Tribunal Round Up

Watch your mouth – how employers can be discriminatory without realising it

Discrimination can come in many forms, but can be much subtler than you realise. When it comes to off-the-cuff comments, employers need to be careful of how things come across to other parties. This was the case with a recent claim made by a 59-year-old employee who was told she’d be more suited to a ‘traditional’ office. So where did the employer go wrong?

The background 

In February 2015 Ms Gomes (G) began working as an administration assistant for Henworth, which traded as Winkworth Estate Agents. G had been working for another agent in the Winkworth franchise since 2009, and had been transferred to Henworth from there.

A year later, in February 2016, G had a performance review with the company’s lettings director, who informed her that she needed to be more careful with her work. The meeting upset G, and she subsequently spoke to her line manager who spoke to Graham Gold, one of the directors.

Shortly after this G met with Gold, who told her that he felt she had not been paying attention to new methods of working, and had become preoccupied with an old piece of software that was now rarely used by the company.

A month later, in March 2016, Gold called G in for another meeting and told her: “This marriage isn’t working.” G claimed that, when asked about this comment, Gold said that G had typed and sent an erroneous letter to a solicitor, including referring to the deceased in question as ‘Mrs’ rather than ‘Mr’. Gold stated that, subsequent to this, a note would be placed on her performance record.

Additionally, Gold then told G she would be “better suited to a traditional estate agency” which G interpreted as Gold alluding to her being too old for that particular office. When G asked Gold what he meant by his comment, he suggested she “sleep on it and decide what you want to do,” which G interpreted as Gold recommending she consider leaving the company. According to G, at the time of the meeting she was planning to stay with the business until retiring at 65.

Not long after the meeting, G took sick leave for work-related stress and filed a grievance against Gold. The outcome of this grievance concluded that G should have more training opportunities, as well as stating that the original meeting with Gold had been carried out in an unsatisfactory manner. Gomes was not pleased with this outcome, however, and not only appealed but also tendered her resignation.

The tribunal allowed G’s claim for age discrimination, stating that the original comment ‘better suited to a traditional estate agency’ was unlikely to have been said to a younger employee, and was therefore a direct reference to her age. As well as this, the tribunal also allowed G’s claims for age-related harassment and constructive unfair dismissal.

The person put in charge of handling G’s grievance was also called into question, as they had compromised the meeting’s impartiality by allowing Gold to be present – despite Gold being the subject of the complaint.

In conclusion

This case is a harsh reminder that employers need to be careful with what they say to, or about, their employees. An age discrimination claim can arise from comments that allude to an employee’s age, even if it is not directly referred to – so think before you speak.

If you would like to discuss this within your organisation, please contact Alison.

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Tribunal awards – calculating a week’s pay

In a recent case the Employment Appeals Tribunal ruled that a week’s pay should include employer pension contributions, rather than just basic pay, for calculation of compensation for claims under the Employment Rights Act 1996.

Let’s take a look at the facts.

Ms Drossou (D), who worked for the University of Sunderland, was dismissed on the grounds of an irretrievable breakdown in working relations, of which the University claimed D to be the main cause. Subsequently, D brought a claim of unfair dismissal that was eventually upheld by the Tribunal.

As a result, the EAT ordered compensation from the University, calculating a week’s pay by including the employer pension contributions. On the normal grounds that payments are not paid to the employee but into the pension fund, this decision went against the longstanding practice of excluding employer pension contributions from the calculations of a week’s pay.

The Tribunal felt that this deviation from standard practice was necessary, and said that the law under the Employment Rights Act 1996 (‘the ERA’) does not state that the amount payable by the employer has to be payable to the employee (i.e. it could be payable to a third party such as a pension provider). Additionally, the EAT stated that “remuneration” in the context of the ERA means a reward in return for services, and employer pension contributions are no less a reward for service than basic pay. The University was not satisfied with the ruling, but when it appealed to the EAT the Tribunal’s decision was upheld.

So, what does this mean for employers?

For the time being (at least until we see whether this decision is appealed) employers need to increase their calculations in accordance with the potential value of claims. Employers facing unfair dismissal claims need to be careful. If the claimant’s base salary is below £80,541 – the current statutory cap for unfair dismissal compensation – the calculation of a week’s pay becomes highly relevant. Where the employee earns less than the statutory cap on a week’s pay (currently £489), the basic award will also be increased – as well as all other awards based on the ERA definition such as the eight-weeks’ pay for a flexible working rules breach.

But, more importantly, the decision may impact protective awards. If employers fail to inform and consult under TUPE or, in a redundancy process, under the Trade Union and Labour Relations (Consolidation) Act 1992, then they could face large increases in the total compensation payable. The final amount will depend on the number of affected employees, the generosity of the pension provision and the size of protective award made up to the 13-week maximum. But if each employee has a 10% employer pension contribution and they all get an award of 13 weeks, then the total payable increases considerably.

For more information on this please contact Alison.

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President of the Employment Tribunals announces increase in the Vento Bands

Employers have been hit with a timely reminder that they need to make sure they’re taking all possible steps to prevent workplace discrimination. After a recent consultation, the President of the Employment Tribunals has announced that, in the event that they suffer from workplace discrimination, employees can now receive higher compensation for ‘injury to feelings.’

So, what’s it all about?

Compensation for ‘injury to feelings’ is split into four categories – known as Vento Bands – and these vary depending on the discrimination’s severity. From 11 September 2017, the increased Vento bands will be:

  • £800 to £8,400 for less serious cases;
  • £8,400 to £25,200 for serious cases; and
  • £25,200 to £42,000 for the most serious cases.

As well as this, the Employment Tribunal can award over £42,000 in exceptional cases, but it’s still unclear as to how it defines this. Most important, however, is that compensation under this category could be unlimited.

Stick and stones may break your bones, but, in this case, words can definitely hurt. Employers need to stay up to date with their equal opportunities and anti-bullying and harassment policies – as well as implementing regular diversity training – if they’re going to avoid costly discrimination cases.

