Weekly Review of Developments 13/9/2019

Posted in : Weekly Review of Developments on 13 September 2019
Legal Island
Legal Island

A little bird told us that yellowhammer is a wee bird, not the scariest forward job plan ever written. But that avian report is probably out of date, unlike...

What we learned this week:

  • Our Early Bird discounts to attend our annual reviews of employment law end today. Save up to £90 + VAT
  • A company has been held vicariously liable for an employee's death after he died having sex with a stranger on a business trip
  • Several amendments in relation to court fees have been introduced that might interest our solicitor readers in particular
  • The CIPD has produced an online document: UK Working Lives - Practice Briefing for Northern Ireland

And here's this week's contents list in full...

CONTENTS

  1. Case Law Reviews
  2. Annual Reviews of Employment Law - Last Chance to Get Early Bird Discounts
  3. Brexit and Immigration Update
  4. UK Working Lives - Practice briefing for Northern Ireland
  5. Court Fee Changes
  6. Just in Case You Missed It...
  7. Employment News in the Media
  8. GB Developments
  9. South of the Border
  10. Friends of Legal Island
  11. Free Webinars This Month
  12. Weekend Weather and Thought-Provoking Video

Case law essentials this week: Two cases from Jason Elliott BL this week. In the first, the EAT rules that a doctor employed through a company set up by her was a worker for employment rights' purposes; in the second, Jason sets out why evidence can be obtained from third parties when it comes to the issue of whether a stigma would be attached to a claimant in future job opportunities.

Remember: Our case law reviews are now held in our case law section on our fully-searchable employment law hub website:
https://www.legal-island.com/employment-law-hub/case-law-search-page/  

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1. Case Law Reviews

Community Based Care Health Ltd v Narayan [2019] UKEAT/0162/18/JOJ

Issues Covered: Employment Status; Mutuality of Obligation

The claimant was a ‘duty doctor’ and worked regular shifts on a 12-week rota at a single medical practice.  This had been the case for approximately 12 years.  She was not obliged to accept any work offered, nor was the company obliged to provide any work.  She took holidays when she pleased.  She also worked as a locum through another agency.  As a result, she was paid from both roles but through a limited company.   She did not tell Community Based Care Health Ltd about the income going through a limited company, except for the fact she had given the limited company’s bank details for the purposes of payment. 

The ET held that as she had worked consistent shifts over a 12 year period but that there was no mutuality of obligation, shown by the fact she did not need permission to work for the other agency, she provided her own equipment and indemnity insurance. This meant that she was a worker rather than being self-employed or an employee.   Accordingly, the ET held that the contract had been with the GP personally despite the payment being through the limited company.

The company appealed this decision, stating that they had unknowingly become a client of the GP's company from October 2015 and that the GP could not be a worker when the limited company was the contracting party.  The EAT held that those undertaking out-of-hours GP work were required to satisfy strict qualification and performance requirements and that it was not possible for a company to meet those requirements.  As a result, the EAT dismissed the argument that there was no worker status due to the payments made to the company.

The second argument from the appellant 'employer' was that the ET erred in applying mutuality of obligation, as found in Suhail v Herts Urgent Care (2013) 130 BMLR 27.   In that case, self-employment of an out-of-hours GP was found but primarily because the claimant advertised their services to many different NHS bodies.  The index case was rightly distinguished as the respondent had worked at the same institution for many years and had not advertised her services elsewhere.  Accordingly, the EAT held that whilst there was not a contract of employment there was a singular contract between the parties rather than a series on a shift-by-shift basis.   As a result, the declaration of the GP as a worker was upheld with the appeal being dismissed.

