Is your contractor actually a worker?

Ruling: Self-employed contractor a worker with employment rights

Plastering Contractors Stanmore Ltd v Holden

In this case, an employee accepted £200 in exchange for becoming a self-employed subcontractor. The EAT held he was actually a worker with entitlements under the Employment Rights Act 1996 (ERA) and Working Time Regulations 1998 (WTR).

The Claimant, H was employed as a general laborer from 1997 to 2001.He accepted a one off payment in 2001 to become a self-employed contractor. He was added to the company’s database and he was referred to construction sites upon requests for services. On site he worked under the instruction of the site supervisor and was paid by how much work he completed. The rates of pay were non-negotiable and he was paid based on the supervisors record of his work.

With the exception of his safety boots, which were his own, all other PPE, equipment and transport was provided by the Company. He worked exclusively for the company until May 2013 when he stopped forking without notice.

H had become frustrated waiting at home for referrals to work on site. He took up another position and brought a claim for unpaid holiday pay.

The company disputed his claim stating that they were not under an obligation to provide H with work, he didn’t have to accept work and he was entitled to send a substitute. They stated he was not a worker. The Employment Judge disagreed, he stated he was a worker and for 16 years he had been offered work with an expectation of him turning up for work during working hours, he had been integrated into the workforce.

The company appealed, their appeal was dismissed by the EAT who stated that there was sufficient    mutuality of obligation. With regard to the ability to send a substitute it was found there was no express provision permitting this. The EAT found there was sufficient integration and control for H to be a worker.

Just because an employee agrees to change their status will not necessarily prevent a finding that their status has not changed. The Tribunal will look at the realities of the  relationship,

Remember, employees can bring a claim seeking holiday pay for a 12 year period under the ERA, rather than the WTR which limits to the last holiday year.

 

 

What if Ebola hit the UK? Workforce Planning

Ebola in the Workplace

At the time of writing there have been thankfully no confirmed cases of Ebola in the UK. North Wales was awash with rumours this week after a sighting of an individual from the Bangor area being helped into an ambulance by staff wearing what appeared to be Hazmat suits. The rumour mill went into overdrive until it was confirmed that the patient was not suspected to be an Ebola sufferer and Hazmat suits are worn on occasion for other scenarios.

The US press has been filled with reports of hysteria, travellers in Hazmat suits and criticisms of the way the crisis has been handled. In addition, there has been circulation on twitter of what employers should be doing to safeguard their businesses. It is probably the last thing on most people’s minds, what happens at work if there is a pandemic?

 

Should the worst case scenario become a reality, employers could face mass sickness absence, employees boycotting public spaces and issues with logistics and supply and demand. Workforce issues could be dramatic.

Employers must not panic, if the disease does start to spread they should have an action plan in place for disease prevention, restricting travel to high risk areas and providing information and training to employees. Having protective suits/sanitizers available should the worst happen would also be recommended.

Identify any employees who are a specific risk, this could be more difficult that it first seems, employers will need to be sensitive to their obligations to treat employees fairly under the Equality Act.

Employers should also consider a policy on contagious disease, if an employee suspects they have contracted Ebola if they are aware of the procedure which should be followed in respect of their employment, you may be able to limit the spread amongst your workforce. Consider you sick pay arrangements, employees who only receive SSP are more likely to make their way into work rather than those who receive full pay for a period.

If Ebola were to spread through the UK and your business had staffing issues, do you have a port of call for temporary staff? Does your insurance cover business interruptions due to infectious diseases? If your CEO/board fall ill do you have a contingency plan?

While the concepts discussed may appear at present ridiculous as the UK has no confirmed cases, planning for the worst does not do your business any harm. From an academic perspective if the pessimistic view taken by some experts becomes a reality, employers will have to pay real attention and act quickly to protect their staff and their business.

Reasonable Adjustments and Criminal Convictions

Can an employer be required to discount criminal convictions as a ‘reasonable adjustment’?

 

No says the EAT in Howorth v North Lancashire Teaching PCT.  

The EAT held for the employer to dismiss an employee who had been convicted of theft, battery and dangerous driving did not constitute a failure to make reasonable adjustments. Sounds fair? The convictions listed are undoubtedly serious; however the case itself certainly gives cause for thought.

Were an employer to seek advice in relation to an employee who had been convicted of theft, battery and dangerous driving, it is likely we would give advice on dismissal. In this instance the situation was complicated by medical issues and the traumatic personal issues of the employee.

Mrs Howorth was a health visitor; she had a mental illness (automatism) and was disabled under the legal definition. She had no recollection of events which lead to her conviction. Those events being that she left Asda without paying for her shopping, forced her way from the shop, drove away trapping a person with her car door and with a shopper on her bonnet.

 

Prior to the incident Mrs Howorth was recovering from cancer treatment and a friend had recently passed away from cancer. In addition her husband had left her, her brother in law died and her son left home to go to University.  She was also carrying two caseloads at work as her colleague had gone off sick.

Even a less than reasonable person would have some sympathy for Mrs Howorth, her employer however did not. Mrs Howorth was dismissed following her convictions and her employer refused to re-employ her following her application for a different position.

 

The ET held that the employer had failed to make reasonable adjustments, she had no recollection of the events leading up to her conviction due to her disability, they had refused to consider adjustments to her role as an alternative to dismissal. The ET did however find that the dismissal itself was faire given the nature of the job she completed.

The Employer appealed on the basis that no adjustment could have succeeded keeping Mrs Howorth in work. The EAT agreed and stated although the employer had not fully considered alternatives, it could only breach the duty to make alternatives if there was an adjustment which could have avoided the disadvantage.