in the wake of being approached to do taxi jobs once they had been taken paying little mind to the conduct of the specific customer. He claimed wrongful dismissal, i.e. a claim for a breach of the employment contract.
Held: The Employment Tribunal ultimately decided that he was not working under a ‘contract of employment’ thus his case could not be heard by them. The claimant submitted an appeal. Nevertheless, the Employment Appeal Tribunal dismissed the claim on the grounds that the composed terms did not require any base or sensible measure of work from the claimant; he was allowed to work or not work. Nor in the conditions was there scope for inducing such a commitment from the way that the claimant, in truth, worked 7 days per week.
EmploymentRights vs Employment Status
The distinction between these types of employment status’ is so important in the workplace, and it is crucial that employers and individuals are aware of such differences. All employees are workers in a sense; however, employees get certain employment rights in their agreement that a worker does not. The difference between a few of the rights available to individuals, based on their employment status can be seen below:
In the event that an individual is uncertain about their rights in relation to employment law, the Advisory, Conciliation and Arbitration Service (ACAS) has set out the rights these individuals are entitled to, depending on their employment status. A link to these rights can be found below:
Now, while there are laws that cover both employees and workers e.g. under Section 10 of the Employment Relations Act 1999, both employees and workers have the right to be accompanied by another individual in disciplinary or grievance hearings, there can be clear differences in how employees and workers are treated. A significant topic that has come under scrutiny in the past, and especially now in these uncertain times, is that of Sickness and Absence in the workforce, in particular, the right to receive or claim Statutory Sick Pay (SSP).
Statutory Sick Pay
Positioned above is a copy of the Statutory Sick Pay document.
As previously mentioned, some UK employees could be entitled to receive a form of sick pay from their employers, otherwise known as contractual sick pay. However, the amount of money paid depends on the length of time the staff member has worked for at the commencement of the absence. Those who have worked at the organisation for less than a year, for example, may receive full pay for five weeks, and half pay for a further five weeks. For those, who had more than five years’ service, they would receive 26 weeks full salary and a further 26 weeks half pay (Crossan, 2020).
On the flip side, for employees who are not entitled to receive contractual sick pay, Statutory Sick Pay can be claimed. In order to be eligible, claimants must be earning a minimum of £120 before tax per week. To test whether s/he qualifies for SSP employees submit a written document to their employer, if requested, before a set deadline (Crossan, 2020).
If any of our readers wish to obtain access to this form, we have provided a link below:
On the other side of the world, however, in the US organisations are not obligated or required by federal law to offer paid sick leave. However, the Family and Medical Leave Act, established in 1993, enables eligible staff members of insured employers to take unpaid, job-protected leave for specified family and medical reasons (U.S. Department of Labour, 2020). Even though, organisations are not legally obliged to pay staff members for sick leave under federal law, some states require companies by law to offer sick leave. An example of this is the state of Massachusetts which permits five days of sick leave for employees (Foothold America, 2020).
Furthermore, in Sweden, members of staff who cannot work due to sickness, can normally obtain compensation for the full period that they are off work. At the start of the time off, a deduction to 20% of the compensation of the sick pay that you can receive during a normal working week (European Commission, 2020). In order to be eligible to receive sick pay from the employer, staff members must have worked for a minimum period of one month minimum or have worked continuously for fourteen days (European Commission, 2020). Workers who are off work due to sickness for more than a week must provide a medical certificate. In addition, for employees who are sick for more than two weeks, the Swedish Social Insurance Agency can provide a sickness cash benefit. In order to secure this entitlement, staff members must be absent for a minimum of a quarter of their normal working hours as a result of sickness. Whether employees receive this compensation is determined by their ability to work and not the severity of the sickness, as well as whether they are medically insured and providing a medical certificate that describes the sickness or injury (European Commission, 2020).
Coronavirus
In recent times, the Coronavirus (COVID-19) outbreak has had a detrimental effect on businesses around the world. It started in China and has infected people from one hundred and eighy five different countries. The ONS (Office for National Statistics) reported that more than a quarter of the 5,316 businesses surveyed have temporarily shut down or paused trading for the period 23rd of March to 5th April due to the COVID-19 outbreak (ONS, 2020). The virus has affected the operations of many organisations: many have seen a decrease in turnover and some organisations have even been forced to cease trading indefinitely.
