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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

 

Does the EU Working Time Directive allow for weekly rest for a worker of 24 hours to be given at any point in a 14-day period?

Yes, held the European Court of Justice in Maio Marques da Rosa v Varzim Sol. The case arose from a redundant casino worker in Portugal, who claimed his employer had not given him a weekly rest period of 24 hours at the appropriate time, and it should have been given at the latest after six consecutive working days. The casino operated 12 hours a day, 364 days of the year.

The CJEU held that there was no requirement for weekly rest to be provided after six consecutive days of work, it can be provided within each 7-day period. Therefore, the Directive allows a working pattern with a rest day at the start of one 7-day period and another rest day at the end of the following 7-day period, so working 12 consecutive days is permissible under the Working Time Directive.

 

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.

 

Is it a whistleblowing dismissal if the person who made the decision to dismiss was ignorant of the protected disclosure, and was deliberately misled by the employee’s line manager to believe the reason was poor performance?

No, held the Court of Appeal in its judgment in Royal Mail Ltd v Jhuti. Link to Judgement

Ms Jhuti was an employee at Royal Mail who made a protected disclosure to her line manager. During a dismissal process, the line manager, motivated by the protected disclosure, deliberately misled the investigating manager so that she dismissed Ms Jhuti for poor performance. The EAT held that both the reason and motivation of the decision maker and the line manager had to be taken into account, and could be attributed to their employer.

In reversing the EAT’s decision, the Court of Appeal held that in determining the “reason for the dismissal”, the tribunal is only obliged to consider the mental processes of the person(s) authorised to, and who did, take the decision to dismiss (being the mind of the employer). Underhill LJ raised some doubt about whether, in cases of manipulation, the position would be different if the CEO deliberately manipulated the dismissal decision.

Underhill LJ stressed that unfair dismissal cases require unfairness by the employer. Unfair conduct by individual managers or colleagues is immaterial unless it can properly be attributed to the employer.

In principle, Ms Jhuti is not precluded from recovering compensation for dismissal consequent on unlawful detriment but this is for the employment tribunal to decide.

 

Does an embassy employee have diplomatic immunity in respect of employment claims from his domestic staff?

No, held the Supreme Court in Reyes v Al-Malki. Link to Judgement

Mr and Mrs Al-Malki employed Ms Reyes as a member of domestic staff at their London residence. Mr Al-Malki was a diplomat of the Saudi Arabian embassy in London.

In circumstances very similar to yesterday’s case of Benkharbouche v Secretary of State for Foreign & Commonwealth Affairs & Anor, Ms Reyes began employment tribunal proceedings and alleged that Mr and Mrs Al-Malki mistreated her during her employment and that she is a victim of human trafficking. Those allegations have yet to be determined and the issue for the Supreme Court was whether the tribunal has jurisdiction to hear the claims within the exception to the rule of diplomatic immunity, contained in Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961.

The Supreme Court unanimously held that Mr Al-Malki would not be entitled to diplomatic immunity in relation to a claim of human trafficking brought by Ms Reyes because her employment (to carry out domestic tasks) and alleged treatment would not constitute acts performed in the course of the diplomat’s official functions.

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

Remember the 2016 ECHR decision in Barbulescu v Romania, which said that a Romanian employer acted lawfully when it monitored an employee’s Yahoo messenger account?

Something unusual has happened.  There has been an appeal from the Chamber of the ECHR (7 judges, who take most of the decisions) to the Grand Chamber (17 judges, the final tier and unusual).  And the Grand Chamber has come down more in favour of the right to privacy and reversed the decision.

It’s a complicated and nuanced judgment.  But the main point is that workers have a right to respect for privacy in the workplace, and if an employer is going to monitor their emails and messages, the employer should (exceptional reasons aside) tell the worker that their communications might be monitored.  Here, although the employee knew it was forbidden to use work computers for personal purposes, he had not been told that the employer was monitoring his communications.

Accordingly the ECHR held that the Romanian court’s decision was wrong, and that Romanian law failed to strike a fair balance between the employer’s and the employee’s interests.  Accordingly there was a breach of Article 8 and the employee was entitled to compensation.

Did suspension of a teacher amount to a breach of the implied term of mutual trust and confidence?

Yes, held the High Court in Agoreyo v London Borough of Lambeth. In this case, a teacher was suspended because of the force she used with two children. She had not been asked for her response to the allegations and there was no evidence of consideration given to any alternative to suspension. She resigned the same day.

Foskett J held, following Mezey and Gogay, that suspension was not a neutral act, at least in the context of a qualified professional in a vocation, such as a teacher. Taking into account the statutory guidance for local authorities, it was noted that a knee-jerk reaction must be avoided and that suspension must not be the default position. The reason given for the suspension was not the protection of children, but to “allow the investigation to be conducted fairly”.

The Court concluded that suspension was adopted as the default position, was a knee-jerk reaction, and amounted to a repudiatory breach of contract. This was not undermined by resignation in friendly terms.

NB the court did not have before it the question of whether this case was an attempt to circumvent the statutory qualifying period for unfair dismissal claims and fell within the ‘Johnson exclusion zone’.

Link to the case

New Burden of Proof in Discrimination Cases – Efobi v Royal Mail Group Ltd

In Efobi v Royal Mail Group Ltd, the EAT has held that S.136 of the Equality Act 2010 which deals with the burden of proof in discrimination cases – does not impose any initial burden on claimants to establish a ‘prima facie’ case of discrimination. Rather, it requires the tribunal to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not there are facts from which it can infer discrimination.