For more information or help with any Employment Tribunal matters please contact Alison.

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Pensions update: Was a disabled employee treated unfavourably?

In Williams v The Trustees of Swansea University Pension & Assurance Scheme and another the Court of Appeal stated that a disabled employee was not treated unfavourably (and therefore discriminated against) when his enhanced pension on ill-health retirement was based on the salary he earned when working part time due to his disability, rather than his full time salary.

Background

Mr Williams, the employee, suffered from Tourette’s syndrome, obsessive compulsive disorder and depression. Before eventually taking ill-health retirement (at 38) he reduced his hours with his employer, Swansea University, in order to better cope with his condition and his pay was reduced accordingly.

Mr Williams was allowed, by the University, to take his accrued pension benefits immediately and without any actuarial reduction for early receipt, rather than having to wait until his normal pension date nearly twenty-nine years later. This meant he was treated as though he had accrued nearly twenty nine years further pensionable service and his benefits were advanced.

Mr Williams brought a disability discrimination claim at the Tribunal under s 15 of the Equality Act 2010. Mr Williams argued that, by using his actual part time salary rather than a full time equivalent, the calculation of the enhancement to his benefits amounted to “unfavourable” treatment and therefore unlawful discrimination.

In the initial hearing the Tribunal upheld his claim. The University then successfully appealed to the EAT. Following this Mr Williams appealed to the Court of Appeal.

The Court of Appeal agreed with the EAT because:

  • under the pension scheme rules the only employees entitled to retire early and to receive an enhanced pension were those who retired through ill-health and who were necessarily disabled within the meaning of the Equality Act 2010;
  • Mr Williams had been treated advantageously in comparison to non-disabled colleagues and there is no authority for the proposition that a disability discrimination claim can succeed simply because an individual thinks he should have been treated better;
  • that Mr Williams was working part-time hours because of his disability could not be enough to require the employer to justify the treatment; and
  • there is no authority for the proposition that a disabled person who is treated advantageously because of their disability, but not as advantageously as a person with a different disability, has a valid claim that they have been treated “unfavourably”.

This decision confirms that, even if it could have been more advantageous, treatment that is advantageous does not amount to unfavourable treatment.

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Five key employment law changes in April 2017

April is a busy month for employment law with several changes coming into force over the next few weeks. We’ve put together a summary of five of the main things to look out for this month and how they will affect employers.

Gender pay gap reporting rules come into force

The Gender Pay Gap guidance is a huge topic this month and is one that we will dedicate a separate blog to but in summary, every year large employers will have to report data about their gender pay gap, including any bonus payments. All details about the proportion of male and female employees in different pay quartiles and those who receive bonuses. For more information you can read our blog here. [Link to blog]

Apprenticeship levy is introduced

At the beginning of April the apprenticeship levy cam into force, meaning that employers with a paybill or more than £3 million will pay the levy to fund apprenticeship training. Employers in England that pay the levy will then be able to access the funding through a digital service, currently aiming to be in operation from May. Employers that do not pay the levy will also be able to access funding for apprenticeships and while the levy applies across the UK, different arrangements will exist of how apprenticeship funding will work in Scotland, Wales and Northern Ireland.

Immigration skills charge

Any employer that sponsors skilled workers under tier 2 of the immigration points-based system will have to pay a levy of £1,000 per certificate of sponsorship per year. This levy will come into force for each worker under tier 2, although there are some exemptions.

National minimum wage increases

This month the national minimum wage will increase, despite a relatively recent increase in October last year. It is happening now so that the timing of the annual increase in the national living wage rate for workers aged 25 or over will fit with the other national minimum wage rates. From this month the rate for workers aged 25 and over increases from £7.20 to £7.50.

Statutory family-related pay and sick pay rates increase

Also happening this month is an increase in the weekly rate of statutory maternity, paternity, adoption and shared parental pay. This is moving up to £140.98 for pay weeks commencing on or after 2nd April 2017. At this time the weekly rate of statutory sick pay will increase to £89.35 from 6th April 2017.

For more information, visit http://79.170.40.162/enlightenhr.com or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

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5 of the biggest employment law cases in 2016

There have been many key judgements made in employment law over the past 12 months including cases on: employment status in the gig economy, childcare vouchers during maternity leave, enhanced shared parental pay, provision of rest breaks and the Acas code on disciple and grievance. But what were the biggest cases in 2016? We’ve highlighted five of them in a nutshell….

Uber: Employment Status in the Gig Economy

The first, in what is likely to be a string, of cases dealing with employment status in the gig economy, Aslam and others v Uber BV and others was one of the most talked about employment law cases of 2016. The successful bid by Uber drivers to be recognised as ‘workers’ and not self-employed meant that they are now able to access some employment rights such as to receive the national minimum wage and be paid annual leave. Uber was severely criticised by the employment tribunal for covering the truth about its relationship with its drivers.

Peninsula Business Services Ltd: Childcare vouchers during maternity leave

A controversial decision made by the Employment Appeal Tribunal (EAT) in the Peninsula Business Services Ltd vs Donaldson case led to it concluding that the childcare vouchers provided by way of salary sacrifice should be treated as remuneration NOT non-cash benefit. It decided that the phrases “salary sacrifice” was confusing and said that “it is in reality not a sacrifice but a diversion of salary, which the employee has earned but which is redirected prior to it being placed in the employee’s pay packet, in order to purchase vouchers.” Much to the surprise of many, the HMRC has written to the Childcare Vouchers Providers Association to say that this judgement of the EAT means that employers are no longer legally required to provide childcare vouchers during an employee’s maternity or adoption leave. Also, if they are to remove vouchers during maternity leave it will no longer be sex discrimination.

Abellio London Ltd: Provision of rest breaks

Earlier in the year a case asked is a worker required to ask for rest breaks, and be refused, before he or she can bring a working time claim in the employment tribunal? The Grange v Abellio London Ltd case brought into question the scope of the right for workers to take a rest break. The EAT stated that employers have an active duty to ensure that workers are able to take a 20-minute uninterrupted rest break for every six hours worked. According to the EAT, an employee who accepts the lack of rest break reluctantly, but doesn’t protest, is still in a position to bring a working time claim to the tribunal.