Practical Lessons:

This case serves to demonstrate the particular nuances that can be found in distinguishing between an employee, self-employed and a worker.   One of the primary issues is that the individual had sought to be paid through a limited company.  This was unbeknownst to the company who continued to pay the individual thinking their contract was only with them as an individual.   This decision demonstrates how the Tribunal will look behind such payment situations to determine the actual relationship that existed between the parties.  Therefore, there was greater weight given to the fact the GP had worked with the one institution over many years. 
https://assets.publishing.service.gov.uk/media/5d6d0656ed915d53ab155d13/Community_Based_Care_Health_Ltd_v_Dr_Reshma_Narayan_UKEAT__0162_18_JOJ.pdf   


Small v The Shrewsbury & Telford Hospitals NHS Trust [2019] UKEAT/0077/19/JOJ

Issues Covered: Protected Disclosure; Stigma Damages

This case can be regarded as having extensive history with the first decision of the EAT being successfully appealed at the Court of Appeal in Small v The Shrewsbury & Telford Hospitals NHS Trust [2017] EWCA Civ 882.  The basis of the case arose from the fact that the temporary contract of the claimant was ended by the respondent following a protected disclosure that was made.    The ET found that the dismissal was unfair and awarded compensation for injury to feelings, loss of earnings and aggravated damages.  The Court of Appeal agreed with the argument that Chagger damages for stigma loss should be awarded. These damages, arising from the case of Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202, are designed to compensate a claimant who has made a protected disclosure or brought legal proceedings and that they would be adversely affected within their area of work. 

The issue with the level of Chagger damages arose in the ET when the Tribunal sought third parties to provide disclosure of the documents relating to job applications that had been made by the claimant.  The claimant argued that this went beyond the scope of the remission of the case from the Court of Appeal.  The EAT outlined that the law was clear as seen in Aparau v Iceland Frozen Foods (No 2) [2000] ICR 341 that the Tribunal should not revisit other areas of the case when it had been remitted for a particular reason.   In this case, however, the Respondent successfully argued that the third party documents would go to answering the question that had been remitted to the Tribunal on the level of Chagger damages.  The reason for this is that the third party documents would be able to shed light on the nature of any applications and whether any stigma would be attached to the claimant in future applications. Accordingly, the appeal was dismissed.

Practical Lessons

This case serves to demonstrate the type of evidence that could be adduced in determining the level of damages that should be awarded.  Whilst there is a lengthy history to this case, the index judgment was on a very narrow issue of whether third party disclosure should be made vis-à-vis Chagger damages.  In this case, it was held that it was relevant and serves to demonstrate that evidence can be obtained from third parties when it comes to the issue of whether a stigma would be attached to the claimant in future job opportunities.
https://assets.publishing.service.gov.uk/media/5d6e3b39ed915d53b8ebdbdb/Mr_Leslie_John_Small_v_The_Shrewsbury___Telford_Hospitals_NHS_Trust_UKEAT_0077_19_JOJ.pdf   

These case reviews were written by Jason Elliott BL.  NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/         

If you have any queries or wish to comment on the reports please feel free to contact Jason at: jason.elliott@barlibrary.com    

Jason Elliott was called to the Bar of Northern Ireland in 2013.  He has developed a civil practice representing individuals, companies and public bodies in litigation.   This covers a range of areas of law such as personal injuries, wills and estates and employment law.  In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal.  Alongside his practice at the Bar, he is also a part-time lecturer in law at Ulster University where he takes the Employment Tribunal Representation module for Masters students.

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2. Annual Reviews of Employment Law - Last Chance to Get Early Bird Discounts

Our Early Bird discounts to attend our annual reviews of employment law end today. Save up to £90 + VAT:

Titanic Belfast on 7th November:
https://www.legal-island.com/event/annual-review-of-employment-law-2019-titanic-belfast/  

OR

Crowne Plaza, Shaw's Bridge on 19th November:
https://www.legal-island.com/event/annual-review-of-employment-law-2019-crowne-plaza/  

Full speaker and programme details online.

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3. Brexit and Immigration Update

Employers Welcome More Generous Visas for International Students

Plans to allow international students to stay in the UK for two years after graduating have been cautiously welcomed by employers’ groups – though they have warned more needs to be done to tackle post-Brexit skills shortages in key professions.

The new Home Office proposals grant students two years to find work, with no restriction on overall numbers, or on which jobs students seek. However, students must have graduated from a ‘trusted’ UK university with a proven track record in upholding immigration checks.

Prime minister Boris Johnson said the changes would allow students to “unlock their potential”. They will apply to international students starting courses from next year. The announcement overrides then-home secretary Theresa May’s move in 2012 to scrap the two-year post-study work visa and impose a four-month restriction on overseas graduates.

More from People Management:
https://www.peoplemanagement.co.uk/news/articles/employers-welcome-more-generous-visas-for-international-students?  

