Category: Employment Law

Don’t be tempted to withhold pay as a form of leverage

Ms Constantine had been a veterinary surgeon since 2017. Initially, she had worked every day with two half days rest, but this increased to four full days and a weekend every three weeks. Moreover, she was required to seek permission to be absent on those days she was not required to attend work. In November 2020, Ms Constantine began a sickness absence, claiming burnout, and was certified as being unfit to work from 1 December 2020 to 4 January 2021 due to anxiety. In May 2021, a ‘fit for work’ statement recommended one day a week, which was subsequently increased in June 2021 to one and a half days a week, with at least one day off between workdays. 

Following a meeting on 22 June 2022, the respondent agreed to look into issuing a new contract for a three-and-a-half-day week with two in six weekends. A proposed contract with a covering letter dated 24 August 2022 was sent to the claimant with a £23,267 gross salary per annum, which was not in alignment with the agreed basis that it should be based, pro rata, on her previous full-time salary of £44,000 p.a. The claimant contended that the revised salary calculations were severely flawed and effectively constituted a 22.4% pay cut based on a new notional denominator of 260 working days in the form of a ‘take it or leave it’ offer. 

Further, a series of unauthorised wage deductions had been made from May 2021 to 31 July 2023, and Ms Constantine ultimately resigned in 2023, lodging a formal grievance on 14 March 2023, specifically complaining about the basis of the calculations of her pro-rata pay from May 2021, asserting a breach of the Part-Time Worker (PTW) Regulations 2000 and unlawful deduction from wages.

The Tribunal ruled in favour of Ms Constantine, finding an unlawful deduction from wages, constructive unfair dismissal, and unfavourable treatment arising in consequence of disability, and she was awarded a total of £19,017.  Ms Constantine was deemed to have been a disabled person from December 2021 due to chronic fatigue, as the respondent should have known, and the act of proposing a new part-time contract in August 2022 at a disproportionately low salary constituted unfavourable treatment arising from the claimant’s need to reduce her hours due to disability (s.15 Equality Act 2010).

The claim for constructive unfair dismissal was upheld because the respondent had committed a fundamental breach of contract by withholding admitted back pay and making its payment conditional on the claimant agreeing to the proposed future salary. Finally, the Tribunal found that an unauthorised deduction from wages had occurred, applying the Apportionment Act 1870 to set the lawful deduction rate at 1/365th of the annual salary for days the claimant was rostered to work but was absent.

When seeking to reduce an employee's hours, any resulting contract must be calculated correctly on a pro-rata basis in accordance with the PTWs. Employers must prove that any proposed pay revisions are not only fair, but also "necessary and appropriate" to achieve a legitimate business aim. Above all, employers must never deliberately withhold payment in an effort to coerce an employee into agreeing to new contractual terms. Such an act risks breaching the implied term of mutual trust and confidence, creating grounds for constructive unfair dismissal.

Risks of engaging employees as sham contractors

Recently, a clear legal precedent confirmed that the nature of an individual's work is determined by the reality of the actual employment relationship rather than by arbitrary titles. Mr. Gooch worked for the British Free Range Egg Producers Association (BFREPA) from 1 November 2011 until 26 April 2024, initially as a Policy Director on a "contracted services basis" for 2.5 days per week. The organisation, originally an unincorporated association, subsequently became an incorporated company in 2023 (BFREPA Ltd.), although the nature of its work was unaltered.

As Mr. Gooch's role evolved, so his compensation increased and, by 2016, he had effectively been promoted to Chief Executive of Services. Throughout his 12.5 years of engagement, he consistently submitted monthly invoices and was paid a retainer due to his self-employed status, without formally establishing a limited company. In February 2023, BFREPA's leadership expressed concern that their arrangement with Mr. Gooch looked remarkably similar to an employment relationship rather than a self-employed contract, even suggesting that the HMRC would likely classify him as an employee.

As a consequence, in March 2023, BFREPA gave him 12 months' notice of termination, and he continued working until April 2024, at which point his email access was disabled, and he received a letter confirming that his contract would not be renewed. Mr. Gooch duly lodged claims against both defendants for unfair dismissal, unauthorised deductions from wages, unpaid holiday, wrongful dismissal for failure to pay statutory notice, and breach of contract relating to pension auto-enrolment. 

