Employment Law Blog

  • 13 Apr
    Some Other Substantial Reason

    This time around I have chosen a recent case on the SOSR defence. This has come in for some criticism in recent years from appellate courts especially where there have been other specific conduct issues which might have been relied upon. This has I think made practitioners wary of the SOSR perceiving it to be more difficult to establish requiring perhaps some higher level of proof or more cogent evidence.

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  • 06 Mar
    When Down Means Up

     

    Most readers are no doubt aware that when a substantial compensation award including future loss of earnings is made in a personal injury case a reduction is normally made which takes into account the interest that can be earned on the lump sum payment. The Discount Rate as it is called is also applied to substantial loss calculations in the Employment Tribunal (see Brentwood Bros (Manchester) Limited v Shepherd [2003] EWCA Civ 380 @ para 16). What this has meant in practice is that the compensation payment is reduced or discounted to reflect accelerated payment.

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  • 13 Feb
    Substitution

    ACCEPT NO SUBSTITUTE!

    The Court of Appeal handed down its judgment in Pimlico Plumbers & Charlie Mullins v Gary Smith [2017] EWCA Civ 51 on 10th February 2017. In this case a plumber had been engaged under a series of written agreements to provide his services as an independent contractor. The question arose as to whether he was in fact a worker and/or an employee...

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  • 23 Jan
    COT3 WORDING: GLAD IT’S ALL OVER?

    Here is a cautionary tale for employers.

    What happens when a Claimant brings a claim and signs a COT3? End of matter parties move on. Well that is not always true. The key is what the wording of the COT3 actually covers...

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  • 09 Jan
    Abuse of Process

    I apologise in advance that this blog is a bit longer than normal as I feel a legal history lesson is needed to give the reader some context. If you want to skip to the good bit then I suggest you simply read the last paragraph for the practical part!

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  • 21 Dec
    Stress: A Reaction to Circumstances?

    Reactive stress is sometimes insufficient to provide an employee with the added protection for those classed as disabled under the Equality Act 2010. The case of Herry v Dudley Metropolitan Council UKEAT/0100/16 is a useful reminder of this. Those who have advised in stress cases will be aware of J v DLA Piper UK UKEAT/0263/09 which made the distinction between someone suffering from a mental impairment such as depression and someone who was reacting to circumstances...

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  • 28 Nov
    Warnings

    Placing reliance on a written warning when dismissing an employee is a common occurrence. The warning can form a key part in the decision to dismiss. So, what happens if the warning is found to be have been wrongly issued in the first place?

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  • 31 Oct
    The Gig Economy & Uber

    The gig economy has been much in the news lately. The HMRC are presently investigating the self-employed status of Hermes delivery drivers, Deliveroo are facing an Employment Tribunal hearing in the coming weeks on the status of their delivery riders and only last week an inquiry into the future world of work was launched by the Business, Energy and Industrial Strategy Committee...

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  • 18 Oct
    Judicial Assessment

    You may have seen the news on our twitter feed earlier this month that Judicial Assessment is being introduced to Employment Tribunals. This new procedure has been brought in as another avenue to assist parties in resolving disputes and so avoid stressful and expensive final hearings in the Employment Tribunal...

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  • 03 Oct
    Justification in Disability Discrimination

    The modification of performance assistance procedures is now accepted as a step which should be considered when poor performance arises out of an employee’s disability however Tribunals still sometimes struggle with applying the justification test...

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  • 19 Sep
    Compensation & the ACAS Uplift

    When calculating an employee’s losses, it does not usually make any difference whether compensation is split between unpaid notice pay (wrongful dismissal) and compensation for loss of earnings (unfair dismissal) or simply expressed as compensation for loss of earnings (unfair dismissal). In both cases the Claimant will be compensated in the same amount and over same period of time. However, if you are arguing that there should be an ACAS uplift, especially if it is likely to be substantial, then how you argue the Claimant’s case on compensation is crucial in avoiding your client losing out...

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  • 05 Sep
    SPC

    Having frequently had to advise local authorities on the impact of transferring services out, in and between, I was surprised that I had not come across the factual situation in a recent Employment Appeal Tribunal case (CT Plus (Yorkshire) CIC v Black and ors UKEAT/0035/16)...

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  • 17 Aug
    PILON II

    Whilst still someway off, I thought it would be worth having a quick look at what the Government is proposing in respect of legislation covering taxation of termination payments (Consultation on the draft legislation will end on 5th October 2016)...

