Category Archives: Employment

When can you suspend employees?

In any contract of employment, there is an ‘implied term of trust and confidence’ between employer and employee.  But does this mean that an employer can’t suspend someone pending investigation in case they breach that term?

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The tribunals say not.  In the recent case of London Borough of Lambeth v Agorevo, a primary school teacher was suspended after being accused of using excessive force against a child with special education needs.  Her claim failed as the question was not whether it was ‘necessary’ to suspend her but whether there was ‘reasonable and proper cause’ to suspend.

For employment information and advice contact our Employment law team.

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New payslip rights

Big changes to the Employment Rights Act 1996 in force from next Monday 6 April 2019, mean that ALL employees and workers (starting jobs after this date) will have a statutory right to a detailed written, printed or electronic wage slip including a breakdown of hours worked where pay varies by the time worked.56606352_2256108941328223_1516984931438297088_n

Employers currently only have to provide wage slips to employees and remarkably, don’t have to tell workers what they have deducted for tax, NI and pensions!

For employment information and advice contact our Employment law solicitors.

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Employers take note: Personal Injury compensation paid in Employment claim

Hailing a new approach, the Employment Appeal Tribunal (EAT) recently awarded personal injury compensation for failure to provide rest breaks under the Working Time Regulations 1998 (WTR).Judgement

Rights: Under the WTR 1998 all workers are entitled to an unpaid rest break of 20 minutes when working for more than six hours per day (Reg 12).  For workers carrying out monotonous work (i.e. a production line) further ‘adequate’ rest breaks must be provided to avoid a health and safety risk.  These rights are enforceable by bringing an employment Tribunal claim.

If an Employment Tribunal finds that the WTR have been breached, Reg 30 provides that it may award such compensation ‘as is just and equitable in all the circumstances.  However, in a previous case (Gomes v Higher Level Care) the EAT had confirmed that this would not include compensation for pure injury to feelings; which was only available in discrimination cases.

The facts:  In Grange v Abellio, the Claimant was employed as a ‘Relief Roadside Controller’ regulating and monitoring bus services.  He brought a claim alleging that his employer had refused him rest breaks but the first Tribunal dismissed his claim as there was no evidence of a deliberate refusal by Abellio.  Mr Grange appealed and the EAT held that the refusal did not have to be an active response to a positive request; here it was the arrangement of Mr Grange’s working day that had prevented him from taking his rest breaks. His claim succeeded.

Personal Injury: Mr Grange gave evidence that due to a bowel condition, the lack of rest breaks had caused him discomfort that was ‘more than a minor inconvenience’ and so, the Tribunal awarded compensation for personal injury.  His employer appealed, relying on Gomes.

The decision: The EAT rejected the appeal and confirmed that Tribunals are permitted to award damages for personal injury under Reg 30 of the WTR.  Further, that medical evidence and reference to injury guidelines was not necessary as the Tribunals should be able to deal with cases on a common-sense basis.

What next?: This case suggests that now, Claimants who can prove they suffered ‘more than a minor inconvenience as a result’ of a breach of WTR can be awarded personal injury  compensation.  This makes sense given that the objective of the EU Working Time Directive (as implemented by the WTR) was to protect the health and safety of workers. It could also mean that where a breach of the WTR is alleged, it could be easier to bring a low value personal injury claim in the Employment Tribunal than in the Civil Courts.

For more information and advice contact our employment law solicitors.

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Choosing the right lawyer

It can be a big decision to instruct a solicitor and it could end up costing you a lot of money, so you need to get it right!

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Certainly, it can be tempting to go to the first firm you think of, drive past on the way to work or that has the fanciest offices but there are some things you should consider before parting with your hard earned cash:

Specialism – Often, high street practices try to be a jack of all trades, with the same Solicitor offering advice on all manner of problems. But, if you have an employment law issue why would you want advice from a Solicitor with a background in property law? Do your research and make sure the Solicitor you will see is a specialist in and has good experience in the area you need advice on.

Recommendations – from people you know and trust are always useful but if your friend recommends a firm because they did a good job of selling their business, it does not make them best placed to help you make a personal injury claim.

Attitude – Make sure you are on the same page. If you want to resolve your issue amicably, you do not want an aggressive lawyer who will rack up costs arguing over nothing. Likewise, if you want a robust approach, don’t instruct a wallflower. A good lawyer will explain the options and alter their approach based on your instructions and will be mindful of how their approach will affect your costs; even if that means telling you what you don’t want to hear.

Alternatives – Does the firm promote and actively engage in other ways of resolving legal problems; such as ACAS Conciliation for employment problems or Mediation or Collaborative Law for family matters? Again, a good lawyer who isn’t just interested in taking your money will encourage these approaches where appropriate.