Boeing “Body Blow”
Multinational corporation, Boeing, is one of the most prominent companies to be hit by the effects of the virus. The company told BBC News that they may have to cut up to 15,000 jobs, after the travel industry has been torn apart by the pandemic, while 10% of jobs will be cut over the organisation, Boeing conceded that the losses would be more extreme in certain divisions, for example, its commercial airlines (BBC News, 2020).
Most importantly, the workforces of many organisations have faced challenges due to the virus. More than half of respondents to The Opinions and Lifestyle (OPN) Survey said Coronavirus has affected their wellbeing (ONS, 2020). Full results of the survey responses can be obtained from the following link:
But the big question is, does the right to sick pay (that traditionally has only ever been available to employees), still apply amidst a global pandemic?
Well, ACAS has advised that employees and workers should receive any Statutory Sick Pay (SSP) due to them as of 13th March 2020 from their first day of isolation if the following applies:
They have Coronavirus
They have Coronavirus symptoms (fever, new continuous cough)
Someone in their household is showing Coronavirus symptoms
They have been told to self-isolate by a doctor (NHS 111)
They then must follow the UK and Scottish government guidelines for self-isolation. The individual must self-isolate for seven days and anyone else who lives in their household must self-isolate for fourteen days. Some employers may offer more than SSP, known as ‘contractual’ sick pay, as previously mentioned.
If an employer requires proof of sickness, then the workplace’s normal sickness reporting procedures should be followed. As normal, an employee can self-certify for the first seven days of sickness, without a sickness note from a doctor. If self-isolating for a period that exceeds seven days, then an online self-isolation note can be obtained from the NHS website (ACAS, 2020). The following link will take readers to the NHS self-isolation page, whereby they can request a self-isolation note:
Another factor that has come under question frequently amidst the pandemic, is whether probationary periods are still in place. Probation is commonly a multi month process, during which there is consistent evaluation and feedback of the employee by the employer. Formal probation audit meetings and Probation Reports, are finished at customary intervals, typically following two, five and eight months (Forestry and Land Scotland, 2020).
The point of the procedure is to give the two parties sufficient opportunity to evaluate whether they are appropriate for one another. By finishing effective reviews and highlighting areas of improvements, you are likewise forestalling circumstances where you need to dismiss staff during their probation period (Willis, 2019). Employees who are currently serving their probationary period have not acquired enough service to be able to bring a claim for unfair dismissal (which is 103 weeks’ for employees who started on or after 6 April 2012), but there is potential to bring claims for workplace discrimination and whistle blowing. The following story, involving Eileen Jolly, is an example of how costly discrimination dismissal cases can be for employers.
Age Discrimination
Eileen Jolly, a medical secretary (89) has been named as one of the oldest employees to successfully win an age discrimination claim in the UK. The elderly woman was awarded £200,000 by the NHS after being dismissed over claims she was not capable of operating a computer. She was said to have “catastrophic failure in performance” after becoming accustomed to “old secretarial ways”. Not willing to sit back and take the discrimination, she took her NHS trust to an employment tribunal. The Judge present, Andrew Gumbiti-Zimuto wrote: “There was evidence of the claimant’s training having been inadequate, incomplete and ‘on the job’ training was ad hoc and not directed” (Smith, 2019).
New Guidelines
Thankfully, however, new Coronavirus guidelines have stated that many individuals currently on probationary periods will have their probationary period paused or extended (Forestry and Land Scotland, 2020).
Furlough
What is also important to discuss, is that due to the outbreak, businesses have been forced to furlough many of their workers as this will allow them to take advantage of the governments Coronavirus Job Retention Scheme (CJRS). To furlough an employee means to temporarily suspend or layoff an employee, this is usually done without pay. This term is most used in US employment law and is not recognised within the UK. Therefore, the term left many workers confused when Rishi Sunak, Chancellor of the Exchequer, used the word ‘furlough’ in his Coronavirus Job Retention Scheme (Bernal, 2020).
