REWARD
Employment status, enhanced redundancy payments and extension of termination dates
Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different recent employment law cases
Alsnih v Al Quds Al-Arabi Publishing & Advertising An employment tribunal (ET) had to consider whether a purportedly self- employed individual was really an employee. And if she was, whether she’d been unfairly dismissed and was entitled to holiday pay for the entirety of her employment, when she refused to put a work-related app onto her personal phone. The claimant, an online news editor, started working for the respondent in 2014. The respondent, an Arabic newspaper, considered the claimant to be self-employed. In 2017, the respondent introduced Viber; software which tracks stories already published to prevent the duplication of articles. In November 2019, the claimant was told that using the Viber app was compulsory. The claimant objected to this, because she would have had to install this on her personal phone and would have been disturbed by a high volume of notifications. Instead, the claimant asked the respondent to provide her with a work phone to install the app. The respondent refused, stating that the claimant could just turn off the notifications; however, the claimant didn’t believe that this was possible.
The respondent then blocked the claimant’s access to their systems, so she couldn’t carry out any further work. The claimant raised a grievance alleging she’d been bullied, harassed and discriminated against because of her race. The respondent replied to state that despite her being self-employed, they would hear the grievance as a matter of courtesy, but this didn’t take place. Instead, they stated that as the claimant refused to install Viber, they’d removed her access so she couldn’t work. “The employment tribunal also found that it was substantially unfair because no reasonable employer would dismiss an employee for refusing
The claimant argued that she was an employee and brought claims to the ET for unfair dismissal, notice pay and holiday pay. In respect of the claimant’s employment status, the ET found that the claimant was an employee. The employee: l solely worked for the respondent l had a regular working pattern l received the payment of a monthly retainer l had been provided with a laptop by the respondent, who also exercised a sufficient degree of supervision and control over the claimant. The respondent believed that the claimant was self-employed so didn’t carry out any investigation or disciplinary, nor did they inform the claimant that a refusal to use the Viber app could result in dismissal. As the ET found that the claimant was an employee, the respondent’s failure to take such action meant that it was a procedurally unfair dismissal. The ET also found that it was substantially unfair because no reasonable employer would dismiss an employee for refusing to put such an intrusive app on their personal phone.
to put such an intrusive app on their personal phone”
| Professional in Payroll, Pensions and Reward | October 2023 | Issue 94 36
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