The CBI said, "This is unequivocally good news and sends a clear signal that the UK is open for business."
https://www.cbi.org.uk/media-centre/articles/our-response-to-international-student-visa-announcement/  


Data Protection and Brexit

The ICO has produced guidance and resources for organisations after Brexit.  These includes:

  • Leaving the EU - 6 steps to take - This checklist highlights six steps you can take to prepare for data protection compliance if the UK leaves the EU without a deal.
  • Law enforcement processing and Brexit: five steps to take - This checklist is for law enforcement authorities and highlights five steps to take if the UK leaves the EU without a deal.
  • Data protection if there’s no Brexit deal - Read this guidance if you are an organisation based in the UK and the GDPR currently applies to your processing of personal data
  • FAQs- Frequently asked questions about information rights and Brexit

https://ico.org.uk/for-organisations/data-protection-and-brexit/   

Not All Exports Can Comply With New Post-Brexit Rules

Not all exporters will be able to comply with new rules after Brexit, according to the department responsible for agri-food cross border trade.  The Executive Department has said the best thing companies can do is prepare for change.  Companies without the paperwork required by the EU will not be able to sell their produce there.

The Department of Agriculture said it expects the pattern of trade to change.

"The best thing agri-food businesses can do is to prepare for these changes - as not all businesses will be able to meet the new Export Health Certificate requirements," it said.

It's estimated that up to 1.9m such certificates will be needed to accompany every consignment of locally produced food and other animal products bound for the EU.  More on this from the BBC:
https://www.bbc.co.uk/news/uk-northern-ireland-49612196   


Get Ready For Brexit: Check What You Need To Do

The United Kingdom is apparently leaving the European Union on 31 October 2019.  Gov.uk has created a self-assessment style Brexit checker to help you find out what you or your business will need to do to get ready for Brexit.  It should only take a few minutes to complete and is available here:
https://www.gov.uk/get-ready-brexit-check   


Brexit: Scottish Judges Rule Parliament Suspension Is Unlawful

Boris Johnson’s suspension of the UK Parliament is unlawful, Scotland’s highest civil court has ruled.  A panel of three judges at the Court of Session found in favour of a cross-party group of politicians who were challenging the prime minister's move.  The judges said the PM was attempting to prevent Parliament holding the government to account ahead of Brexit.

The UK government said it will appeal against the ruling to the Supreme Court in London.

The Court of Session decision overturns an earlier ruling from the court, which said last week that Mr Johnson had not broken the law.

But it is currently unclear what impact the judgement will have on the current suspension of Parliament - a process known as proroguing - which started in the early hours of Tuesday.  More from the BBC:
https://www.bbc.co.uk/news/uk-scotland-49661855   

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4. UK Working Lives - Practice Briefing for Northern Ireland

As we face a future of greater automation, an ageing workforce, continual change and dynamism across sectors, creating good work and quality jobs is a priority. This may be affected by a range of factors, including HR practices, the quality of people management as well as the workers themselves.

The CIPD’s annual UK Working Lives Survey sets out to examine these factors, using seven critical dimensions of job quality. The resulting work equips policy makers, business leaders and managers as well as individuals, with evidence and recommendations by which they can raise job quality and improve working lives.

This concise briefing is a supplement to the main report and is designed to provide people practitioners with an overview of the key findings, as contextualised for Northern Ireland. By drawing out the most notable data for each aspect of job quality, together with charts and ‘practice pointers’, this briefing directs focus towards the most essential issues for action.

Due to sampling difficulties related to a smaller working population, the data for Northern Ireland is more limited than for other UK nations and regions.

More from the CIPD:
https://www.cipd.co.uk/knowledge/work/trends/uk-working-lives/northern-ireland-practice-briefing   

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5. Court Fee Changes

Several amendments in relation to court fees will be introduced from 1st October that might interest our solicitor readers in particular:

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6. Just in Case You Missed It...