The Tribunal ruled that the claimant was a de facto employee, working under a contract of employment as defined by Section 230(1) of the Employment Rights Act 1996, Section 2 of the Working Time Regulations 1998, and Section 88(2) of the Pensions Act 2008. The Tribunal further concluded that personal service was a core requirement of the contract, one which contained no general substitution clause, and that the extent of the control was consistent with an employer-employee relationship for a senior employee alongside other strong indicators of a permanent employment relationship. The contracts also contained restrictive clauses that limited his ability to work for other companies in the same sector, a feature more commonly found in employment contracts than in contracts for service. 

This ruling provides a clear and detailed example of how a tribunal will look beyond the contractual terms to assess whether a person is an employee or a self-employed contractor. Employers cannot rely on a "contract for services" or a person's self-employed status to avoid the legal obligations of an employer. Instead, tribunals will scrutinise key factors such as the mutuality of the obligations, the degree of control, and the extent of integration in the business. Employers who treat long-term contractors like employees—providing them with a fixed monthly retainer, dictating their hours, and effectively integrating them into the business—risk having them reclassified as employees, and HR departments should ensure that contracts reflect the true nature of the relationship to avoid repercussions. 

Balancing access to justice and abuse of process

An extended civil restraint order (ECRO) was issued against a prolific Employment Tribunal (ET) litigant for presenting repeated and baseless claims.

A Mr. Khan has been described as a prolific litigant, having issued no fewer than 42 largely unsuccessful tribunal claims since 2017. These various failed claims have typically involved allegations of disability discrimination and a failure to make reasonable adjustments in recruitment processes. Many claims were struck out for having no reasonable prospect of success or simply as an abuse of process. Only two claims, levelled against solicitors' firms, were settled for "nuisance value payments" of £700 and £1,000. Mr. Khan has also made many unsuccessful applications to adjourn hearings, often on medical grounds, alongside numerous failed attempts to challenge ET decisions.

The High Court granted the claimants’ application for an ECRO, restraining the defendant from issuing or presenting claims or appeals related to job applications in the tribunal system without prior court permission for a period of three years. 

This decision strengthens the mechanisms available to safeguard judicial processes from abuse. It reaffirms that higher courts can step in to protect tribunals from those individuals who repeatedly file baseless claims or appeals without legal merit. This is crucial for preventing the system from being overwhelmed by vexatious litigation, ensuring that resources are available for legitimate disputes.

For individuals who represent themselves in court, while the judiciary strives to ensure fairness and assist unrepresented parties, the case firmly reiterates that procedural rules and the fundamental principles of legal merit still apply. It demonstrates that courts will not tolerate the deliberate misuse of legal processes. Thus, employers and their legal counsel should be wary of disgruntled employees with histories of spurious claims and seek to have baseless claims struck out on such grounds.  

Tripartite arrangements don’t necessarily enable an agency to escape accountability

The question was raised as to whether, in a tripartite agency relationship, an employment relationship exists between an employee and their intermediary agency. For instance, Ryanair DAC employs some pilots directly, while subcontracting others. A Mr. Lutz successfully applied to an advertisement for pilots and was contracted on 10 August 2017 by MCG Aviation Ltd. (now Storm Global Ltd.). From July 2018 to January 2020, Mr. Lutz served as a Ryanair-contracted pilot based at Stansted, nominally supplying his services through his own Irish company, Dishford Port Ltd., although it is now accepted that his direct relationship was with MCG. 

Following an incident with Ryanair management on 13 January 2020, MCG terminated its contract with Dishford, effectively ending Mr. Lutz's services. He then brought two claims to tribunal with the support of the British Airline Pilots Association (BALPA) concerning annual leave against MCG under the Civil Aviation (Working Time) Regulations (CAWTR) 2004, and also an equal terms claim against both MCG and Ryanair. Through this action, Mr. Lutz was seeking compensation for not being afforded the same working conditions as employed pilots under the Agency Workers Regulations (AWR) 2010. 

The tribunal found in Mr. Lutz's favour, holding that he was a "crew member" employed by MCG under CAWTR and also an "agency worker" under AWR. Subsequent appeals by Ryanair and MCG were dismissed as, where a worker is supplied by an agency (B) to a principal (C), but has an explicit contract with the agency, the agency remains the employer. Mr. Lutz's services to Ryanair were thus explicitly governed by his contract with MCG, which expressly stated that he was not employed by Ryanair. The fact that Ryanair exercised exclusive direction and control over Mr. Lutz's work does not necessarily create an implied employment contract or relationship with Ryanair, although it befell MCG to ensure that Ryanair respected the relevant employment laws. Moreover, even though Mr. Lutz had a fixed-term contract for several years, it was nonetheless "temporary", thereby creating a gap in protection for agency workers and introducing ‘unacceptable uncertainty’. 

