Category: Employment Law

Beware of rushing to judgement before terminating employment.

A Tribunal has ruled that a deputy security manager was unfairly dismissed, despite performing “no prescribed tasks” while ‘working from home’, many hundreds of miles from his place of work. Mr. Kitaruth travelled from London to Cornwall to visit with his parents for four days, during which the hearing found no evidence that he did any work.

When his line manager, Mr. Stride of OCS Security Ltd., summoned him to a mid-week meeting in the office he learned of Mr. Kitaruth's location leading to his subsequent dismissal for "gross misconduct". However, Mr. Kitaruth won his case for unfair dismissal after the Tribunal found that the company had failed to interview the line manager during their investigation.

Mr. Kitaruth told the Tribunal that he had an informal arrangement in which he verbally agreed with Mr. Stride on the dates that he would ‘work from home’, as August was a quiet month at the conference centre. The Tribunal found that Mr. Kitaruth “genuinely believed he had been given permission” although there was possibly of a misunderstanding arising between himself and his line manager, as evidenced by the message train on WhatsApp. Despite the pretext of 'working from home' there was no evidence that he had performed any tasks and, although he responded to "calendar invites, phone calls, liaising with the officers and emails,” he did not do so in a timely manner.

Judge Tamara Lewis noted that it was “extremely poor practice” for the company to take just six weeks to investigate and dismiss Mr. Kitaruth, and then to take a further seven and a half months to hear and reject his appeal. Moreover, the Judge found that "no reasonable employer would have failed to interview Mr. Stride formally before reaching a decision to dismiss the claimant," and hence, "For this reason, the dismissal was unfair.”

Employers should always publish, adopt, and follow to the letter any formal disciplinary procedures before terminating the employment of any contracted employee.

Self-employment cannot be used as a tax smokescreen for contracted employees

A complex celebrity case arose recently in which the First-tier Tax Tribunal (FTT) was asked to consider the application of the intermediaries’ legislation (IR35), otherwise known as off-payroll working, to payments made by Manchester United Football Club (MUFC) to Bryan Robson Ltd.

This appeal was in relation to determinations of income tax made under Reg. 80 of the PAYE Regulations and s31 of the Taxes Management Act (TMA) 1970  for personal appearances provided to MUFC by Bryan Robson Ltd. as a ‘global ambassador’ from 2015/16 to 2020/21. Those agreements included a licence for MUFC to exploit Mr. Robson’s “image rights” and required the former England star to make 35 personal appearances per year at MUFC’s request for a fixed sum. Although the image rights were not subject to the IR35 legislation and were left to be decided separately, and the additional tax due under the IR35 rules is to be determined.

This technical tax case highlights the intricate factors that determine employment status under IR35 and anyone providing such personal services, including freelancers, content creators, and contractors, has to demonstrate a high level of autonomy to be considered truly self-employed and present watertight contracts to the HMRC. 

Not all hurt feelings are uncapped & costly

The Employment Appeal Tribunal slashed a £10,000 award for injury to feeling by 80% after an original tribunal ruling was deemed not to be Meek compliant as it failed to provide adequate reasons for the quantum awarded. A Miss Graham was employed by Eddie Stobart Ltd. for just over ten months as a planner when she became pregnant and immediately notified her line manager. Miss Graham asserted her right to be offered suitable alternative employment during her maternity leave under the MAPLE Regulations. She was interviewed for a new role but was unsuccessful and was terminated by reason of redundancy although her grievance Email to HR was blocked by the firewall.

Miss Graham complained that she had been "automatically" and unfairly dismissed as per Section 99 of the Employment Rights Act 1996 on the basis that the new role should have been given to her in priority to others who were not on maternity leave. The first Tribunal found that Miss Graham had not been unfairly dismissed but upheld her claim of detrimental treatment and pregnancy/maternity discrimination and awarded £10,000 for injury to her feelings. Eddie Stobart Ltd. appealed and the second tribunal found the award excessive given that she had soon found alternative employment and had not endured prolonged suffering.

