Are ‘Casual’ Staff Entitled to Workers’ Rights? Tribunal Gives Guidance

Are so called ‘casual’ staff entitled to the panoply of rights afforded to ‘workers’ by the Employment Rights Act 1996? A tribunal grappled with that vital issue in a case concerning a pipe fitter who found a temporary job through a recruitment agency.

Construction siteThe man began working on a building site after answering an advertisement placed by the agency. After he complained to an Employment Tribunal (ET) that unlawful deductions had been made from his wages, an issue arose as to whether he was a worker for the agency, within the meaning of the Act.

The ET found that he did not meet the statutory definition on the basis that there was no contract between him and the agency and that the agency had not intended to enter into legal relations with him. His working arrangements had been nothing if not casual. The ET noted that he had been paid directly by the site contractor and rejected arguments that the agency’s arrangement with him was a sham.

In upholding the man’s challenge to that decision, the Employment Appeal Tribunal (EAT) found that the ET had made an error of law. On the basis of correspondence between him and the agency, there clearly was some kind of agreement between them. The agency had advertised the position and had sent the man a text confirming the location where he would work, the name of the site contractor and details as to who he could contact for payment purposes.

The context was a commercial one of an individual seeking work for which he would expect to be remunerated. The man would also have envisaged that, if he was not paid for work done, he would have some legal recourse. In those circumstances, the ET was wrong to find that there was no intention to create legal relations. The case was remitted to a differently constituted ET for consideration of whether the man was a worker for the agency, for the site contractor, or for both.

Standing up for Your Rights is One Thing, Intransigence is Another

You are entitled to stand up for your rights in your workplace but, without specialist legal advice, it is only too easy to overstep the mark into intransigence. The point could hardly have been more clearly made than by the case of a senior manager who simply refused to work unless his employer yielded to his point of view.

The man, who was paid £90,000 a year as senior vice president of a management services company, had to take almost a year off work due to a back condition. On his return to work, his employer took the view that he needed to get up to speed after such a long absence and placed him on restricted duties.

He, however, insisted that he be permitted to resume his role in full and refused to work at all unless his employer agreed to this. The employer took the view that his stance was unacceptable and, following a disciplinary process, he was summarily dismissed for gross misconduct.

After he launched proceedings, an Employment Tribunal (ET) upheld his disability discrimination claim on the limited basis that he had effectively been demoted on his return to work and that the employer had wrongly failed to give him any clear indication as to when he could resume his full duties.

The ET also found that his dismissal was procedurally unfair, in that the disciplinary hearing had been conducted with unnecessary haste and the appeal procedure was perfunctory. However, it went on to rule that his refusal to return to work on the limited basis proposed by the employer constituted gross misconduct that would have justified his dismissal had a fair procedure been adopted. The ET’s ruling was subsequently confirmed by the Employment Appeal Tribunal.

In dismissing his challenge to that decision, the Court of Appeal found that his justified belief that he should have been allowed to return to his old role immediately was not sufficient reason for him to refuse to do any work at all. He was fit to work and was receiving full pay at the time, but had refused to work unless his employer yielded to his position on an issue that was genuinely in dispute. Even though he was right on that issue, the ET was entitled to find that his refusal was unacceptable.

Railway Signalman Triumphs in Rest Breaks Dispute

Railway Line 2Since the advent of the Working Time Regulations 1998 (WTR), those who work shifts of six hours or more have been legally entitled to take a continuous 20-minute rest break. There are, however, a number of exceptions to the rule and one of them – relating to railway workers – came under analysis in a guideline case.

The case concerned a railway signalman who worked eight-hour shifts at various signal boxes. Train traffic was sporadic and, although he worked alone, he was able to take short breaks that together amounted to well over 20 minutes during each shift. He was not, however, guaranteed continuous 20-minute breaks and his employer required him to remain on call at all times and to take breaks as they naturally occurred in the course of his working day.

It was accepted that Regulation 12 of the WTR – which enshrines the right to uninterrupted rest breaks of not less than 20 minutes – did not apply to him. That was because Regulation 21(f) excludes railway workers whose activities are linked to transport timetables and to ensuring the continuity and regularity of train traffic. By Regulation 24, however, his employer was required, wherever possible, to allow him to take equivalent periods of compensatory rest. In rejecting his complaint, an Employment Tribunal found that the employer had met that obligation.

In upholding his challenge to that ruling, the Employment Appeal Tribunal noted that, so far as possible, compensatory rest must comprise a break from work of at least 20 minutes. It would be possible to afford the man such continuous breaks by laying on appropriate personnel to relieve him and, in those circumstances, the employer had breached its obligations under Regulation 24. The case was remitted to the ET to consider the question of remedies.

Winning Compensation Is One Thing, Enforcing Payment Is Another!

Winning compensation is one thing, but enforcing its payment is another. That point could hardly have been more powerfully made than by a case in which a domestic servant who was awarded almost £270,000 by an Employment Tribunal (ET) ended up without a penny.

In what was believed to be the first successful ‘caste discrimination’ case brought before an ET, the Indian woman successfully complained that the couple for whom she worked had paid her far below the National Minimum Wage. The ET also found that she had been unfairly dismissed and discriminated against on grounds of her religion and race. She was awarded total compensation of £266,536.

A firm of solicitors commendably agreed to act free of charge in pursuing the couple for payment of the award. However, they ultimately only succeeded in recovering £35,702, roughly 13 per cent of the amount due. The Legal Aid Agency (LAA) had funded the woman’s case and elected to exercise its statutory charge over the sum recovered. The end result was that the woman received nothing.

In ruling on the woman’s judicial review challenge to the LAA’s decision, the High Court acknowledged that her position was extremely unfortunate. The findings of the ET were wholly consistent with her claim that she was a victim of trafficking and had been held in servitude by the couple. In dismissing her case, however, the Court rejected arguments that the application of the statutory charge breached her human rights or European rules designed to combat human trafficking.

Unfair Dismissal and Ulterior Motives – Tribunal Fell Into Substitution Trap

Determining the true reason for an employee’s dismissal is one of the hardest tasks undertaken by Employment Tribunals (ETs). That was certainly so in one case in which a school’s headteacher was accused of having an ulterior motive for dispensing with the services of its veteran maintenance manager.

Concerns had been raised that a right of way across the school’s land was being used by sportsmen carrying firearms who shot clay pigeons on a neighbouring site. The school had a strict policy against unknown visitors and, following a disciplinary process, the manager was dismissed on the basis that he had failed to inform the school of the problem and the potential child protection and safeguarding issues that it posed.

In upholding his unfair dismissal claim, and awarding him £39,854.23 in damages, an ET noted that the headteacher had previously issued him with a final written warning in respect of performance concerns, notwithstanding his 20 years of unblemished service. That and the headteacher’s hostility towards him was the real reason for his dismissal. The headteacher had not been sufficiently impartial; the investigation had been inadequate and dismissal fell outside the range of reasonable responses.

In upholding the school’s challenge to that decision, however, the Employment Appeal Tribunal (EAT) ruled that the ET’s conclusions were not supported by its findings of fact. It had not found the head teacher’s account of what was in her mind to be untruthful and had failed adequately to explain its conclusion that she had an ulterior motive. When considering the fairness of the disciplinary process and the sanction imposed, the ET had also fallen into the trap of substituting its own views for those of the head teacher. The case was remitted for a fresh hearing before a differently constituted ET.