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The EAT has provided a helpful reminder that employers should give proper consideration to all possible alternatives before dismissing an employee for long-term sickness absence. Otherwise, employers may find that the dismissal is not only unfair, but discriminatory.

The Claimant, Dr Ali, had been on long-term sick leave after suffering a heart attack and was regarded as disabled for the purposes of the Equality Act 2010. Medical evidence shared that Dr Ali could return to work on a part-time basis but confirmed that it was unlikely that he would ever be able to work full-time again. Dr Ali was dismissed for capability reasons after the other doctors at his practice failed to consider him returning to work on a part-time basis.

The EAT found for Dr Ali, because there had not been any consideration of the possibility of part-time working.

Ali v Torrosian and others (t/a Bedford Hill Family Practice) UKEAT/0029/18

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Individuals are entitled to a right of access to their personal data. In a situation where that request cannot be complied with without disclosing information relating to another identifiable individual – where it contains ‘mixed data’ – employers  often refuse to comply with the request, unless that other individual has consented to disclosure of their personal information.

The case was concerned with disclosure of an independent expert’s report. The report contained personal data relating to both the patient, P, and his doctor, Dr B. The patient who was the subject of the report sought full disclosure from the General Medical Council (GMC), although the doctor did not consent to the report’s disclosure. On balance, the GMC took the decision that the report contained P’s personal data and should therefore be disclosed to him. The doctor took the matter to the High Court.

The Court of Appeal ordered disclosure of the report. There was no sound basis upon which to favour the rights of Dr B. Ultimately, the data access rights of the patient trumped those of the doctor.

B v General Medical Council [2018] EWCA Civ 1497

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The EAT has given guidance on how an employer should respond to numerous intermittent sickness absences of an employee with a disability.

The employee in this case, Mrs O’Connor, had a high number of sickness absences over a number of years. Her employer initially adopted a very careful approach and treated her with sensitivity by allowing her to have a higher sickness absence record than it would usually allow. However, once Mrs O’Connor’s absence levels hit 60 days in a 12-month period, it issued her with a written warning, the consequence of which was that her contractual sick pay ceased for future absences.

Mrs O’Connor brought a claim for discrimination arising from disability under the Equality Act 2010.

The EAT held that the employer’s decision to issue a warning was not justified, and was therefore discriminatory. Whilst ensuring appropriate attendance levels among staff was a legitimate aim, it was not proportionate of the employer to give Mrs O’Connor a warning. Not only could it not explain how the warning would assist matters, as Mrs O’Connor’s absences were genuine and caused by her disability, but it also failed to follow some of its procedures, such as referring her to occupational health.

DL Insurance Services Ltd v O’Connor UKEAT/0230/17

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The Supreme Court has added to the raft of cases concerning whether staff in the gig economy are workers, and so entitled to paid holiday and limited other rights, or genuinely self-employed and out of employment protection altogether.

This case concerned a plumber working for Pimlico Plumbers, who claimed that the company had deprived him of a number of employment rights such as paid holidays and sick pay because it wrongly classified him as a self-employed contractor. The factors for the Court to consider were:

• that the plumber, Mr Smith, had to drive a Pimlico Plumbers branded van with a tracker in it, had to wear a Pimlico Plumbers branded uniform, and carry a company ID card;
• he was not under a specific obligation to accept work, and Pimlico was not specifically obliged to provide it, but Mr Smith’s contract stated he must work at least 40 hours per week for Pimlico;
• Mr Smith had to provide his own tools and equipment and would not be paid in the event a customer failed to settle an invoice;
• Mr Smith had to secure his own liability insurance;
• he was VAT registered, invoiced Pimlico for his pay, and submitted tax returns to HMRC on the basis of being self-employed;
• there was a contractual right to provide a substitute to carry out the work he had agreed to do, but it was limited only to other plumbers already working for Pimlico; and
• Mr Smith was subject to restrictive covenants under his contract.

The Supreme Court held that Mr Smith was a worker with entitlement to various employment rights. It held that the right to substitute himself for another Pimlico plumber, given that it was fettered, was not enough to prevent there being a personal service relationship – the defining characteristic of worker status. The facts showed that Pimlico had tight control over Mr Smith’s working life, which pointed away from Mr Smith being a truly independent contractor.