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  • 03 Aug
    NOT ETO

    I have recently been advising an employer in relation to proposed changes to terms and conditions after a TUPE transfer. Since the transfer, the employer has had a significant reduction in funding and needs to save substantial sums of money. There are no reductions in headcount and so no proposed changes to the workforce...

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  • 13 Jul
    Like a Puppet on a String

    The reason why test is familiar to those who have been involved in discrimination cases: What were the mental processes that motivated the employer to act or not to act?

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  • 17 Jun
    Trade Secrets Directive

    The Directive provides for a common framework of minimum standards that Member States must provide for the protection of trade secrets. This Directive was adopted by the Council on 26th May 2016.

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  • 08 Jun
    Academies and TUPE

    The advent of the Academy has given rise to some novel TUPE issues. Here is one of them...

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  • 24 May
    A Tendency?

    As well as employment law I occasionally find myself representing local authorities and parents in SENDIST hearings on disability matters. The hearing last week was about discrimination arising from and adjustments in respect of an autistic pupil. The arguments in this case have an application beyond education and are relevant to any Equality Act claim where the protected characteristic is disability...

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  • 11 May
    The Damned United?

    Leeds United has been in the employment law spotlight quite a bit over the last year or so. The reason these cases end up being fought is down to the length of the contracts which tend to be fixed or rolling with no notice, leading to a club being exposed to the risk of a significant pay off when terminated early...

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  • 27 Apr
    Rejected Claim Forms

    The new(ish) rules in relation to EC Certificates have been causing all manner of difficulties for Claimants. One of the most common issues is failing to put the correct EC Certificate number on the Claim Form. This is an automatic fail with the Claim Form being rejected and sent back to the Claimant. A Tribunal must reject a Claim form which does not have a valid EC Certificate number (Rule 10). This is not a great problem if you have submitted your claim in good time and so can rectify the error, but what if you put your claim in on the deadline and miss out a couple of numbers?

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  • 13 Apr
    ALLEGATION/INFORMATION?

    When is an allegation not information? When it is a protected disclosure of course! You have to keep your eye on Langstaff the President of the Employment Appeal Tribunal because bit by bit he is reshaping the employment law landscape. It is sometimes said that a basketball player has hot hands well at the moment I think Langstaff P is going through his ‘hot hands’ period.

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  • 15 Feb
    Day-To-Day Activities

    When I first started doing DDA cases nearly 20 years ago there was no question of ‘work activities’ playing any part in the assessment of whether someone was in fact disabled. The logic went that as the complaint usually related to the work itself there seemed little point in using work tasks to judge whether someone was disabled only to then look at adjusting that very task. This rather unsophisticated approach has been eroded over the years. The EAT in Banaszczyk v Booker Ltd UKEAT/0132/15 have made it clear, if it wasn’t already, that this approach is wrong and work activities can form part of the assessment of someone’s disability for the purposes of the Equality Act 2010

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  • 11 Jan
    Mitigating Loss

    I was recently completing a Schedule of Loss for a Claimant and was asked what do I need to do to show I have tried to find work? I came up with the usual: Prepare a log of job applications; sign up with agencies; sign up with job search websites; look at newspapers. This got me thinking about the legal test in relation to mitigation of loss.

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  • 15 Dec
    Sometimes a cigar is just a cigar!

    Last week the Court of Appeal handed down a judgment in the prison chaplains case. You may be aware that this litigation which is about the disparity of pay between Muslim and Christian chaplains has been going on for a few years.  The key point was that pay progression in the chaplaincy is linked to years served.

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  • 13 Nov
    Disparity

    It is not uncommon for me to advise on how a Tribunal might view treating two people involved in similar incidents differently. Those who have experience of running a case based on disparity of treatment will be aware that raising the issue of disparity is one thing but proving it is quite another.

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  • 28 Oct
    What 'is in the public interest'?

    The Coalition Government were concerned that individuals making complaints about breaches of their own terms and conditions were exposing employers to the risk of targeting a whistle blower. They believed that it had always been the intention that protected disclosures were about matters relating to the public rather than an individual so as from 23rd June 2013 any protected disclosure has had to be ‘in the public interest’. Underwood v Wincanton plc UKEAT/0163/15 is the latest authority on this point. It followed Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2015] IRLR 614. Chesterton decided that the ‘public interest’ test was passed if the disclosure related to a section of the public rather than the public at large. In that case a complaint about payments relating to over 100 managers in the company was held to be in the ‘public interest’.

