location   1 Temple Square, 24 Dale Street, Liverpool L2 5RL
  phone   08000 832 832 - View in browser (recommended).
 
     Twitter            Facebook    
  logo
 
     Website            Features            Blog            Contact      
Employment law specialists
May 2017 Review

Welcome to our pre-election update about employment law news relevant for SMEs, their owners and managers.

Last month I discussed the potential problems which might arise if there was an outright ban on zero hours contracts, as suggested by Labour in their manifesto. Well, it seems that it is not only the Labour Party that considers that something needs to be done. On 23 May the BBC's Economics Editor, Kamal Ahmed, reported that the Government review of working practices being undertaken by Matthew Taylor, head of the Royal Society of Arts, will recommend that a "right to request" fixed hours should be available to zero hours workers, in a similar style to the right to request flexible working. As readers who have dealt with flexible working requests will know, there is an obligation to give serious consideration to any such request and any rejection will have to be for a valid business reason.

Taking into account the trial run by McDonalds (which revealed that 80% of existing employees were comfortable with zero hours contracts), this seems to me to be a far more sensible option than an outright ban. Of course, employers who are unable to facilitate fixed hours contracts or who have all or nearly all employees engaged under zero hours contracts are likely to be at risk of failing to show that they have taken fixed hours requests seriously, which will leave them exposed to claims if requests are rejected.

This month Katharine Kelly takes a look at changes to contracts for Deliveroo couriers and a case concerning discrimination against a job applicant with Asperger's Syndrome, while I have taken a look at a case involving a business school manager who was demoted and told to do "officey things" and a salutary tale about the risks attached to providing an adverse reference.

If you have time please check out our blog and Twitter feed for frequent employment law news of particular interest to SMEs. You can also find out about our subscription services on our website.

Kind regards,

Martin Malone

Subscriptions
If you have not yet subscribed, you may be interested to know that our rates start from only £49 per month for web access, regardless of the size of your business and the number of your employees.

Employment law support with direct access to specialist employment lawyers is available from just £99 per month. If you are interested in the service and would like to arrange a free visit from one of our lawyers, please call FREE on 08000 832 832 or send an email to enquiries@clbemployment.com.


Free Audit
We are offering you the opportunity of an on-site audit of your employment documents and procedures from one of our experienced employment lawyers completely free of charge and with no obligation. Who says that lawyers always cost you money? We will conduct a detailed check to ensure that your employment procedures are fully up to date and, if they are not, we will let you know what needs to be dealt with. Surely it's worthwhile, if for nothing else other than the peace of mind in knowing that an independent expert review has been carried out. If you would like to make an appointment please contact Katharine Kelly (0151 239 1079 / katharinekelly@canter-law.co.uk).


Brochure
You can view our brochure here or download a copy here.

If you would like hard copies of the brochure for you and your colleagues please email me at martinmalone@canter-law.co.uk with your name and address and I will be pleased to send them to you.


This month's news
  Deliveroo   Deliveroo makes changes to contracts for UK couriers
 
by Katharine Kelly
 

Following on from my colleague Martin Malone’s article back in March, takeaway delivery Company Deliveroo have now removed the clause in their self-employed courier’s contracts (or ‘supplier agreements’), which stated that the couriers would not be permitted to challenge their self-employed status at an Employment Tribunal.

New contracts (which are now just four pages long) have been distributed to the couriers,  and confirm that they can work for other businesses and no longer need to provide two weeks’ notice to terminate their contract with Deliveroo.

Dan Warne, Deliveroo UK MD, provided the couriers with a letter by way of further explanation, which stated the following:

“We know that many riders work with other companies as well as Deliveroo, including our competitors. That is fine with us: as an independent contractor you are free to work with whoever you choose and wear whatever kit you want.

“There continues to be no requirement to wear Deliveroo branded kit while you work with us, but please make sure that whatever you wear while riding means that you are safe and visible to other road users.

“This new simple supplier agreement for riders makes it easier than ever to work with Deliveroo. It makes clear that our riders are able to log in to work with us whenever they want - allowing them to fit their work around their life rather than their life around their work.”

The changes have been made following criticism from the House of Commons Work and Pensions Committee, who advised that companies such as Deliveroo, Amazon and Uber, deprived workers of their rights with the wording of the contracts previously utilised.

The distribution of the new contracts also came less than a day after the leak of Labour's draft manifesto, which contained a proposal for the 'gig economy' to assume workers are employees unless proven to the contrary.

 
Read more
 

  job applucation form   Disability Discrimination: Adjustments for candidate with Asperger's Syndrome
 
by Katharine Kelly
 

In the recent case of Government Legal Services v Brookes UKEAT/0302/16, the Employment Appeal Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that requiring a job applicant with Asperger's to take a multiple-choice test as part of the recruitment process, amounted to indirect discrimination.