This case reinforces the "substance over form" approach in determining employment status, in that employers can no longer solely rely on contractual labels such as "independent consultant" or "self-employed" as a pretext to deny workers their employment rights, especially in such tripartite agency arrangements. Thus, agencies should understand that workers employed for extended fixed terms are likely still covered by the AWR and thereby entitled to the same T&Cs as direct employees after 12 weeks. Hence, agencies still have clear responsibilities for certain statutory rights, and businesses relying on "supply chain layering" to outsource labour will need to review their structures.

A magical clause does not necessarily nullify employment status

A recent ruling has provided a timely reminder that substance trumps form in employment status disputes, and the mere insertion of a clause does not automatically change the employment status of workers. This case concerns an appeal by BCAL, a company that provides vehicle collection, inspection, delivery, and transportation services. The core dispute revolves around the employment status of hundreds of individuals who work as drivers for BCAL.

The standard-form contract contained a term that permitted the drivers to make use of a substitute. However, a central issue in this case was whether the substitution clause was indeed "genuine". 

BCAL instructs drivers via an app, and they generally have no choice over job location, number, or type, although they can decline jobs. However, the Tribunal found evidence of a practice of punishing drivers for refusing work on available days. BCAL sets the fees for each job, with no power of negotiation available to drivers, and drivers are obligated to pay weekly administration and insurance contributions. BCAL pays for and issues DVLA trade plates to drivers, which are essential for driving unregistered/untaxed vehicles for business, and the drivers cannot obtain these themselves. Drivers are provided with branded items in the form of a badge, a hi-vis vest, a phone with an app, a fuel card, inspection equipment, and PPE. Newly recruited drivers must undertake a mandatory four-day in-person training course and receive a detailed training manual, which is regularly updated.

The Tribunals both found that the substitution clause in BCAL's contracts was not "genuine". This case strongly reiterates that the written terms of a contract, particularly a substitution clause, are not conclusive when determining employment status, as tribunals will rigorously examine the true intentions of the parties and the reality of the working relationship. If a contractual right, such as substitution, is not genuinely intended to be exercised or is an "unrealistic possibility" in practice, it will be disregarded.

Companies cannot simply insert a substitution clause into their contracts and assume this guarantees self-employed status. Instead, the right to substitute must be genuine, practicable, and exercised. This ruling carries profound importance for companies that employ people remotely via apps, as merely inserting a clause to infer that such employment is truly flexible can be overturned if it isn’t exercised.

An employee’s emergency contact details are strictly private

A recent ruling affirms that an employer is directly liable for the unauthorised disclosure of an employee's private information. An employee worked at a JD Wetherspoon pub for approximately eighteen months, during which time she provided her contact details, including her mother's mobile number as an "emergency contact phone number". These details were kept in her personnel file, conspicuously marked "Strictly Private and Confidential," and locked in a filing cabinet in the manager's office. She ceased working at the pub before Christmas 2018, and her details were properly retained by the defendant.

Throughout 2018, the claimant endured severe abuse from her then-partner, who was arrested in the autumn and held on remand for serious violence and harassment offences. Due to a history of abuse and her desire to avoid further contact with him, she changed her mobile phone number, rendering the number on file obsolete, although her mother's mobile number remained active.

On Christmas Day 2018, while on remand, her ex-partner obtained a mobile phone and called the Wetherspoons pub, falsely identifying himself as a police officer and claiming an urgent need to contact the claimant. A staff member who knew the claimant consulted with the manager, who then accessed the claimant's confidential personnel file, transcribed her mother's mobile number, and instructed the staff member to provide it to the caller.  

The ex-partner then called the claimant's mother, who was out at a Christmas lunch with her family, including the claimant. Again impersonating a police officer, he persuaded the mother of his urgent need to speak to the claimant, and the phone was passed to her, whereupon she was verbally abused and threatened. Not only had the abusive relationship and her fear of contact been disclosed to the manager on several occasions, but Wetherspoons was aware that "pretexting" is a known threat and that their staff was trained concerning such threats.  

The claimant successfully sought damages pertaining to the misuse of private information and breach of confidence, although claims of further breaches under the Data Protection Act (DPA) 2018 and the General Data Protection Regulation (GDPR) 2018, while initially dismissed, were later upheld by the High Court.