The ONS reported that for those businesses who were still trading in the UK, 21% of staff had been furloughed (under the terms of the CJRS) from the period of 23rd of March to the 5th of April (ONS, 2020). The CJRS allows employers to claim 80% of their employee’s wages from the government, up to a maximum of £2,500 a month – this includes those working on zero hours contracts and flexible workers. This is a temporary scheme in place for four months starting from the 1st of March 2020 – depending on the circumstances, the scheme could be extended. This allows companies to furlough employees rather than dismiss them. It is important to note that if a worker is self-isolating, they cannot be furloughed and should receive SSP until they return to work.
The minimum time period for furloughing workers is three weeks and they are not permitted to rotate which of their employees are furloughed; this can be difficult if someone who is still working is required to self-isolate/falls ill. It is important to note that if a worker is self-isolating, they cannot be furloughed and should be receiving statutory sick pay or enhanced sick pay (if in their contract) until they return to work. Due to this, CJRS cannot be claimed by employers for these employees to ‘make up’ any statutory sick pay/ enhanced sick pay they are receiving.
Employees who are ‘shielding’ (those who have been contacted by the NHS and are required to self-isolate due to extremely high risk of getting very ill due to COVID-19) for twelve weeks are permitted to be placed on furlough. Employers who insist that vulnerable employees continue to attend work at this time, where the work cannot be done at home, could be considered to be breaching their duty of care. The following case displays the effects of a breach of the employer’s duty of care in the workplace (ONS, 2020).
In Walker v Northumberland County Council [1995] ALL ER 737, the pursuer worked in an especially unpleasant social work post for the Council. He had just endured a breakdown because of exhaustion and an absence of help from his managers. His manager gave confirmations that protections would be set up upon his arrival from sick leave so as to decrease the dangers of stress. The pursuer came back to work yet endured a second breakdown in light of the fact that the Council had neglected to take sensible consideration to forestall him experiencing mental wounds. The follower brought a case for harms against the Council.
Held: by the House of Lords that the pursuer ought to be treated as an essential victim who was qualified for damages because of the Council’s carelessness. The Council had returned him to his past (unpleasant) post in the wake of knowing about the primary breakdown and it was, thus, reasonably foreseeable that if the claimant was exposed once again to these upsetting conditions he would almost certainly, this would make him endure mental injury.
Amazon Workers Fight Back
The severity of the current circumstances is evident in the following news story.
Several Amazon distribution centre specialists over the US will not appear for work this week by phoning in sick, denoting the biggest nationwide protest so far against the organisation’s response to Coronavirus. Beginning on Tuesday 21 April 2020, more than 300 Amazon employees have vowed to remain at home. This is as a result of rising disappointment amongst employees as the organisation has neglected to give adequate PPE to staff, failed to execute ordinary temperature checks it guaranteed at distribution centres and would not permit employees to take sick leave (The Guardian, 2020).
Employees of the multinational tech company are demanding sick pay and the right to not be punished for utilising their right to freedom of speech. While there has been no formal action or resolution as yet, Amazon did issue the following statement (The Guardian, 2020):
“Nothing is more important than the safety of our teams. Our employees are heroes fighting for their communities and helping people get critical items they need in this crisis.”
However, if we do not see change soon, could this be the start of the global e-commerce’s deterioration? We sure hope not.
Readers can access the full article, published by The Guardian below:
Disney is also an organisation that has been hit significantly by Coronavirus and as a result, a Disney representative presented the following statement: “With no clear indication of when we can restart our businesses, we’re forced to make the difficult decision to take the next step and furlough employees whose jobs aren’t necessary at this time.” (Godfrey, K., 2020).
We encourage our readers to watch the video presented to gain a deeper understanding of just much of an impact this pandemic is having on employment worldwide:
Conclusion
In conclusion, Statutory Sick Pay (SSP), is a well-known facility available potentially to most employees throughout the UK. It has been in place, in its current form, since 1982, aiding those unable to work due to sickness and other health related issues, it is a hugely worthwhile employment right. Now, more than ever, we are (unfortunately) having to analyse such an employment right as a highly debated topic because of the Coronavirus pandemic. However, whilst the pandemic continues to spread rapidly, the UK is also offering protection to those workers who do not normally qualify for Sick Pay, in terms of University Credit, Contributory Employment and Support Allowance. Luckily for these individuals, the UK Government has stepped in and has extended SSP during the Coronavirus lockdown. Overall, it is safe to say that SSP has been of great help in relation to sick workers with income support and although its usefulness may not always be apparent, it is times like this we truly start to appreciate the value of such employment rights.