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  • 30 Sep
    Travel Time (Part II)

    This is an update on my blog in June about travel time and working time. You may well have heard that the European Court followed the Advocate Generals Opinion and decided that travel time was working time. As always in these situations there has been much heat and not so much light shed on the implications of this decision on pay.

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  • 28 Aug
    DRIFT Part 2

    You may remember my blog a few months ago about getting it right in the Tribunal. I make no excuses for making the same point again, it bears frequent repetition: Do It Right First Time (DRIFT). This recent case is another good illustration as to why it is so important to ensure that you raise all the relevant issues first time around.

    The Claimant in Small v The Shrewsbury and Telford Hospitals NHS Trust UKEAT/0300/14 had won his whistleblowing claim and at the remedy hearing argued that he would have stayed in employment with the Respondent becoming a full time employee leading to a continuing future loss up to his retirement.

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  • 19 Aug
    How Long!

    There always seems to be confusion over how long is too long when it comes to accepting a breach of contract and resigning. HHJ Eady QC in Adjei-Frempong v Howard Frank Ltd UKEAT/0044/15 helpfully reviews the important case law on affirmation/waiver and highlights three important matters to consider:

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  • 14 Aug
    Substantial Disadvantage

    There was until recently some doubt over exactly how indirect discrimination and substantial disadvantage worked under S 19 Equality Act 2010. This is important because the different approaches potentially either narrow or broaden the number of potential claimants an employer faces. The Court of Appeal have now ruled on this point and have adopted the narrow approach.

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  • 30 Jul
    Early Conciliation: has it settled in?

    I was recently asked whether I thought Early Conciliation was working. It was not a question I could properly answer, given that the aim of Early Conciliation (“EC”) is to resolve employment disputes even before a claim is brought, and I am most often called upon only after the EC process has failed to result in an early resolution.

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  • 29 Jun
    Travel Time

    One area of the law that I am frequently asked about is what counts as working time? Lately travel time has become a cause for concern for employees and employers alike. A number of companies who provide home care have entered into agreements with local authorities basing their bids on travel to and from home as not counting as working time. A decision that this travel time might now be ‘working time’ could make some of these agreements less profitable or loss making with the inevitable knock on effect this would have on the service users, employees and local authorities.

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  • 22 Jun
    Review of fees is underway

    There was no mention of Employment Tribunal fees in the Queen’s speech last month, but the Ministry of Justice has just announced a review of their impact.

    The move is perhaps surprising, given that calls from the Liberal Democrats to conduct a post-implementation review (as promised when fees were introduced in 2013) went unanswered in the run up to last month’s General Election.

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  • 03 Jun
    Do It Right First Time

    The other week I found myself in the Employment Appeal Tribunal again, this time resisting an appeal from a Claimant who had been unrepresented at the original hearing. I had successfully argued that his claim should be struck out and he was now appealing the strike out order. These cases can be difficult to defend on appeal because in practical terms the Employment Appeal Tribunal has to be persuaded that there was no reasonable prospects of the claim succeeding, a high hurdle in legal terms.

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  • 14 May
    The Sift

     

    A few years ago I gave a lecture on the changes to the ET Rules brought in after what was known as the Underhill Review. I have recently looked back at my notes. I thought at the time that the new Employment Tribunal Rule 12 was clear and required no further explanation. Perhaps what I should have added was that the rule will make very little difference in practice.

    The idea of sifting cases was not a new one when the rule was introduced and it reflected in a written rule the more proactive approach in some Tribunal regions to tackling weak claims/defences. The new sift rule was an example of regional good practice intended to bring about consistency across the regions.

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  • 12 May
    Employed by God?

    A vicar made headlines last week after the Court of Appeal ruled in Sharpe v Bishop of Worcester [2015] EWCA Civ 399 that an Employment Tribunal was right to decide he was neither an employee nor a worker for the purposes of bringing unfair dismissal and whistleblowing claims against the Diocese of Worcester.

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  • 27 Apr
    Deposit Orders & Costs

    Back in February I made an application for costs on behalf of a Respondent against an impecunious Claimant who had lost on issues which deposit orders had made. We are waiting for a decision with some trepidation.