Here, there is a clear distinction drawn between a failure to keep data secure online and an active disclosure of data by the employer's staff. Employers must not only have policies in place but also ensure that they are understood and followed in practice. Such training must be robust and regularly reinforced to avoid being found vicariously liable. It is simply insufficient to have a "Strictly Private and Confidential" label or issue a training manual. An employee's emergency contact details, even if they are those of a relative, constitute private information, and employees have a reasonable expectation of privacy.

Being paid directly is not a confirmation that you are an employee

A Tribunal has provided a landmark ruling over employer-employee status in the context of direct payments made under the Care Act 2014, ruling that an LA was not in fact the direct employer of a carer. The appeal revolved around the question of whether the LA was the de facto employer of V, who had provided care and support to his adult brother, S, between 2013 and 2020. V was paid directly by the LA via the Care Act 2014 under a contract of employment. 

V claimed race and disability discrimination, as well as payment arrears, asserting a formal employment relationship with the LA. The Appeal Tribunal rejected all of V's claims and found no error of law in the original Tribunal’s approach, as there was no basis for an implied contract with V. The Tribunal’s findings of fact, such as his brother S's control of the budget, payslips naming S, and their family arranging cover, clearly pointed to S as the employer. The test for implying such a contract is a "necessity" in explaining the parties' actions, which was not met here, given the express contract with S.

As such, direct payments are a valid method by which an LA may discharge its statutory duty under the Care Act 2014. As to the issue of S's capacity to enter into a contract of employment, the Judge agreed with the LA that capacity is a matter for medical evidence and not mere assertion. Even if S had lacked capacity, it would have made the contract voidable, not void, and would not have necessitated an implied contract with the LA. This decision strongly affirms that LAs can effectively discharge their statutory duties under the Care Act 2014 by making direct payments, without automatically becoming the employer of the carers. This case illustrates how courts will seek to determine the identity of the employer in such direct payment arrangements. Those employed via such direct payment schemes are unlikely to be able to claim employment status with the LA unless there is compelling evidence that the LA retained significant and direct control over their day-to-day work. This case has far-reaching implications for freelancers and so employers should always seek to clarify whether any direct payments constitute a formal employer-employee relationship to avoid legal pitfalls.

Pivotal role of the union Certification Officer in addressing complaints

A recent tribunal clarified the procedural powers of the Certification Officer (CO), ruling that applications from trade union members cannot be refused simply because they are deemed "unarguable". After becoming Chair of a prestigious university, the appellant faced three internal complaints from other members/staff of the UCU involving bullying; a complaint regarding his decision not to permit a motion for an AGM at an EGM; and a data protection breach complaint from three managers after he included information about them.

All three complaints were investigated and upheld by an NEC panel of the UCU on 13 December 2021. The UCU rules, specifically 6.1 and 13.1, outline obligations for members to abide by the rules, refrain from detrimental conduct, and provide for disciplinary procedures, including censure, barring from office, suspension, or expulsion for breaches of rules or detriment to the UCU's interests.

On the 6th September 2022, the appellant submitted nine applications to the CO, alleging that the disciplinary procedure applied in his case had been unlawful, although the CO refused to accept these on the grounds that they were "not arguable" and a tribunal appeal followed. The tribunal ruled that the applications should be remitted to the CO due to the fact that the case did not meet the criteria for striking out under Section 256ZA, ruling that the CO erred in law. The CO's power to "refuse to accept" an application under Section 108B of the Trade Union and Labour Relations (Consolidation) Act (TULRCA) 1992 is narrowly confined to those instances where the CO is unsatisfied that the applicant has exhausted internal union complaints procedures. The phrase "unless he is satisfied" in Section 108B(1) means that if the CO is satisfied that internal procedures have been exhausted, he or she cannot refuse to accept the application on that ground. The primary mechanism for striking out applications on substantive grounds is Section 256ZA(1). Crucially, this section requires a "show cause" notice under Section 256ZA(4) – giving the applicant an opportunity to explain why their application should not be struck out.

This judgement reaffirms the procedural powers of the CO when handling applications against trade unions, strongly reinforcing the requirement for due process, specifically the "opportunity to be heard" before an application can be dismissed. This important case clarifies that, once internal union procedures are exhausted, the CO must accept any application and commence inquiries, even if those inquiries might later lead to a formal strike-out process with proper safeguards.

