Gross Misconduct – A Forbidden Act May Not Be Enough to Justify Dismissal

When considering allegations of workplace gross misconduct, it is often not enough simply to establish that a forbidden act occurred, without going on to discern the reasons for it and whether those reasons are linked to a disability. A tribunal made that point in finding that a diabetic lorry driver was unfairly dismissed after he was caught on CCTV urinating in a goods yard.

lorryThe driver said that, as a result of his condition, he had been caught short and had tried to find a discreet part of the yard in which to urinate. He expressed regret but was dismissed after the CCTV footage revealed what he had done. The manager who investigated the matter conceded that he had concluded that the driver was guilty of the act in question, but had gone no further.

In upholding the driver’s unfair dismissal claim, an Employment Tribunal (ET) found that the investigation of the incident was neither impartial nor fair. The inadequacy of the manager’s inquiries had not been cured by the subsequent disciplinary process and the employer, a supermarket chain, had not held a genuine and reasonable belief that the driver was guilty of the misconduct alleged. His disability discrimination claim also succeeded on the basis that he had told his employer of his disability, a recognised symptom of which was an uncontrollable urge to urinate. The ET directed the driver’s reinstatement in his former role.

In challenging the ET’s decision, the employer argued that the CCTV footage clearly showed the driver urinating on pallets used for the delivery of customers’ shopping. The ET’s failure to find as much led to fatally flawed reasoning throughout its ruling and a perverse conclusion. The ET was also said to have been guilty of substituting its own views of the driver’s misconduct for those of the employer.

In dismissing the appeal, however, the Employment Appeal Tribunal rejected the employer’s plea that the evidence that the driver had urinated on the pallets was incontrovertible. The ET’s finding that the operative cause of the act of urination was his disability was not challenged and there was simply no basis for the perversity and substitution mindset arguments. The ET’s conclusion that trust and confidence between the employer and the driver was capable of being restored, thus enabling his reinstatement, was also unimpeachable.

Uber To Take Drivers’ Rights Test Case to the Supreme Court

taxisOnline taxi company Uber has failed to convince the Court of Appeal that drivers who make use of its app are self-employed contractors, rather than ‘workers’ within the meaning of the Employment Rights Act 1996. However, in a rare move, the company has been granted permission to appeal further to the Supreme Court.

Uber has always argued that it acts only as an intermediary between drivers and members of the public who use their services. The company provides booking and payment services through its app and its written contractual terms with drivers make clear that they are independent contractors who deal directly with passengers.

A group of drivers, however, argued successfully before an Employment Tribunal that they are workers, and thus entitled to holiday pay and to the protection of the National Minimum Wage Regulations 1999 (the NMWR). That preliminary decision was later upheld by the Employment Appeal Tribunal on the basis that drivers’ written contracts did not reflect the practical reality of their relationship with Uber and could thus be disregarded.

In dismissing Uber’s challenge to the latter decision by a majority, the Court of Appeal noted that the case concerned the rights of approximately 30,000 Uber drivers who operate in the London area. It found a number of features of Uber’s working arrangements that were inconsistent with drivers having a direct contractual relationship with passengers.

The Court also ruled that, for the purposes of the NMWR, Uber drivers are under a positive obligation to work whilst they have the company’s app switched on. Although they have the right to accept or decline any particular trip offered, Uber retains the ability to disconnect drivers from the app for a period if they turn down fares too frequently. Given the importance of the case, the Court granted Uber permission to appeal against its decision to the Supreme Court.

Substitution Rights of Delivery Drivers Preclude Them from ‘Worker’ Status

The High Court has ruled in a guideline case that a group of food and drink delivery drivers who can substitute others to perform their roles are not ‘workers’. The decision spelt defeat for a trade union which had sought recognition in order to represent the drivers for collective bargaining purposes.