    A deposit order can be made against any party where the Tribunal feels the issue or allegation that is being pursued has little reasonable prospect of succeeding. The deposit order requires the party against whom the order is made to pay the amount ordered if that issue is to be pursued to a full hearing. If the party does not pay the sum ordered then that issue is automatically struck out. This can be an effective way of preventing unmeritorious claims reaching a full hearing. The maximum deposit order per issue/allegation is £ 1,000 and this will be forfeited should the party fail to win on the particular issue at the final hearing.

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  • 02 Apr
    Recent Employment Tribunal Decisions On Early Conciliation
    In May 2014 it became a pre-requisite for most Employment Tribunal claims that the proposed Claimant should notify ACAS of the dispute and get an ACAS  certificate confirming this first. The certificate number then gets quoted on the ET1 Tribunal claim form.
    There have now been a number of first instance (i.e. tribunal level) decisions dealing with arguments under these provisions and I have reviewed a number of these.
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  • 26 Mar
    Compensatory Cap

    Having successfully appealed against a finding of discrimination late last year, the case has been remitted to the same Tribunal to assess the level of compensation due for the successful unfair dismissal claim. The difficulty for the Claimant is that the award is now subject to the statutory cap and the employer has already paid him the maximum award applicable at the time. So it he likely to recover any more money by way of compensation under S 123 Employment Rights Act 1996 (ERA)?

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  • 19 Mar
    New ACAS Code updates companion rules

    Last week (11 March) ACAS published an updated version of its Code of Practice on Disciplinary & Grievance Procedures.

    It’s not a major revision, but it is important to be aware of it. The changes relate solely to the employee’s right to be accompanied to disciplinary and grievance meetings, and can be found in new paragraphs 14 -16 of the Code (in relation to disciplinary hearings) and new paragraphs 36 - 38 (for grievance hearings).

     

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  • 23 Feb
    PILON

    I was following a conversation on LinkedIn last week about PILON clauses where someone had asked what are they good for? Unlike war, they do serve a useful purpose for an employer.

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  • 10 Feb
    Allowing a second bite at the cherry?

    Since the introduction of issue fees, Employment Tribunals are no longer the low cost, efficient route to ‘justice’ that they were once seen to be. The recent case of Nayif v High Commission of Brunei Darussalam [2014] EWCA Civ 1521  illustrates what is possible if claims move to the courts rather than through the tribunals.

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  • 31 Jan
    Normal Day to Day Activities

    I was in the Tribunal in Leeds the other week where one of the points to be decided was whether the Claimant was disabled under the Equality Act 2010. When asked questions about his disability he was adamant that the only difficulties he faced was the wearing of heavy gloves commonly known as ‘Foundry Gloves’. The Respondent’s evidence was that the heavy gloves were only used for shot blasting and for pouring hot metal in a foundry.

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  • 22 Jan
    Another review of tribunal fees…

    Just before Christmas, the High Court dismissed UNISON’s second application for a judicial review of the Employment Tribunal fee system. Are fees now here to stay?

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  • 14 Jan
    Working elsewhere but claiming Sick-Pay from your Employer

    Working elsewhere but claiming Sick-Pay from your Employer
    Brito-Babapulle v Ealing Hospital NHS Trust [2014] EWCA Civ 1626
    A consultant haematologist worked at Ealing Hospital and also saw private patients with the hospital's knowledge.

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  • 19 Dec
    Shared Parental Leave & Equal Pay

    I have recently been asked to advise on an equal pay issue related to Shared Parental Leave (SPL). It was interesting to note that the Civil Service have opted for enhanced pay for SPL which matched contractual maternity pay.

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  • 17 Dec
    Tribunals urged to “have regard to cost” when faced by procedural defaults

    In delivering his judgement in the case of Harris v Academies Enterprise Trust & Ors. (UKEAT/0097/14/KN), the President of the Employment Appeal Tribunal, Mr Justice Langstaff has ruled that Employment Tribunals should have regard to the “insight given by cases such as Mitchell” into what constitutes justice.

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  • 10 Dec
    Holiday Pay round-up

    The subject of entitlement to holidays and pay in lieu is extremely productive of reported case-law, some of which has been discussed in earlier blogs on this website.

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  • 02 Dec
    Caring is sharing

    The Shared Parental Leave Regulations 2014 came into force on 1 December 2014. Are you ready for the changes?

