June 28, 2018

UK - CABLE: Current Awareness Bulletin

Clyde & Co's UK employment team brings you CABLE, a bulletin keeping you up to date with recent legal developments

Constructive dismissal: the "last straw"

If an employer commits a serious breach of contract, the employee is entitled to resign in response and claim constructive dismissal. A constructive dismissal claim may also arise if an employer commits a series of acts that are not serious individually, but they take on that character when considered cumulatively. The Court of Appeal recently considered whether an employee could rely on the employer's earlier breaches if they carried on working but then resigned in response to a “last straw” event.

After an altercation with a colleague, Ms Kaur raised a grievance. This triggered the Trust bringing disciplinary proceedings against her, which were combined with the grievance procedure, and she was given a final written warning for inappropriate behaviour. Her appeal against this decision was not concluded for several months (for various reasons, including that she was on maternity leave). When her appeal was finally rejected, Ms Kaur brought a claim for constructive unfair dismissal, claiming that the rejection of her appeal was the last straw in a series of acts.

The Court of Appeal said that if there is a continuing cumulative breach of the implied duty of trust and confidence, an employee may rely on the totality of the employer's acts even though the employee carried on working after the earlier breaches - provided that the later act (the last straw) formed part of the series of breaches. The effect of the final act is to revive the right to terminate their employment based on the totality of conduct.

PRACTICAL POINT

If after an unfair disciplinary decision, an employee carries on working and appeals that decision, a further act by the employer – including upholding the disciplinary decision on appeal - may revive the earlier serious breach.

Kaur v Leeds Teaching Hospitals NHS Trust

"Pattern of behaviour" can amount to gross misconduct

The EAT has found that an employee's summary dismissal for a "pattern of behaviour" was fair, even though no act on its own amounted to gross misconduct.

The Trust took disciplinary proceedings against Mr Mbubaegbu, a consultant orthopaedic surgeon, in relation to 17 separate allegations following investigations to tackle dysfunctional behaviour within his department. He was dismissed for gross misconduct and subsequently brought claims, including for unfair dismissal.

The EAT rejected Mr Mbubaegbu's argument that nothing he had done amounted to gross misconduct, and that the Trust could not rely on a "pattern of conduct" as amounting to gross misconduct. It said a series of acts demonstrating a pattern of conduct may be sufficiently serious as to undermine the relationship of trust and confidence.

The EAT found that some of Mr Mbubaegbu's acts were grossly careless and negligent, amounting to a pattern and repeated process of unsafe behaviour which led to an increased risk to patients. The relationship of trust and confidence was undermined by that pattern of conduct, and the Trust did not believe Mr Mbubaegbu could change his behaviour and avoid the risk of recurrence of his misconduct. It did not matter that there was not a particular act that on its own amounted to gross misconduct.

practical point
If employers intend to rely on an employee's pattern of conduct to justify summary dismissal, where there is not a single act that constitutes gross misconduct, they must be clear about the grounds they are relying on in their decision to dismiss the employee and that they have considered lesser sanctions but have good reason to believe the employee's behaviour is unlikely to change. Employers must also ensure they follow a fair procedure.

Mbubaegbu v Homerton University Hospital NHS Foundation Trust

Supreme Court confirms Pimlico Plumber was a ‘worker’

The claim against Pimlico Plumbers is the latest in a growing line of cases on employment status in the gig economy. With these cases, courts have to grapple with the facts of the particular case; looking beyond the terms of the written documentation and considering whether personal service is required and if there is a genuine right to provide a substitute, as well as looking at questions of control, risk and subordination.

Mr Smith worked solely for Pimlico Plumbers for six years under a contract which described him as an 'independent contractor' in business on his own account.  His contract was ended after he suffered a heart attack and he brought a number of claims against Pimlico Plumbers, including unfair dismissal, unlawful deductions from wages, holiday pay and discrimination. Before his claims could be heard, the court had to decide which claims he was allowed to bring - this depended on whether he was an employee, a worker or self-employed.

The Supreme Court said that despite being VAT-registered and paying self-employed tax, Mr Smith was entitled to basic workers' rights. Key factors in the decision that Mr Smith was a worker were:

  • the dominant feature of his contract was that he was required to perform the work himself - if he provided a substitute, this had to be another Pimlico Plumber on similar terms
  • his subordinate position in the relationship with Pimlico Plumbers

As Mr Smith is a worker, he can continue with his claims against Pimlico Plumbers for holiday pay, unlawful deductions from wages and discrimination, which he would not have been entitled to bring if he were self-employed.

practical point
If a business seeks to exercise a significant amount of control over how and by whom the work is done, and the individual is integrated into the business, which dictates terms that put the individual in a subordinate position, they are likely to be found to be a worker (if not an employee).

For a detailed update on this decision, see

Gig-economy update - Supreme Court confirms Pimlico Plumber was a ‘worker’.

Pimlico Plumbers Ltd and another v Smith 

Data Protection Act 2018 in force

This new Act implements the standards set out in the GDPR so that after Brexit, the UK and EU data protection regimes are aligned and the UK can freely exchange personal data with the EU.

Data Protection Act 2018

Our latest GDPR update sets out the key data processing issues for HR to focus on now:  GDPR after 25 May: what does this mean for HR?

Guidance: 'Dress codes and sex discrimination – what you need to know'

The Government Equalities Office has published a short guidance on dress codes and sex discrimination for employers, employees and job applicants. It sets out recommendations for employers when setting or revising a dress code policy – and also advises against a policy that:

  • has gender specific prescriptive requirements
  • could lead to harassment by colleagues or customers
  • prohibits religious symbols that do not interfere with an employee’s work

Guidance   

Employment tribunals: quarterly statistics

The practical impact of the abolition of employment tribunal fees in July 2017 is now being felt.  The latest employment tribunal and Acas statistics, for January-March 2018, show a significant increase in single employment tribunal claims compared with the same period in 2017.

Employment tribunal statistics

Trade Secrets (Enforcement etc) Regulations 2018 in force

Historically, confidentiality obligations for employees, workers and self-employed contractors have been regulated by the contract and by court decisions.  Now, these regulations (which implement an EU law that aims to harmonise the protection of trade secrets across the EU) also protect trade secrets. The regulations set out certain aspects of the procedure and remedies available to trade secret owners to enforce their trade secrets. 

Trade Secrets (Enforcement etc) Regulations 2018