U.S. Department of Labor, 2020. ‘Family and Medical Leave Act’ [online]. Available at: https://www.dol.gov/agencies/whd/fmla [Accessed: 28th April 2020].
The issue of employability and job security amidst these challenging times, with reference to specific organisations.
Alistair Lee, Niamh Mackenzie, Fraser Morrison and Abby Roberts (edited by SJ Crossan)
The Coronavirus does not pick and choose who to target – everyone is at risk. Therefore, on March 23rd, the UK went into full scale lockdown, three days after the Government put in place restrictions on select businesses. This lockdown has had a detrimental effect on almost every business, and thus has affected their employees in turn. A few months ago, before the COVID-19 outbreak and the World Health Organisation declaring a worldwide pandemic, most people would never have heard of the word ‘furlough’. Now, it is on everyone’s lips. It is critical for organisations to deal with their staff in the correct manner when it comes to their job. If not, their livelihood is at risk and their family’s livelihoods are at risk, particularly if they cannot take advantage of the Government’s furlough scheme.
Some companies have understood this and dealt with their employees correctly and efficiently, while some most certainly have not. People do not forget. If an organisation comes out of this pandemic looking worse for wear, due to their negative actions, it certainly will not recover quickly – if ever.
Virgin is one of many companies to handle this situation extremely poorly. Richard Branson has never been particularly liked by the people of the UK, plus he owns an airline – one of the most disliked types of organisations due to their price hiking. Therefore, this pandemic could have been used to gain some trust back – instead, it has done quite the opposite. On March 26th, Virgin Atlantic Airways said they would reduce their daily flights by 80% amid the drastic decline in travel owing to the coronavirus pandemic. Like many organisations, this steep decrease in business led Virgin to look at where they could cut costs to try and save the business. They decided to do this through their staff. Employees at the UK airline have been forced to take eight weeks of unpaid leave over the next three months. Amid backlash from this decision, Virgin released this statement:
“An increasing number of countries are now closing their borders – most significantly, the US, where a travel embargo from the UK comes into force on Tuesday (17th March). Though this was expected, it has accelerated the sharp and continual drop in demand for flights across Virgin Atlantic’s network, meaning immediate and decisive action is needed… Today, Virgin Atlantic will put drastic measures in place to ensure cash is preserved, costs are controlled, and the future of the airline is safeguarded.” (The Street, 2020)
While this seems a fair and logical response on the surface, if you delve a bit deeper, you begin to understand why it is so horrific that Virgin are not paying their staff while they’re on leave due to COVID-19.
Virgin Atlantic boasts revenues of £2.8 billion, with the Virgin Group as a whole commanding revenues of over £19 billion. (Virgin Annual Report, 2018). In addition to this, Richard Branson has a net worth of $4.4 billion (Forbes, 2020). In 1971, Branson was convicted and briefly jailed for tax evasion. This experience has not changed his attitude however, since in 2013, he described himself as a ‘tax exile’ having saved millions in tax by ending his mainland British residency and living in the British Virgin Islands. (The Daily Telegraph, 2013). And it is not just him personally that is doing this – his entire business empire is owned by a complicated series of offshore trusts and companies. If he were to liquidate all the company’s assets, he would pay extremely little in tax.
When you consider all the above, does Virgin’s statement seem fair and logical now? A multi-billion-pound organisation owned by a multi-billionaire who lives on his own private island that can fetch up to $87,500 per day, asking for a £500 million bailout from the Government (funded by taxpayer money) just so they can pay their staff doesn’t seem particularly fair and logical.
Denmark, Poland and France have all refused to bailout tax haven-controlled companies. The UK should do the same – refuse to pay the £500 million and tell Richard Branson to dig deep into his particularly selective pockets.
