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Martina Murphy Martina acts on behalf of NHS Trusts, the Metropolitan Police Authority, and local authorities, and is on Thompsons Solicitors' approved panel of Counsel. Martina is also on the Employment Committee for the Federation of Small Businesses. Recently, in November 2009, she was instructed on behalf of a FTSE 250 Company in its application for a High Court injunction which involved issues of restrictive covenants and protection of confidential information. When she's not working, Martina is a keen runner and has completed the London Marathon. She can often be found at a ridiculously early hour running around Greenwich Park with the Greenwich Runners. partnership, he would be regarded for that purpose as employed by the partnership.” The EAT dismissed the appeal, upholding the ET’s decision. In enacting s.4(4), Parliament had expressly provided that the legal test for determining whether a person was a partner or an employee of a partnership (the test under Partnership Act 1890) also determined whether a member of an LLP was employed by it for the purposes of the Employment Rights Act 1996. In the context of partnership, the tribunal had to decide first whether a person fell within the category of partnership or employment. If it decided that the person was not a partner, it did not follow that the person was necessarily an employee; the usual common law tests would still need to be applied, as the person might in fact be self-employed. The EAT decided that the tribunal had been correct to conclude that the words "any purpose" and "that purpose" in s.4(4) had to be regarded as a reference to K's role as chief investment officer, and that it had to ask itself whether, if the LLP was a normal partnership under the Partnership Act 1890, K's role as chief investment officer would be regarded as employment. The tribunal had been entitled, on the evidence before it, to conclude that K was not an employee of TFO. It had applied the correct legal test and had made findings of fact, which it was entitled to make. The employee status of a controlling shareholder In Secretary of State for Business, Enterprise and Regulatory Reform (BERR) v Neufeld & Anor [2009] IRLR 475 CA the Court of Appeal has given guidance on the approach employment tribunals should take in considering whether a majority shareholder should be regarded as an employee. The case concerned the common situation of a majority shareholder and/or director of an insolvent company claiming to be an ‘employee’ in order to claim certain unpaid amounts from the Secretary of State under the Employment Rights Act 1996 s.182 Part XII (‘employee rights on insolvency of the employer’). On the facts of these joined cases, directors with 90% (Neufeld) and 100% (Howe) shareholdings respectively in their companies were employees. Although the CA stated that whether or not such a shareholder/director is an employee of the company is a question of fact, they gave some helpful guidance. In any such case there are likely to be two issues, although in practice the evidence relevant to their resolution will be likely to overlap. a. The first and logically preliminary issue will be whether the putative contract is a genuine contract or a sham. b. The second issue, assuming there is a genuine contract, is whether it amounted to a contract of employment (as opposed to eg a contract for services) at the relevant time. The CA made it clear, that, in particular, it will be no answer to a majority/controlling shareholder’s claim to be an employee to argue that he cannot be an employee in law because: (i) The extent of his control of the company means that the control condition of a contract of employment cannot be satisfied; or (ii) He has practical control over his own destiny and cannot be dismissed from his employment except with his consent. Further, the CA observed that an owner acting as an owner, as is inevitable in small companies for example, can also be an employee. TC Snow Problems Although what has been arguably the coldest snap in a generation has passed, its effects will be long felt. The popular press reported that millions were told that they would lose a day’s pay if they did not get into work while Sky News announced that one in ten firms said that their entire workforce had been absent at times during the worst affected period. This article considers the issues which are likely to arise during episodes of extreme weather and suggests a guideline approach. Starting point our authors The starting point will always be the contract of employment or written particulars of employment. If there is a clearly defined policy to deal with inclement weather then that should be the end of the matter. This, however, will rarely be the case. Disciplinary sanction Theoretically, an employer might want to take disciplinary steps against an employee who has failed to turn up for work if, in their opinion, the employee was able to work but had chosen not to. As part of any disciplinary procedure an employer would be required to inquire into the known circumstances of each absence. This would be essential given that consistency in treatment is one of the hallmarks of a fair disciplinary procedure. Given the extreme weather experienced almost universally this year it would be difficult for an employer to investigate the circumstances of each case and, therefore, to ensure a consistent approach. It would almost always be unfair to dismiss an employee for failing to turn up to work where hampered by snow, particularly where the employer was aware that the employee would not be able to attend. Deductions from wages Anecdotal evidence suggests that some employers have proposed to make, or have made, deductions from wages. By way of the ERA 1996, ss. 13(1) and 15(1) no deductions may be made from a worker’s wages unless: i. It is required or permitted by a statutory or contractual provision; or ii. The worker in question has given his/her prior consent to the deduction. continued on back page W W W. TA N F I E L D C H A M B E R S . C O . U K
