Unfair Dismissal – Vaultex UK Ltd v Bialas [2024] EAT 19

This particular case concerned whether a so-called “joke” sent by an employee to the company intranet warranted a dismissal on the grounds of gross misconduct. 

When the claim was first brought to the Employment Tribunal, the claimant employee was successful and the ET found the dismissal unfair, saying the sanction was unreasonable. The claimant had referred to sufficient evidence supporting his actions, including reference to a website which stated that the “joke” was suitable for the workplace.  He also had long service, a clean disciplinary record, expressed remorse for his actions and was willing to undertake training.  

The employer appealed against the tribunal’s decision. They highlighted that the tribunal had based its decision (regarding the reasonableness of their decision) on its’ members’ own views rather than guidelines set by the employer (which had a policy containing a zero-tolerance approach) which is not permitted.  

On appeal, the zero-tolerance approach was recognised by the Employment Appeal Tribunal, the decision of the ET was reversed and the dismissal was deemed fair. 

Key takeaway for Employers: Ensure that there is a policy in place covering what it might view as gross misconduct which could lead to disciplinary action (including summary dismissal) but be mindful of other lesser sanctions that may be appropriate in the circumstances.   

 

Employment Status – Groom v Maritime and Coastguard Agency [2024] EAT 71

This case considered the employment status of a particular volunteer at the Coastal Rescue Service and whether he was a “worker”, with regard to the various activities that he’d been personally asked to undergo. 

The claimant brought a claim following a dispute which he had with the respondent regarding his right to be accompanied at a disciplinary hearing (an issue that would be dependent upon his employment status). He was required to provide sufficient evidence that he was a worker, through either a contract of employment or an expressed or implied contract. The claimant, as part of his role as a volunteer, was obliged to comply with the respondent’s code of conduct, which required volunteers to attend specific training and attend a reasonable number of incidents.  Volunteers could also submit monthly claims for payment for the work they had done, amongst other things, but not all volunteers did so. 

The tribunal held that the claimant was in fact, not a worker: the agreement between the parties was clearly a voluntary agreement and there was no automatic entitlement to remuneration for activities carried out.

On appeal, the Employment Appeal Tribunal identified that the fact he was entitled to receive remuneration in respect of a number of activities would be an indication that he was a ‘worker’.  The claimant was in principle entering into a contract for the provision of services with the respondent every time he attended an activity in respect of which there was a right to remuneration, in the form of their Code of Conduct (which required minimum levels of attendance at training and incidents).  The EAT held that the claimant was a “worker” during the periods he had carried out activities for which remuneration applied. 

Significance of this case: Due to the complexity surrounding employment status, employers should seek expert advice on the employment status of their staff or contractors – a written contract is helpful, but not conclusive, and the nature of the relationship between the parties in reality will be considered in these situations.  

 

uk elections

Implications of the forthcoming General Election for Employment Law – what do the main parties propose?

Labour

Within Labour’s manifesto, they have stated their proposal to remove the qualifying period for employees to be granted basic employment rights, including the right not to be unfairly dismissed, sick pay and parental leave (with the indication that probationary periods would have special status here). 

Labour have also proposed to bring to an end to the distinction between “employee” and “worker” in which individuals within both employment statuses will receive the same rights and conditions such as sick pay and holiday pay. Evidently, this would provide workers with increased statutory protections such as sick pay and maternity/paternity leave that they previously would not have been entitled to. 

Labour have said they will look towards reforming the wage brackets, in which they have said they would remove national minimum wage bandings based on age as a whole, so all adults are entitled to the same minimum wage. They have also said they would take the cost of living into account when recommending rates. 

Also included in the manifesto is their proposal to make flexible working a default unless employers find such requests “not reasonable feasible”.

Labour have also expressed their desire to extend the time limit for raising an employment tribunal claim from three to six months, as well as establishing a single enforcement body for enforcing worker rights.

Other noteworthy adjustments that a Labour government propose include:

  • Publishing legislation within its first 100 days in power;
  • A ban to unpaid internships which are not part of an education scheme or training course
  • Mandatory ethnicity and disability pay gap reporting;
  • Bringing dual discrimination provisions into force;
  • Banning exploitative zero hours contracts, and giving employees the right to have a contract that reflects their regular hours of work;
  • Ending fire and rehire; 
  • Strengthening trade unions; and
  • Introducing a right to unpaid bereavement leave.

 

Conservatives

The conservative manifesto is lighter in terms of employment law reforms. However, some pledges relating to employment law include:

  • Reducing employee National Insurance Contributions by 2p and entirely abolishing the main rate of Class 4 self-employed NICs by the end of the next Parliament;
  • Introducing mandatory national service for all school leavers age 18 (with young people being able to choose either between a year-long placement or volunteering the equivalent of one weekend a month);
  • The creation of 100,000 apprenticeships in England in the entertainment industry;
  • Changing the definition of sex in the Equality Act 2010 to mean “biological sex”; 
  • Continuing the implementation of minimum service level agreements; and
  • Overhauling the fit note system, including assigning the responsibility for issuing fit notes from GPs to specialists. 

 

Liberal Democrats

The Liberal Democrats have outlined a number of pledges in their manifesto which would affect businesses and employment law, including:

  • Encouraging employee ownership in that employees could request the right to hold shares in trust to benefit employees. This would apply to listed companies that employ more than 250 staff;
  • Investment in the workforces’ skills, which includes reforming the apprenticeship levy scheme and scrapping the lower apprentice rate;
  • Increasing the minimum wage by 20% for people on zero-hour contracts during steadier periods, to compensate them in respect of fluctuating hours; 
  • Reforming employment rights in the gig economy, which includes creating a new status of “dependant contractor” which would give those individuals basic rights such as sick pay, minimum earnings and holiday entitlement. This does not appear to be a radical proposal and looks to be the creation of a status akin to a worker;
  • Changing the burden of proof in respect of employment status so that the employer has to prove this;
  • SSP to be given as a right from day one, and removal of the lower earnings limit;
  • Giving all workers, including self-employed parents, a day one right to parental leave and pay; 
  • Increasing paternity pay to 90% of the employee’s earnings at the time; and
  • Doubling statutory maternity pay and shared parental pay.

 

Reform

Their manifesto is light in terms of employment law related proposals, but pledges include:

  • A promise to abolish IR35 rules, which would support sole traders;
  • A general promise to “scrap thousands of laws that hold back British businesses and damage productivity”. They then go on to specify that the laws they are speaking about are “laws that make it riskier to hire people”, although it is unclear exactly what laws they are referring to;
  • Replacing the Equality Act 2010. The reason behind this seemingly radical proposal is that “it costs the economy billions of pounds… it has destroyed meritocracy, spread division and led to exclusion for some major groups”. They then go one step further by saying that all “Diversity, Equality and Inclusion roles” that cost huge sums of money and create “division, inequality and exclusion” should be scrapped;
  • Scrap EU Regulations “with immediate effect”.

 

For more information, or to discuss how we can help you, please email our team at employment@mcmsolicitors.co.uk