Virgin are not alone, however, when it comes to receiving criticism for their approach to dealing with staff during these strange times. British pub chain, JD Wetherspoon have recently received a lot of backlash from their questionable approach to the COVID-19 pandemic. The chain insisted that it could not afford to pay its staff during the crisis until the government had reimbursed the company for their wages (Davies, 2020). Tim Martin, founder of the company, sent a video out to his employees explaining the situation and the approach that the company had chosen to take after the government had called for all pubs to be shut to reduce the spread of COVID-19 (Ng, 2020). The employees were told that they would only be paid for the hours that they had worked up until 22nd March 2020 and that no further pay would be given until the furlough scheme had been put in place. The government had announced that they would pay 80% of staff wages up to £2,500 (Munbodh, 2020). However, this left many employees worried, due to the fact this could take until the end of April (Davies, 2020). Martin told his 40,000 employees that if they needed a wage, then they should consider taking on work with Tesco (Munbodh, 2020), causing considerable anger from employees who felt that they were unappreciated and being “abandoned” by their employer. Not only were Martin’s employees left questioning when they would next receive a wage, but many of the company’s workers were even stripped of bonuses that they had already managed to achieve (Ng, 2020).
The company received a lot of backlash online for this approach to the situation, with many members of the public vowing to “boycott” Wetherspoons pubs in the future once they have reopened for business (Brown, 2020). Piers Morgan, co-presenter of Good Morning Britain, posted on Twitter “Don’t go to Wetherspoons,” in response to Martin’s attitude towards the Covid-19 Crisis (Ingate, 2020). One member of the public even responded to the company by leaving a message for Tim Martin by graffitiing one of the Chain’s many pubs, The Postal Order. The words “pay your staff” and “pay up” were sprayed onto the windows of the pub in red and white paint (Ng, 2020). Photos of the vandalised pub, which were shared online, received a lot of support from individuals who condemned Tim Martin for suggesting to his employees that they should take on employment with Tesco following the closure of his pubs (Ng, 2020). A strike movement was also formed by a group of Wetherspoons employees called ‘Spoon Strike’ and the Bakers, Food and Allied Workers Union (BFAWU) and demanded that the company give them full pay. In a statement released by Spoon Strike, they wrote “Whilst other companies such as Costa have promised their staff eight weeks fully paid, Wetherspoons have left over 40,000 people without their next pay date. With no means of paying for rent, bills or food, and no warning” (Ng, 2020).
Following the large wave of backlash that Tim Martin and his company received, Mr Martin later announced that the first payment for his workers under the government job retention scheme would be made on 3rd April ‘subject to Government approval, and weekly thereafter’ (Brown, 2020). However, many members of the public are still shaming Martin, who is supposedly worth over £40million (Munbodh, 2020) for his initial response to the crisis and continue to vow to “boycott” Wetherspoons pubs once they have reopened for business.
The impact on the employment market in the UK is not all negative, however.
One example of initiatives that have been employed to help protect workers is a free online training scheme for furloughed individuals. The Department of Education run initiative offers online training courses for workers who are furloughed in order to “ improve their knowledge, build their confidence and support their mental health so they have skills they need to succeed after the coronavirus outbreak” (BBC News, 2020). The hope is that it helps to mitigate some of the impact the crisis will have on a post lockdown employment market, by facilitating the growth of workers during the pandemic.
Regarding individual firms that are looking after their staff during the crisis, the Co-operative Group are a fantastic example. To show their appreciation for their key workers keeping shops stocked and the nation fed, they have rewarded over 7,500 staff with an extra week worth of pay in addition to doubling their staff discount. The hope is to help to ease the financial burden they face during lockdown and to reward staff for going “above and beyond” during lockdown (Derby Telegraph, 2020). This shows that not all employers are looking to shirk away from the issues surrounding their workers’ rights – some are bolstering them and trying to offer a more supportive and robust working relationship during these trying times.
