Employment Law Update
Employed or Self Employed?
In Lambden v Henley RFC and Others, an Employment Tribunal concluded that a part-time rugby coach who was found to be under the rugby club's control and received, amongst other benefits, holiday pay, could not be classed as an employee. This was based on the premise that Mr Lambden had been paid as an independent contractor through a limited company and was paid a fixed sum (despite the number of hours he was working) and was also provided with a car and credit card by the club.
It was held that it was Mr Lambden’s decision to conduct the relationship on the basis that he was an independent contractor and this could not be consistent with there being an employment relationship. The Employment Appeal Tribunal has upheld the Tribunal's decision.
Importantly, this was a case where there was a written agreement which accurately reflected the parties' conduct. As such, the written agreement won and the relationship was not one of employment.
Case of the month. Fraudulent expenses – be careful how you discipline.
As businesses of all sizes sharpen up on their expense management, our case of the month offers a stark warning to employers to take care when dismissing employees for ‘expense fiddling’.
Mr Thompson, an employee at a brick distributor, was accused of submitting a false expenses claim, for which he was dismissed. He claimed that he asked a hotel receptionist to alter a receipt to include £27 for drinks that he had bought personally but which were legitimate business expenses.
Upon investigation, the Employment Tribunal found that the company had been putting pressure on Mr Thompson to agree to a change of less favourable employment terms, but Mr Thompson firmly refused. The Tribunal concluded that Mr Thompson’s employer could not have dismissed him fairly based on his refusal to agree to the new employment terms, but this was actually the real motivation for the dismissal. This was backed up by the fact that the Company leapt at the chance to dismiss Mr Thompson without carrying out a full investigation. The dismissal was held to be unfair, notwithstanding the false expense claim by Mr Thompson.
Last in, first out redundancy
The Court of Appeal has just handed down its decision in a landmark case, involving a renowned car manufacturer, which claimed that by taking length of service into account in their redundancy criteria the Company had acted in an age-discriminatory manner against younger employees.
It was ruled that taking long service into account is discriminatory, but it can be justified IF employers have good reasons for using length of service in redundancy situations.
And Finally... The New 'Fit Note'
After 60 years of use, plans have been put to work to replace the MED3 self certification form (aka ‘sick note’) with the new ‘fit note’. Rather than having a simple ‘fit’ or ‘unfit work’ choice, the Doctor will be required to give information about the type of work an employee will be able to undertake, taking into account their current illness of course. It’s anticipated that the change will come into force in the Spring of 2010.
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