Background

The facts of the case were that the Government Legal Service (GLS) was recruiting lawyers in what the EAT later called "a fiendishly competitive recruitment process". Applicants would be required to complete and pass a multiple choice ‘Situational Judgment Test’ (SJT), in order to be invited for interview.

Prior to commencing the test the Claimant, Ms Brookes, contacted the GLS and asked if adjustments could be made due to her Asperger's – in particular, she asked if she could give her answers in a short narrative format rather than multiple choice so that she was not placed at a disadvantage.

Unfortunately, the GLS advised her that an alternative test format was not available, however it did state that additional time allowances might be permitted for tests taken at a later stage following the successful completion of the entry tests.  The Claimant therefore completed the SJT in its existing format and failed, albeit she scored just 2 points under the pass mark required.

Ms Brookes brought claims of indirect disability discrimination and failure to make reasonable adjustments at the ET, arguing that the multiple-choice format of the test placed her at a disadvantage in comparison to other candidates who did not suffer from Asperger's.  She further claimed that there could be no justification for this, and no reasonable adjustments had been made to the process.

The decisions

 
Read more
 

  Easington Lane Primary School   Unfair dismissal resulting from demotion to do "officey things"
 
by Martin Malone
 

Zena Dickenson worked for 21 years at Easington Lane Primary School. From 2009 she was employed as the School Business Manager. She was responsible for a £1.2 million budget and she had 15 employees reporting directly to her.

In 2015 it became apparent that there would be an overspend and reduced income for reasons including shortfalls in the 'pupil premium' income and income from 'early years'. She was approached by a clerk/receptionist, Kellie Todd, who wanted to know what her prospects were. Mrs Dickenson said that she could not be guaranteed additional hours in the future and there was a possibility that there would be redundancies. Ms Todd reported to a senior teacher, Hannah Wardle, that she was upset as a result of the conversation with Mrs Dickenson. Hannah Wardle in turn reported the matter to head teacher, Sarah Nordstrom, who commenced an investigation. The school's HR adviser, Paula Barclay, interviewed Hannah Wardle, Kellie Todd and others and prepared draft witness statements for them. She advised Sarah Nordstrom as follows:

I would start with:

"There are some rumours in the school that there is going to be redundancies next year – what you know about this? and let her speak.

"If her response is she doesn’t know anything about it probe a little by asking if she denies having any conversations with colleagues about redundancy, reducing hours etc.

"Then ask her how this risk has not been brought to your attention and why it has not been reported on in the recent Finance meetings.

"If you believe the explanation about the budget stacks up you may choose not to suspend her. However, I think we both agree that she has stepped outside of her remit as Business Manager and SMT in divulging this information to colleagues. Therefore you can tell her you have concerns about this and an investigation will take place but you could do this with her still at work. However, unless she comes up with some plausible explanation which eliminate your concerns about funds the prudent approach would be to suspend her to allow a full and fair investigation to take place.

"Explain to her that this is not disciplinary action and that she will be paid while she is off. She will receive a letter confirming the position and she should not speak to anyone about this.
"

Mrs Dickenson was duly suspended on 9 December 2015 to investigate allegations that she had a discussion with a colleague about the risk of redundancies when this had not been discussed by the senior leadership team and that, despite having the discussion she had not raised financial concerns with the senior leadership team. After a couple of false starts a disciplinary hearing took place on 26 February 2016. It was agreed that her suspension would be lifted. On attending work the following Monday she found that her security pass had been disabled. She was told not to go into the office but to wait in reception. The head teacher informed her that a performance improvement plan was to be put in place. She would no longer have any line management responsibilities and she would have to work in the main office at reception updating the school's database until the plan was put in place.

Mrs Dickenson became distressed and said that she would like to be considered for redundancy. She was taken home and remained off sick until she resigned.

In the meantime Paula Barclay sent her two letters, one asking her to attend a formal absence review meeting and the other asking her to attend a protected conversation meeting. Mrs Dickenson did not attend the meetings. However there were negotiations via her union rep which led to a proposed termination date and settlement figure. After obtaining legal advice a revised offer was made on her behalf which the employer was not prepared to meet.

On 26 April she wrote and submitted a letter of resignation, providing the requisite three months' notice. She set out various grounds on which she considered that both she and her position had been undermined. In particular she noted that Mr Trotter, the deputy head and occasional acting head, had effectively demoted her to the position of receptionist and that she had been told by him to do "officey things".