Ford’s UK division have also been taking steps to protect their workers by considering the duty of care that they have towards them. Despite March normally being one of the busiest months of the year for car sales, Ford’s UK boss Andy Barratt prevented any of his dealerships from ordering new cars. Barratt stated that cash liquidity was important in these financially pressing times and in order to prevent mass furlough he insisted that the cash reserves were better use keeping staff employed. The firm have opted to pay staff until at least June, where they will review the situation and take necessary steps from there. This will protect the rights of employees and their financial security, with Ford stating that; “All dealers need to focus on, is keeping their people safe, keeping their business viable and the revenue they need in return to keep those things going.” (Chaplin, 2020). They have not only done this for financial reasons – the company recognised that there is a great level of stress put on workers in the months of April and March to shift all of this new stock but they decided it was more important to protect the mental and physical health of employees and as a result, they have instructed that staff should work from home where possible. This shows a great awareness of the duty of care that Ford have for their staff, taking action to support their financial wellbeing, in addition to physical and mental health of their staff in these uncertain times.
After the initiative of companies such as The Co-op and Ford, the UK staple that is Boots have followed suit.
Boots is one of the largest retailers in the UK, both in terms of revenue and number of shops. Boots have around 2,500 shops and employ over 63,000 people across the United Kingdom – these range from local pharmacies to large health and beauty shops.
Due to the recent COVID-19 breakout, many shops and retailers have been forced to shut. Like other pharmacy chains, Boots have been designated as an essential retailer which is why they have remained open during this worldwide pandemic. However, staying open opens a whole new can of worms – particularly when it comes to keeping employees and customers as safe as possible, all the time.
To make sure that Boots employees are fully protected, they have put many factors in place to protect and support their staff, to take care of their customers by providing a consistently high service, and to also protect their business. By taking these measures, it ensures a safe, secure employment through difficult trading conditions. Some of the measures that have been taken by Boots to comply with their duty of care for their staff and customers include:
Flexible hours to cope with increased demand
Closing stores for one hour each day to clean and sanitise surfaces
Plastic visors provided for staff
Masks/aprons/gloves provided
Workers always asked to remain two metres apart throughout the day
Maximum of 3 customers allowed in the shop at the one time to maintain social distancing
Perspex screens put up at counters.
Boots are in some ways in a different trading position than many other companies across the globe. Their role is to provide healthcare to customers and to make sure patients receive vital medical products. Their employees benefit from this, but in turn they also have to now work in difficult and unsafe conditions with the COVID-19 situation, so Boots have to make sure they provide as much personal protection to safeguard their employees and customers, and to let them continue to trade effectively.
Boots employees do not have the risk of being put on furlough or being made redundant. They provide an important service and their employees are classed as Front-Line Workers, who have the permission under Government guidelines, to carry on working at their normal place of work. Because of these conditions, Boots employees feel that they continue to have job security, and do not have the worry of losing their income as many others do, through these difficult circumstances.
Instead of closing stores and pharmacies, and putting employees in insecure positions, they have created jobs out of this situation. Due to the high demand of prescriptions being delivered to patients aged 60 and above, they have had to recruit more than 400 new drivers for the pharmacy delivery and collection service, where prescriptions are collected from doctors’ surgeries. This has been done to cope with unprecedented demand but overall it is a major benefit as many people may have been made redundant and are grateful of having the opportunity to take on a different role, whilst also helping to provide support for people in need. They have also created jobs in their warehouses and distribution centres due to a significant increase in its online business.
Conclusion
In the coming weeks, the lockdown measures may or may not be lifted. However, even if they are, there will be several restrictive measures put in place and thousands of businesses will still not be allowed to open. This means that organisations will need to continue to support their staff as much as possible, and if they are not currently supporting staff to the best of their abilities, they will need to start doing so. It is as simple as that. For what is a relatively short period of time to take a financial hit by paying staff in full, while not bringing in any revenue, it is a drop in the ocean when you consider the potential long term impact of millions of customers boycotting the business because of the way they treated their staff during this pandemic.
CopyrightAlistair Lee, Niamh Mackenzie, Fraser Morrison and Abby Roberts, 28 April 2020
I seem to be on something of a theme these last few weeks where my focus in the previous blog (and in this one) has been on agreements which are not enforceable in court.
In my last blog (Rock, paper, scissors …), I examined the historical, legal position in Scotland in relation to gambling agreements. These types of arrangements were – until the introduction of the Gambling Act 2005 – unenforceable in the Scottish courts on the basis that they fell into a category of agreement which was below the dignity of judicial scrutiny (sponsiones ludicrae).