     

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  • 15 Nov
    On Maternity Leave...at risk of Redundancy?

    The EAT has held in Sefton Borough Council v Wainwright [2014] UKEAT 0168/14, that an employer can’t organise a redundancy process simply to decide when it is must offer a suitable alternative vacancy to a redundant employee who is on maternity leave.

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  • 13 Nov
    Working abroad

    People who work abroad can get unfairly dismissed and discriminated against just like any other employee. To what extent can such employees claim in the UK Employment Tribunals?

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  • 04 Nov
    HOLDAY PAY UPDATE

    What are the headlines from today’s decision in the Employment Appeal Tribunal in the case of Bear Scotland & Others?

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  • 29 Oct
    Equal Value?

    Equal pay has a habit of creeping up on you and then jumping out when you least expect it. ASDA now know that feeling as they prepare to defend themselves against multiple claims of pay inequality going back six years. The reason most employers do not see these things coming is due to the ‘equal value’ claim. Unlike claims for ‘like work’ or ‘work rated as equivalent’ an equal value claim is not so obvious.

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  • 22 Oct
    Too late to conciliate?

    As anyone about to bring a claim in the Employment Tribunal should know, it is now compulsory to engage in Early Conciliation via ACAS before issuing proceedings. A case heard last week has highlighted the consequences of failing to do so.

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  • 15 Sep
    The 'not asleep' Tribunal

    In the case of Elys v Marks and Spencer Plc & Ors. [2014] UKEAT 0518 it has been held that there was no material procedural irregularity when a member of an Employment Tribunal had apparently been sleeping for around 15-20 seconds. The member had been observed to be drooling by the Employment Judge but this wasn’t sufficient so as to permit a judgment to be overturned.

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  • 10 Sep
    Disability Discrimination by Association

    I have recently had to advise on a case of third party discrimination. I have described it as third party discrimination as it was not in fact the employee who was the one with the protected characteristic, it was her child.

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  • 01 Sep
    Is your body a protected characteristic?

    The European Court of Justice will soon be deciding whether discrimination on grounds of obesity is unlawful. Meanwhile there have been calls to stop treating workers with tattoos less favourably. Are protected characteristics about to go large?

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  • 29 Aug
    Referees shown a red card by the EAT

    Whilst sat watching the 50th anniversary edition of Match of the Day with the football season upon us again, the recent(ish) case of Conroy v Scottish Football Association Ltd (UKEATS/0024/13/JW) caught my attention.

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  • 22 Aug
    The Final Whistle is Blown…

    Those of you who come to the blog regularly will recall the post entitled “You’re not the Boss of Me” on 14 July 2014 which covered the limitations on whistleblowing protection imposed by the Court of Appeal in the case of Clyde & Co LLP and another v Bates van Winkelhof having been overturned by the Supreme Court on 21 May 2014 (see [2014] UKSC 32).  The case was due to be remitted back to the Employment Tribunal for a full hearing.  It has, however, now been announced that the case has settled.

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  • 15 Aug
    Hounga v Allen: illegality and exploitation

    The conflict between the defence of illegality in an employment contract, and public policy were considered by the Supreme Court recently in Hounga v Allen and another (anti-slavery international intervening).

     

     

     

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  • 31 Jul
    Are your hooks barbed?

    Post employment - restrictive covenants in employment contracts
    These are often found in written employment contracts. The employer inserts them to try to make provision in advance to limit the damage which might otherwise be caused by the employee in the future after the employment relationship ends

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  • 23 Jul
    MORBID OBESITY MAY AMOUNT TO A DISABILITY

    The prevalence of morbid obesity in England is on the increase. A person is said to be morbidly obese where his/her body mass index is greater than 40. Figures published by Public Health England show that between 1993 and 2012, morbid obesity in adult men rose from a prevalence of 0.2% to 1.7%, and in adult women, from 1.4% to 3.1%. One set of data suggest an increase to 3% in men and 6% in women by 2030.

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  • 14 Jul
    You're Not The Boss Of Me

    The limitations on whistleblowing protection imposed by the Court of Appeal in Clyde & Co LLP and another v Bates van Winkelhof were overturned by the Supreme Court (SC) on 21st May 2014 (Bates van Winkelhof v Clyde & Co LLP and another [2014] UKSC 32).

