So, the Conservative manifesto promise of “scrapping the Human Rights Act” has been kicked into the long grass quicker than you can say “tuition fees”.
Don’t worry, though – no government in living memory has been able to resist tinkering with employment law to some extent, so these bulletins are unlikely to become redundant anytime soon…
As the debate over the rights and wrongs of zero hours contracts rattles on (what, you mean it’s not top of the water-cooler conversation list, over Game of Thrones, FIFA corruption and stunt double dogs in Britain’s Got Talent?), the law has been changed to do away with one particular bone of contention.
As of 26th May, exclusivity clauses where employers include terms in zero hours contracts preventing workers from working elsewhere, are unenforceable.
This has been a controversial issue (in some circles at least) for a while and is expected to curb some of the downsides of these types of contracts, enabling workers to work for other employers, rather than having to twiddle their thumbs waiting for the phone to ring (or text to arrive) with the promise of a few hours’ work. As yet, no measures have been put in place to deal with employers who breach this new rule. This will presumably be done at some point, although it does rather suggest that the rule is more of symbolic than practical importance.
Pay the wage or a (much bigger) penalty
Also from 26th May, employers who do not pay workers at least the National Minimum Wage (NMW) face a fine of up to £20,000 per worker. We emphasise “worker” because, while the fine itself is not new, its scope is.
It used to be the case that where pay fell short of the NMW, employers could be fined up to £20,000 in respect of a group of workers. Now that the penalty attaches to each worker, the potential liability is of course much higher.
In case you have not committed them to memory, the current NMW rates are:
Workers aged 21 and over £6.50
Workers aged 18-20 £5.13
Under 18s £3.79
(The £2.73 apprentices’ rate applies to those aged 16-18 and those aged 19 or over who are in their first year of apprenticeship.)
These rates will increase on 1 October 2015.
How late is too late?
Higgins v Home Office
Reported cases frequently deal with claimants missing deadlines for lodging claims. Every hour counts where these timescales are concerned, but there are exceptions, as this case shows. It reminds employers that a claim can rear its head many months – or even years – down the line. Claimants with a valid reason for their delay could find themselves able to pursue their claim after all – with the Respondent of course having to defend it.
Ms Higgins resigned in 2007 and went on to be admitted to hospital suffering from an acute psychotic illness. She instructed solicitors to prepare an unfair constructive dismissal claim but she was not well enough to pursue it. The deadline for lodging the claim came and went and she finally filed it at the tribunal in 2014. It was rejected for (among other things) being out of time. The tribunal would not reconsider the rejection even though Ms Higgins produced a letter from her psychiatrist explaining that she had not been well enough to bring a claim during the previous six years.
She won her appeal. The Employment Appeal Tribunal held that the tribunal should have taken account of the fact that Ms Higgins was a litigant in person with a disability, and it ought to have taken a less drastic step than rejecting her claim. This was not a clear-cut case of abuse of the tribunal system, and there should have been more leniency.
The case has gone back to the tribunal to look again at the rejection of the claim form and whether or not the claim should proceed. As so often in these cases, the facts are extreme, but it does illustrate the flexibility of the Tribunal system and that you should not take anything too much for granted in the world of Tribunal claims.
Disciplinary hearings and grievances
Janadu v Docklands Buses
A common problem for employers is what to do when an employee facing a disciplinary hearing raises a grievance either about the process itself or about one of the managers conducting it. Does the disciplinary have to be postponed while the grievance is dealt with? The reality is that there is no hard and fast rule one way or the other. The test is whether the employer has acted reasonably in choosing to dismiss the employee.
In this case, the employee – a bus driver – had been the subject of complaints about the standard of her driving. Examination of CCTV footage allegedly showed her driving with one hand, clipping kerbs, running a red light and pulling into the path of two cars. This sort of behaviour is apparently not the done thing – those familiar with travelling in London might raise an eyebrow or two at this. The employee was instructed to attend a training centre for assessment but refused to do so claiming that she was being bullied and discriminated against. She was dismissed for insubordination and the EAT refused to find that the employer should have postponed a disciplinary hearing to allow her grievance to be dealt with.
