In Brief: Case Law Special (October 2020)

This month’s 'In Brief' is a common law catch up. It can be hard to keep up to date with case law developments – it’s all too easy to miss an important decision that has major implications for employers and employees. For this very reason we decided to compile a list of some of the most interesting employment cases that have been decided in the last few months.

If you want to know more about any of the cases, each has a link to a more detailed case review on the Northern Ireland Employment Law Hub, where you will also find a further link to the full judgement online.

The decisions highlighted in this article cover a wide range of employment issues, including Discrimination, Health and Safety matters and Employment Status.

Discrimination

In the recently reported case of Venegas v Drinks Inc ltd [2020] the Industrial Tribunal found that the Claimant, a Spanish national was subject to a discriminatory dismissal when he was informed there was no further work for him and the respondent (when the burden of proof shifted to them) was unable to show that the dismissal was not connected to his nationality.

Conversely in Raji v West Ham United Football Club Ltd [2020] the Claimant was unable to demonstrate that the alleged less favourable treatment (dismissal) was discrimination on the basis of his nationality and so the burden of proof did not shift to the Respondent.

In Taylor v Jaguar Land Rover [2020] an Employment Tribunal found that gender was more than a binary choice (regardless of reassignment) and that there was a spectrum.  This led the Tribunal to find that where someone who was non-binary and gender fluid would be protected by Section 7 of the 2010 Act in relation to protecting those who have had gender reassignment and thus Ms Taylor’s claims for discrimination, harassment and victimisation were upheld. 

Health and Safety Matters

In the first reported case relating to dismissal for self-isolation the Employment and Equality Tribunal in the Isle of Man found in Reid v The Good Health Store [2020], the decision to dismiss the Claimant, Ms Reid due to her decision to self-isolate on the basis of medical advice was unfair.  It has to be remembered that the dismissal took place in March 2020, during the early stages of the pandemic. 

Employees are obliged to ensure they adhere to health and safety rules and in the case of Chell v Tarmac Cement & Lime Limited [2020] the High Court noted that what an employee, Mr Heath felt was a practical joke was no joking matter when it led to the Claimant suffering a perforated eardrum, noise induced hearing loss and tinnitus.  Interestingly in this case the court found that the employer was not liable for the actions of Mr Heath.

Finally, while the issue of working time was not ruled on in the case of Holloway v Aura Gas Ltd [2020] the Tribunal noted that for minimum wage regulations and working time issues the travel done within the course of work will be taken into account.  Mr Holloway was a heating engineer and was required to travel to client’s premises.  Whilst there was no evidence showing that the claimant was consistently working in excess of 48 hours a week (above the working time limit) it was found that the way in which travel was dealt with was contrary to the claimant’s contract and the subsequent resignation was sufficient for constructive unfair dismissal. 

Employment Status

Employment status continues to be a complex and litigious area of employment law.  Two recent cases are worth highlighting to emphasise the importance of having both the correct documentation in place and ensuring that the practice aligns with the written ‘contract’.  In Gorman v Terence Paul (Manchester) Ltd [2020] an Employment Tribunal found that a ‘self-employed’ hairdresser was in fact an employee and noted the tests in terms of mutuality of obligation and control were clearly made out and the only factor that went towards self-employment was the fact that the Claimant kept her own accounts and attended to taxation, but this was out of the claimant’s control. 

In Glasgow City Council v Johnstone & Anor [2020] the Employment Appeal Tribunal found that a husband and wife team of foster parents were in an employment relationship with the Respondent as the contractual documentation went beyond the statutory requirements and the Claimants were paid a fee rather than expenses.  It is important to remember that this case, like many cases that deal with employment status is fact specific.   

These cases and many more can be found in the case law section of the Northern Ireland Employment Law Hub.