Paul Stevenson Paul Stevenson has a thriving and diverse employment practice and frequently appears in employment tribunals at every stage from review hearings and pre-hearing reviews through to final hearings. Paul has wideranging experience of advising and drafting particulars of complaint and resistance in all manner of employment claims from unfair dismissal to age and disability discrimination. He has also advised on compromise agreements and restrictive covenants. Recent experience includes providing advice to and appearing for both Claimants and Respondents in redundancy claims where TUPE and the Working Time Regulations were engaged. When away from his desk, Paul is the chair of a charity working in west Africa and provides advice and assistance to a student publishing company in Oxford. He enjoys good food, photography, politics, reading and travel. These provisions cover any sums which a worker would normally expect to be paid in connection with his/her employment and where the total amount of wages paid on any occasion is less than the total amount properly payable on that occasion. Where a worker is faced with such a deduction it is extremely important that they have recourse to their contract of employment in order to see what it permits. To be entitled to pay, the employee must show that he/she has worked or is willing to work for it: the governing authority is Miles v Wakefield Metropolitan District Council [1987] I.C.R. 368. Albeit obiter, Lord Brightman expressly differentiated between the facts of that case and what he referred to as “a failure to work, or work efficiently, as a result of illness or other unavoidable impediment, where special considerations apply”. He plainly did not envisage the nationwide inability to attend work which we saw earlier this year. It will be a question of fact in any case whether an employee was willing to work. Given, however, that many parts of the country were subject to warnings not to travel if at all possible employers should be aware that it would be difficult to argue that a snowbound employee was unwilling to work. If an employer attempts to make a deduction purportedly in accordance with a contractual provision, the terms of the contract must have been shown to the worker or, if not made in writing, its effect must have been notified to the worker before the deduction is made: see the ERA 1996, ss. 13(2), 15(2). An employee faced with a deduction from wage should seek speedy legal advice because much will depend on the factual circumstances of their employment contract. The complaint ought to be presented within three months beginning with the date of the deduction of which complaint is made. Childcare In a related concern, the closure of thousands of schools gave many parents unexpected daytime childcare concerns. So what approach can an employee expect As a general rule, employees have the right to take reasonable unpaid leave to deal with unexpected disruption or termination of arrangements for the care of a dependant: ERA 1996, s. 57A(1). Statutory protection does not, however, compel an employer to give time off to allow an employee personally to provide care beyond the reasonable amount necessary to deal with the immediate crisis. There would, however, be an argument that where a school closure is not announced until the last minute an employee could seek statutory protection for taking the full day off. The amount of time which is reasonable depends on all the circumstances and an employee should inform the employer as soon as reasonably practicable and state how long he/she expects to be absent. A guideline approach Employers should develop a clear extreme weather policy which sets out, in advance, what is expected of both parties. The overriding concern for an employer should be to ensure that a consistent practice is applied across their workforce. Employers should take a balanced approach and should bear in mind that they have a duty of care to their employees to see that employees are not subjected to any unnecessary risk of injury and should consider the possible liability attached to forcing an employee to travel when it would be unsafe. Any policy should emphasize that employees have a contractual duty to attend work and that, where possible, employees should take all reasonable steps to attend work and should keep in regular contact with their employer. Alongside encouraging flexible/home working where possible, employers should foster a culture of advance planning, particularly in matters relating to child care and should consider options such as reasonable unpaid leave to cover child care. The policy should make clear provision for early closure of a workplace where appropriate. If employees who cannot make it to work will be required to take a day’s leave as part of their holiday entitlement this should be unambiguous. A timely reminder of a definite policy such as this whenever snow falls might mean that employees tempted to be ‘unable’ to travel to work are suddenly able to make it. PAUL STEVENSON W W W. TA N F I E L D C H A M B E R S . C O . U K
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