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  • 04 Jul
    Whistle blowing Framework – Government Response

    On 25 June the Government response to the Whistleblowing Framework Call for Evidence was finally published.  Although in the Ministerial Foreword it is acknowledged that there “were weaknesses in the framework, so that the legislation has not always achieved its intended outcome”, the report concludes with 9 recommendations as a package of measures that the Government will implement which will not involve change to shift the legislative focus from the detriment a whistleblower may suffer, to addressing the matter on which the whistle has been blown.  

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  • 25 Jun
    Extension of Right to Request Flexible Working: Who Cares if you’re a ‘Carer’?

    For most people in 21st century Britain, there is a desire, ‘work to live’ rather than ‘live to work’. Flexible working, be it in the form of working from home, compressed hours, flexi-time, part time or job sharing, allows people to achieve a work- life balance, giving them more control over their working week and as a result, their lives. The Children and Families Act 2014, which received Royal Assent on 13th March of this year, addresses this work-life balance for all employees. The reality of the modern workplace means that many employees almost expect ‘flexible working’ and see it as standard, whereas until now in reality it has been anything but. The fact remains that an employee does not have a right to flexible working, simply a right to request it. Nothing in the new legislation changes this position. That being said, it is now a right that a lot more people have; will the floodgates open?

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  • 09 Jun
    Guide Us ACAS Guide Us

    I thought it would be quite useful to have a quick round up of the Guidance and Codes of Practice that have been produced by ACAS over the last 12 or so months.

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  • 05 Jun
    Cost of Holidays to Rise – For Employers

    Employers with staff whose remuneration includes an element of commission could be facing a sharp increase in holiday pay following a decision of the Court of Justice of the European Union (“CJEU”) handed down on 22 May.

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  • 22 May
    Right to Work Checks – changes now in force

    As you will all be aware, under section 15 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), if an employer employs a person who does not have the right to undertake the required work, they may be liable for a civil penalty. Employers have a duty to carry out prescribed document checks on people before employing them to ensure that they are able to work lawfully.

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  • 21 May
    Confidentiality: Mandatory Injunctions & A Clear Irony

    The High Court has recently granted an order allowing the imaging and inspection of personal computers belonging to two ex employees following claims that they had breached the confidentiality agreements contained in their contracts, and disclosed commercially sensitive material to the company’s competitors.

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  • 14 May
    Zero-hours contracts: an unknown quantity?

    Last week it was revealed that, under the new universal credit system, jobseekers could lose their benefits if they turn down jobs offering zero-hours contracts. This news comes in the wake of a report on "contracts that do not guarantee a minimum number of hours", published by the Office of National Statistics

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  • 09 May
    The Thick End of the Wedge

    In March 2014, we saw the publication of the latest set of quarterly tribunal statistics, covering the period October to December 2013. Although they must be treated with some caution (for various reasons explained within the document) they provide either chilling reading or a resounding victory for business and enterprise, depending upon your viewpoint. Wherever you stand on the spectrum of political opinion, there is one area for clear agreement: those who predicted a significant drop-off in the number of claims commenced after the coming into force of the fees regime on 29th July 2013 have been proved absolutely correct.

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  • 02 May
    Health & Work Assessment & Advisory Service

    The use of occupational health services by employers is relatively common but certainly not universal. Factors such as cost, accessibility and ignorance have been identified as reasons why such services are not being used.

    The provisions will lead to the establishment of the health and work assessment advisory service (the Service). This is intended to make occupational health advice more readily available to employers and lead to better management of sickness absence.

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  • 25 Apr
    Onu v Akwiwu & Anr; Taiwo v Olaigbe & Anr [2014] EWCA Civ 279 Racial Discrimination & Post-Employment Victimisation: Two Important Points of Principle

    The Court of Appeal has recently (13th March 2014) dealt with two important points of principle arising out of two claims for discrimination which were broadly similar in nature. These claims were however brought under different legislation owing to the fact that the claims straddle the coming into force of the Equality Act 2010; they were therefore brought under this statute and the Race Relations Act 1976.

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  • 23 Apr
    Employers to face new penalties

    Reforms to employment law under the Coalition government have, for the most part, been kinder to employers than employees. However, a recent change affecting Employment Tribunal claims brought from 6 April 2014 threatens respondents with new financial penalties.

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  • 07 Apr
    New Presidential Guidance Issued

    New guidance applicable from 13 March 2014 has been issued by Judge Latham, President of the Employment Tribunals, under Rule 7 of the first schedule to the Employment Tribunals (Constitution and Rules of Procedure) Regulation 2013.  Existing Presidential guidance is not superseded or altered by this document and continues to apply.  

