Employment tribunal and court judgments | February 2021

Crew Employment Services Camelot v Gould

Can a tribunal hear claims when an employee works in multiple countries?

Territorial jurisdiction – the Employment Appeal Tribunal has confirmed the approach about the tribunal's jurisdiction in circumstances where the claimant works in more than one country.

The claimant (a US resident) was the captain of a superyacht, whose effective owner was based in the UK, despite the yacht being registered in the Cayman Islands. The yacht was mainly based in the Caribbean during the winter, although 50% of the claimant's employment was spent on UK waters. The claimant's contract was governed by Guernsey law and his salary was paid in euros mainly into a US account.

Following a suspension and his dismissal for gross misconduct, the claimant brought a claim for unfair dismissal in the UK tribunal. The respondent argued that the claimant was not entitled to bring a claim in the UK. The tribunal found that it did have the jurisdiction to hear the claim as (a) the ship spent 50% of its time in UK waters and mainly sailed to and from the UK; and (b) all employment instructions were given by the ships effective owner who was based in the UK and not the respondent. Therefore, there was a sufficient link to the UK for the tribunal to have jurisdiction over the claim.

The case is useful if an individual's location is not clear (for example in industries such as transportation) as it provides that as long as an individual has a "sufficiently strong" connection to the UK (that is, that more time during their employment is spent in the UK than any other jurisdiction) it will assist in meeting the threshold that the Employment Rights Act applies and therefore the tribunal has jurisdiction to hear the claim (even if the individual's contract states otherwise).

Please note, Brexit may impact the future implementation of this decision.

Allay (UK) Ltd v Gehlen

When can employers rely on a 'reasonable steps' defence in racial harassment claims?

The EAT upheld a tribunal's finding that an employer had failed to take all reasonable steps to avoid an employee being racially harassed and therefore the employer could not rely on the 'reasonable steps' defence.

The claimant described himself as being of "Indian origin" was employed by Allay (UK) Ltd until his dismissal in September 2017 for performance-based reasons. Following his dismissal, the claimant raised a complaint that he had been subject to racial harassment by a colleague. Allay (UK) Limited investigated the complaint and the claimant's colleague was found to have made racist comments, which he described as "racial banter" and was required to undertake further equality and diversity training.

The claimant brought a claim for race discrimination and harassment related to race. It was found that the claimant's colleague regularly made racial comments to the claimant, for example, "he should go and work in a corner shop". Additionally, managers were aware of the comments but other than one manager expressing disapproval, they took no action to prevent or stop the treatment.

Allay (UK) Limited sought to rely on the 'reasonable steps' defence. It was found that Allay (UK) Limited had an equality and diversity policy and training which covered harassment related to race. However, the tribunal rejected the defence and held that the training was 'clearly stale' and ineffective as it had been provided in 2015 and Allay (UK) Limited had not provided refresher training. The tribunal established that Allay (UK) Limited had not taken all reasonable steps to avoid discrimination in the workplace. The claimant's racial harassment claim was successful.

The appeal was dismissed and the EAT held that the tribunal had been entitled to conclude that the training was "clearly stale" and ineffective and that there were further reasonable steps that Allay (UK) Limited should have taken.

Please read our article on this case where we discuss the implications of this decision for employers and the considerations that employers should be taking.

Uber BV and others (Appellants) v Aslam and others (Respondents)

Supreme Court rules Uber drivers are workers

The Supreme Court has unanimously dismissed Uber’s appeal, finding that drivers are 'workers' and are not self-employed contractors. The Supreme Court decision means that Uber drivers are entitled to receive at least the national minimum wage and annual paid leave, along with other rights such as whistleblowing.

The Supreme Court confirmed that 'the correct approach in deciding whether a person is a worker is that endorsed in Autoclenz Ltd v Belcher i.e. to consider all of the relevant circumstances', including, as well as the written terms and the practical operation of the relationship between the parties, the general purpose of the employment legislation in question.

The Supreme Court highlighted five factors in the determination that the drivers fall within the definition of 'worker':

  • Where a ride is booked through the Uber app. Uber sets the fare and therefore dictates how much drivers are paid for the work they do.
  • The contract terms on which drivers perform their services are imposed by Uber and drivers have no say in them.
  • Once a driver has logged into the Uber app, the driver’s choice about whether to accept requests for rides is constrained by Uber. One way in which this is done is by imposing a penalty if too many trip requests are declined or cancelled.
  • Uber exercises significant control over the way in which drivers deliver their services, such as, the use of a rating system, which can lead to warnings and termination of the driver's contract with Uber if the rating does not improve.
  • Uber restricts communications between passenger and driver to the minimum necessary to perform the particular trip and prevents drivers from establishing any relationship with a passenger.

Taking these factors together (that is the reality of the relationship between the parties), the Supreme Court held the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. The Supreme Court explained that drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill. As such, it concluded that the drivers were rightly found to be 'workers'.

Oliver Segal QC (Counsel for the third Respondent) commented on this judgment as follows: "The gig economy depends on relationships between companies and their workforces being described in contractual documentation designed to exclude employment rights (zero-hours contracts, rights of substitution, relationships of agency, etc.).

"This judgment develops an approach to workers’ rights that puts centre stage the protective purposes of those rights and the reality of the relationship between worker and employer, and relegates the written contracts between them to simply a piece of the evidential picture. This will make it much harder for such companies to negate or disguise a ‘worker’ relationship by drafting contracts (even if they are supposed to be adhered to) which provide on their face for a non-worker relationship. The same logic will apply to ‘employee’ protections."

The case will now return to the Employment Tribunal which will decide how much compensation the drivers are entitled to.

We have published a more detailed analysis of the decision here.

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