It was with some interest then that the ongoing Covid-19 crisis should flag up another aspect of the law of contract which addresses situations where certain agreements are deemed to be unenforceable.
I am speaking of agreements where an individual volunteers to provide services, for example, to a charitable or community organisation. This type of arrangement is technically referred to as an agreement binding in honour only.
The well known UK retailer, Boots, has recently been criticised for its use of volunteers during the Covid-19 outbreak and accusations of exploitation have been flying around. The retailer placed advertisements for individuals to come forward to be trained as testers. This was all part of a UK Government initiative to encourage people to volunteer to help out during the crisis.
At first glance, there seems to be nothing wrong with what Boots is doing, but the retailer has been accused of abusing or exploiting the enthusiasm of volunteers to help out. The advertisements stated that individuals must commit to work at least 32 hours per week. This situation begins to sound less like volunteering and more about control. The Trades Union Congress and some employment lawyers have warned that Boots may be opening itself to legal action in the future. You may label an individual as a volunteer, but if you begin to treat him or her as a worker or even an employee, you may find that the relationship is not one of volunteer and recipient. In Scotland, this would an example of the doctrine of personal bar (or estoppel as English colleagues would say) in operation.
A link to the story about Boots as reported in The Independent can be found below:
When we think of volunteers, we do not often think of them as individuals who provide services to commercial companies, but rather charitable and community based organisations. Furthermore, UK National Minimum Wage legislation exempts charities from its provisions – not commercial organisations like Boots.
Genuine volunteers
Such situations arise where the parties (the volunteer and the recipient of services) clearly intend not to be bound by the agreement that they have entered. There is no intention in the minds of the parties to create a legal relationship. The arrangement will last as long as the parties find it convenient. Other side can withdraw from this arrangement at any time without penalty. The party who withdraws from the arrangement may find that their honour or integrity is called into question, but in the absence of legal sanctions, this is a situation that they can probably live with.
There are downsides to being a volunteer: they are not employees within the meaning of Section 230 of the Employment Rights Act 1996 and this means that if such individuals suffer less favourable treatment in the course of their involvement with the recipient, they may have limited legal redress.
Section 83 of the Equality Act 2010 makes it very clear that if a person wishes to pursue an employment related discrimination claim, s/he must be in ‘employment under a contract of employment, a contract of apprenticeship or a contract personally to do work’. The wording of Section 83 would, therefore, exclude genuine volunteers because such individuals are providing services to recipients under an agreement binding in honour only.
In X v Mid Sussex Citizens’ Advice Bureau (CAB) and Others [2012] UKSC 59, the UK Supreme Court affirmed the earlier decision of the English Court of Appeal in which the claimant (‘X’) had signed a ‘volunteer agreement’ to work at the Citizens’ Advice Bureau which was ‘binding in honour only’. This meant that ‘X’ did not have a contract of employment or a contract in which to perform services personally. This meant that ‘X’ was outwith the disability discrimination laws (now contained in the Equality Act 2010) and it was incompetent of her to have brought the claim. The Supreme Court, in a lengthy exposition of the effect of EU Directives, also considered whether there was an obligation placed upon EU member states to outlaw discrimination in relation to volunteers. The Supreme Court concluded that there was no such duty placed upon member states by the EU.
A link to the Supreme Court’s judgement can be found below:
In August 2019, a story which was widely reported in the British media, caught my attention: the abrupt dismissal of Sonia Khan as a special adviser (or ‘Spad’) with the UK Government. Ms Khan had worked for two previous Chancellors of the Exchequer (the UK Finance Minister). She was summoned to a meeting with Dominic Cummings, the UK Prime Minister’s top political adviser and sacked. Ms Khan was ordered to surrender her security passes and escorted from Downing Street by an armed Police Officer. All in all, it was a very undignified and humiliating exit for Ms Khan. Needless to say, Mr Cummings did not follow any disciplinary procedure when he made the decision to give Ms Khan her marching orders.
This decision was far from wise and Ms Khan has an extremely strong case for unfair dismissal in terms of the Employment Rights Act 1996 (she has the necessary continuous service of more than 2 years required to bring such a claim and no warnings were issued to her).
