Dean Morris

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(ET1) Claim Form – Amending a Tribunal claim to add a new claim – right to argue a time point remains

Is the employment tribunal required, when deciding whether to give permission to amend a claim to add a new claim which may be out of time, to decide the ‘time point’?

Not necessarily, according to the EAT in Galilee v Commissioner of Police for the Metropolis.

An amended claim takes effect from the date when permission is granted, not the date of the original claim.

Therefore, granting permission to amend does not deprive the employer of the right to argue that the claim is out of time.

Further, it is not necessary to decide if the claim is out of time when deciding whether to grant permission to amend, save in clear cases. Permission to amend can be granted subject to the time point being decided at a later stage or the decision whether to grant permission can be deferred to the full hearing

 

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Can an employer rely on parts of without prejudice or protected conversations?

Can a Respondent employer rely on parts of a ‘without prejudice discussion’, or protected conversation, whilst at the same time using the rules as a shield?

No, held the EAT in Graham v Agilitas IT Solutions Ltd.

The Claimant was facing termination of employment. During talks which the Respondent characterised as being without prejudice and/or protected under s111A of the Employment Rights Act 1996, the Claimant made comments which the Respondent subsequently used to form the basis of disciplinary action. The Claimant alleged improper conduct/unambiguous impropriety by the Respondent in the form of bullying and threatening behaviours in the same meeting.

The EAT held that the Respondent could not waive privilege on parts of the meeting and rely on privilege in relation to other parts to shield its conduct.

The Claimant was entitled to have the employment tribunal examine the improper conduct. The case has been remitted.

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Worker Status: Uber Drivers are ‘Workers’

EA Dismisses Uber Appeal against Employment Tribunal Decision

In Uber BV and ors v Aslam and ors, the EAT has dismissed Uber’s appeal against the employment tribunal’s decision that its drivers are ‘workers’ within the meaning of S.230(3)(b) of the Employment Rights Act 1996 and the equivalent definitions in the National Minimum Wage Act 1998 (NMWA) and the Working Time Regulations 1998 SI 1998/1833 (WTR). It held that the tribunal was entitled to reject Uber’s characterisation of its business as a technology platform rather than a provider of transport services, and to look beyond the contractual documentation describing drivers as self-employed contractors offering their services to passengers via the Uber app. The EAT also approved the tribunal’s finding that the drivers could be considered to be working for the purpose of the NMWA and the WTR at any time when they were logged into the Uber app, within the territory in which they were authorised to work, and able and willing to accept assignments.

The Uber business relies on a smartphone app through which customers can order and track a taxi and pay the fare. Uber treats drivers as self-employed and there is complex contractual documentation between it, the drivers and the passengers. Uber seeks to present itself as a technology platform facilitating the provision of taxi services, not as the provider of the taxi service itself. It holds itself out as acting as agent for the drivers, and its agreement with passengers states that the contract for the taxi service is between the driver and the passenger. Under the contract between Uber and the driver, the driver is not required to make any commitment to work. However, when a driver signs into the app, this usually signals that they are coming ‘on-duty’ and are therefore able to accept bookings. As for day-to-day work, prospective passengers book trips through the app. Upon receipt of a passenger request, the app locates an available driver (i.e. one who is logged in). The selected driver has ten seconds to accept the booking through the app, failing which Uber assumes that the driver is unavailable and locates another. If a driver fails to accept bookings, warning messages are generated which can lead to the driver’s access to the app being suspended or blocked (which prevents the driver working).

A number of Uber drivers brought employment tribunal claims of unlawful deductions from wages, relying on failure to pay the national minimum wage, and failure to provide paid annual leave. Two of the drivers were selected as test claimants and the employment tribunal considered, as a preliminary issue, whether the drivers were ‘workers’ for the purpose of S.230(3)(b) ERA. The tribunal found that they were. It rejected Uber’s case that the drivers were self-employed, and that it merely provided the technology platform that allows drivers to find and agree work with individual passengers. In the tribunal’s view, this characterisation of Uber’s business model and the contractual documentation created to support it did not accord with the reality of the working arrangements, which was that Uber relies on a pool of workers to provide a private hire vehicle service. As for what periods would count as ‘working time’ for the purposes of the WTR and the NMWA, the tribunal concluded that the drivers should be treated as working whenever they are in the territory in which they are authorised to drive, have turned on the app, and are ready and willing to accept fares. Uber appealed to the EAT.

The EAT dismissed the appeal. Her Honour Judge Eady QC, sitting alone, held that, following the Supreme Court’s decision in Autoclenz Ltd v Belcher and ors (Brief 934), the tribunal was entitled to find that the contractual documentation did not reflect the reality and thus that it was entitled to disregard the terms and labels used in the written agreements. The tribunal was required to determine the true agreement between the parties and, in so doing, it was important for it to have regard to the reality of the obligations and the situation. The tribunal was therefore bound to focus on the statutory language, rather than the labels used by the parties, and reach a fact-sensitive decision.

HHJ Eady QC noted that the key question was: when the drivers are working, who are they working for?

Uber submitted that the tribunal had failed to understand its argument that an agency arrangement, whereby it acted as agent in relation to contracts between drivers and passengers, was common in the private hire industry. However, in HHJ Eady QC’s view, the tribunal was not denying the possibility of individual drivers operating as separate businesses and, as such, entering into direct contracts with passengers, it was merely saying that this was not what it found to be the true position. It was entitled to take into account, among other things, the scale of the business, rejecting the notion of Uber as ‘a mosaic of 30,000 small businesses linked by a common platform’. The tribunal was also entitled to rely on its finding that drivers were integrated into Uber’s business, and were marketed as such. HHJ Eady QC also rejected Uber’s argument that the tribunal erred by taking into account features of the relationship that resulted from regulatory requirements as indicia of an employment relationship – it was not obliged to disregard factors simply because they might be seen as arising from the relevant regulatory regime.