National Rail: Policy on enhanced shared parental pay

An employment tribunal awarded £28,321 to a National Rail employee (Snell) over his employer’s policy of giving a period of full pay to mothers and primary adopters on shared parental leave, but only paying statutory shared parental pay to partners and secondary adopters. It has lead to questions about whether it is discriminatory to pay a male parent taking shared parental leave less than a female parent taking maternity leave. In the Snell vs National Rail case, the decision made by the ET in this case shows that the Tribunal do not look favourably on male and female parents being paid differently during shared parent leave. Read more here.

Phoenix House Ltd: Acas code of discipline and grievance

In the Pheonix House Ltd v Stockman and another case this year, controversy was caused when the EAT held that employers do not have to follow the Acas code where there is ‘some other’ substantial reason for dismissal. This conflicted with an earlier EAT decision in the Lund v St Edmund’s School, Canterbury case. This conflict suggests that there will soon be many other cases on the application of the Acas code where there has been a breakdown in trust and confidence.

For more information, visit http://79.170.40.162/enlightenhr.com/or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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Permanent employees can take priority over agency workers for jobs

The Agency Workers Regulations 2010, specifically Article 6, state that temporary agency workers are entitled to equal treatment as permanent employees as regards to the fundamental terms of employment. Article 6 also requires agency workers to be informed of any internal vacancies at their current place of work to give them the same opportunity as other workers. However, a recent Employment Appeal Tribunal case asked whether this Article is concerned only with the provision of information or, whether in fact, it gives temporary agency workers an equal footing with permanent employees when applying for internal vacancies.

Coles vs. Ministry of Defence

The MoD employed both permanent and temporary agency workers at its organisation in Wales. When restructuring, it placed 530 permanent employees in a redeployment pool. While they advertised internal vacancies to all workers, permanent employees were given priority consideration. Coles, a temporary agency worker, claimed that the prioritisation denied him the opportunity to apply and that this was a breach of Article 6.

Tribunal and EAT

The employment tribunal disagreed and Coles appealed. The Employment Appeal Tribunal also disagreed and his appeal was dismissed. They argued that Article 6 only refers to providing equal information about vacancies, it does not prevent permanent employees from being given preferential treatment.

“Same Opportunity”

The biggest confusion in this argument is in the interpretation of staff being given the ‘same opportunity’. The EAT have stated clearly that this means that the information relating to a vacancy must be given to temporary agency workers and permanent workers in an equally useful form at an equally useful time. Article 6 does not prevent any priority consideration or alter the terms on which employment might be offered.

In a nutshell

Provided that employers give ALL workers the same information about internal vacancies in an equal fashion, they are within their rights to prioritise vacancies for existing permanent employees.

For more information about this or any other HR matter please contact Alison directly.

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Accidental oversight – when do employees have a right to a rehearing?

In a circumstance where an employee is required to attend a disciplinary hearing, all evidence that is being used against them must be given to said employee. If some of the evidence is missed out by accident, is it obligatory to hold a rehearing?

What does the ACAS code state?

According to the ACAS Code of Practice on Disciplinary and Grievance Procedures, all employees subject to disciplinary proceedings must receive, in writing, all of the relevant information about their alleged misconduct and all of the possible outcomes of the hearing. Once they have received this they must then be given the opportunity to provide their answers and any defence.

What is meant by relevant information?

Before the disciplinary hearing, employees must be given:

  •             Full details of the specific allegations, not just general observations.
  •             Copies of all documentary evidence and witness statements.

Mistakes happen and sometimes information is withheld by accident. If this occurs, does an employee need a brand new hearing? Does the hearing have to start again from the beginning? According to the Employment Appeal Tribunal’s (EAT) ruling in the Biggin Hill Airport v Derwich case in 2015, a rehearing isn’t obligatory.

EAT Ruling

During the Biggin Hill Airport v Derwich, an employee did not receive all the witness evidence regarding her sacking for gross misconduct. She received these missing witness statements before her internal appeal but claimed unfair dismissal as she believed that the missing evidence was a fundamental flaw in the procedure. However, the EAT claimed that because the evidence had been presented ahead of the internal appeal, the employer had done everything possible to rectify the mistake.

In a nutshell

The EAT ruled that procedural errors can be put right at the internal appeal stage and, in the event of an accidental error; you aren’t obliged to hold a rehearing.

For more information on this or any other HR matter please contact Alison directly.

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Disciplinary procedures: 10 common breaches of the Acas code of practice

This article is a summary of a piece published in Personnel Today in 2011 and subsequently updated in November 2014. The full article can be seen here.

Employment tribunals will take the “Acas code of practice on disciplinary and grievance procedures” into account when awarding compensation for unfair dismissal. This could increase and award by up to 25% for employers that haven’t followed the code. So where do most employers go wrong?

