Employment tribunal and court judgments | November 2024

The Court of Appeal has confirmed that non-unionised employers are not required to conduct “general workforce consultation” in small-scale redundancy situations.

ADP RPO UK Limited employed Mr De Bank Haycocks alongside 15 others. In 2020, Mr De Bank Haycocks was made redundant due to the reduction in demand on ADP’s services during the pandemic. Mr De Bank Haycocks wasn’t provided with his scores against the redundancy selection criteria during the consultation process. As such, he argued that the redundancy was unfair. ADP had also started scoring the candidates for redundancy before the consultation process had actually started.

Mr De Bank Haycocks brought an unfair dismissal claim. Noting that Mr De Bank Haycocks had been able to challenge his scores during his dismissal appeal but failed to show how they should have been higher, the Employment Tribunal held that the dismissal was fair. The appeal had been conducted well enough to mitigate deficiencies in the pre-dismissal consultation.

In the Employment Appeal Tribunal, Mr De Bank Haycock’s appeal was upheld. The EAT held that the redundancy was unfair because of the lack of substantive consultation early on in the process. ADP had also failed to conduct “general workplace consultation”. Even if a non-unionised workplace, it is good industrial practice and should be expected in a fair redundancy process. ADP appealed to the Court of Appeal.

The Court upheld ADP’s appeal and overturned the EAT’s decision. There is no requirement for workforce level consultation in small-scale redundancies as there is with collective consultation. Individual consultation should take place when the proposals are at a formative stage. The Court said this doesn’t mean a specific time period. Rather, the employer should keep an open mind and ensure the employee has a chance to explore the issue with the employer. The Court considered that it was bad practice for ADP to start on the scoring exercise before consultation started, but this didn’t necessarily mean the dismissal was unfair. In this case, the appeal hearing gave ADP the opportunity to consider the scoring which saved the dismissal from being considered unfair. As such, the tribunal was right to conclude that the process was fair overall.

Last year’s decision by the Employment Appeal Tribunal raised eyebrows among some employers who were concerned that workplace consultation may be necessary even in small-scale redundancies. The Court of Appeal helpfully confirmed that there is no presumption that a dismissal is unfair where workplace consultation has not taken place and the fairness of a consultation will be considered on the specific facts of a case. The Court also noted that even where collective consultation is not required, it is good practice for employees to have the chance to express their views on matters which are common to the workforce as a whole (as well as issues affecting them) as part of the individual consultation process.

The EAT places doubt on a tribunal finding that a charity trustee was not a worker and therefore could not bring a whistleblowing claim.

M was a trustee of the British Psychological Society (BPS), a charity focused on promoting psychology for public good, and was elected as president-elect with duties requiring about 16 days per year. He raised concerns about BPS’s management, which led to deteriorating relations and his termination as trustee and president-elect.

M filed a whistleblowing claim at the Employment Tribunal. The tribunal dismissed his claim, holding that M did not qualify as a worker because he was not paid and acted voluntarily. M appealed to the Employment Appeal Tribunal.

The EAT agreed that the trustee did not fall within the definition of a worker but that did not mean that a trustee could not bring a whistleblowing claim and the tribunal should have taken into account M’s rights under the European Convention of Human Rights, specifically article 14 – prohibition of discrimination on any ground including “other status” combined with article 10, freedom of expression.  The EAT found that the focus should not just be on the lack of remuneration and the fact that the trustee was a volunteer but should also have taken into account the role undertaken and level of responsibility; the likelihood that the person will become aware of wrongdoing; and the importance of the person making disclosures of wrongdoing in the public interest.

The EAT acknowledged that there is a strong argument that being a charity trustee is like an occupational status due to the nature of the role, the responsibilities that they have and the regulatory regime that they work within. The EAT remitted the issue back to the Tribunal for redetermination as to whether M falls within the protection of the whistleblowing legislation.

This case opens the door for the protection of the whistleblowing legislation to be potentially extended to trustees of charities.  Given the numerous scandals that have impacted charities more recently, there would appear to be a need to support those who speak out about wrongdoing within in the charities sector. Further, it is recognised that some charities are struggling to attract and appoint trustees and perhaps this potential for additional protection would encourage more people to volunteer for such positions.

An employment tribunal has ruled that Bolt drivers are workers and not self-employed.

Around 10,000 private hire drivers in the UK, who carry passengers for payment using the Bolt app, brought a claim in 2022 against Bolt Services UK Ltd and its Estonian parent company, Bolt Operations OU.

The drivers argued that they are workers, not self-employed contractors, and therefore were entitled to be paid the national minimum wage, holiday pay and other statutory benefits. The drivers argued that the level of control Bolt exercised over them, including monitoring and performance scoring, meant they should be classified as workers.  However, Bolt argued that drivers were self-employed and not workers because they had control over their own work, being able to choose the rides they offered to passengers and other drivers could be registered on their accounts allowing a substitute for them (meaning there was no requirement for personal service)

The claims related to two periods, the first being June 2019 to July 2022 and the second from August 2022 to date.  At the end of July 2022, Bolt’s business model changed from an Agency Model to a Principal Model.  Under the Agency Model, Bolt argued that they were an agent for the drivers supporting the drivers in contracting with the passengers or alternatively that Bolt was a customer of the drivers rather than their employer.  These arguments were rejected by the Employment Tribunal on the basis that this was not the reality of the situation and that each job or assignment the drivers agreed to do they were workers in Bolt’s transportation business.

Under the Principal Model, Bolt denied that it employed the drivers personally as the drivers were able to substitute other drivers to do the job.  The tribunal rejected this argument and stated that the ability to have a substitute in all the cases because Bolt were unable to provide evidence that it had notified all of its drivers that there were no longer required to accept a specific proportion of the trips offered (o pain of being blocked from further work if they did not do so).

The tribunal concluded that the drivers would be consider working under a worker contract if 1) they were in the territory that they were licensed by Bolt to work, 2) had the App switched on which enabled them to pick up trips and 3) were ready and able to accept those trips.  This would then be working time under the Working Time Regulations (holiday pay purposes) and engaged in “unmeasured work” for the purposed of the National Minimum Wage Act.

This decision is significant for employers using similar apps as Uber and Bolt to allocate work and suggests that employers will find it difficult to maintain the position that such individuals are self-employed and not entitled to the national living wage, holiday pay and other entitlements leading to greater costs for employers.  Compensation will be determined at another hearing next year, but Leigh Day LLP representing the drivers estimates that the decision could be worth up to £15,000 per driver.