Weekly News Roundup 20th Feb 2017

This week employment law case updates:

Employee negligence may justify gross misconduct dismissal

Adesokan v Sainsbury's Supermarkets Ltd [2017] EWCA Civ 22

The Court of Appeal dismissed the appeal of Mr Adesokan and held that an employee's act of gross negligence, through dereliction of duty, can justify an employer's decision to dismiss them for gross misconduct.

Mr Adesokan was employed as Regional Operations Manager by Sainsbury, which was one of the more senior posts in the company as he was responsible for 20 stores and had worked for them for 26 years.

He was summarily dismissed after the Sainsbury’s found that he had undermined what they called the Talkback Procedure (TP) and the philosophy behind which is the desire to ensure that staff should be engaged, motivated, and take pride in their work.

Mr Adesokan discovered that his HR partner had sent out an email to managers which, in effect tried to manipulate the Talkback scores within his region. Mr Adesokan did ask the HR partner to "clarify what he meant with the store managers", but failed to take any action to ratify the situation.

The judge made findings that although he was not dishonest, his failure to take active steps to remedy the situation had damaged Sainsbury's trust and confidence in him and amounted to gross misconduct, which was sufficient to warrant the dismissal.

Mr Adesokan appealed on the basis that the conduct was not capable, as a matter of law, of amounting to gross misconduct. Especially for someone with such long and unblemished career who was not even responsible for sending the email, it was too harsh to dismiss him without notice for a single act of negligent wrongdoing. The Court of Appeal held that the High Court was entitled to find that his actions amounted to a serious dereliction of his duty, given the seniority of his position, the significance placed by Sainsbury's on the Talkback Procedure, and the critical role it plays in the culture of the company.

Source:

1. LORD JUSTICE LONGMORE<br>LORD JUSTICE ELIAS<br>and<br>LORD JUSTICE DAVID RICHARDS. Adesokan v Sainsbury’s Supermarkets Ltd [2017] EWCA Civ 22 [Internet]. 2017 [cited 2017 Feb 23]. Available from: http://www.bailii.org/ew/cases/EWCA/Civ/2017/22.html

Disabled employee entitled to reduction in workload

The Home Office (UK Visas & Immigration) v Kuranchie UKEAT/0202/16/BA

The Employment Appeal Tribunal (EAT) dismissed the employer's appeal that it took sufficient steps to make reasonable adjustments by allowing a disabled employee to work compressed hours, but failed to decrease her workload. The EAT agreed that the Ms Kuranchie remained at a substantial disadvantage after her hours had been altered.

Ms Kuranchie suffered from dyslexia and as a result was classed disabled. She was allowed to compressed hours i.e. she worked longer days for 4 days a week, however, her workload was not reduced. Ms Kuranchie brought a claim in the Employment Tribunal, and it was held that the employer had failed to make reasonable adjustments for Ms Kuranchie's disability, such as reducing her workload in order to avoid her suffering any disadvantage.

The EAT concluded that the employer had not taken reasonable steps to avoid the substantial disadvantage to Ms Kuranchie, even though neither she, nor a report commissioned on her dyslexia, had suggested that her amount of work be reduced.

Source:

2. The Home Office (UK Visas & Immigration) v Kuranchie UKEAT/0202/16/BA [Internet]. [cited 2017 Feb 23]. Available from: http://www.employmentcasesupdate.co.uk/site.aspx?i=ed34994

Subcontractor, worker or employee?

Pimlico Plumbers & Charlie Mullins v Gary Smith [2017] EWCA Civ 51

The gig economy remains in the headlines after the Court of Appeal upheld the EAT decision that a plumber was a worker and not a self-employed contractor.

Mr Smith carried out plumbing work for Pimlico Plumbers from 2005 to 2011, and his contract referred to him as a "self-employed operative". he was required to buy and wear a Pimlico Plumbers uniform; was to drive a van with a Pimlico Plumbers logo; and was to be provided with a Pimlico Plumbers ID card. He worked a 40 hour week over five days exclusively for Pimlico Plumbers and he could be substituted by another Pimlico Plumbers worker on any job.

Mr Smith claimed that he was an employee of Pimlico Plumbers and that following a heart attack in 2011 he was unfairly or wrongfully dismissed and discriminated against on the grounds of his disability.  Pimlico Plumbers’ position was that he was self-employed.

To succeed in the unfair dismissal and sick pay claims, Mr Smith had to show that he was an employee for the purposes of the Employment Rights Act (ERA) 1996. For the other claims to be successful, he needed to show that he was a "worker" employed under a contract personally to do work.

The crucial issues to be determined here were whether Mr Smith was an employee of Pimlico Plumbers; whether he was a worker of Pimlico Plumbers or that he was, alternatively genuinely self-employed on his own account.

Agreeing with both the Employment Tribunal and EAT, the Court of Appeal held that he was a worker, meaning that his unfair dismissal claim failed, but he was entitled to pursue his discrimination and holiday pay complaints.

The decision follows a recent trend of courts conferring employment rights on individuals operating in the gig-economy – and whilst Pimlico is likely to appeal to the Supreme Court, there can be little doubt that this particular business model is under some threat.

Source:

3. Pimlico Plumbers -v- Garry Smith - pimlico-plumbers-v-smith.pdf [Internet]. [cited 2017 Feb 23]. Available from: https://www.judiciary.gov.uk/wp-content/uploads/2017/02/pimlico-plumbers-v-smith.pdf