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ebl miller rosenfalck

Pimlico plumbers are workers following the Supreme Court’s judgement


The UK Supreme Court has today upheld the Employment Appeal Tribunal and the Court of Appeal’s judgments that a skilled tradesman (plumber), who had been engaged as an independent contractor, was in fact a worker entitled to basic worker rights.

In short, Mr Smith was engaged by Pimlico Plumbers Ltd (‘PP’) under a contract which referred to him as an independent contractor. However, Mr Smith was working solely for PP from 2005 and until his contract was terminated in 2011 because the arrangement was such that Mr Smith was required to work minimum 40-hour per week for PP. Mr Smith was also required to wear a PP uniform and to hire and drive a PP branded van. When Mr Smith suffered a heart attack in early 2011 he asked for his 5-day working week to be reduced to 3 days per week but this was refused by PP. In May 2011 PP terminated its engagement with Mr Smith who then issued a number of claims against PP – including claims that he was entitled to workers’ rights.

When the case was first heard, the Employment Tribunal ruled that Mr Smith was in fact a worker for the purposes of s. 230(3)(b) (a ‘limb (b) worker’) of the Employment Rights Act 1996 (‘ERA’), a worker under the Working Time Regulations 1998 (‘WTR’) and an employeefor the purpose of the extended definition under s.83 of Equality Act 2010 (EqA). PP appealed the case, first to the Employment Appeal Tribunal, then to the Court of Appeal and finally to the Supreme Court.

The Supreme Court agreed with the lower courts that Mr Smith was a worker because he satisfied the test in s. 230(3)(b) in that:

  1. He was required to carry out the work for PP personally and could not send a substitute. Although there was an understanding that PP plumbers could swap assignments, Mr Smith was not entitled to use a substitute who was not already working for PP; and
  2. PP was not a client or a customer of Mr Smith and he was not in business on his own account. The reality was one of subordination with Mr Smith being an integral part of PP’s operations and subject to the disciplinary and other rules of PP.

Having decided that Mr Smith was a limb (b) worker it followed that he was also a worker for WTR purposes and an employee under the EqA.

Although the media is likely to overstate the impact this ruling will have on the gig economy, the reality is that this case does not make any substantial changes to the current law on employment status. The issues in this case are very fact sensitive and, more importantly, PP did not operate a gig model in respect of Mr Smith’s engagement. However, the media attention which this case has received combined with abolishment of employment tribunal fees may encourage an increase in claims by individuals seeking employee or worker rights.

Accordingly, businesses would be well advised to review the arrangements they currently have in place with independent contractors and consultant to ensure they do not find themselves in the same situation as the employer in this case.

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

ebl miller rosenfalck – June 2018

www.millerrosenfalck.com

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Sara Kennedy, Legal Director

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Analysing the new Employment Tribunal statistics (March 2018)


New statistics from the UK government show that the total amount of single claims in the Employment Tribunal in 2016 came to 16,870. The total amount of single claims in 2017 totalled 23,708. An overall increase of 40.53 %.

But let’s drill down those figures in more detail…

If you compare the period January to July in 2016 to the same period in 2017 you will see that the number of single claims is relatively similar – 9,712 in 2016 when compared to 9,851 in 2017.

But then the Supreme Court handed down the Unison Judgment ([2017] UKSC 51] on 26 July 2017, and that judgment brought about the abolition of the controversial Employment Tribunal fee regime. The floodgates were then opened and the Employment Tribunal litigation boom began.

Fasten your seat belt for a moment…

If we compare the number of single claims in August 2016 (1,456) to August 2017 (3,045) [the next month following the Unison judgment] you see an increase of a whopping 109.13%.

From then on, the upward trend continues. If we compare the number of single claims in the period September to December in 2016 (5,702) to the same period in 2017 (10,812) we see an increase of 89.6%.

Click here for the raw data.

You will already have gathered that don’t get out very often! From all of the employment team @ebl miller rosenfalck have a good day.

 

ebl miller rosenfalck – March 2018

www.millerrosenfalck.com

Contact details:

Philip Henson, Partner and Head of Employment Team

Emailph@millerrosenfalck.com

 

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Book Review: The Law Society’s ‘Drafting Employment Contracts’ 3rd edition Howard


The 3rd edition of the Law Society’s ‘Drafting Employment Contracts’ provides invaluable and clear guidance for employment practitioners on the difficult areas in drafting contracts for staff and when and how to use certain clauses. It also provides useful and practical guidance for creating and executing policy.

We found the precedent texts to be of immediate value and they are also very helpfully provided in an electronic format by way of a CD. These were easy to download making for a very user-friendly collection of relevant and up to date precedents.

ebl miller rosenfalck – March 2018

www.millerrosenfalck.com

Contact details:

Philip Henson, Partner and Head of Employment Team

Emailph@millerrosenfalck.com

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Book Review: The Law Society’s ‘Employment Law Handbook’ 7th edition Barnett, Baker and Butler


Our firm was delighted to be asked to review the latest edition of the Law Society’s ‘Employment Law Handbook‘.

This 7th edition of the legal handbook offers comprehensive coverage and commentary on the key topics in employment law. It is an excellent read both for the experienced practitioner looking for handy up to date commentary on the most debated issues in the field and also for the junior lawyer looking for a well-written reliable legal companion. Commentary on the status of ‘gig economy‘ workers has also been extremely helpful at a time of extreme uncertainty.

