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Case Law Developments

a) Worker status – (Uber & Others v Aslam & Others)

The Supreme Court decided that the Claimants were in fact ‘workers’ and not self-employed contractors. The significance of this is that workers enjoy some employment law rights including the right to receive the national minimum wage, paid holiday, and statutory rest breaks, whereas self-employed contractors do not.

Uber argued that it was simply acting as a booking agent for the drivers who in turn were working for themselves. The Supreme Court found that this position was not consistent with the degree of control that Uber exerted over the drivers, for example, by restricting their ability to communicate with passengers.

This ruling will be significant for Uber as it opens the way for potentially thousands of national minimum wage and unpaid holiday pay claims.  It also has wider implications for those working right across the UK’s gig economy, and further claims from other industries are to be expected.

b) Holiday pay – (Smith v Pimlico Plumbers)

The Employment Appeal Tribunal held that a former Pimlico Plumbers worker was not entitled to compensation for the years that he had not received holiday pay; and that he had submitted his claim outside the time limit.

The EAT held that existing caselaw – namely, the decision of the European Court of Justice in King v Sash Window Workshop – did not permit the claimant to bring a claim in respect of unpaid annual leave when that leave had been taken.

That case established that where a worker was denied the opportunity to take leave by the employer, the worker is entitled to accumulate, carry over and be paid for such leave upon termination of the employment. However, in this case, it was noted that the claimant could not give one example of a time when he was discouraged from taking time off.

This meant that he was required to lodge any holiday pay claim within the set time limit of three months from when the payment became due, but he had not done so. 

This ruling will be of some comfort to employers, particularly those operating in the gig economy, given recent decisions of the courts (such as the Uber case above) which have held that many people working in such industries actually hold the status of ‘workers,’ and not self-employed contractors – meaning that they are entitled to receive holiday pay in accordance with the Working Time Regulations.

c) National Minimum Wage – (Royal Mencap Society v Tomlinson-Blake and another case)

The Supreme Court held that sleep-in workers are not entitled to receive the National Minimum Wage in respect of hours spent sleeping, even though the worker may be required to be constantly on call and to have a ‘listening ear’ while asleep.

In interpreting the meaning of ‘work,’ Lady Arden stated that not all activity which restricts a worker’s ability to do as he pleases amounts to work for the purposes of the NMW legislation: 

“It is clearly not the position that, simply because at a particular time an employee is subject to the employer’s instructions, he is necessarily entitled to a wage. There are many situations when a worker has to act for the benefit of his employer which do not count for time work purposes, for example when he travels between home and work”.

The Court concluded that the worker must be ‘awake for the purposes of working’.

This decision will be welcomed by employers particularly in the care and charitable industry given the clarity that it provides with regards to application of the National Minimum Wage legislation.

d) Long-term effect of disability – (All Answers Ltd v W and another)

The Court of Appeal overruled both the Employment Tribunal and the Employment Appeal Tribunal finding that they had not conducted the proper assessment for determining the date from which the long-term effect of an asserted disability is to be assessed.

In deciding whether the effect of the impairment was likely to last the required 12 months, the Employment Tribunal ought to have made that assessment by reference to the date of the alleged acts of discrimination. The EAT found that although the Tribunal had not focused on that date, it had properly considered the issue by looking at the effect of the impairments both before and after the alleged discriminatory acts to show that they were long term.

The Court of Appeal held that the assessment as to whether the impairments were likely to last 12 months had not been done with reference to the facts which existed at the date of the alleged discriminatory acts.  The Court referred to the “marked absence” of any reference to that date and stated that any events which occurred after it were not relevant in assessing the 12-month likelihood.

The Court noted that the Tribunal’s judgment was written in the present tense and that the phrases “Is Mr W disabled”?; “He suffers” from a mental impairment; “Is clearly long term;” disabled “and remains so” – further indicated that the issues had been looked at as at the date of the Tribunal hearing and not at the relevant date.