Howard, though, wants to ignore my Karate Kid simile and is planning on setting up goal posts and a net beside the photo
UNDERDOGS RULE! Well, this week anyway
YOU LIKE ME, YOU REALLY LIKE ME! I love that you cared!
EMPLOYMENT STATUS Twists in the dismissed plumber case
Your weekly bulletin of wit & wonder in the world of…
Wg Employment Issue 608/July 2018 Did you hear the roar after we scored the first goal? The howl of frustration when Columbia levelled, the groan of dismay as the penalty shoot-out followed… the screams of hysterical delight when England won in a penalty shoot-out for the first time in 22 years..? We won?!! But, how? Because we were the underdogs. With England’s dismal World Cup history for the last two decades, the recent spat with the host nation over the Salisbury poisonings, and our current pariah status with Europe… yep, we’re underdogs.
And every top story has to have its heroes, and generally they get a good kicking from Dame Fate in Doc Marten’s for a good two thirds of the story. On the couch, peering between my fingers on Tuesday night, it was like the ‘kick him in the leg’ scene from Karate Kid. England, bashed and fouled, hope began to fade, so they basically did that ‘stand on one leg and make a weird flamingo shape’ thing right at the end – and SCORED! So what can we learn from this in our daily lives? Well, when I’ve worked and worked and something just won’t go my way… I’m going to stand in the middle of the office and make a weird flamingo shape on one leg – see if that helps! Howard, though, wants to ignore my Karate Kid simile and is planning on setting up goal posts and a net beside the photocopier, so he can kick footballs in until something good happens. Let us know if you fancy being our goalie… you could probably get CPD points.
Plumb job And speaking of losing all hope brings us to the case of Pimlico Plumber v Smith. Mr Smith worked for Pimlico Plumbers for five and a half years, until he suffered a heart attack; the contract was terminated four months later. Following this, Mr Smith brought claims to the Employment Tribunal (ET) for unfair dismissal, wrongful dismissal, entitlement to pay during medical suspension, holiday pay, unlawful deductions from wages, and disability discrimination. The ET looked at the contractual documentation that governed the relationship between Pimlico Plumbers and Mr Smith. The documents stated that Mr Smith was an independent contractor, in business on his own account, with Mr Smith stating through his evidence that he considered himself to be an independent contractor. The ET disagreed, and needed to decide whether he was an employee for the purposes of the Employment Rights Act 1996, or a worker for the purposes of the Working Time Regulations 1998. The ET looked at the reality of the relationship between Mr Smith and Pimlico Plumbers when making their decision. During the course of his employment, there was no obligation on Mr Smith to accept work offered to him and Pimlico Plumbers were not obliged to offer any work. However, there was a provision which stated Mr Smith should work 40 hours a week, he also drove a branded Pimlico Plumbers van, wore Pimlico Plumbers uniform and carried a Pimlico Plumbers ID badge – but he needed to provide his own tools and materials Mr Smith was also exposed to a large amount of commercial risk; if a customer failed to pay then he would not receive any payment. He was, however, subject to restrictive covenants which prevented him from working as a plumber in the Greater London area for three months following the termination of his contract. Mr Smith was registered for VAT, submitted invoices to Pimlico Plumbers and submitted tax returns as if he were self-employed. No express EVENT SEASON 2018 substitution clause was included in the contract, and in practice plumbers could swap assignments. Mr Smith was allowed to bring in external PULLING A SICKIE MENTAL HEALTH CHECK th th contractors where there 5was a job which required a specialist contractor but Pimlico consent was required. Wednesday September Tuesday 10 Plumbers July 12 DAYS OF CHRISTMAS nd Thursday 22 November
COMPLIANT APPRENTICESHIPS th Tuesday 17 July
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PRACTICE MAKES PERFECT th Wednesday 17 October
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In practice plumbers could swap assignments, and Mr Smith was allowed to bring in external contractors where a job required a specialist contractor but Pimlico Plumbers’ consent was required. The ET held that Mr Smith was not an employee, but instead a worker and entitled to compensation. Pimlico Plumbers appealed this decision to the Employment Appeal Tribunal and the Court of Appeal who confirmed the ET’s decision. Pimlico Plumbers were then allowed to appeal to the Supreme Court (SC). The SC dismissed the appeal, holding that Mr Smith was a worker. They held that the ET was correct in finding that the dominant feature of the contract was the obligation on personal performance. They also recognised that the limitations Mr Smith faced when appointing a substitute were significant; the substitute had to be a Pimlico Plumbers operative bound by Pimlico Plumbers obligations. The SC further found that there was an umbrella contract in place; that Pimlico Plumbers had a contractual obligation to offer work to Mr Smith, but only if it was available, whereas Mr Smith had to be available to work up to 40 hours, five days a week, on assignments that Pimlico Plumbers might offer him.
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This case looks at a hot topic in employment law; employment status. Although this decision comes from the Supreme Court, each case relating to employment status will remain highly fact specific. In this case it was the contractual relationship and how the contract played out in reality which was a key factor in determining Mr Smith’s status. This highlights the importance of ensuring contractual terms are clear from the outset and are appropriate for how the relationship between the parties will work in practice.
Penalty shoot-outs & pretend babies Last week I announced I was going to be a mum again. It was a joke – prompted by my report about a frustrated employee pranking her newsletter recipients with a pretend pregnancy, to check if anyone ever read her efforts. I was relieved when many of you came back with humorous congratulations and even chocolate (thank you Christa!). Great reassurance that I am getting read.
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Contact the team Sarah Whitemore (Partner) – 02380 717462 Howard Robson (Partner) – 02380 717718 Lisa Joyce (Associate) – 02380 717447 Emma Kemp (Associate) – 02380 717486 Natalie Rawson (Solicitor) – 02380 717403 Chris Greep (Solicitor) – 02380 717411
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