Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.
Employment status & holiday pay entitlement
Smith v Pimlico Plumbers Ltd
In Smith v Pimlico Plumbers Ltd, the Court of Appeal considered the impact of worker status on holiday carry over entitlement.
The claimant, Mr Smith, worked for Pimlico Plumbers under a contract which stated he was “an independent contractor of the Company, in business on your own account”.
Mr Smith was successful in a previous tribunal claim against Pimlico Plumbers that he had worker status, a decision which was upheld on appeal to the Supreme Court. Following his worker status claim, Mr Smith brought a claim for payment of the 4 weeks’ leave carried over each year until he stopped working for Pimlico Plumbers, per the Working Time Directive.
The Court of Justice of the European Union’s decision in King v Sash Window Workshop Ltd was held by the tribunal and EAT to be limited to leave which had not been taken, while Smith was concerned with leave taken by the worker for which payment has not been made by the employer. As such, the tribunal and EAT found Mr Smith could not rely on King v Sash Windows.
But the Court of Appeal reversed these decisions, holding that a worker within the Employment Rights Act 1996 definition is entitled to up to four weeks’ paid leave for every year worked without limitation, where such leave has been taken but not paid.
Mr Smith’s claim succeeded and he was awarded the £74,000 in holiday pay.
Employer takeaways
This is another significant decision on worker status resulting from Mr Smith’s legal challenges against Pimlico Plumbers, and businesses engaging contractors on a self-employed basis should take note of the decision and its implications on holiday pay entitlement.
Agency Workers
Kocur v Angard Staffing Solution Ltd
In Kocur v Angard Staffing Solution Ltd, the Court of Appeal held that agency workers do not have the right under the Agency Workers Regulations 2010 to apply for a directly employed position with the hirer.
Angard is an employment agency. It is a subsidiary company of Royal Mail that supplies workers solely to Royal Mail.
The claimant, Mr Kocur was employed by Angard and supplied to Royal Mail Group Ltd as an “Operational Post Grade” (‘OPG’).
Royal Mail had a number of OPG-level vacancies, which were open to applications from ‘direct’ employees who were either already in different permanent roles at Royal Mail, or in other less secure, directly employed positions before agency workers.
Mr Kocur was told he would not be eligible to apply for internal vacancies notified to him on the notice board, and he could only apply for vacancies once they were advertised externally. His application would also be in competition with external applicants.
The claimant argued a right under Regulation 13 of the Agency Workers Regulations 2010 to be notified of any vacancies at the hirer during an assignment, and by implication the right to apply for those jobs. He asserted that by extension, this gives agency worker the same opportunity as a comparable worker to find permanent employment with the hirer.
The Court of Appeal agreed with the EAT that agency workers do not have the right under the Agency Workers Regulations 2010 to apply for a directly employed vacancy with the hirer. The right under Regulation 13 extends only to agency workers being informed of the vacant posts rather than being given the opportunity to apply.
Lord Justice Green said “there is no hint of [a right to apply for vacancies]…ever having crossed the minds of the [EU] Commission, the Council or Parliament”. He also stated that, contrary to the claimant’s assertion, “the Directive recognises that temporary workers are not, in all respects, comparable with permanent workers,”
Employer takeaways
This decision was one of multiple claims brought by the claimant and followed appeals brought by both the claimant and the defendant. The Court of Appeal’s decision brings helpful clarity for employers about recruitment rights of agency workers and that Regulation 13 is limited to notifying agency workers on assignment and not to a right to apply.
Unfair dismissal & gross misconduct
Hope v British Medical Association
The claimant, Mr Hope, was employed as a senior policy adviser by the British Medical Association from June 2015 and was dismissed for gross misconduct on 24 May 2019.
During his employment, he had brought numerous grievances against senior managers, including complaints of failing to be included in meetings that he thought he should be attending.
The grievances were not able to be resolved informally, but Mr Hope refused to progress any of his grievances to the formal stage, or to take the measures suggested by the employer to resolve the issues in question or to withdraw the grievances. The grievances were notably directed at one colleague in particular, who felt bullied by the claimant’s behaviour.
After being informed that continued use of the grievance procedure in this way may be considered a disciplinary issue, the claimant refused to attend a formal grievance meeting relating to the complaints he had raised. The chair of the meeting found the claimant’s conduct was “frivolous and vexatious”, his grievances were not upheld and after a disciplinary hearing, he was dismissed for gross misconduct due to misuse of the grievance process.
The claimant brought a claim for unfair dismissal.
The ET found that the employer had followed a fair procedure and had carried out a reasonable investigation. It was not unreasonable for the employer to find that the claimant’s behaviour was vexatious, and treating the behaviour as a sufficient reason for dismissal was within the band of reasonable responses.
On appeal, the claimant argued that the ET had failed to consider whether his behaviour met the standard of gross misconduct. The Employment Appeal Tribunal agreed with the tribunal at first instance that the employer had acted reasonably in dismissing the employee for bringing vexatious grievances and that the claimant had been fairly dismissed. The EAT held that whether or not an employee’s conduct amounted to gross misconduct was irrelevant to the determination of whether a dismissal was fair.
Employer takeaways
This decision emphasises the distinction in law that gross misconduct is a separate issue relevant to matters of summary dismissal without notice or breach of contract; gross misconduct is not determinative in a claim for unfair dismissal. A further takeaway is that grievance procedures should not be used as a “repository for complaints that can then be left unresolved and capable of being resurrected at any time”; as such, if an employee refuses to proceed with a grievance, the employer may require them to withdraw the grievance or cooperate in resolving the matter.
Need assistance?
If you have a question about employment case law and the impact of tribunal and court decisions on your business, DavidsonMorris’ experienced employment lawyers can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.
Last updated: 27 February 2022
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