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  • 27 Mar
    Know Your Limits

    The annual statutory instrument has just been published. It increases the limits on certain employment tribunal awards and other amounts payable under employment legislation from 6 April 2014.
     
    The notable changes include:
    •    the limit on the amount of a week's pay for the purposes of calculating, among other things, statutory redundancy payments and the basic award for unfair dismissal will increase from £450 to £464
    •    the maximum compensatory award for unfair dismissal goes up from £74,200 to £76,574. Note that since 29 July 2013 there has also been an additional cap of one year's salary on the compensatory award for unfair dismissal
    •    the minimum basic award in cases where the dismissal was unfair by virtue of health and safety, employee representative, trade union, or occupational pension trustee reasons will increase from  £5,500 to £5,676.

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  • 07 Mar
    ACAS Early Conciliation Service

    The ACAS early conciliation service launches on 6th April 2014 so what can we expect from this new facility? The main impact of the change is that anyone thinking of making a claim will have to contact ACAS first. The employee must submit an early conciliation form. This will trigger the early conciliation process and the matter will be referred to an Early Conciliation Support Officer (ECSO) being appointed. This will stop the clock as far as time limits are concerned.

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  • 27 Feb
    Shared Parental Leave - the Ultimate Work/Life Balance

    The government wants to dispel the old preconceptions that the mother will stay at home with the children whilst the father goes to work and is the breadwinner for the family, which for many working mums is likely to be appealing. The idealism behind shared parental leave appears attractive to the modern family, but will it be so attractive to the modern workplace? Employers are likely to find that whilst the regulations offer parents greater flexibility, for the workplace there is an air of uncertainty and upheaval.

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  • 21 Feb
    Senior President of Tribunal’s Annual Report and Early Conciliation

    The Senior President of Tribunals has published his annual report for 2014. See:

    http://www.judiciary.gov.uk/Resources/JCO/Documents/Tribunals/SPT%20Annual%20Report_2014.pdf

    The sections dealing with the Employment Appeal Tribunal and Employment Tribunal start at page 63. Some of the notable points are:

    •    Appeals to the EAT are down by one-third following the introduction of fees (page 63);

    •    Presidential guidance on case management in the ET is “imminent” (page 66);

    •    Judicial Mediation in the ET has a success rate of over 70% (pages 68 and 72); and

    •    “It may well be that the role of non legal members [in Employment Tribunals in England & Wales] needs to be reviewed.” (page 68)

    Read More
  • 14 Feb
    Unison’s application for Judicial Review regarding Tribunal Fees is dismissed by the High Court

    Background

    As readers will be aware, the Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 made on 28 July 2013 came into force on 29 July 2013.  Following such, claims in the ET and appeals to the EAT may only be started and continued upon payment of fees  unless an individual applies and qualifies for a remission. 

    Concerned about the impact of the same, Unison issued judicial review proceedings on 28 June 2013 then issued an application for urgent interim relief.  Permission to apply was originally refused on 23 July 2013 but granted at an oral hearing on 29 July 2013.  Although the Equality and Human Rights Commission sought to intervene on 9 September 2013, permission was only granted on 14 October 2013. 

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  • 07 Feb
    Costs Warning Letters in the Employment Tribunal

    In order to award costs against a party a Tribunal needs to be satisfied that the paying party has acted “vexatiously, abusively, disruptively or otherwise unreasonably in the bringing or conducting of proceedings”, or that the “claim or response had no reasonable prospect of success’.

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  • 30 Jan
    The Right to be Accompanied - A Choice that is the Worker's Alone

    A worker’s right (under Section 10 of the Employment Relations Act 1999) to be accompanied at a disciplinary or grievance hearing does not often come on to the radar, unless the worker concerned makes a Section 11 complaint to the tribunal that the statutory right has been breached. Twice in 2013, however, different divisions of the EAT had to deal with the proper meaning of Section 10.

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  • 23 Jan
    Less is More

    The amended TUPE Regulations are due to come into force at the end of January 2014. One important change is the ability to run collective redundancy consultation alongside TUPE consultation prior to the transfer. S 198A has been inserted into TULCRA to permit this. Note there needs to be agreement between both transferor and transferee for this to happen.