All in all it is a worthwhile purchase and readers will not be disappointed with the depth of expertise provided by the three reputable authors, all experienced in the field of employment law.

ebl miller rosenfalck – March 2018

www.millerrosenfalck.com

Contact details:

Philip Henson, Partner and Head of Employment Team

Emailph@millerrosenfalck.com

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Failure to show right to work is not a reason for dismissal, says EAT


The Employment Appeal Tribunal (EAT) recently considered the issue of whether a worker’s failure to provide evidence of a right to live and work in the UK (despite having such a right) could come under the meaning of illegality as a fair reason for dismissal.

Abellio employed Mr Baker as a bus driver, who had the right to work and live in the UK as a Jamaican national. Abellio suspended Mr Baker after he failed to provide documentation evidencing his right to work in the UK. Mr Baker was then given the opportunity to acquire the necessary documents, but he failed to do so and was subsequently dismissed on the grounds of illegality.

Mr Baker brought an unfair dismissal and unlawful deductions from wages claim against his employer.

The Employment Tribunal (ET) at first instance found that the company was entitled to dismiss the employee for reason of illegality, as he was not able to provide documentation of his right to work for the purposes of the Immigration, Asylum and Nationality Act 2006. The ET also found in the alternative that the employee had reasonably been dismissed for some other substantial reason, that is, Abellio’s belief that employing Mr Baker was illegal.

The EAT held that the tribunal had erred as there was no illegality to speak of- as Mr Baker had the right to live and work in the UK. The requirement to provide documentation only applied to those who are subject to immigration controls, which Mr Baker was not. Therefore, illegality could not be the basis on which to dismiss him. Looking at the employment tribunal’s alternative findings, the EAT held that the employer’s belief that it was illegal to employ someone could constitute some other substantial reason for dismissal. However, the case was sent back to the employment tribunal to determine whether the dismissal was fair on the facts.

Employers are strongly advised to conduct a full right to work check prior to employment starting. Full details of the requirements for a work check can be found on the Gov.uk website here. Employers who are found to employ workers illegally can face a civil penalty of up to £20,000, and it may also impact any Home Office sponsor licences they hold. Showing that a right to work check has been conducted is a statutory defence against any civil penalty.

Baker v Abellio London (UKEAT0250/16)

ebl miller rosenfalck – December 2017

www.millerrosenfalck.com

Contact details:

Philip Henson, Partner and Head of Employment Team

Emailph@millerrosenfalck.com

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ebl miller rosenfalck launches Brexit Hub


ebl miller rosenfalck has launched a Brexit Hub for all its international clients who may be affected by Brexit.

Our experienced team is on hand to discuss how they can assist you and your business in all things Brexit-related; be it commercial arrangements, corporate structure or immigration queries.

For more information, please see the Brexit Hub on the ebl miller rosenfalck website, or call us on 0207 553 9930.

See profiles of our desks below:

Danish desk

French desk

German desk

Italian desk

Swedish desk

Contact details: 

Steen Rosenfalck, Senior Partner

Email: sr@millerrosenfalck.com

 

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Supreme Court ruling on state immunity gives tribunals jurisdiction to hear embassy worker claims


Two embassy workers, one working for the Libyan embassy in London and another working for the Sudanese embassy in London, brought claims in the employment tribunal, against Libya and Sudan respectively, after being dismissed. The claims were dismissed by the tribunal, on the basis that both Libya and Sudan benefited from state immunity under the State Immunity Act 1978.

A series of appeals joined these cases together and brought them before the Supreme Court. The heart of the issue lies in an apparent tension between the State Immunity Act -the purpose of which is to ensure there are no infringements to a foreign state’s sovereignty- and article 6 of the European Convention for Human Rights (ECHR) regarding the right to a fair trial, which includes right of access to a court.

In reviewing the case-law of the European Court of Human Rights, the Supreme Court found that article 6 violations had previously been found where the application of state immunity was contrary to rules of international law. Naturally, the Secretary of State argued that state immunity in this case was consistent with customary international law.

Interestingly, the Supreme Court found that there has been insufficient international consensus for customary international law to emerge regarding an absolute doctrine of state immunity. Therefore state immunity could not be extended to the employment of embassy staff, which the court deemed to be a private act, unrelated to the concept of state sovereignty.

Those claims which were based on EU law (such as those relating to working time, discrimination and harassment) were therefore allowed to proceed, and were remitted to the employment tribunal for consideration.

This decision is likely to benefit a horde of low-paid workers who were employed in embassies in the UK, and we may see numerous tribunal claims against foreign states proceed in the employment tribunals.

Our advice to embassies is put in place an immediate review of their contractual arrangements (employment contracts and contracts for services) to ensure they comply with English employment law to avoid falling foul of local laws. Please contact our employment team to find out how we can assist.

Benkharbouche (Respondent) v Secretary of State for Foreign and Commonwealth Affairs (Appellant) and Secretary of State for Foreign and Commonwealth Affairs and Lybia (Appellants) v Janah (Respondent) [2017] UKSC 62.

ebl miller rosenfalck – December 2017

www.millerrosenfalck.com

Contact details:

Philip Henson, Partner and Head of Employment Team

Emailph@millerrosenfalck.com

 

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