  1. Not warning the employee of the possible consequences of the disciplinary action. Employees must be given a fair chance to defend allegations properly. Disciplinary action and potential dismissal should not come as a surprise.
  2. Not setting out the nature of the accusations clearly to the employee. The employer should explain the alleged misconduct clearly and should, throughout the disciplinary process, be consistent in what it is accusing the employee of.
  3. Not furnishing the employee with relevant evidence against them. The employee should be provided with all the evidence, typically in the form of witness statements, in advance of the disciplinary hearing, in advance of attending the hearing.
  4. Not operating a system of warnings where appropriate. Whilst some cases may warrant a summary dismissal for a first offence in the majority of minor misconduct cases, a series of warnings before dismissal will be appropriate.
  5. Not allowing the employee to be accompanied at a disciplinary hearing. The Acas code reminds employers of the requirement to allow the employee to be accompanied at a disciplinary hearing. This applies when a worker who is invited by his or her employer to attend a disciplinary or grievance hearing makes a reasonable request for a companion to attend the hearing.
  6. Relying on evidence from one particular source with no corroborative evidence. There may be limited circumstances where one individual’s evidence is enough to lead to a disciplinary sanction, but an employer should always look for more.
  7. The absence of an adequate appeal stage. Employers should give the employee the opportunity to appeal when the outcome of the disciplinary hearing is communicated to them. Appeals should be unbiased and not be a “foregone conclusion”.
  8. Failure to keep clear records of the whole disciplinary process. To stand the best chance of successfully defending employment tribunal claims, employers must keep clear records of each stage of the disciplinary process.
  9. Delays in dealing with disciplinary issues. Most cases should be dealt with in a matter of weeks and unexplained delays in the disciplinary proceedings will always be frowned upon by tribunals.
  10. Having the same person deal with the whole disciplinary process. Ideally, different people should carry out the investigation, disciplinary hearing and appeal stage.

For more advice and support through disciplinary matters, please contact Alison.

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A duty to make reasonable adjustments for disabled people – how far should it go?

It is often the case that the law focuses on how an employer should make a reasonable adjustment, rather than their duty to make one in the first place. This was the case in our recent article Can the duty to make reasonable adjustments extend to paying for an employee to have private psychiatric counselling?

If an employer doesn’t know about the need for reasonable adjustments they have no duty to make them. Furthermore, if they could not reasonably be expected to know that the disabled employee is (or could be) placed at a disadvantage by a particular working practice, they can be forgiven for not anticipating any need to change.

Background

A case was brought before the Employment Appeal Tribunal recently concerning a ruling that
an employer was exempt from having to make reasonable adjustments when disciplining a disabled employee for leaving work early without permission, because the employer could not have known that the employee’s disability placed him under a disadvantage in having to request permission to leave work.

In this case the claimant displayed many symptoms of depression, including a tendency to lose concentration and his temper. One day, as a result of this, he left work early, without obtaining permission. At a disciplinary hearing the employer took into account the fact that the claimant had missed his medication that morning but concluded that his action amounted to misconduct and issued him a written warning. The claimant complained to an employment tribunal that this action amounted to a failure to make reasonable adjustments.

The tribunal viewed that the employer had knowledge of the disability (depression) from the claimant’s symptoms. They also found that his difficulty in asking for permission to leave work early was an effect of this. In short, they agreed that in issuing the warning the employer had failed to make reasonable adjustments for the Claimant’s disability.

When this case was brought before the Employment Appeal Tribunal, however, they allowed the employer’s appeal against the finding of disability discrimination. Although they considered that the employer ought to have known that the claimant’s depression constituted a disability, they did agreed that none of the claimant’s symptoms implied difficulty in asking for permission to leave work. As such he was not entitled to reasonable adjustments.

What do you need to do as employers?

Even though the EAT found in the employer’s favour, this case raises an important point concerning best practice. It is not enough to know whether your employees are disabled. This case demonstrates a need to understand the impact on their needs, within the workplace. Importantly, as an employer, you must know of circumstances that could place them at a substantial disadvantage in complying with workplace practices. Whilst it would be inappropriate to delve into the personal circumstances of your employees, taking the time to enquire into their needs could, ultimately, prove beneficial to all.

If you require advice on this or any other matters please contact Alison.

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Tribunal claims are down say Ministry of Justice in latest statistics release

The Ministry of Justice has released its quarterly statistics, demonstrating a sustained reduction in the number of employment tribunal claims logged since the fees regime was introduced in 2013. The figures cover the first quarter of 2014 and show a 59% reduction in single claims. ‘Single claims’ are those made by a sole employee/worker (as opposed to claims where two or more people bring proceedings arising out of the same facts). In the same period in 2013 13,491 ‘single’ claims applications were received, versus only 5,619. In the previous quarter (end of 2013) this figure was even lower, showing a 64% drop on the same period in the previous year.

It is, of course, difficult to know the cause of this. Delays in processing applications could play a part but it is widely accepted that the introduction of mandatory fees for all those bringing claims will have played a significant part.

The introduction of fees was a controversial move and these statistics not only present a strong case for a Government review but add weight to the arguments being brought by groups such as UNISON.

UNISON, which is pursuing judicial review proceedings against the Government, will no doubt rely on the latest statistics to support its case for the fees regime to be stopped.  The group alleges that the fees regime breaches the EU principle of effectiveness (by making it excessively difficult to enforce employment rights) and is indirectly discriminatory. Last year the High Court rejected UNISON’s arguments, but the union is appealing that decision. One of the reasons that their case failed was because the court considered it too early in the process for them to adequately assess the impact of fees. It is likely, now statistics are available to support their argument, their appeal will proceed at pace. It is unlikely, however, that we will hear anything on this matter for at least another six months and, for now, fees stay in place for those bringing a claim before the Employment Tribunal. As a part of this the Government has committed to keeping the scheme under review and we await that towards the end of the year.

 

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Is it against the law to make a decision that could disadvantage an employee, because she’s pregnant or intends to take maternity leave?

Whilst it is common understanding that employers may not discriminate against employees on the grounds of pregnancy when it comes to recruitment, dismissal or redundancy, the situation concerning day-to-day decision-making can appear somewhat ‘greyer’.

To demonstrate a tribunal’s view on this area, we can look to a recent case in the Employment Appeals Tribunal. In this case they upheld a tribunal ruling that a police force was guilty of discriminating against a female dog handler, on grounds of her pregnancy, because they had required her to return her police dog during maternity leave.

After the police officer in question notified her employer that she was expecting her second child they informed her that she should return her police dog, during her absence, so it could be re-deployed where it was needed. The Claimant brought tribunal claims of, among other things, direct pregnancy and maternity discrimination and indirect sex discrimination.

The tribunal supported her claim of direct pregnancy and maternity discrimination, accepting the Claimant’s evidence that the dog’s reallocation could damage her career progression, as a dog handler, and deny her opportunities for overtime on her return from maternity leave.