This affair led to me think about humiliating dismissals by employers and whether the affected employee could claim damages for the manner of their sacking? In other words, can the sacked employee claim that their feelings were injured as a result of the way in which they s/he was dismissed?
Links to articles about Sonia Khan’s dismissal can be found below:
When discussing discrimination claims in terms of the Equality Act 2010 (primarily), I often stress the issue of injury to feelings as an element that will be included in the calculation of a final award by an Employment Tribunal.
In several Blogs (please see the end of this article for the relevant links), I have discussed the importance of the Vento Guidelines or Scale.
In Vento v Chief Constable of West Yorkshire Police (No 2) [2003] EWCA Civ 1871 compensation limits of £15–25,000 were laid down in situations where injury to feelings was involved in cases involving sex and race discrimination. In Sturdy v Leeds Teaching Hospitals NHS Trust ET Case 1803960/2007 14th and 15th April 2009 the Employment Tribunal decided that, since Vento had been decided in 2003, a higher rate of inflation had to be considered hence the increased award made to a victim of age discrimination.
These awards for injury or hurt feelings have now become known as the Vento Guidelines and in Da’Bell v National Society for the Prevention of Cruelty to Children(2009)EAT/0227/09, the Employment Appeal Tribunal (sitting for England and Wales) brought them into line with inflation.
Since Da’Bell, the Vento guidelines are usually updated annually in line with inflation.
The current bands or scales (from 6 April 2020) are:
♦ £900 to £9,000 for the lower band
♦ £9,000 to £27,000 for the middle band
♦ £27,000 to £45,000 for the top band
What’s the situation with unfair dismissal claims?
In Dunnachie v Kingston upon Hull City Council [2004] EWCA Civ 84, the English Court of Appeal set the cat amongst the pigeons when it stated that a compensatory award for unfair dismissal could also include injury to an employee’s feelings. The Court of Appeal was clearly relying upon an obiter remark made by Lord Hoffman during the decision of the House of Lords in Johnson v Unisys [2001] UKHL 13.
As far back as the decision by the short lived National Industrial Relations Court (1971-1974) in Norton Tool Co Ltd v Tewson [1972]EW Misc 1, the position was quite clear: the compensatory award in unfair dismissal claims did not include injury to an employee’s feelings in connection with the manner of the dismissal suffered by him or her.
Lord Hoffman’s obiter statement and the decision by the Court of Appeal in Dunnachie appeared to place this principle in considerable jeopardy and opened the door to what could have been a potentially significant, new development in unfair dismissal case law. Clearly, it would be advantageous for the House of Lords to provide a definitive ruling on this matter.
Subsequently, Kingston upon Hull City Council appealed against the judgement of the Court of Appeal to the House of Lords.
On Thursday 15th July 2004, the House of Lords delivered its judgement in this case ([2004] UKHL 36). Their Lordships (Lord Hoffman amongst them – ironically) killed off any idea that an award for unfair dismissal could include injury to an employee’s feelings for the manner of the dismissal.
Compensation, therefore, in unfair dismissal claims will be concerned with the employee’s economic losses only.
Conclusion
The decision of the House of Lords in Dunnachie v Kingston upon Hull City Council [2004] UKHL 36 was and remains a clear restatement of the orthodox position as set down by Sir John Donaldson all those years ago in Norton Tool Co Ltd.
As Lord Steyn, one of the Law Lords, remarked in Dunnachie:
“On the other hand, the correctness of the Norton Tool decision was not an issue in Johnson v Unisys. It is true that there were references by both sides in the oral argument to Norton Tool. But the House heard no adversarial argument exploring the correctness or otherwise of that decision. In these circumstances a definitive overruling of a decision which had stood for nearly 30 years would have been a little surprising.”
In fact, Lord Hoffman’s observation (and it was nothing more than observation we are now assured) could in no way be interpreted as an attempt to overturn a long-standing and well-established legal principle. Lord Hoffman, in Johnson v Unisys [2001], was not “inviting the House to overrule a longstanding decision on a point of statutory construction that was not in issue and not explored in opposing arguments.” The statement by Lord Hoffman was clearly obiter dictum i.e. things said by the way which do not form part of the actual court’s judgement and that was the end of the matter.
Seán Crossan's Scots Law 