A case law update including cases involving race discrimination, unlawful deductions, employment status, constructive dismissal and sexual harassment plus details of annual increases to employment related rates.

Race discrimination: Unlawful deduction from wages and unfair dismissal fail due to employment status.

THE FACTS

Agata Krolak, a Polish national, contacted Bubbles Dog Grooming asking for a job after undertaking a dog grooming course in Poland. The Respondent’s evidence was that there were no jobs at that time, but  Ms Krolak could, when available, come in to help and she would get advice and basic training. Ms Krolak was permitted to keep payments from her own clients. Bubbles Dog Grooming indicated that Ms Krolak was told that she would be a volunteer but if she brought in her own work then she would need to organise her own insurance and tax as self-employed.

Bubbles Dog Grooming had two part-time employees, who were required to sign in and out of work and were paid weekly. They also received regular paid work breaks.  Ms Krolak was not put on Bubbles Dog Grooming’s rota, took breaks when she liked, and did not have to sign in or out. Ms Krolak was also present when the part-time employees were raising a claim for a payment of wages and never sought payment at that time.

There was a complaint made about a grooming job carried out at the salon, because of resultant clipper burn and cuts to the animal. This led to Bubbles Dog Grooming repaying £70 (the cost of the groom) and £50 in a vet bill. It was identified that Ms Krolak was responsible, and Bubbles Dog Grooming told Ms Krolak she could no longer rent her a station. Bubbles Dog Grooming reimbursed £20 paid by Ms Krolak for her uniform. Ms Krolak requested £2093.55 for her ‘wage’ for the work she had done over the last 7.5 weeks.

The tribunal found that Ms Krolak’s attendances at the salon were a voluntary activity to receive additional training, any paid grooming was on a self-employed basis. As a result, she was not a qualifying worker for the purpose of an unauthorised deduction from wages claim. There was also no contract, therefore there could be no breach. Lastly, it was found that Ms Krolak had not proven facts to shift the burden to Bubbles Dog Grooming in relation to a race discrimination claim. The action taken by the groomers was found to be on the basis of Ms Krolak’s competency rather than her race or nationality.

WHAT DOES THIS MEAN FOR EMPLOYERS?

It is important to ensure the workplace activities and responsibilities align with the intention of the parties. The tribunal determined that Ms Krolak was not an employee based on the variance between her actions and those of the employees (i.e. she did not appear on the rota, took breaks as she saw fit, and was not required to sign in or out), the fact she was able to procure her own customers, and would receive assistance with that.

Agata Krolak v Alison Smyth t/a Bubbles Dog Grooming – NIIT 11511/19 (all NI decisions are available to download from the OITFET website)

CONSTRUCTIVE DISMISSAL AND SEXUAL HARASSMENT: COMPENSATION OF £18,857 AWARDED 

THE FACTS:

Shirley Lyons was employed by Starplan Furniture ltd (‘Starplan’) for four years.  She was the only woman to attend the company’s Christmas party, alongside six  male employees.  Ms Lyons made the case that at a restaurant she was subject to unwanted sexual attention. The tribunal found that one of her colleagues had made comments about her breasts and hugged her from behind without her consent, suggested they might have an affair and touched her bottom. Ms Lyons lodged a written grievance which was rejected, and she appealed. Ms Lyons advised Starplan on appeal that she felt her position was no longer tenable, and she subsequently resigned. Her appeal against the grievance decision was dismissed nine days later.

The tribunal was satisfied that at the Christmas party she was subjected to verbal and physical conduct of a sexual nature. The tribunal upheld complaints that she had been victimised by three of her colleagues following submission of a grievance including ignoring her, excluding her, threatening to ‘take her down’ and by the use of intimidating and abusive language and behaviour. 

The tribunal found that Ms Lyons had been constructively dismissed. They also held that as a result of the sexual harassment and victimisation that there was a failure on the part of her line manager to protect her from such action. This amounted to a fundamental repudiatory breach of the implied duty of trust and confidence.

WHAT DOES THIS MEAN FOR EMPLOYERS?

Training is key when it comes to staff parties/office events. The tribunal outlined that this can be discharged through guidance in terms of conduct at the party, the way in which alcohol may be supplied by the employer and the actions of senior members of staff at parties. Employees should also be reminded that work events are very much still in the scope of the business.

This case is a further reminder of the importance of the need for a thorough and impartial grievance investigation.

Shirley Lyons v Starplan Furniture Limited and others - NIIT 5733/18

INCREASE TO EMPLOYMENT STATUTORY RATES IN NORTHERN IRELAND

From and including 6 April 2023 the cap on a week’s pay for calculating a basic unfair dismissal award and statutory redundancy pay. will increase from £594 to £669. The maximum compensatory award will also increase to £105,915. Other increases are set out below.

WHAT DOES THIS MEAN FOR EMPLOYERS?

As for the rest of the Great Britain, the maximum compensatory award in employment tribunal claims has risen to above £100,000 for the first time.  This is a significant increase and should be noted by employers facing unfair dismissal claims this year. 

Employers should also factor the increase in rates of a “week’s pay” into workforce planning and any redundancy exercises post 6 April 2023.