Philip v Working Partners Limited & Harpercollins Publishers LLC – Status
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Summary:
The presence of some degree of control and the requirement for personal service does not automatically mean the relationship is an employment one, nor is it always indicative of worker or employee status.
Note for employers:
This case helps to add clarity to the legal position of non-traditional employment relationships that have become increasingly common. Due to the nature of the work to be undertaken, in creative industries such as publishing there will be some more unorthodox arrangements that do not fit the usual mould of a non-employment relationship. In such cases it is especially important to appreciate that each case is unique on its own facts. Tools such as control are just that; tools to help the ET to determine the overall nature of the relationship, and the presence or absence of this alone is not conclusive either way.
LAW:
The law on unfair dismissal is found in section 98 Employment Rights Act 1996. Under this section, the dismissal must be for a fair reason (which includes conduct). The dismissal must also be conducted in a reasonable manner, dependent on the size and resources of the organisation. Failure on either of those points could render the dismissal unfair.
British Home Stores Limited v Burchell [1978] set out a now well-known test to be applied when determining if the dismissal was conducted in a reasonable way. The test:
- Did the respondent have a genuine belief in the misconduct of the claimant at the time of the dismissal?
- Was that belief based upon reasonable grounds?
- Did the dismissal follow a reasonable investigation and a reasonable procedure?
The “Burchell test” is used by ETs to come to a decision on what a hypothetical reasonable employer would conclude in the same circumstances, and therefore if the decision to dismiss was fair and reasonable under section 98 of the above act.
Facts:
The claimant had worked for the respondent for around 20 years. After working a night shift, the claimant did some personal shopping which included buying food, pillows, and bedding. The claimant used the self-checkout which presented them with a screen asking how many reusable ‘bags for life’ they were using for their shopping. They selected ‘0’ when prompted, even though they are a chargeable item. The claimant then proceeded to take make more than one trip away from the checkout to fetch these bags, without updating the checkout.
An investigation meeting took place at which the claimant was shown the CCTV footage. The claimant was then invited to a disciplinary hearing and pre-warned that the outcome could be dismissal. The CCTV footage was reviewed again with the claimant in this hearing. The claimant denied that they took the bags without paying on purpose. In mitigation they said that stress, tiredness, and a language barrier had contributed to the error.
The respondent, however, concluded that the claimant had not acted in error but instead they had been dishonest and deliberately not paid for the bags. The claimant could be seen on the CCTV going backwards and forwards to collect the bags because they needed something to put the bulky items in. They could also be seen selecting the ‘no bag’ option at the self-checkout, even though it was apparent from the CCTV that they had purchased a number of bulky items that they would not be able to carry from the shop without bags. They were also seen carefully reviewing the receipt as they were walking out.
The respondent concluded that they could no longer trust the claimant, even though the bags did not cost as must as the shopping, so dismissed them for gross misconduct. The claimant appealed but the original outcome was upheld because the appeal officer agreed that the failure to pay for the bags was not a mistake.
The claimant brought a claim for unfair dismissal arguing that the decision fell outside the range of reasonable responses, that not enough weight was given to the mitigation, and that the investigation and appeal were procedurally unfair.
EMPLOYMENT TRIBUNAL (ET):
Note that as an employment tribunal case, this is not binding authority. ET cases may be persuasive on other tribunal decisions, but unlike those courts higher in the system (EAT, CoA, Supreme Court), they do not have to be followed by other courts and therefore the outcome is only indicative of how a similar case might be treated.
Before the ET, the claimant accepted that the respondent had a zero tolerance approach to theft from the workplace. However, they maintained that it was not their intention to steal the bags, but they made an error due to tiredness and they were not aware of what they were doing.
The ET found that the respondent genuinely believed that the claimant was guilty of the misconduct of which they were accused, and that that act constituted theft. It held that a reasonable and proportionate investigation had been carried out and the claimant was given every opportunity to respond to the allegations. The respondent was entitled, the ET held, to find that the claimant had committed an act of misconduct, even though the ‘bags for life’ had a low monetary value.
On the basis that a fair procedure was carried out by the respondent as well as an adequate investigation, disciplinary hearing and appeal, the ET dismissed the claim and found for the respondent. Central to this finding was that the respondent sought to understand why the claimant acted as they did, by providing the claimant with every opportunity to explain. The dismissal, the ET concluded, was therefore within the band of reasonable responses and fair.
Accordingly, the ET held that the dismissal was procedurally and substantively fair, so the claimant lost their claim.
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