This case underscores the importance of presenting evidence supporting any claim for injury to feelings in the form of a ‘checklist’, although HR departments should note that those who are forced to chase up their grievances during allocated maternity or paternity leave may have grounds for such claims, however excessive or seemingly irrational.

It is not always possible to mend fences – Reinstatement is not always a practicable option where there is a breakdown in employment relations

The Employment Appeal Tribunal (EAT) upheld claims of constructive dismissal and disability discrimination against Whyte & Mackay Limited (W&ML) in the case of Mr. Duployen , a former forklift truck and warehouse operator, following his termination.   

W&ML had appealed the ET's decision on several grounds, seeking reinstatement or re-engagement, a higher award for injury to feelings, and any interest due on the awards. However, reinstatement proved impracticable due to the breakdown in relations and, while theoretically possible, it was not reasonable given the circumstances. Although the issue of re-engagement, while not addressed by the ET, is a required step per Sections 113 and 116 of the Employment Rights Act (ERA) 1996, tribunals are not compelled to order either a reinstatement or re-engagement, even though they have the discretion to do so.

The tribunals found that the appellant suffered embarrassment, humiliation and distress as a consequence of the discriminatory treatment by the respondent with a detrimental impact on his mental health.  

This is a cautionary tale for employers and HR departments alike, and the letter of the law should be followed diligently in terms of the Employment Rights Act (ERA) 1996, the ECHR, and the Human Rights Act (HRA) 1998 to avoid claims of discrimination or constructive dismissal, especially given that not all handicaps or disabilities are self-evident.

Beware the legal minefield of the transferring of contractual undertakings

A recent case [London United Busways Ltd. (LUB) v De Marchi and Abellio London [2024] EAT 191] revealed the complexities of working under the Transfer of Undertakings (Protection of Employment) Regulations 2006, or TUPE.

A Mr. De Marchi had been working as a bus driver for two decades by LUB from his local bus depot, even though his contract contained a clause to the effect that employees may be expected to work at any of the depots across London. After LUB lost its tender for his route, his employer elected to exercise this right of transfer, unless the employee objected by a specified deadline under Regulation 4(9). Given the options to transfer, resign or object, Mr. De Marchi objected to his transfer and requested redundancy, as the new depot was over an hour from his domicile. As this was not one of the three alternatives, LUB rejected his approach, and Mr. De Marchi took a leave of absence suffering from stress and anxiety as he had been informed that, if he failed to sign a new contract by the deadline, his employment would effectively be terminated.

Mr. De Marchi failed to respond and later brought a claim for unfair dismissal against the transferor. The tribunal found that, while the employee may object to becoming employed by the transferor under Regulation 4(7) of TUPE, the effect of that objection is to preclude the transfer of his contract and any of the rights and obligations under Regulation 4(2) of TUPE.  However,  Regulation 4(8) TUPE operates to terminate the contract with the transferor to the detriment of the employee.

This ruling serves to provide useful guidance in terms of who is liable. If the objection occurs before the transfer, then the liability falls on the transferor. However, if the employee does not object to the transfer in a timely fashion and then tries to argue Regulation 4(9), then the liability falls on the transferee. It is thus advisable to seek legal advice before transferring employees to other positions or locations.

Just because an employee is a lawful resident of the UK does not give them the right to work

A restaurant in Middlesborough recently challenged a civil penalty notice of £15,000 issued by the Secretary of State for the Home Department under Section 15 of the Immigration Asylum and Nationality Act 2006 (IANA 2006) arguing that their employee was lawfully present in the UK and that they were not given the opportunity to mitigate the penalty.

However, the Court emphasised that the 2006 Act's purpose was to discourage illegal employment and that employers are responsible for conducting any necessary checks on employees' right to work, according to Section 15(3).

This judgement highlights the importance of employers carrying out right-to-work checks to avoid finding themselves in a similar situation. Ensure your employees have the right to work by using an identity service provider offering Identity Document Validation Technology (IDVT).