 
Read more
 

  CAB   Providing information about sickness absence in a reference ruled as discriminatory
 
by Martin Malone
 

Mr Paul Mefful began working as a volunteer at Southwark CAB in 2000. In 2003 he was employed as a general adviser and in 2004 he was promoted to senior adviser at Merton and Lambeth CAB following a competitive selection process. In May 2004 he became a specialist services manager. In (what was then) a Legal Services Commission audit report in 2006 the LSC contract with the CAB, for which Mr Mefful was responsible, was found to be "outstanding in quality and performance".

He was absent from work from November 2009 to January 2010 due to grief and a stress reaction after he and his partner lost a baby. In 2012 he suffered severe and constant shoulder pain as well as total hearing loss in one ear, tinnitus and vertigo. An employment tribunal determined that these conditions meant that he was suffering from a disability within the meaning set out in the Equality Act 2010. He took 63 days off work between April and July 2012. In August of the same year he was made redundant.

Mr Mefful brought claims of unfair dismissal (upheld) and disability discrimination (continuing) but the judgment I am reporting here concerns separate proceedings relating to the provision of a reference by the CAB to a prospective employer. At the time the CAB had guidance concerning the provision of a reference which included the following:

Any reference provided by the Bureau for an employee should be well researched and avoid unfounded opinions. If negative, it should not refer to matters not previously raised directly with the employee. If asked to speculate on suitability, it should be cautious and where necessary use a disclaimer. It should aim to offer a balanced view without being too glowing or too damning unless wholly merited."

In May 2015 Mr Mefful applied for the post of Welfare Benefits Advisor at One Housing Group Limited. He was interviewed on 3 June and offered the post on 4 June, subject to a satisfactory reference. He was contacted by One Housing on 12 June because they wanted him to commence employment as soon as possible. At the time Mr Mefful was engaged in his separate employment tribunal claim and it turned out that the provision of the reference had been stalled because, in the words of Ms Harris, a former Chair of Trustees and a member of the strategy group, in an email sent to a colleague on 26 June, she described the reference application as being "very problematic". She noted that "...the way that he has conducted himself in the [unfair dismissal and disability discrimination] litigation has been totally dishonest".

Although denied by each of them when giving evidence, the tribunal found that Ms Harris and Ms James, CEO of the CAB, had consulted in detail about the reference. It was eventually completed by Ms James on 29 June. Sickness absences had been filled out in the form. In answer to a question about whether the CAB would re-employ Mr Mefful, the answer given was "no".

 
Read more
 

Lexcel
Who we are
ABOUT OUR TEAM

Designed from the ground up and provided only by Canter Levin & Berg Solicitors, we act for organisations nationwide. Our unique proposition has always been to deliver a prompt, efficient, and personal service to our subscribers through the provision of direct access to our specialist employment solicitors.

Our team is made up of qualified legal professionals who ensure that your business is being guided and supported by the latest and most efficient employment law resources at all times.

   
   
       Katharine Kelly
Katharine Kelly
Head of Employment

Katharine specialises in making sure that employers have all their employment law and HR requirements in place and up to date. Her pleasant manner is combined with her knowledge of employment law issues from a legal perspective so that she makes sure that employers have maximum protection and immediate support in connection with all problems which they may encounter on a day to day basis.

Katharine is "on call" to deal with her clients in a way which her clients really appreciate. She will always take the next step to make sure that problems are solved quickly, efficiently and professionally.

     
Email    Facebook    Twitter    LinkedIn
  
            
       Sean Carty
Sean Carty
Head of Commercial

Sean joined the Employment Department of Canter Levin & Berg in December 2007. He has experience in all areas of employment law though specialises in Employment Tribunal litigation. Sean has particular expertise in dealing with complex discrimination matters, business reorganisation and redundancy, and unfair dismissal. He also deals with company disputes, breach of contract claims and injunctions, including claims relating to breaches of restrictive covenants.

     
Email    Facebook    Twitter    LinkedIn
  
            
       Martin Malone
Martin Malone
Director and COO

Martin is a director of Canter Levin & Berg Limited and its Chief Operating Officer. He splits his time between employment law and practice administration. He has over 25 years' experience dealing with a wide range of employment disputes.

He combines his experience in employment law with insolvency, intellectual property and company/partnership disputes.

     
Email    facebook    twitter    LinkedIn
  
Login
Existing subscribers can login here.
Newsletter subscription
Click here to add further subscriptions to our e-mail newsletter.
  logo
is operated by Canter Levin & Berg.

Canter Levin & Berg Limited trading as Canter Levin & Berg is authorised and regulated by the Solicitors Regulation Authority (no. 632152).

Registered office: 1 Temple Square, 24 Dale Street, Liverpool L2 5RL, where a list of the directors is available for inspection.

Phone number: 0151 239 1000.

Facebook    Twitter    LinkedIn    GooglePlus