Employment Law & HR Update - June 2018
Sophie Allinson gives an update on three recent and notable employment law cases in her June 2018 update.
Does being employed under a zero-hours contract mean that you can’t compare that contract to one for a full-time worker for the purposes of a part-time workers discrimination claim?
No, held the Employment Appeal Tribunal (EAT) in Roddis v Sheffield Hallam University.
The claimant was employed as an associate lecturer under a zero-hours contract. He brought a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 comparing himself to a full-time lecturer, who was working under a permanent contract.
The Employment Tribunal dismissed the claim, stating that the claimant was not ‘employed under the same type of contract’ as required by the Regulations, because his contract was a zero-hours one. The claimant appealed that decision to the EAT.
The EAT found no difference in terms between the two contracts of employment, other than that the claimant was employed on a zero-hour basis. The EAT stated that if the difference in hours made the contracts not capable of comparison, then the Regulations would be self-defeating and the EAT therefore upheld the appeal.
Does misconduct need to be gross to make a dismissal without prior warnings fair?
No, held the EAT in Quintiles Commercial v Barongo.
The claimant failed to complete compliance training and missed a compulsory training course and was dismissed for gross misconduct, but with notice. At a disciplinary appeal hearing, the misconduct was later reclassified as serious misconduct, but the dismissal was still upheld.
The claimant claimed unfair dismissal and the Employment Tribunal decided that the dismissal was unfair, as ‘serious’ misconduct dismissals require prior warnings. The employer appealed.
The EAT upheld the appeal, stating that that under s.98(4) of the Employment Rights Act 1996 there is no absolute requirement for a dismissal for conduct that is less than gross misconduct, and where there has been no prior warning, to amount to an unfair dismissal. The question is whether the decision to dismiss was one which a reasonable employer could make. Was it within the ‘band of reasonable responses’?
However, the EAT added that in most cases a dismissal of this kind without warnings would be outside the band of reasonable responses. Caution should therefore be taken if you are considering dismissing an employee without previous warning for misconduct which is less than gross misconduct.
Can an Employment Tribunal take note of events occurring subsequent to the issuing of the employment contract when determining who is to be classed as an employee’s employer?
Yes, held the EAT in Dynasystems for Trade and General Consulting Ltd and Others v Moseley.
The claimant was employed under a contract of employment stating that the first respondent was his employer. The first respondent paid the claimant’s salary, but the claimant’s line manager, who was a director of the second respondent, was responsible for agreeing the claimant’s salary and payments and for his day to day management.
The Employment Tribunal considered whether the contractual documents truly reflected the state of the employment. In doing so, the ET considered events taking place years after the contract was signed and consequently found the second respondent to be the real employer.
The decision was appealed, arguing that the ET should have limited its consideration to the circumstances existing at the time the contract was signed. The EAT dismissed the appeal however, stating that subsequent behaviour which is contradictory to the written agreement may be of evidential value, but not necessarily conclusive, as to the true state of employment.
About the author
Sophie is a Solicitor in the firm's HR & Employment team.