The Use and Misuse of Social Media in Schools

In this Education Quarterly Law Update, Lisa Sturgeon, Associate Director with Napier Solicitors, discusses how the use (and misuse) of social media has become an increasing problem for both Principals and their staff alike to deal with.  This article considers five issues:

  • The use of social media in a school setting;
  • The use of social media by teachers both in a professional and personal capacity;
  • The use of social media by parents of pupils who use social media to criticise schools or teachers – what is acceptable, what crosses the line and what right of redress does a school have;
  • What legal action a School/Board of Governors can take against a parent who abuses a teacher/member of staff on social media;
  • What legal actions, if any, staff members, subjected to abuse on social media sites, might bring against a school/Board of Governors.

https://www.legal-island.com/articles/uk/features/education-law/2019/sept/the-use-and-misuse-of-social-media-in-schools/  


CJEU Updates by Kevin McVeigh

In this months ‘Commercial Law for Employers’ article, Kevin McVeigh, Partner and Head of the Corporate and Commercial Department in EDG Solicitors, considers three preliminary rulings to the Court of Justice of the European Union which deals with the breadth of the protection afforded by the Equality Opportunities Directive; the impact of a dismissal during a period of parental leave and subsequent calculation of termination and other payments and the ever complex issue of employment status and rights provided for by the Acquired Rights Directive.

  • Equal Opportunities Directive – Breadth of Protection
  • Calculation of Redundancy Pay During a Period of Parental Leave
  • Acquired Rights Directive – does holding a ‘Position of Trust’ preclude TUPE Protection

https://www.legal-island.com/employment-law-hub/regular-features/commercial-law-for-employers/

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7. Employment News in the Media

A man who died from a heart attack after having sex with a woman he met on a business trip is a 'victim of a professional accident', a French court has ruled. This ruling means that the employer of the man, known as Xavier X, will have to pay hefty compensation to his dependents. More from the Mail online:
https://www.dailymail.co.uk/news/article-7446019/Man-died-having-sex-business-trip-victim-work-accident-court-rules.html  


California lawmakers have passed a bill that paves the way for gig economy workers to get holiday and sick pay. Assembly Bill 5, as it's known, will affect firms like Uber and Lyft, which are based in California and depend on those working in the gig economy. Some estimates suggest costs for those firms would increase by 30% if they have to treat workers as employees. More from the BBC:
https://www.bbc.co.uk/news/business-49659775  


The TUC has called for legal measures to tackle discrimination based on class at work.  Among the proposals, it said firms should be forced to report any gaps in pay between workers from different social backgrounds.  The body said graduates from wealthier families were more than twice as likely to start on a higher salary than their working-class peers.  It said that without new laws, people from working-class backgrounds would continue to face "direct" forms of discrimination, such as employer bias during job applications and interviews.  More on this from the BBC:
https://www.bbc.co.uk/news/business-49625848   


The University and College Union is balloting more than 52,000 members of the University Superannuation Scheme in 69 universities on whether or not to strike. Analysis by pensions advisors First Actuarial found that because of changes to the USS, a typical member will pay around £40,000 more into their pension but receive almost £200,000 less in retirement - making them £240,000 worse off. More from publicfinance.co.uk:
https://www.publicfinance.co.uk/news/2019/09/university-staff-threaten-strike-action-over-pensions-changes1?utm_source=Adestra&utm_medium=email&utm_term=   


Two airlines are cutting routes at both Belfast International and Belfast City airports. Ryanair is understood to have reduced a number of services at Aldergrove this winter. Meanwhile, Aer Lingus has confirmed it will no longer be offering two routes at Belfast City Airport from next summer. More from the BBC:
https://www.bbc.co.uk/news/uk-northern-ireland-49665919  

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8. GB Developments

Employment law is a devolved power in Northern Ireland. The items in this section apply throughout GB only (Scotland and England & Wales) unless we specify they apply to NI.

Labour Reforms

At TUC Congress this week, the Labour Party is announced plans to create a Ministry for Employment Rights in GB to “bring about the biggest extension of rights for workers that our country has ever seen” to deliver better wages, greater security and give workers more of a say over how their workplaces are run. Labour is promising that the new Ministry for Employment Rights and Secretary of State for Employment Rights will ensure that “the voice of working people will be heard at the cabinet table, exactly as it should be”.

