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whether the mistaken belief was reasonable. In these circumstances, this required the tribunal to take in to account what was asked of the Home Office and what was said in reply. As the tribunal had failed to determine the reasonableness of the belief, the issue of fairness of the dismissal was remitted to the tribunal. Rawlinson v Brightside Group Ltd The EAT have examined whether the implied term of mutual trust and confidence will be breached when an employer chooses to give a false reason for dismissal. The employee started as the group legal counsel in December 2014. Prior to his appointment, the employer used a variety of legal firms for their legal advice. A new chief executive officer (CEO) was appointed in January 2015 and he raised concerns with the employee’s performance. The employee was aware of this, but no detailed concerns were raised with him at this time. In March 2015, the employee’s line manager asked colleagues for feedback on the employee and this was communicated to him. It was decided that the employee would be dismissed and his line manager started investigating how they would meet their legal requirements once this took place. A further meeting was held with the employee in April 2015 where he asked if any further performance feedback had been received. He was advised there was none. By May 2015, the employee had still not been dismissed; the CEO was frustrated there had been little movement on the contingency plans for future legal requirements and requested urgent action to be taken. The employee was invited to a meeting on 14 May 2015 where he was dismissed by his line manager. He was told that the reason for his dismissal was due to the business reviewing their approach to legal services and finding the current arrangements were not working. They wished to re-organise these to use an external provider and he was provided with employment was covered by the Transfer of Undertaking (Protection of Employment) Regulations 2006. He requested further information from the employer but later resigned in response to the employer’s conduct. Following a post-resignation subject access request, the employee discovered three months’ notice of dismissal. Believing this was outsourcing of a service, the employee argued his
holiday on behalf of the Deliveroo riders. The request was rejected by Deliveroo as they alleged their riders were self- employed contractors and not workers. IWGB subsequently applied to the CAC for statutory recognition. To be recognised for collective bargaining, the union had to prove the riders were workers under section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992. The CAC heard evidence from witnesses and reviewed the contractual documentation in place. The current contracts had been introduced in May 2017 and they removed previous aspects of control, including the requirement to wear Deliveroo-branded equipment and the restrictions on wearing competitor clothing. Based on the contractual arrangement, the CAC found that the riders were under no obligation to log on to the Deliveroo app to perform work at any stage. Once logged on, they could allocate themselves as ‘unavailable’ for work and could simply reject or ignore any jobs without facing a penalty. In addition, there were substitution clauses within the contracts that allowed accepting specific jobs. The riders did not have to obtain prior approval to substitute themselves and there was no policing of this by the employer; it was the responsibility of the rider themselves to ensure the substitute had sufficient skills to perform the job. To substitute, the rider would either provide the individual with their app password or give them their mobile device. The CAC recognised that substitution in practice was rare because riders who did not want to perform the work personally could either not log on to the app, make themselves ‘unavailable’ or ignore and reject jobs that were allocated to them. There was, however, evidence that substitution was being carried out by riders in practice. Riders gave evidence that they substituted themselves for their own financial gain or would substitute themselves if they had accepted a job but then later decided they did not want to perform this. As the substitution right was genuine, unfettered and operated in practice, the riders were not undertaking to perform work personally. Therefore, they were not classed as workers but were self-employed. This finding was critical to the union’s case and the claim for recognition was rejected by the CAC. n riders to arrange for another person to perform their work before, or after,
the real reason for the termination of his employment. He brought a tribunal claim for constructive wrongful dismissal claiming he had resigned in response to a breach of the implied term of mutual trust and confidence. ...obligation on an employer to not deliberately mislead employees and to volunteer information in good faith... The ET dismissed the claim. They found there was no breach of the implied term of mutual trust and confidence because the employer was not obliged to give him a reason for the dismissal or provide any performance feedback when requested. The only obligation on the employer was to give the contractual notice to dismiss, which they did correctly. Following a successful appeal, the EAT substituted a decision that there had been a breach of the implied term. Although the employer chose to give a different reason for the dismissal to “soften the blow”, they also did this with the intention of keeping the employee at work during his notice period to allow for a successful and smooth handover. This meant the implied term continued during his notice period. The term of mutual trust and confidence creates an obligation on an employer to not deliberately mislead employees and to volunteer information in good faith. The employer had failed to do this by deliberately giving a false reason for dismissal; therefore, the implied term was breached and the claim of constructive dismissal was successful. IWBG v Roofoods Ltd t/a Deliveroo In another ‘gig economy’ case, the Central Arbitration Committee (CAC) have considered the employment status of Deliveroo riders. The Independent Workers Union of Great Britain (IWGB) made a formal request to Deliveroo for trade union recognition in November 2016. They were seeking to negotiate terms including pay, hours and
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Issue 37 | February 2018
| Professional in Payroll, Pensions and Reward |
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