Policy News Journal - 2016-17

The Chartered Institute of Payroll Professionals ……………………………………………………………Policy News Journal

Employment Status 17 January 2017

Can a checklist approach be taken to the indicators of employment status?

No, held the First-Tier Tax Tribunal (FTTT) in Dhillon and Dhillon v HMRC , which reminded us of the need to step back and look at the whole picture.

The Appellant provided haulage services, engaging drivers who were paid a fixed amount per shift, could refuse jobs and were not guaranteed work. There was induction training, but no subsequent supervision and a limited right of substitution. Drivers had to meet certain competency and safety standards, generally provided their own equipment and used the Appellant's lorries. Having examined the various indicia for employment status, the FTTT found that the drivers were employees during each individual contract. The key factors were the considerable degree of control exercised and the fact that the drivers were not in business on their own account. Importantly in this case, the FTTT were considering whether the drivers were employees or independent contractors under tax legislation, a dichotomy that does not allow for the third category of 'workers'• contained in employment legislation. Furthermore, the FTTT reiterated the need to make "an informed, considered, qualitative appreciation of the whole picture"• and avoid a checklist approach. This is, of course, a fact-sensitive decision.

With thanks to Daniel Barnett’s employment law bulletin for providing this update.

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Definition of Disability: Progressive Conditions (Diabetes) 19 January 2017

Can type 2 diabetes be a disability? Yes, held the Employment Appeal Tribunal in Taylor v Ladbrokes Betting & Gaming Ltd .

After the Claimant's dismissal, he asserted he had been disabled for almost a year before the dismissal, due to type 2 diabetes. At a Preliminary Hearing, the employment tribunal relied on two medical reports and decided that he was not disabled. The Claimant appealed. The Employment Appeal Tribunal (EAT) upheld the appeal, holding that the employment tribunal had misconstrued the proper test. Type 2 diabetes, as a progressive condition, would amount to a disability even if it did not have a substantial adverse effect at that time, as long as it was likely that it would result in such a condition. The Claimant's diabetes was controlled by medication and there were 'lifestyle' changes the Claimant could reasonably make to control the condition. However, the question was whether the condition was likely to result in an impairment. The issue was not what might happen to a proportion of the population, but whether the medical evidence suggested there was a chance of something happening. The medical evidence was not clear on this and had been misinterpreted by the tribunal. The EAT remitted back to the tribunal to reconsider the issue.

With thanks to Daniel Barnett’s employment law bulletin for providing this update.

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Gross negligence can constitute gross misconduct 26 January 2017

The Court of Appeal has held that in the case of Adesokan v Sainsbury's Supermarkets Ltd , inaction at a senior level justified dismissal.


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