While there is no denying that the Police’s need to keep the dog operational was a key factor in the decision made the fact that pregnancy was a significant and material influence on this decision meant that it was deemed discriminatory.

Although this is an unusual case, the police officer succeeded, not because the loss of the dog as a companion was considered discrimination in and of itself, but because of the impact it would have on her career and the fact that her pregnancy was the reason for this decision being made. This case is important in demonstrating the importance of considering ‘why’ decisions are being made, and their eventual effect on the employee, as well as the impact on your business.

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April Awards update

Reflecting a Retail Prices Index (RPI) increase of 3.2% in the year to September 2013, on 6 April 2014 the limits to tribunal compensation will increase as follows:

Unfair dismissal compensatory award

· Current limit £74,200

· Limit from 6 April £76,574

Each week’s pay (used to calculate redundancy payments and other awards)

· Current limit £450

· Limit from 6 April £464

Basic award for certain unfair dismissals (trade union membership or activities, health and safety duties, pension scheme trustee duties or acting as an employee representative)

· Current limit £5,500

· Limit from 6 April £5,676

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Major Changes in the Tribunal Procedure

Mark 29th July 2013 in your diaries for two major tribunal procedure changes this year. It is the date that the tribunal fees systems go live and a new procedure is put in place to help eliminate weak claims.   In a nutshell: Tribunal Fees From 29th July, claimants are required to pay a fee to lodge a claim at a tribunal. Should the matter proceed to a full hearing, there will be an additional fee.  How much are the fees?

  • Lower-value claims, e.g. unauthorised deduction of wages: Issue fee of £160 when the claim is lodged and an additional £230 if the claim proceeds to a full hearing.
  • More complex claims, e.g. unfair dismissal or discrimination: Issue fee of £250 and a hearing fee of £950.

Every claim must be presented with the necessary fee, or application for fee admission for claimants on a low income. Any claim presented without this will be rejected. Should this happen, a claimant does have the right to submit another form but only if their claim still has time left. In any case where the fee is underpaid, if it is paid within a certain timeframe the claim may still be accepted.  In a nutshell: Eliminating weak claims From 29th July, an initial sift must take place by a judge for all cases, once a claim has been presented. The sift will help weed out claims that the tribunal doesn’t have jurisdiction to consider and any responses that don’t have any ‘reasonable prospect of success’. How do they get eliminated? The judge will write to the claimant, or employer, in question and ask them to provide full written reasons why their claim should not rejected. The claim will be automatically be struck out if the judge does not receive a reply within a certain deadline. If they do get a response, the claim will be taken to a preliminary hearing for further consideration.  With these two major changes in place, employees will now have to think more carefully before deciding to file a claim. Employees need to consider the financial implications and be certain their case has a reasonable prospect of success before proceeding to present their claim.

 

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New rules for employment tribunals that were planned to come into force next month have now been delayed until the summer.

What are the rules going to look like? There has not been an official publication of new rules but there have been suggestions that they will include:

  • Holding hearings in private will have a more flexible regime, as will making restricted reporting and anonymity orders.
  • It will be easier to withdraw and dismiss claims.
  • There will be an initial sift stage where an Employment Judge will review every case on paper to consider prospects and case management.
  • A new rule will permit Tribunals to limit oral evidence and submissions at hearings.
  • The £20,000 cap on costs assessed by a Tribunal will be removed.
  • “Preliminary hearings” will combine separate case management discussions and pre-hearing reviews.
  • The Presidents of Employment Tribunals in England and Wales and Scotland will give non-prescriptive guidance to supplement the new rules and to aid consistency of approach.

When will these rules and other employment law changes be implemented? The new rules are set to be published soon in order to allow time for familiarisation before they are implemented in the summer. They have been delayed from the original date of 6th April to avoid issuing a new set of rules that need to be amended later on. Other employment law changes have been mentioned in a published timeline as follows:

  • Spring 2013. Alongside Acas guidance, the collective redundancy consultation period will be reduced from 90 days to 45 days.
  • Summer 2013. The summer will see the introduction of new confidential settlement negotiations, as well as changes in Tribunal fees, changes to whistleblowing, portable online DBS checks and a new 12 months’ pay cap on compensatory awards for unfair dismissal. There will also be a review of the administrative paperwork associated with the Agency Worker Regulations.
  • Autumn 2013. The Government is aiming to introduce changes that will have resulted from its current TUPE reform consultation as well as introducing the new employee owner status.
  • 2014. Next year, changes will mean that an introduction of early Acas conciliation before a claim can be lodged at an Employment Tribunal alongside new employer Tribunal financial penalties.
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Tribunal roundup – December 2012

Failure to offer vacancy to redundant employee was fair

In a nutshell
An employment tribunal ruled that it was fair for an employer not to offer a redundant employee a new vacancy, which became available after a colleague resigned.

Why did the Claimant bring a claim for unfair dismissal?
The Claimant was one of four employees applying for three new positions in the company and scored the lowest in the selection process, leading to her becoming redundant. The other three applicants were successful but one resigned before the Claimant’s employment ended. The Claimant believed that she should have been offered the vacant post as an alternative to redundancy.

Why did the tribunal decide it was fair?
The tribunal argued that it was open to the employer to conclude that the Claimant was not appointable to a new post with greater responsibilities at a higher grade. There was no point offering the vacant post to the Claimant because she was clearly under qualified.


Dismissal for theft of yoghurt worth 39p was fair

In a nutshell
An employee was dismissed for taking a yoghurt, valued at 39p, from one of the warehouse shelves. The tribunal agreed that theft justified dismissal regardless of the value.

What was the evidence?
CCTV footage was shown in the disciplinary hearing that showed the dismissed employee taking something from the warehouse shelves and concealing it behind his back. The footage also showed him going into the toilet for 7 minutes, giving him ‘ample opportunity’ to consume the product.