Importantly however, the employee’s grievance was not directed at the manager actually conducting the hearing. If that had been the case then the Tribunal might have been persuaded that a different manager should have been asked to step in. Not that this means that an employee can endlessly postpone disciplinary proceedings by raising grievances, but as so often, what is reasonable will come down to the specific facts.
Claimant loses anonymity
BBC v Roden
A cornerstone of justice is that it is an open process. Members of the public can watch and listen to hearings and cases can be reported. There are some exceptions to this, and it is for judges to decide if particular circumstances call for restrictions on the disclosure of aspects of a case.
It was expected that, during the course of Mr Roden’s claims against the BBC, details of alleged sexual assaults (which were not directly in issue) would be heard in evidence. This led to a permanent anonymity order being made, protecting Mr Roden’s identity. The BBC challenged that order. It said that it should be able to inform certain interested parties, including the police and the Disclosure and Barring Service, about the contents of the judgment.
The tribunal’s view was that allowing details of the case to be made public would have devastating effects on Mr Roden because people might believe that he was guilty of the unproven allegations. But the Employment Appeal Tribunal (EAT) set the anonymity order aside. The mere publication of embarrassing or damaging material is not a good reason for restricting the reporting of a judgment, it said. The public should be trusted to tell the difference between an unproved allegation and guilt it said, suggesting that the EAT does not spend much time on Twitter.
One of the relevant factors here was that Mr Roden had chosen to bring a claim in a public forum (also knowing that he had misled his employer about his past) and that came with the risk of publicity.
This emphasis on open justice is worth bearing in mind in the context of claims and defences. Parties must assume that, even in cases involving sensitive issues, details may not remain confidential.
No side-stepping Acas
Cranwell v Cullen
One of the most significant reforms ever made to the Employment Tribunal system has been the introduction of early conciliation. This requires potential tribunal claimants to contact Acas before making a complaint so that Acas can have an opportunity to explore a conciliated settlement. If a claimant fails to do this, then any tribunal complaint will be thrown out without being heard.
That this strict rule applies in all cases was confirmed in this case, where the EAT held that a case had to be thrown out even though the reason that the employee did not contact Acas was that – as she claimed –she had been subjected to very serious harassment from the employer concerned, culminating in a physical assault. She felt that she was completely unable to enter into any process of conciliation with the employer and therefore claimed that her case should be exempt from the normal rule.
The EAT had a great deal of sympathy with her position, but the problem was that the law was drafted in strict terms and did not allow for an exception in this sort of case. It was unfortunate that the claimant was not seemingly aware that the need to contact Acas did not have to result in her actually engaging with her former employer or talking to him directly. Indeed the statutory requirement would have been met if after contacting Acas she made it clear that she did not want to enter into conciliation at all. If she had done that then Acas could have issued her with the appropriate certificate without even contacting the employer.
Another key development in Lock
Lock v British Gas
What bulletin would be complete without the mention of holiday pay under the Working Time Directive? Not this one. British Gas is appealing the decision in Lock about the inclusion of commission in holiday pay calculations.
The company is expected to argue that the tribunal was wrong to have taken into account the Employment Appeal Tribunal’s (EAT) decision in Bear Scotland v Fulton that non-guaranteed overtime should be included in holiday pay. Non-guaranteed overtime and commission are two different things, says British Gas; and, anyway, the EAT in the Bear case wrongly concluded that our domestic legislation could be interpreted to give effect to EU law that holiday pay must take account of “normal pay” (including commission).
As the legal arguments sharpen, the uncertainty around holiday pay calculations continues. It looks as though we will be in limbo for some time, with the appeal hearing likely to take place towards the end of 2015. As ever, we are happy to help you with dealing with your holiday pay issues in the meantime.
In a month that saw the Cannes Film Festival in the press for its rumoured ban on flat shoes, employers should take note of the problems the issue of prescribed clothing can cause.
The organisers reportedly say there was no high-heel specification. But the publicity about this non-ban has nonetheless brought dress codes into sharp focus. It is a reminder that any rules about what may and may not be worn – whether at a glitzy affair or in day-to-day office life – must be well-conceived.
Allegations of sexism can surface quickly. There is also the possibility that not everyone may be physically able to conform.
So it is easy to see how an employer who required female employees to wear stilettos at work (for example) would find all sorts of discrimination claims hot on their, um, heels.