The union argued that the drivers, all of whom performed motorcycle deliveries for the same company, were providing their services personally and thus fell within the definition of ‘worker’ contained within Section 296(1) of the Trade Union and Labour Relations (Consolidation) Act 1992.

In rejecting the union’s application for recognition in respect of the drivers, however, the Central Arbitration Committee (CAC) found that their ability to substitute others to perform services for the company in their place was fatal to the claim. The right of substitution was genuine, unfettered and operated in practice. In the circumstances, it could not be said that the drivers undertook personally to perform any work, or provide any services, to the company.

In dismissing the union’s challenge to that decision, the Court rejected arguments that the refusal of recognition amounted to a breach of Article 11 of the European Convention on Human Rights, which enshrines everyone’s right to freedom of assembly and to form or join a trade union.

Although it was accepted that the term ‘worker’ embraces some self-employed persons, the Court upheld the CAC’s conclusion that the power of substitution meant that the drivers were not in an employment relationship with the company. Neither domestic nor Strasbourg case law supported the proposition that the right collectively to bargain extends beyond such a relationship. Article 11 was therefore not engaged.

The Firm’s Annual Christmas Party

Christmas TreeThe annual Christmas party gives employers the opportunity to thank members of staff for their contribution over the past year and is a chance for everyone to relax and enjoy the holiday season. However, it is easy to forget that an employer owes its employees certain obligations, even outside work, when the event has been organised by the employer, and that employees’ conduct during it should comply with normal standards and should not breach workplace equal treatment and anti-harassment policies. An employer may be held vicariously liable for the actions of employees at such functions as they are likely to be considered as having occurred ‘in the course of employment’. To defend such a claim, it is important to be able to show that all reasonable steps have been taken to prevent such acts, which includes making staff aware of the appropriate policies and providing adequate training regarding conduct.

In order to prevent what should be a happy occasion from leading to recriminations or worse, an employer should take certain basic steps. Here are some of the more important ones: 

  • When planning any work event, thought should be given to whether it will coincide with the dates of religious festivals;
  • Carry out a risk assessment – this should include the venue and, in particular, the possible risks associated with serving alcohol. Making sure employees can get home safely is important, so consider hiring transport or providing taxis solely for this purpose if necessary. Ensure soft drinks are provided as an alternative to alcoholic drinks and that individual dietary requirements are catered for;
  • Ensure that, if employees’ partners are invited, there is no discrimination with regard to who is included. Ensure also that reasonable adjustments are made to allow any disabled employee or partner to attend and that any employees absent on maternity leave or because of long-term sickness are included;
  • Where possible, make sure that the arrangements accommodate the requirements of employees of different religions;
  • Ensure that employees understand the difference between ‘banter’ and behaviour that could be considered to infringe the dignity of any person present. You may wish to appoint supervisors to oversee the event, to whom staff can report problems. If such behaviour occurs, act quickly to prevent a re-occurrence. Take prompt action if a complaint is received;
  • Make sure that employees who are expected to attend work the day after the function understand that absence through over-indulgence is likely to be regarded as a disciplinary rather than a medical matter; and
  • Make sure employees are aware that any illegal acts will not be tolerated.

The biggest problems that are likely to arise are that inappropriate behaviour may occur, especially if alcohol flows too freely, and that there may be conduct which members of a particular religious persuasion find objectionable.

Your firm’s contract of employment will probably deal with most or all of these issues. However, it is sensible to have a separate policy on what is expected of employees at workplace social events and to remind employees of its contents in advance of any function.

In a recent vicarious liability case, in which a claim was brought by an employee who was punched in the face by a colleague and suffered serious brain injury some time after a group of employees had left the firm’s Christmas party and adjourned to a nearby hotel, the Court of Appeal ruled that the employer could be held liable for serious injuries inflicted by a senior member of staff on one of the company’s employees during an argument about work matters some hours after the planned Christmas event had finished.

For advice on all matters to do with employee behaviour issues and contracts of employment, contact us.