What was the Claimant’s argument?
The Claimant argued that the employer’s investigation was flawed by only showing part of the CCTV and not looking the rubbish bins afterwards. The tribunal believed that the investigation was sufficient, as was the evidence.


Insistence on full-time working discriminated against maternity leaver

In a nutshell
The Claimant brought a claim on sex discrimination after her employer refused her request to work part-time on returning from maternity leave.

What were the circumstances?
Prior to her maternity leave, the Claimant had been working full-time as a Senior Buyer. She wanted to return to work on a part-time basis but her employer insisted that her job could only be done full-time and rejected her request.

What did the tribunal decide?
The tribunal agreed that insisting on working full-time puts women (as the primary providers of childcare) at a greater disadvantage than men. They found that the company operated a policy that buyers should work full-time and that this policy was potentially disadvantageous to women. The tribunal also decided that the Claimant was disadvantaged by this policy, one that the company had failed to justify.

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Tribunal Round Up – October 2012

Requirements of fair capability dismissals

 

In a nutshell

Employers have been warned by the EAT against adopting a mechanistic approach to capability procedures and have issued a reminder that it remains necessary to demonstrate reasonable grounds to support an employer’s belief than an employee’s performance is unsatisfactory.

 

Why was the Claimant dismissed?

The Claimant was informed that he was being placed on his employer’s formal capability procedure. The employer went through a procedure of holding a progress meeting with the Claimant, informing him that he still hadn’t reached the expected level of performance, and eventually dismissing him on capability grounds. The tribunal was satisfied that the employer genuinely believed in the Claimant’s lack of capability, had carried out a fair procedure and the decision to dismiss fell within the band of reasonable responses.

 

Why did the EAT allow the Claimant’s appeal?

The EAT said that the tribunal had fallen into the trap of concentrating on the process that was adopted by the employer in dismissing the Claimant and its judgment didn’t explain whether there were reasonable grounds for the employer’s belief that the Claimant’s performance was, in fact, unsatisfactory.

 

Muslim employee ‘forced to resign’ after wearing headscarf to work

 

In a nutshell

A Muslim employee brought a claim for unfair dismissal and direct religious discrimination against her former employer after she was forced to resign after she wore a headscarf to work. The Claimant won her claim for unfair dismissal but lost her claim for religious discrimination.

 

What led to the Claimant being dismissed?

After wearing a headscarf to work, the Claimant’s rota was changed so that she no longer worked in a particular branch of the retailer’s stores. When she challenged the directors about the change she was told it was because they wanted to ‘maintain an image’. Two months later, after taking an extended lunch break, the Claimant was forced to resign.

 

What was ruled?

The tribunal ruled that the company had ‘seized on the claimant’s admitted misconduct as a pretext for dismissing her’. They believed that the real reason for her forced resignation was that she had worna headscarf to work. The judge stated that if the Claimant had brought a claim for indirect discrimination, the tribunal would have ‘in all likelihood’ ruled in her favour.

 

GP carrying out freelance work for a private clinic was entitled to bring claims for unpaid wages and holiday pay

 

In a nutshell

The Court of Appeal has upheld a tribunal’s decision that a GOP, working as a self-employed independent contractor providing services to a private clinic, was a worker for the purposes of section 230(3) of the Employment Rights Act 1996 and, as such, entitled to bring tribunal claims relating to unlawful deductions from wages and accrued holiday pay. This decision has important implications for any organisation that uses freelance workers.

 

What was the Claimant’s legal status?

The Claimant was a GP with his own practice who practiced minor procedures for clients of a private clinic under a written contract under which he agreed he was an independent contractor. This meant he would not be paid if off work sick, he would pay his own tax and NI, and he would meet his own expenses. When his contract was terminated, he argued that this independent status should not prevent him from bringing various employment tribunal claims. His legal status defined his legal rights at work. The EAT said that the test to distinguish between being self-employed and a worker is to ask whether the individual actively markets his services as an independent person to the whole world (with clients or customers), or whether he is recruited by the principal to work for the principal as an integral part of the principal’s operations.

 

What did the EAT decide was his status?

They said that the Claimant agreed to provide his services exclusively to the clinic and not to the world in general. He was therefore recruited by the clinic to work for it as an integral part of its operations. That work was separate from his work as a GP at his surgery. The Claimant was allowed to switch his legal status from an independent contractor, to get the tax benefits, to a worker, when it came to complain about the termination of his contract.

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Tribunal Round Up – September 2012

Extension of scope of employers’ vicarious liability for actions of non-employees

In a nutshell

A recent ruling by the Court of Appeal that the Catholic Church could be vicariously liable for a priest’s actions has great significance for the scope of vicarious liability in many employment situations.

What was the case in question?

A personal injury claim was brought forward against the Church by a Claimant who alleged she had been sexually abused whilst living in a children’s home run by the Church. There was a legal issue whether the Church could be liable for the priest’s abuse as the priest is not considered to be an employee of the Church. The Court of Appeal extended the scope of vicarious liability to non-employees in relationships so close in character to employment, making it just and equitable to hold the ‘employer’ liable.

What tests did the Court use to identify this relationship?

The Court tested: the control the organisation had over the individual, whether the individual performed a core function of the organisation, whether the individual was integrated into the organisation and whether the individual was in business for themselves.

This case has had a great significance for the scope of vicarious liability in atypical employment situations including agency workers and freelance workers.

Redundancy even though no reduction in the number of employees employed

In a nutshell

The EAT decided in a recent claim that there can be a redundancy even if the number of employees remains the same.

Why was the Claimant dismissed?

The Claimant was employed as a book-keeper and after a combination of a downturn in business and the adoption of accountancy software, there was less work available for her to do. The employer tried to persuade the Claimant to cut down her hours but when she refused, she was dismissed. The Claimant then claimed for unfair dismissal saying that there must always be a reduction in the number of employees for redundancy to apply, not just a reduction of hours.

Why was her claim rejected?

The EAT decided that redundancy commonly results in a need for fewer employees but doesn’t have to. They said that if an employee is dismissed because of a reduction in the amount of work available, the employee’s dismissal would be for redundancy even if the number of employees remained the same.

