At a glance, key developments this month
1. Definitions: Meaning of 'employee' within the Equality Act
2. Definitions: Meaning of 'worker' under the ERA
3. Fixed Term Contracts: Withholding PHI not unlawful
4. Discrimination: Refusal of enhanced paternity pay not discriminatory
5. Time Off For Dependants: Dismissal fair where limits exceeded
6. ET: No jurisdiction for discrimination and unfair dismissal for employee working in US & UK
7. ET Costs: Insurance no bar to recovery
A. Shared Parental Leave: BIS guidance
B. Ante Natal Appointments: BIS guidance on accompanying a partner
C. Managing Bereavement: ACAS guidance
D. Dress Codes: ACAS guidance
E. Union Recognition Claims: Government guidance
F. Tribunal Fees: UNISON brings new evidence
G. UK Corporate Governance Code: Revised for financial years from 1/10/14
H. Politics: Labour would reform ETs and review charging
I. October Legislative Update
SEE FULL DETAILS BELOW :
Windle & Arada v Secretary of State for Justice  UKEAT/0339/RN: Definitions
In Windle & Arada v Secretary of State for Justice the EAT had to consider whether the claimants, when providing their services to the Secretary of State for Justice as interpreters, were employees within the meaning of s.83 (2)(a) Equality Act 2010 and in particular whether, when providing those services, they were employed under a contract personally to do work. The interpreters had been engaged personally to do work on a significant number of short term contracts. An ET had found against the employees, noting the absence of mutuality of obligation and making this a central part of its decision.
Plastering Contractors Stanmore Ltd v Holden  UKEAT 0074_14_0707: Definitions
A worker, for the purposes of claiming holiday pay, is defined as someone working under a contract of employment or any other contract where he undertakes to do or perform personally any work for another party. In PCS Ltd v Holden, Mr Holden brought a claim for unlawful deduction from wages under s.23 ERA 1996 in relation to several years of work as a labour-only subcontractor, prior to which he had been employed by PCS as a general labourer. As a labour only subcontractor Mr Holden was placed by PCS on its database of labour-only subcontractors. If the services of a skilled worker or labourer were required at a particular site, either the Contracts Manager or a supervisor would contact him to provide him with work. He was paid either by price or by time but did not submit invoices – the supervisor would note the time worked and PCS arranged payment. PCS set the rates of pay and provided him with most of his equipment.
Hall v Xerox UK Ltd UKEAT/0061/14: Categories of Worker & Working Relationships
In Hall v Xerox UK Ltd, Xerox provided the benefit of an income replacement policy (through UNUM) in the event of ill health. Mr Hall suffered a hernia which would have put him off work for the qualifying 26 week period, had he not been a fixed term employee, whose contract was due to expire in three months. His contract was extended for a further year but UNUM refused his claim relying on a policy provision that restricted benefit to the unexpired period of a fixed-term employee’s contract as it was at the time of the injury.
Shuter v Ford Motor Company ET/3203504/13: Maternity & Parental Rights, Flexible Working
An employment tribunal held that Mr Shuter, a male engineer was not discriminated against, directly or indirectly, when his employer, Ford, refused to pay him enhanced paternity pay during his five month additional paternity leave period (APL can be taken for up to 26 weeks from 20 weeks after the baby’s birth). In contrast, a female employee was entitled under the Ford enhanced maternity pay policy to full basic pay for 52 weeks.
Ellis v Ratcliff Palfinger Ltd UKEAT/0438/13: Rights At Work: General
Under s 57A ERA 1996 an employee is entitled to take a reasonable period of unpaid time off work to make arrangements to look after dependants, including when a dependant falls ill/ gives birth. In Ellis v Ratcliff Palfinger the EAT upheld an ET’s decision that an employee (who still had a live warning on his file for attendance issues) was fairly dismissed by his employer for taking time off when his pregnant wife was unwell and when she gave birth.
Fuller v United Healthcare Services Inc and another  UKEAT/0464/13: Immigration & Overseas Employment/ Equality Act & Discrimination
To bring a claim for unfair dismissal or under provisions in the Equality Act 2010 an employee will need to show that he falls within the territorial scope of the relevant legislation. The Employment Rights Act 1996 is silent on territorial scope and this has been defined by case law, in particular the House of Lords guidelines in Serco Limited v Lawson  ICR 250. The Equality Act 2010 is also silent although the EHRC Code of Practice refers to the need for a sufficiently close link between the employment relationship and Great Britain. Case law suggests, however, that where domestic legislation emanates from EU law (as with discrimination legislation) the territorial scope should be construed widely so as to give effect to that EU law.
Mardner v Gardner and others  UKEAT/0483/13: Enforcement: Employment Tribunals
The EAT in Mardner v Gardner has overruled a tribunal’s decision not to award costs since the respondents to the claim were volunteers and trustees of a charity and Mr Mardner was covered by legal expenses insurance and was therefore not out of pocket and the benefit of any costs order would inure to the insurer.
BIS has published a ‘technical’ guide for employers to consider when implementing policies on shared parental leave and pay.
BIS has published a short guidance on the new right from 1 October 2014 for a partner to accompany a pregnant woman to ante natal appointments. The unpaid leave is available for 1 or 2 appointments with a cap of six and a half hours for each appointment. This is a ‘day one’ right with no qualifying period necessary.