Employment tribunal and court judgments | November 2021

Part of accommodation costs of employee working away from home incurred wholly

In Kunjur v HMRC [2021] UKFTT 362 (TC), in a rare move it was decided by the First-tier Tribunal that a small percentage of a dental surgeon's cost of accommodation, whilst training away from home, was an allowable deduction for employment tax purposes under the general rule.

Section 336 of ITEPA 2003 (the general rule) which allows employees to deduct expenses incurred wholly, exclusively and necessarily in the performance of duties of employment has previously been strictly interpreted. Often duality of purpose will disqualify an expense from relief. However, the tribunal allowed a percentage of the accommodation cost under the rule above because:

• The dental surgeon had an obligation to place patients' interests above his own and this duty made it necessary to incur the expenditure.
• Some of the expenditure was able to meet the wholly and exclusively test on the basis that there was no private benefit from the accommodation at weekends as the surgeon was either formally on call or in attendance at the hospital.  
• Only expenditure referable to the times when the dental surgeon was at the accommodation could be in the performance of the employment duties, it  did not include waiting for a call or writing articles. The relief was limited to time spent on the phone with the hospital.

This is a rare example of accommodation costs being allowed under the general rule. The decision was based on the unusual combination of the necessity of being close to the hospital, lack of safety for family visits and the performance of duties at the accommodation.

Former stripper not entitled to anonymity order in holiday pay EAT

In A v Burke & Hare, the Claimant issued tribunal proceedings against her employer, a strip and lap dancing bar, where she worked as a stripper. She claimed £1,846,56 in arrears of holiday pay, arguing that she was a worker and not self-employed.

The Claimant's application for an anonymity order was considered at a preliminary hearing held by telephone. She argued that she would be at risk of stigmatisation and sexual violence if a decision was published identifying her and her work as a stripper.

The employment judge refused to make the order. Relying on rule 50, he held that the Claimant should have known if she brought a claim then a public judgement would be issued in her name, she had willingly undertaken the risk of abuse and violence while she worked as a stripper and she should have foreseen that working as a stripper might have harmed her future career prospects.

The Claimant appealed, but the EAT dismissed it as they held that stigmatisation alone was insufficient to outweigh the principle of open justice. If the stigmatisation would have led to a material continuing risk of harm, either verbal abuse or sexual harassment, then different considerations would arise.

Taxi driver’s car and uniform rental payments deductible for NMW purposes

The case of Augustine v Data Cars Ltd concerned a taxi driver who brought a claim that he had not been paid the national minimum wage (NMW). Initially the Employment Tribunal dismissed certain elements of his claim and stated that the payments the driver had paid for the cost of car hire and uniform purchase were not deductible for NMW purposes as these were optional expenses. This decision was appealed.

The EAT decided that rental payments made by a taxi driver to hire his vehicle and uniform should have been deducted from the calculation used to see if he was in receipt of NMW. It concluded that both payments were in connection to his employment (as required under the National Minimum Wage Regulations).

It was considered irrelevant that the driver could have used his own vehicle or that he wasn’t obliged to have a uniform. The fact was that the costs incurred were in connection with the driver's employment and were subsequently deductible when calculating the NMW.

This is a decision that is likely to have ramifications for employers as it confuses what exactly should be accounted for as deductions when calculating the NMW. From this case it appears there is just the need to simply demonstrate that the expenditure is in connection with employment, even if this is an optional expenditure/one made by choice by the employee rather than a requirement of the employer. In light of this judgement, employers should take care when calculating the NMW to ensure all deductions have been accounted for.

A person is disabled from the date they have cancer

In Bennett v MiTAC Europe Ltd, it was held that a person is disabled from the date they have cancer, not just from the date on which they are diagnosed. This means that if a person has cancer, and the employer has actual or deemed knowledge of that, disability and knowledge can be established before a medical diagnosis has been obtained.

In this case the Claimant and his manager worked in marketing when the manager became ill and several months later was diagnosed with cancer. Upon such diagnosis a decision was taken to cease the work done by the manager and the Claimant resulting in both being dismissed. The Claimant made a claim for direct disability discrimination because of his manager's disability. The Employment Tribunal originally held that the Claimant's dismissal was due to poor performance and not direct discrimination. On appeal the EAT held that if the individual has cancer at the time when the discrimination occurs then the employer can be liable for disability discrimination, even if the individual has not been diagnosed at that point, if, for example, the employer knew, or should reasonably have known by making enquiries of the employee's health problems, that the individual had cancer at that time.