When changing a company’s name absolves a daughter company of its obligations

The Court of Appeal addressed the complexities of benefit scheme amendments and the lines of responsibility within corporate structures in a complex case surrounding post-employment entitlements. A Mr. Fasano had been an employee of RB Health Ltd., a member of the Reckitt Benckiser (RB) Group of companies, until the 13th of June 2019. The RB Group operates a long-term incentive plan, or LTIP, which makes provision of shares or share options for senior personnel employed by its various companies. 

On the 18th of September 2019, RB Group amended the terms of the 2015 LTIP, requiring those participating in the 2015 LTIP to be employed as of 18 September 2019 to benefit from amended performance conditions in May 2020. Thus, Mr. Fasano was not eligible for an award under the amended LTIP rules. Mr. Fasano brought his case against RB Health and the RB Group to a tribunal, alleging that he had been subjected to indirect discrimination on the grounds of age, contrary to Sections 19 and 39 of the Equality Act 2010. 

However, the tribunal held that RB Group was acting as the agent of RB Health when it amended the terms of the rules of the 2015 LTIP and that the provision, criterion or practice (PCP) thus pursued a legitimate aim. On appeal, it was found that the PCP applied by RB Group was incapable of achieving any legitimate aim of retaining staff and thus was not justified. However, the appeal was ultimately dismissed as the RB Group was not acting as the agent of RB Health, and neither RB Health nor RB Group was liable by reason of Sections 109 and 110 of the Act. 

The Court of Appeal dismissed the appeal and agreed with the appeals tribunal that RB Group was not acting as an agent for RB Health when it amended the performance conditions of the LTIP. Therefore, RB Health is not, therefore, liable for any change made by RB Group to the LTIP pursuant to Section 109 of the Act. The Judge emphasised that, for agency to exist under common law and therefore within the scope of the Act, there needs to be clear authorisation from the principal (RB Health) for the agent (RB Group) to act on its behalf as regards a third party, such as Mr. Fasano. The fact that RB Health's employees benefited from the LTIP didn't automatically make RB Group its agent, although there might have been a different outcome if the rules had been applied by an employer to current employees.  

This case demonstrates that, if a parent company, rather than the direct employer, makes a discriminatory decision regarding benefits, it might be harder to hold the direct employer liable under agency principles. Nonetheless, employers need to ensure that any performance-related policies are justifiable in their aim and implementation and non-discriminatory. 

A return to gender rationality in the office? What does the Supreme Court ruling mean for trans people in the workplace?

In a landmark ruling, the Supreme Court clarified the legal interpretation of the words ‘sex’, ‘woman’ and ‘man’ in Sections 11 and 212(1) of the Equality Act (EA) 2010 with respect to gender reassignment and sexual discrimination following a challenge by For Women Scotland (FWS), a leading feminist organisation. FWS had challenged the statutory guidance issued by the Scottish Ministers under the Gender Representation on Public Boards (Scotland) Act 2018 which stipulated that a trans woman with a full Gender Recognition Certificate (GRC) should be treated as a woman for the purposes of achieving the gender representation objective of 50% women on public boards. FWS argued that this interpretation was unlawful and outside the legislative competence of the Scottish Parliament. FWS contended that the definition of a ‘woman’ under the EA 2010 refers to biological sex, and a trans woman with a GRC is not a woman under this Act, while the Scottish Ministers argued that woman refers to ‘certificated sex’.

The Supreme Court unanimously allows the appeal and ruled that the terms “man”, “woman” and “sex” in the EA 2010 refer to biological sex citing the centrality of a woman’s capacity for pregnancy and giving birth, declaring that such provisions are “unworkable unless 'man' and 'woman' have a biological meaning”. Crucially, they further noted that the Sex Discrimination Act 1975 defines a ‘man’ and ‘woman’ in relation to biological sex and that “interpreting 'sex' as certificated sex would cut across the definitions of “man” and “woman” and thus the protected characteristic of sex in an incoherent way [thus] creating heterogeneous groupings.”

This decision has significant implications for the interpretation of anti-discrimination law, ensuring that the protections afforded by the EA 2010 are applied consistently and coherently. Although this case is not an employment case, prima facie, the ruling will impact separate-sex and single-sex services and will have important implications for gender pay gap reporting. However, this judgement should not be regarded as diminishing the protections afforded to trans employees in relation to discrimination, harassment, and victimisation on the grounds of gender reassignment. Employers must continue to create a workplace that is inclusive and respectful of trans employees. However, for the purposes of the Equality Act 2010, they will not be recognised on the basis of their certified sex.