Suggested changes include:

  • The introduction of a new, unified Workers’ Protection Agency, tasked with enforcing the law and ensuring that all workers receive the rights and protections that they are entitled to, given extensive powers to inspect workplaces and bring prosecutions and civil proceedings on workers’ behalf
  • Support for good employers through tougher penalties for bad employers who undercut them by breaking the law and tougher consequences for non-compliance with court orders
  • A Labour government will introduce sectoral collective bargaining by establishing councils of worker and employer representatives that negotiate collective agreements with minimum terms, conditions and standards for the whole of the sector and guarantee a legal minimum for every employer in the sector to adhere to on a core set of issues, including pay, working hours and recruitment and grievance processes
  • Fixing the problem of different categories of workers with different rights by creating a single status of ‘worker’ for everyone apart from those genuinely self-employed
  • Ending the so-called “Swedish derogation” which permits employers to pay agency workers less than regular staff for the same work
  • The introduction of a civil enforcement system to ensure compliance with gender pay auditing
  • Giving all workers the right to seek flexible working, and placing a duty on the employer to accommodate the request
  • A statutory Real Living Wage of £10 per hour by 2020 for all workers aged 16 or over
  • Banning unpaid internships
  • Banning zero hours contracts by requiring employers to give all workers a contract that accurately reflects their fixed and regular hours

More:
https://labour.org.uk/press/corbyn-pidcock-announce-ministry-employment-rights-workers-protection-agency/   

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9. South of the Border

This section is brought to you by Ciara Fulton, Senior Partner at Jones Cassidy Brett. Ciara is dual-qualified and practices law throughout the island of Ireland. Contact Ciara on cfulton@jcbsolicitors.co.uk.  

Courts Service of Ireland - New Website

The Courts Service of Ireland has a new website:
https://beta.courts.ie/   

It's not fully operational as we write but judgements have been added and more services can be expected soon:
https://beta.courts.ie/judgments     

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10. Friends of Legal Island

Carson Expansion

Northern Ireland firm Carson McDowell has announced 17 internal promotions, naming seven new senior associates and 10 associates across its teams, including Sarah Cochrane in employment. More from Irishlegal.com:
https://www.irishlegal.com/article/carson-mcdowell-names-seven-new-senior-associates-and-10-new-associates   

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11. Free Webinars This Month

Employment Law at 11 - With O'Reilly Stewart Solicitors

The First Friday of every month (11:00am - 11:45am)

Register for the next webinar in the series on teh 4th of October, during which Scott Alexander from Legal Island will discuss your employment-related questions with Seamus McGranaghan from the employment team at O'Reilly Stewart solicitors.

Join Scott and Seamus and up to 500 participants as they discuss your employment law queries live in our webinar series, “Employment Law at 11”.

Tell your HR colleagues and register individually or get your HR team around the computer and use the webinars as monthly group learning opportunities. Ask any questions (on employment law) and hear the answers live or catch up later when we upload both a recording and transcript of the discussion.

NOTE: – send questions in live during the webinars or drop a line in advance to Rolanda@legal-island.com. Anonymity assured.

Register Now:
https://www.legal-island.com/event/forthcoming-webinars-ni/   

Check out previous discussions:
https://www.legal-island.com/resources/any-questions-webinars/    

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12. Weekend Weather and Thought-Provoking Video

Should be pretty warm and sunny for most over the weekend, with a chance of light rain on Sunday. Maximum daytime temperatures of 18°C.

Go to the BBCNI for local information:
http://bbc.in/tw39eP     

This week's thought-provoking video is by Luisa Neubauer and is entitled "Why I became a climate activist — and why you should too". "I dream of a world where geography classes teach about the climate crisis as this one great challenge that was won by people like you and me," says climate activist Luisa Neubauer. With Greta Thunberg, Neubauer helped initiate "Fridays For Future," the momentous international school strike movement that protests the lack of action on the climate crisis. She shares four first steps that anyone, regardless of age, can take to become a climate activist. "This is not a job for a single generation. This is a job for humanity," she says. Listen here:
https://www.ted.com/talks/luisa_neubauer_why_i_became_a_climate_activist_and_why_you_should_too?   

And don't forget the A&L Goodbody 'Back to Basics' series of videos on the Legal-Island website if you want a quick check of NI employment rights. As well as a short video from the team, there's a transcript for reference purposes.
https://www.legal-island.com/regular-features/back-to-basics-video/    

Enjoy the weekend.

This article is correct at 13/09/2019
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

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