Employment Law Monday Update - 29 September
Anyone who works in HR will know how quickly changes come about in Employment Law, and how hard it is to keep up with them all. With that in mind, the Michelmores Employment Team has created a weekly newsletter that encapsulates the most significant Employment Law developments of the last 7 days. The Weekly Update will be sent out around midday on Monday, so be sure to keep an eye out for it!
Livery Stables Trainees were not Apprentices for National Minimum Wage Purposes
The Commissioners for HM Revenue and Customs v Jones and others (t/a Holmescales Riding Centre) [UKEAT/0458/13]
A stable recruited a number of trainees, who received training and funding towards recognised professional qualifications. They also performed various duties around the livery yard, including teaching riding lessons. The employer received the livery fees and the tuition fees.
At the first instance Tribunal, the Judge found that the trainees were employed under contracts of apprenticeship, rather than contracts of service.
The employer appealed to the EAT.
The Employment Appeal Tribunal ('EAT') held that the Tribunal erred in finding that the trainees were employed under contracts of apprenticeship. The contracts were for the benefit of the employer and the training was incidental and subsidiary to that contract. The primary purpose of a contract of apprenticeship must be training.
Tips for Employers
This case has provided useful guidance on the relevant factors in deciding whether an individual is an apprentice for the purposes of the National Minimum Wage. The contracts for the livery stable trainees had no fixed duration and contained notice provisions, including a power to dismiss summarily for gross misconduct. The EAT held these factors to be inconsistent with a contract of apprenticeship.
It is important to remember that apprentices cannot be dismissed unless a frustrating event or repudiatory act has the effect of fundamentally undermining the ability to teach them. This is a much more stringent test than establishing gross misconduct.
Time off for Dependants: Failure to Contact Employer as soon as Reasonably Practicable
Ellis v Ratcliff Palfinger Ltd [UKEAT/0438/13]
Employees are entitled to take a reasonable amount of unpaid time off work to deal with particular situations affecting their dependants. This right only applies if the employee informs their employer of the reason for their absence, as soon as it is reasonably practicable to do so, and how long they expect to be away from work.
The employee in this case had been taking his heavily pregnant partner to hospital, at first due to illness and subsequently because she had been admitted to give birth. However, he failed to tell his employer the reason for his absence as soon as it was reasonably practicable to do so. He had a live final written warning on his file as the result of attendance issues, which stated that future failure to work his required hours could lead to dismissal.
The employee was called to a disciplinary hearing, which led to him being dismissed. He brought an automatic unfair dismissal claim in the Employment Tribunal in respect of taking time off for dependants. The Judge dismissed the claim on the grounds that the employee had not told his employer the reason for his absence as soon as reasonably practicable. However, the employee appealed.
The EAT dismissed the appeal and upheld the Employment Tribunal Judge's decision. It was stated that the Employment Judge had correctly applied the test of reasonable practicability, which must be determined by reference to the particular facts.
Tips for Employers
There have been few appellate authorities regarding the right to take time off for dependants. This case highlights that employees are under quite a stringent duty to make contact with the employer and are expected to think of and use any means at their disposal to contact their employer. If they do not, the employer is likely to be justified in invoking disciplinary proceedings.