Employer’s sympathy for employee on sick leave prevented it from taking disciplinary action

In a nutshell

An employer lost the right to dismiss an employee because he was aware of the employee’s breach of contract. The employer did not institute disciplinary proceedings because the employee was absent from work due to stress related illness.

How did the Claimant breach his contract?

The Claimant told his employer that he was intending to leave because he had accepted a job with one of the employer’s competitors. He said that this new job would not breach his restrictive covenant. During the notice period, the employer discovered that the Claimant had lied about the new job and after a heated confrontation the Claimant went off sick with stress.

How did the employer respond?

The employer decided to wait until the Claimant had returned from sick leave to avoid damaging trust or confidence. When the Claimant did return and disciplinary proceedings begun, the Claimant was dismissed on the grounds of lying. The Court of Appeal decided that because the employer knew about the breach of contract but decided not to start proceedings whilst the Claimant was on sick leave, he lost the right to dismiss him.

 

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Tribunal Round Up – August 2012

Genuine but mistaken belief in claim did not avoid costs award

 

In a nutshell

After deciding that a Claimant’s complaints about direct sex discrimination and victimisation were untrue, the EAT ordered her to pay her employer’s costs on the basis that the claim was misconceived, i.e. had no reasonable prospect of success.

 

What did the claimant believe?

The claimant was employed on a temporary contract to cover the accounts manager’s maternity leave and her employment ended when the account manager returned. The Claimant responded by claiming it was due to direct sex discrimination and victimisation.

 

Why did she have to pay her employer’s costs?

The EAT ruled that whether a party is dishonest is relevant to costs but not determinative, an honest case may still be misconceived or conducted unreasonably. Although it was accepted that the Claimant hadn’t deliberately lied, her beliefs had no basis in reality. The EAT decided that the genuineness of the Claimant’s belief didn’t prevent the tribunal from concluding that the claim was misconceived.

 

Employment Tribunal Fees from 2013

 

In a nutshell

From summer 2013, claimants will now have to pay to bring an employment tribunal case forward. Previously it has been costing taxpayers £84 million a year, a price that does not include the additional cost to employers.

 

How much will claimants need to pay?

Lodging a tribunal claim alleging unfair dismissal or discrimination will cost £250 and claimants must pay a further £950 before the full hearing. Claims for unpaid wages or redundancy pay are £160 on issue and £230 for the hearing. Those who wish to have an alternative to tribunal proceedings can go through mediation conducted by a judge which costs £600.

 

Who can seek exemption?

People on low incomes will be able to seek exemption from the fees. The fees regime will have no impact on those individuals.

 

Ruling that tribunals should not scrutinise redundancy scores

 

In a nutshell

A tribunal has been criticised by the EAT for undertaking a detailed scrutiny of the marks awarded in a redundancy scoring exercise in order to find a dismissal unfair. The EAT has also confirmed earlier decisions of its own that not every aspect of a marking scheme has to be objectively verifiable as fair and accurate, if overall the redundancy criteria are reasonable.

 

During what claim did this happen?

A Claimant brought a claim for unfair dismissal forward when made redundant following marking on a detailed redundancy scoring criteria. The tribunal argued that the Claimant’s scores were lower than they thought they should have been. The employer appealed to the EAT, arguing that the tribunal had impermissibly substituted its own assessment of the Claimant’s capabilities for that of the employer. The EAT allowed the appeal and said that the tribunal should not have investigated the facts underlying the dismissal and reached its own conclusions.

 

When should scores be scrutinised?

It is not open to an employment tribunal to substitute alternative scores or its own view provided that managers have acted reasonably in undertaking the scoring exercise and can explain any scores attributed to a particular employee. Scoring should only be scrutinised if a Claimant can show that there was an ulterior motive for the employer giving a lower score.

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Tribunal roundup June 2012

Suspension of employee amounted to harassment on grounds of disability

In a nutshell

The claimant was unable to renew her First Aid Certificate because of her disability and, in consequence, the employer suspended the Claimaint on full pay before dismissing her. The EAT upheld the tribunal’s decision that this suspension amounted to harassment on grounds of her disability.

Is this generally the case?

Generally, the starting point of a suspension is a neutral act. A suspension that is properly and reasonably imposed will not amount to harassment. Therefore in most cases suspension on full pay will not amount to harassment.

Why was this case an exception?

The tribunal stated that there was no doubt regarding the Claimant’s inability to undertake CPR (the reason she was unable to renew her First Aid Certificate), but the employer sent her on a course containing a component which it knew she could not complete, given her disability. Then, without any discussion with the Claimant, she was peremptorily suspended. The suspension was therefore seen as unreasonable because the employer was fully aware that the Claimant could not perform CPR and its reasons for imposing suspension were scant.


Relying on a variation clause in a contract to change terms and conditions of employment

In a nutshell

Employees appealed a new condition in their contract that permitted the employer to impose new terms on its employees without obtaining their further consent. Their appeal was dismissed on the grounds that the employees had no evidence to show they did not intend or expect that their contracts could be amended in this way.

What were the details?

The employer wanted to ensure that all its staff were on the same terms. It also wanted to contend that it was entitled to impose the new conditions because the staff handbook, which was incorporated into the employment contract, included a provision that the employer “reserved the right to review, revise, amend or replace the contents of this handbook, and introduce new policies from time to time reflecting the changing needs of the business..”

What has been said about the EAT’s decision?

The decision made by the EAT has been criticised and it remains to be seen whether or not tribunals will routinely follow it. Instead, tribunals may want to take into account the relative bargaining power of the parties when deciding whether the terms of the variation clause in a contract or handbook in truth represented what was agreed about the employer’s right to impose changes on employees.


