May Update

The Supreme Court restores the balance in indirect discrimination cases, the Court of Appeal confirms an appeal procedure can rectify a flawed disciplinary procedure, and the EAT identifies factors for deciding whether ‘sleeping-in’ on-call night workers are due the national minimum wage

Case law this month underlines the continuing need for employers to have fair and effective policies and procedures, and demonstrates how these can help defend unfair dismissal and discrimination claims. However, challenges involving Tupe and the minimum wage rules show these regulations may need tweaking to make them fully fit for purpose

Hidden barriers

The Supreme Court (SC) has overturned a Court of Appeal (CA) ruling in two cases focusing on group disadvantage in indirect discrimination claims. 

The claimants in Essop v Home Office were civil servants required to pass a ‘core skills assessment’ in order to be considered for promotion, which they argued indirectly discriminated against black and minority ethnic and older workers. The CA had decided it was necessary not only to show the provision, criterion or practice (PCP) – in this case, the test – discriminated against both the protected characteristic group and individual claimants within it, but also the reason why it was discriminatory. But the SC ruled the employees only had to show the PCP caused the disadvantage and that the claimants were personally affected by it. 

The case was heard alongside another dealing with a similar issue, Naeem v Secretary of State for Justice. Here the SC found the disparity in pay between Christian and Muslim prison chaplains, who became salaried employees at different points in time and so were at different points in an incremental pay scale, was justified by the legitimate aim of rewarding skills built up through experience.

The key question in both cases was whether the claimants had to show a reason why they, and those sharing their protected characteristic, had suffered the disadvantage or was it sufficient to show statistically the disadvantage existed.

Transfer information

The Employment Appeal Tribunal (EAT) has found that the Tupe rules on transferors informing transferees of their obligations towards transferred staff does not extend to specifying whether a bonus is contractual or not.

The case, Born London v Spire, involved a change-over in contractor carrying out print finishing work on the catalogues of auctioneers Sotheby’s. When providing employee liability information under Tupe Regulation 11, Spire had said that a Christmas bonus was non-contractual. In fact, the status of the bonus was unclear, but all 32 staff had always received it. Born was unable to recover the cost from Spire, because the EAT said the transferor had complied with Regulation 11.

Employers taking on Tupe transferred staff should not rely solely on the Tupe information rules but should ask their own questions and seek supporting evidence.

Disciplinary appeals procedures

The Court of Appeal has confirmed that an organisation’s appeals process can correct a faulty disciplinary procedure and make the resulting dismissal fair.

The case Adeshina v St George's Hospital involved the principal pharmacist in a prison dismissed for gross misconduct for failing to cooperate with an organisational change from nurse-led to pharmacist-led pharmacy provision. There were flaws in the disciplinary procedure used to establish her misconduct, but the appeals procedure was effectively a full re-hearing of the case. The Court of Appeal held that the employer had shown it had a reasonable belief that the employee was being deliberately obstructive and that this was the reason for dismissing her.

‘Sleeping-in’ night workers

The case Focus Care Agency v Roberts ooked at the long-running issue of whether night workers on call but allowed to sleep on the employer’s premises are engaged in work that counts towards the national minimum wage. The EAT decided a ‘sleep-in’ care worker, who had to assist a ‘waking’ night time care worker, was entitled to be paid according to his contract, rather than accept a £25 allowance specified for this type of work at his interview.

The EAT provided guidance on the kind of factors that would determine whether such work qualified for the minimum wage, but the message is still very much that it will depend on the facts of each case. 

Other case law

Taxi app Uber has been given permission to take a case challenging the self-employed status of its drivers to the Employment Appeal Tribunal. Last October an employment tribunal decided that the company’s drivers were ‘workers’ and entitled to the minimum wage and paid holidays. The case, Aslam v Uber, is due to be heard in September. 

The GMB union representing the Uber drivers has announced that it is backing another employment rights tribunal claim from drivers working for courier company Hermes.

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