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  • 18 Jan
    One to Watch: Bereavement Leave

    Those who keep track of Employment Law news will have noticed bereavement leave making an appearance at the end of last year due to the Parental Bereavement Leave (Statutory Entitlement) Bill 2013-14 being introduced to Parliament on 4 September 2013 under the new Ten Minute Rule.

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  • 08 Jan
    Work Permanently for a Quarter of a Century and Have No Employment Rights!

    The Agency Worker Regulations do not cover workers engaged indefinitely

    In Moran & Ors. v (1) Ideal Cleaning Services Ltd and (2) Celanese Acetate Ltd. EAT/0274/13/DM the Honourable Mr Justice Singh held that the concept of ‘temporary’ in the Agency Workers Regulations 2010 SI 2010/93 and the EU Temporary Agency Workers Directive (No.2008/104) means ‘not permanent’.  Thus, an Employment Judge had been right to find that agency workers did not come within the scope of the Regulations where their agency arrangement was on an indefinite and not a temporary basis.

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  • 19 Dec
    Micro Businesses and TUPE

    It has been part of this Government’s policy objectives to try, wherever possible, to exempt micro-businesses from any new domestic regulation until 2014. A micro business is any business employing ten or fewer employees. The Government’s TUPE consultation document in January 2013 asked for comments on a proposal to exempt micro-businesses from a large number of TUPE provisions.

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  • 12 Dec
    Wages Claims in the Employment Tribunal: are they now redundant?

    Claims for unpaid wages represent almost a fifth of all actions in the Employment Tribunal. Such claims are usually brought by employees looking to recover relatively modest sums of money, usually in the hundreds rather than the thousands. Whilst these cases do not necessarily see awards of big sums, they are just as important to those Claimants who have had wages withheld; in the current financial climate, more than ever, every penny counts.

    The introduction of issue fees in the Tribunal means that now for many Claimants the costs involved will simply outweigh the benefits. Whilst an unpaid wages claim is categorised as a ‘Type A’ claim and therefore in theory a less complicated type of case, it will cost a Claimant £160 just to instigate proceedings. Add into the mix the cost of a hearing and the average Claimant will be shelling out close to £400 just to get the money owed to them, and this is without paying for any legal advice or representation. Ultimately it is likely that many Claimants will conclude that the cost does not justify the end.

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  • 05 Dec
    NO ROOM AT THE INN: The Bed and Breakfast Dilemma Continues

    As we approach the Christian celebration that is Christmas, and we are reminded of Mary and Joseph struggling to find room at an Inn for the night, Leanne Buckley-Thomson provides an overview of Bull and another v Hall and another [2013] UKSC 73 which reminds us that our faith cannot dictate who we accommodate if we own a bed and breakfast.

    Christian owners of bed and breakfasts up and down the country will no doubt have been waiting with bated breath for the result of the appeal of Mr and Mrs Bull, the Judgment for which was given very recently on 27 November 2013. 

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  • 21 Nov
    Don’t take on family responsibilities until you’re 35 - otherwise we won’t pay!

    The Court of Appeal presided over an age discrimination case recently and held that it was legitimate to grant additional benefits to workers over 35 as they were more likely to have family and financial responsibilities. The case of Lockwood v Department of Work and Pensions & Anor [2013] EWCA Civ 1195 concerned a civil service redundancy scheme which discriminated against younger workers.

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  • 14 Nov
    Make me a (non-discriminatory) offer I can't refuse!

    According to the latest government statistics, the median award by Employment Tribunals over the last year for unfair dismissal was £4,832 but the largest percentage of claimants received awards of only £1,000-1,999.

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  • 05 Nov
    "The Law Changed 33 Years Ago and They Should Get With It"

    In cases concerning dismissal for misconduct, it is almost unthinkable that at some point, reference will not be made to the Burchell guidelines, taken from the well-known case of British Home Stores Limited v Burchell decided in 1978.

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  • 01 Nov
    The Wonder of Woolworths

    Woolworths collapsed in late 2008 which led to most of their shops closing and around 27,000 people losing their jobs. An issue which arose during the closures was whether separate shops should be counted together for the purposes of collective consultation.

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  • 25 Oct
    Welcome to the 12CP Barristers' Employment Blog

    Welcome to our Employment Blog. Starting on 1st November 2013 we intend to provide our readers with interesting and informative posts on current issues relevant to both employers and employees.

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