Employer’s comment to ACAS founded victimisation claim

In a nutshell

The Claimant, employed by the Council, made four unsuccessful applications for a promotion that she alleged she had been turned down for because of her race. During the course of proceedings, an exchange of emails took place between ACAS and the Council regarding her capability for the role. The Claimant then submitted another claim, for victimisation, arguing the Council had decided that she would never be promoted as a result of having brought the race discrimination claim. Her victimisation claim succeeded although her direct race discrimination claim failed.

What role did the email exchange play?

ACAS sent an email to the Council asking if it wished to make a settlement offer, to which the Council’s solicitor replied no. The solicitor then went on to say the Claimant’s report writing was an issue and that the grammatical and spelling errors in her ET1 claim form showed that she was not capable for the job in question. This email was forwarded to the Claimant as a statement of the Council’s position and led to her submitting the victimisation claim. The Claimant wanted to produce the email as evidence and the tribunal ruled that it was not privileged because the Council’s solicitor had gone beyond any proper statement of the Council’s case to falsely assert grounds for the Claimant’s non-selection for promotion.

What can be learned from this case?

This case should not deter employers from talking to ACAS but should make them consider carefully what they say. Employers should ensure that any comments they make about the claim against them are in line with the defence they advance in the tribunal.

The tribunal ruled that the e mail was not privileged because the Council’s solicitor had gone beyond any proper statement of the Council’s case to falsely assert grounds for the Claimant’s non-selection for promotion in order to counter her claim of race discrimination. This lost the privilege the e mail might otherwise have attracted. The tribunal also inferred from the e mail that promotion was never going to be a possibility for the Claimant in the future and that the comment had been made to deter the Claimant from bringing her claim and encourage

The Claimant’s victimisation claim succeeded although her direct race discrimination claim failed.

 

Comment: The decision in this case should not deter employers from talking to ACAS. However, employers should consider carefully what they say, even to ACAS, and ensure any comments they make about the claim against them are in line with the defence they advance in the tribunal

 

 

 

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Redundancy Selection Pool Consisting of Just the Claimant

In a nutshell

The question of how a redundancy selection pool is defined is typically a matter for the employer to determine and is seldom interefered with by the employment tribunal. However, recently the EAT upheld a tribunal’s decision that a dismissal following selection for redundancy from a pool of one was unfair.
What legal principles were used by the EAT when deciding if the situation was fair?

The EAT have set three main legal principles to follow when deciding whether an employer’s redundancy selection pool is fair:
1. The ‘range of reasonable responses’ test. This applies to the selection of the pool from which the redundancies are to be drawn. The test raises the question of whether the employer’s choice of the selection pool fell within the range of choices which a reasonable employer could have adopted. It also considers whether the tribunal thought it would have been fairer to make a different choice.
2. The definition of the pool should primarily be a matter for the employer to determine. It would be ‘difficult’ for the employee to challenge the choice of pool where the employee has ‘genuinely applied’ its mind to the issue.
3. In some situations a tribunal is entitled to scrutinise the employer’s reasons for its choice of pool to determine if it has ‘genuinely applied’ its mind to the issue of who should be in the pool for consideration for redundancy.

 

 

Warning – This Tribunal Round Up is for information only and does not claim to provide legal, or other, advice.  Before taking action in any of the above topics, you should always seek legal advice. enlightenHR accepts no liability for loss that may arise from placing reliance on this Tribunal Round Up.


For more information and advice about any of the above topics, we’re only a call away 07967 221595 or 01803 200271

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Employee’s Work Ethic Goes Unrewarded

In a nutshell
If employees are concientious and stay behind, outside of normal working hours, to complete work that has been asked of them, instead of just walking off the job, should they be entitled to be paid?

In what circumstances might this situation arise?
In a recent case claimants, who were cleaners, came forward to argue that they were sacrificing half of their breaks to complete their daily workload and that this time spent working during their breaks should be paid as overtime. The tribunal and EAT rejected the argument stating that the cleaners were under no obligations to finish the amount of work set for the day and the decision to work during their breaks was voluntary.

Is this the right decision?
It may be argued that this decision is no way to reward concientious and hard-working employees but it is the correct one legally. Currently the law protects both the employer and employee as, in some cases, if employees could claim they need to be paid overtime to finish the work they had been set, it could encourage slow or lazy work.
Warning – This Tribunal Round Up is for information only and does not claim to provide legal, or other, advice.  Before taking action in any of the above topics, you should always seek legal advice. enlightenHR accepts no liability for loss that may arise from placing reliance on this Tribunal Round Up.

For more information and advice about any of the above topics, we’re only a call away 07967 221595 or 01803 200271

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Selection Criteria and Alternative Employment

In a nutshell

The EAT has recently decided that in situations where there has to be a selection made between several redundant employees for a new role, the employer is entitled to appoint whomever they regard as the best person for the job. Even if this process involves using ‘subjective’ selection criteria.

When should the ‘subjective’ selection criteria be used?

According to the EAT, in situations that are too unlike, such as when selecting an employee for redundancy compared to deciding whether a redundant employee should be offered an alternative position, employers should not be expected to apply the criteria commonly. The only question is whether an employer has acted resonably when reaching its decision.

Can a decision be too ‘subjective’?

‘Subjective’ selection criteria has been a recent focus for the EAT as a recent unfair dismissal trial was triggered by an employee arguing that he had been unfairly dismissed because the criteria for the new role was too ‘subjective’. The EAT decided that there was nothing objectionable about him being assessed on ‘subjective’ criteria. Some consider ‘subjective’ as a dirty word but in most recruitment situations not all aspects of the new role can be rated in an objective way. There are no obligations for an employer to always use criteria that can be measured in such a way. The EAT argues that for some contexts, particularly in an interview, ‘subjective’ criteria is essential for choosing the right employee for the role.

Warning – This Tribunal Round Up is for information only and does not claim to provide legal, or other, advice.  Before taking action in any of the above topics, you should always seek legal advice. enlightenHR accepts no liability for loss that may arise from placing reliance on this Tribunal Round Up.

For more information and advice about any of the above topics, we’re only a call away 07967 221595 or 01803 200271.

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