If there are such facts, and no explanation from A, the tribunal must uphold the complaint. It may therefore be misleading to refer to a ‘shifting’ of the burden of proof, as this implies, contrary to the language of S.136, that Parliament has required a claimant to prove something.

E worked as a postman for RMG Ltd. On more than 30 occasions, E applied unsuccessfully for an IT job with the company. He subsequently complained to an employment tribunal that his applications were rejected because he was a black African, born in Nigeria.

The tribunal dismissed his race discrimination claims, holding that he had not proved facts from which it could conclude that there was discrimination. For instance, there was no evidence to show that the successful applicants were appropriate comparators (no evidence having been adduced as to their race and national origins).

In contrast, RMG Ltd had adduced ample evidence to establish that it had good reasons, untainted by discrimination, to reject E’s applications – notably that while E was highly technically qualified, his CV did not set out the required skills for the various jobs.

Upon appeal to the EAT, E argued that the tribunal had erred in law in its application of the burden of proof, having failed to analyse properly what inferences it could (or should) have drawn from the evidence. The EAT (Mrs Justice Laing sitting alone) observed that S.136(2) of the EqA provides ‘if there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred’.

However, S.136(2) ‘does not apply if A shows that A did not contravene the provision’ – S.136(3). In the EAT’s view, S.136(2) does not put any initial burden on a claimant (although if the claim is ‘manifestly frivolous’, a respondent can apply to have it struck out). Rather, it requires the tribunal to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not there are facts from which it can infer discrimination.

If there are such facts, and no explanation from A, the tribunal must find the contravention proved. If a respondent chooses, without explanation, not to adduce evidence about matters that are within its knowledge (such as, in this case, the race and national origins of the successful applicants), it runs the risk that a tribunal will draw adverse inferences in deciding whether or not S.136(2) has been satisfied.

The EAT acknowledged that this is not the way in which S.136 is interpreted in the Explanatory Notes to the EqA (which state that ‘the burden of proving his or her case starts with the claimant’). However, while such notes may be an admissible aid to the construction of a statute in order to establish contextual factors, they cannot be treated as reflecting the will of Parliament, which is to be deduced from the language of the statute itself. The EAT further acknowledged that this is not the way in which the burden of proof has been understood thus far in discrimination cases, starting with Igen Ltd (formerly Leeds Careers Guidance) and Ors v Wong and other cases (Brief 777).

However, the statutory provision there being considered was S.63A of the Sex Discrimination Act 1975 (a predecessor to S.136 EqA), which – along with its ‘sibling provisions’, in for example the Race Relations Act 1976 – specifically placed the onus on the claimant to prove the initial facts from which discrimination could be inferred. There had not been many cases in which the effect of S.136 (as opposed to its predecessors) had been directly considered.

It was clear to the EAT that the tribunal did not understand the effect of S.136, since it had stated on several occasions that E had the initial burden of proving a prima facie case of discrimination. In light of this misdirection, the EAT could not be confident that the tribunal had not required E ‘to prove things that he was neither required, nor able, to prove’, such as the race and national origins of the successful candidates. In addition, the EAT could not be confident that the tribunal had imposed a sufficiently rigorous standard of proof on RMG Ltd. Had the tribunal appreciated that E did not have to get ‘to first base’ (as it put it), but that it had to consider all the evidence in the round, it might have concluded that S.136(2) was satisfied, and then have subjected RMG Ltd’s explanation to more rigorous scrutiny than it did.

The EAT, therefore, remitted the case to a differently constituted employment tribunal to decide whether or not E’s race discrimination claims were made out. In doing so, the EAT commented that even if S.136 were to be interpreted in line with its predecessors, it would still have allowed the appeal – it was not confident that the tribunal understood that there might have been facts from which a court could have concluded that (in the absence of an explanation) RMG Ltd had discriminated against E.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0203_16_1008.html

If a director was named on the ACAS Early Conciliation form and the company on the Claim Form, should the claim be allowed to proceed (as this was a minor error)?

No, held the EAT, in Giny v SNA Transport Ltd.

The Claimant brought several claims, including constructive dismissal, against his former employer. When he was initially unrepresented, he contacted Acas for Early Conciliation and named the director, Shakoor Nadeem Ahmed, as the prospective Respondent. He then instructed solicitors to prepare his Claim Form which correctly named the Respondent as his employer, ‘SNA Transport Limited’. The employment tribunal rejected his claim as the Respondent had not been correctly identified on the Early Conciliation Certificate.. His solicitors applied to the tribunal to reconsider that decision on the basis that the use of the director’s name was a “minor error”, which (under the rules) allows a tribunal to overlook it.

The employment tribunal rejected that application.. Confusing the director with the company was not a minor error, and it had been right to reject the claim. The Claimant appealed.

The Employment Appeal Tribunal, although sympathetic, rejected the Claimant’s application. It said that a two stage test should be applied.. Firstly, was it a minor error? If not, the claim would be rejected..Secondly, if it was, the tribunal should go on to consider whether or not it was in the interests of justice to allow the claim to proceed.. Although in principle the distinction between a natural and a legal person could amount to a minor error, in this case it did not. Each case should be considered on its facts, and as there was no error in the tribunal’s Judgment, the Claimant’s appeal was dismissed.