This case is the first time a gig economy worker status question has come before the Supreme Court, and its decision that Mr Smith was a worker follows the direction of travel set by other cases. That said, the question of employment status is always tied closely to the facts of any given case, such that it does not automatically follow that other gig economy workers have employment rights. More cases are due to make their way through the courts and tribunals in the coming months.

Pimlico Plumbers Ltd and Mullins v Smith [2018] UKSC 29

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The Employment Appeal Tribunal has held that an employee who was dismissed for failing to provide evidence of his right to work in the UK after his original right to work came to an end should have been given the right to appeal against his dismissal.

The facts of the case concerned Mr Afzal, who had been employed by Domino’s Pizza since 2009. Mr Afzal’s time-limited right to work in the UK was due to expire and he was required to make an application for a right to permanent residence before 12th August 2016. Mr Afzal made his application in time and sent his employer an email attaching evidence of his right to work. However, Domino’s was unable to open the attachment. Concerned about the risk of continuing to employ Mr Afzal, Domino’s dismissed him on 12th August 2016 without any right of appeal.

When Mr Afzal was able to provide evidence of his right to work in the UK, he was given the opportunity to be re-engaged as a new starter (although on inferior terms). He therefore claimed unfair dismissal.

The Employment Tribunal held that refusing Mr Afzal the right to appeal did not make his dismissal unfair, as Domino’s had reasonable grounds to believe that the Claimant had failed to make a valid application. The ET therefore held that Mr Afzal had “nothing to appeal against.”

Mr Afzal appealed to the Employment Appeal Tribunal, who disagreed with the ET’s decision. Mr Afzal had made his application in time. An appeal would have enabled the employer to carry out checks to satisfy themselves that the application had been made in time, and therefore avoid an unnecessary dismissal.

This case therefore highlights the invaluable nature of appeals processes in circumstances such as these and the importance of employers implementing fair procedures when the need to dismiss employees does arise.

Afzal v East London Pizza Ltd t/a Dominos Pizza UKEAT/0265/17

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The Government has published its response to the Women and Equalities Select Committee’s recent report.

In March this year, the House of Commons’ Women and Equalities Select Committee published its report, ‘Fathers and the Workplace’ setting out its recommendations for new legislation to support working parents better. The recommendations included:

• Giving all new fathers their own independent and paid right to leave;
• Making paternity a “day one” right;
• Increasing the statutory rate of paternity pay to 90% of earnings (subject to a cap for higher earners); and
• Offering 12 weeks of “use it or lose it” leave.

In June 2018, the Government published its response. It accepted the need for change but rejected many of the Committee’s recommendations designed to modernise workplace policies. The report concluded:

• The Government was unlikely to follow the recommendation of making paternity leave a day-one right, as it currently is for maternity pay; and
• With regard to Shared Parental Leave, further consultation was needed. The Government stated that it is “committed” to the concept and it has had “little time to bed in.”

In dismissing the Committee’s recommendations, the Government failed to put forward alternative solutions. Maria Miller, Chair of the Committee said, “The Government has previously voiced good intentions when it comes to family friendly policies but the response to our report is a missed opportunity.”

It is therefore clear that further reform of family friendly rights is not on the immediate horizon. The response did, however, comment that the forthcoming Maternity and Paternity Rights Survey this year will provide more data for the Government to consider parental leave in greater detail. The Government’s response can be found here.

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The High Court has confirmed that an entire agreements clause can defeat a claim for misrepresentation.

Shortly after a share sale had taken place, the buyer brought a claim alleging that the seller had misrepresented the company’s liabilities. The share purchase agreement had contained a standard entire agreement clause, saying the agreement replaced any previous discussions and set out the entire agreement between the parties. The High Court held that the parties had intended to exclude misrepresentation claims given how wide the entire agreement clause was (it included contractual matters such as ‘agreements’, ‘warranties’ and ‘promises’, and less contractual matters such as ‘assurances’ and ‘negotiations’). There was also provision for the seller to indemnify the buyer for misrepresentations of the company’s liabilities, so there was already a contractual mechanism by which a matter like this would be resolved.

This decision does not sit well with others on entire agreement clauses and misrepresentation, and it is only a first instance judgment. Moreover, employment contracts do not provide for compensation for misrepresentation and so are arguably not analogous. Nevertheless, whilst this case cannot be relied on as a cast-iron rule, it does act as another reason why employers are well-advised to include entire agreement clauses in their contracts of employment.

NF Football Investments Ltd and another v NFCC Group Holdings Ltd and another [2018] EWHC 1346

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