As for the tribunal’s conclusion with regard to working time, Uber argued that the tribunal failed properly to take into account that, even while signed into the app, drivers were at liberty to take on or refuse work as they chose, or to cancel trips already confirmed, and could even work for others, including direct competitors of Uber. It therefore submitted that, in those circumstances, they were not at Uber’s disposal or working for Uber. HHJ Eady QC conceded that this aspect of the appeal had caused her some trouble. However, she was satisfied that the tribunal had grappled with this issue and reached a permissible conclusion. The tribunal had made a finding that drivers were expected to accept at least 80% of trip requests when signed in, and that being ‘on duty’ meant being ‘willing and able to accept trip requests’. Even if the evidence allowed that drivers were not obliged to accept all trips, the very high percentage of acceptances required justified the tribunal’s conclusion that, once in the territory with the app switched on, drivers were available to Uber and at its disposal.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0056_17_1011.html

 

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Influencing a decision maker in a discriminatory way

If another person influences a decision-maker in a discriminatory way, can that person be considered a joint decision-maker?

Yes, held the EAT in Metropolitan Police v Denby. Link to Judgement

The Claimant was a male police officer. The Deputy Assistant Commissioner had concerns about a lack of gender diversity in a group led by the Claimant. She responded in a heavy-handed manner to complaints about members of that group claiming for overtime not worked but, when similar complaints were made about a group led by a female officer, she allowed them to be investigated locally.

The employment tribunal found that the Deputy Assistant Commissioner had influenced the decision by another officer to subject the Claimant to a criminal investigation.

The EAT agreed that this was a finding which it was entitled to make, and that the other officer was not “innocent”, in the sense defined in CLFIS v Reynolds, because he was fully aware of the discriminatory context. Although this context had not been put to him in cross-examination, it was sufficient that he had been questioned about the influence on him.

The employment tribunal allowed an amendment on the sixth day of the hearing, where another potential discriminator was added, in the alternative to the one originally pleaded, after the identity of the decision-maker had been thrown into doubt by witness evidence. The EAT stated that the CLFIS principle should not be allowed to become a means of escaping liability by deliberately opaque decision-making. Where it is difficult, for good reason, to identify the individual responsible, an amendment is sometimes permissible during the course of a hearing, and this did not cause any procedural unfairness on the facts of this case.

 

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Minimum height requirement for Greek Police NOT objectively justified

In Ypourgos Esoterikon and anor v Kalliri, the European Court of Justice has held that imposing a minimum height requirement of 1.7m for enrolment in Greek police schools constituted indirect sex discrimination that was not objectively justified. Far more women than men were disadvantaged by the minimum height requirement, and while the requirement sought to pursue the legitimate aim of enabling the effective accomplishment of the various functions of the police force, certain police functions, such as providing assistance to citizens or traffic control, did not require the use of particular physical aptitude. Furthermore, it is not necessarily the case that a person’s height corresponds to his or her physical aptitude to carry out certain functions. The aim that the requirement sought to pursue could be achieved by measures that were less disadvantageous to women – for example, by carrying out pre-selection aptitude tests.

In Greece, a national law required candidates who wished to enter police school to train as officers to be a minimum height. The law required any candidate (male or female) to be at least 1.7m tall, without shoes. When K’s application to join the police school was rejected on the basis that she did not meet the minimum height requirement (since she was only 1.68m tall), she presented a complaint before the Greek Court of Appeal which held that the requirement was contrary to the constitutional principle of equality of the sexes. The Greek Interior Minister and the Minister for Education and Religious Affairs appealed against that decision. The Council of State decided to stay the proceedings to ask the ECJ whether the minimum height requirement was compatible with the EU Equal Treatment Directive (No.76/207), which prohibits, among other things, unjustified indirect sex discrimination.

The ECJ noted that the referring court itself had found that a much larger number of women than men are of a height of less than 1.7m, such that, by the application of that law, women were very clearly at a disadvantage compared with men in relation to the admission requirements to the Greek police school. It therefore followed that the law was indirectly discriminatory. As to the question of whether the requirement could be objectively justified as a proportionate means of achieving a legitimate aim, the Greek Government had submitted that the aim of the law was to enable the effective accomplishment of the task of the Greek police, and that possession of certain particular physical attributes, such as being of a minimum height, was a necessary and appropriate means of achieving that aim. The ECJ noted that previous case law had established that ensuring the operational capacity and proper functioning of the police service constituted a legitimate aim. However, the ECJ held that, while it was true that the exercise of police functions involving the protection of persons and goods, the arrest and custody of offenders and the conducting of crime prevention patrols might require the use of physical force that would require a particular physical aptitude, certain police functions, such as providing assistance to citizens or traffic control, did not require the use of significant physical force. Furthermore, even if all the functions carried out by the Greek police required a particular physical aptitude, such aptitude was not necessarily connected with being over a certain height. Equally, it was not necessarily the case that shorter people naturally lacked that aptitude. It was also worth noting that, until 2003, Greek law required different minimum heights for men and for women to enter the police: for women the minimum height was fixed at 1.65m, compared with 1.7m for men. It was also relevant that there remained different minimum height requirements for men and women to enter the Greek armed forces, port police and coast guard, where the minimum requirement for women was only 1.6m.
The ECJ concluded that the pursued aim could be achieved by measures that were less disadvantageous to women, such as a pre-selection of candidates based on specific tests allowing their physical ability to be assessed. It followed that, subject to the national court’s assessment of objective justification, the minimum height requirement breached the Equal Treatment Directive.

Link to case

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