December’s Employment Law Digest: Case law update

Indicators of employment status

In a working relationship which had numerous indicators of employment status and only one in favour of self-employment, the EAT decided that the ET had got it wrong when it decided that the latter should be determinative of the issue.

In Richards v Waterfield Homes Ltd and Unity Build & Repairs Ltd, the claimant described himself as a multi-trade carpenter. At the time of his introduction to the respondent in 2010, he was a registered CIS contractor (“a well-recognised industry-wide scheme in relation to which registrants know they are to be treated as self-employed and they expect that to be the case.”)

Other than an agreement by the parties to operate the CIS scheme, the relationship was “close to an employment one”. The claimant worked normal working hours, Monday to Friday, and worked solely for the respondent. In 2018, he was switched to an employment contract which stated that his continuous employment started in 2018. The claimant argued he was an employee from 2010 notwithstanding the fact that the CIS scheme is not open to employees.

The EAT referred to the case of Young and Woods Ltd v West in which the Court of Appeal stated that the obligation of a tribunal is to determine whether the label of self-employment was a true description or a false description by looking beneath the description to the reality of the facts. Further, that it was now well settled that the label which the parties choose to use to describe their relationship cannot alter or decide their true relationship; but, in deciding what that relationship is, the expression by them of the true intention is relevant but not conclusive. Its importance may vary according to the facts of the case.

This was not a finely balanced case in which the description of the relationship by the parties could be regarded as a tipping point. Looking at the findings as a whole, and consistent with case law, the EAT decided that the only proper conclusion open to the ET was that the claimant was an employee.

Redundancy and Polkey

In Teixeira v Zaika Restaurant Ltd, the EAT found that the ET should not have reduced the compensatory award for unfair dismissal to zero on the basis that the respondent could have decided on a redundancy pool of one, and so there was a 100% chance the claimant would have been dismissed on the same date that the unfair dismissal took place.

The claimant was:

• a chef working within a team of ten in a London restaurant;
• the only non-speciality chef; and
• less experienced than the other chefs.

As a consequence of a reduction in work at the restaurant due to the Covid-19 pandemic, the claimant was made redundant. No redundancy procedure was followed by the respondent.

The tribunal found that it was not objectively unreasonable to determine that the claimant was in a pool of one and, even if he had been pooled with all the other chefs, the inevitable conclusion was that the claimant would have been the lowest scorer. Therefore, whilst no procedure was followed, the ET found there was 100% likelihood that if a fair procedure had been followed by the respondent, the outcome would have been the same in any event.

The claimant appealed and the EAT upheld the appeal. It found that an award consisting only of a redundancy payment would generally only be appropriate where there was a 100% chance that if a fair process had been applied the employee would have been fairly dismissed by the employer on the same date as the unfair dismissal took place. If a fair procedure would have taken some time there would be some compensation to cover the period that the consultation would have taken, even if dismissal was inevitable.

The EAT also noted that it cannot be said that there was only one possible outcome as consultation might have resulted in some change to the pool or even the outcome.

Disability discrimination: making reasonable adjustments

In Hilaire v Luton Borough Council, the claimant’s post was removed as a part of a restructure and he was required to apply for, and attend an interview for, a position in the new structure.

The claimant was disabled by reason of depression and arthritis. He was given extra time and support to submit an application form.

He was invited to an interview but responded with a fit note and indicated that he could not attend any meetings or interviews.

The respondent asked the claimant for an indication as to when he would be available to attend interview; reminders were sent to him when he did not respond. The respondent considered whether there was a way other than interview but decided there wasn’t. 13 candidates had been interviewed and were awaiting an outcome so a deadline was put in place. The claimant informed the respondent that he was too ill to attend an interview. He was later dismissed by reason of redundancy.

The claimant brought a reasonable adjustments claim, which included the assertion that he should have been slotted into a role. The ET decided that the requirement to attend an interview was a provision, criteria or practice (PCP). However, as the claimant had been able to attend a formal appeal meeting against a written warning for sickness absence and also sent the respondent an email beginning “even if I wasn’t off sick with work related stress, causing depression, I still would not have attended this interview…”, the ET concluded he was able to engage with the process if he wanted to but he did not want to. The ET decided therefore he was not placed at a substantial disadvantage by the PCP.

The claimant appealed to the EAT and his appeal was not successful:

The EAT held that the ET failed to consider how the claimant’s disability could have affected his ability to participate in an interview, as opposed to simply his ability to attend. However, the ET made a rational decision that the claimant did not participate because he had lost confidence in his employer and therefore it was not an effect of the disability which prevented the claimant complying with a PCP, it was a choice he made because of his belief that the process was a means of disguising the reason for his dismissal.

The EAT went on to consider the reasonableness of the claimant’s proposed adjustments:

• The ET had accepted the respondent’s evidence that there was no other reasonable step and the EAT decided this was a rational conclusion. Slotting in would have alleviated the disadvantage to the claimant but would have impacted on others in the redundancy process.
• The EAT held that “making an adjustment is not a vehicle for giving any advantage over and above removing the particular disadvantage”. A vacancy can be filled as a reasonable step. However, in the circumstances of this case, including impact on other employees, the ET was entitled to conclude that there was no other step for the respondent to have to take, including slotting in.