Likeability – Believe it or not, not all solicitors are cut throat so it’s important that you feel comfortable speaking with your legal adviser and that you feel able to build a relationship of trust and confidence. That said, just because you might want to go for a pint with them does not mean they will give you quality legal advice.

Fees – Make sure you have a very good estimate of what it’s likely to cost and when you will be billed. From 6 December 2018, all Solicitors websites must display prices and service information for residential conveyancing, probate, unfair & wrongful dismissals, debt recovery and licensing applications.

Choice – Remember you don’t have to use any firm which may already have been ‘assigned’ to you – perhaps by your employer when handling a settlement agreement or your car hire company when dealing with an Road Traffic Accident.

At North Ainley, we have been advising the people of Oldham since 1901 but that doesn’t mean you will get out of date advice, just lots of experience! Our size allows us to combine a friendly, personal service with city professionalism from a team of specialist Solicitors and legal advisers.

For more information, please call Laura Campbell, a Solicitor in our Dispute Resolution team on 0161 624 5614.

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New ACAS Guidance: Age Discrimination

Whilst we are all aware of sex, race and disability discrimination, ‘ageism’ is not something that receives as much air time. But, pursuant to the Equality Act 2010, age is also a protected characteristic and as such, treating someone unfairly because of their age is against the law (with some exceptions).Acas

The Act aims to protect people from unfair treatment, harassment or different treatment because of their age, the age they are thought to be, or the age of someone they are associated with. It doesn’t matter if the discrimination is intentional, what matters is how the recipient perceives what is said or done. In practice, this should mean that employers should:

  • Strive for an age diverse workforce.
  • Encourage interaction between age groups (socially and in work based tasks or projects).
  • Judge people on performance or quality of their work/application.
  • Not be asking for age information and years’ of experience when hiring.
  • Not stereotype or make assumptions about different age groups when deciding who to hire, train or promote.
  • Manage under performance regardless of age.
  • Not assume a person will retire or force them to do so, due to their age.
  • Not tolerate the use of derogatory comments related to age.

Whilst most employers are vaguely aware of the issue, until now there has been little by way of guidance on how to navigate the law. As such, it’s no surprise that age discrimination is actually one of the most common forms of unfair treatment at work, particularly with workforces being increasingly age diverse.

The new Guidance from ACAS (The Advisory, Conciliation and Arbitration Service) which can be found here seeks to educate employers, prevent unintentional discrimination and make a real start at stamping out ageism altogether. All in all a very important read!

For more information and advice contact our Employment law team.

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Christmas Parties Gone Wrong

As the Christmas party season gets into its full swing and the free booze is flowing, it’s easy to see how things can be said or done that will be regretted the next day. As such, whilst it ‘tis the season to be jolly, hosting a Christmas party can cause problems for employers long after the tree has come down.

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Vicarious liability holds an employer strictly liable for the wrongful conduct of its employees but will only arise where that conduct occurs ‘in the course of his/her employment’. It can arise from actions outside of usual working hours and will apply regardless of whether the acts are done with the employer’s knowledge or approval but not where the employee was on a ‘frolic of their own’. The Court’s consider ‘what was the nature of the employee’s job?’ and ‘is there a sufficient connection between the employee’s position and the conduct to make it just for the employer to be held liable?’.

Christmas parties are grey areas when it comes to vicarious liability as they are often held outside working hours and away from the workplace but paid for by the employer.  Adding alcohol into the mix means the usual boundaries are blurred and this can lead to inappropriate behaviour, unwanted advances, discrimination and misconduct. As is shown by the first example below, the Courts draw a distinction between events during the party itself and any subsequent gathering.

In Bellman v Northampton Recruitment Ltd (2016) the Managing Director punched an employee twice during a disagreement at 3am at a Christmas ‘after party’.  Mr Bellman’s head hit a marble floor causing brain damage and he sued his employer arguing that they were vicariously liable for the MD’s actions. The altercation was triggered by a work related dispute but the Judge drew a distinction between the main party and the after party at a different location; as nobody had been obliged to attend for late night drinks it was no longer a company event and the MD was no longer acting ‘in the course of his employment’ as organiser or host. As such the Judge found that the Company could not be vicariously liable.  Incidentally, it didn’t matter that the company contributed to the drinks bill and organised taxis to and from the after party.

The Courts can go the other way though. In Livesey v. Parker Merchanting Ltd (2004) the employer was found vicariously liable for the actions of an employee who sexually assaulted a colleague. The assault occurred in the car on the way home, immediately after the Christmas party and the Court found that the conduct was a continuation of sexual harassment at the work event and therefore ‘in the course of employment’.

What’s the answer? Employers need to be mindful of their potential liabilities and manage Christmas parties with care.  Having policies in place can make it clear what behaviour will not be tolerated and whilst nobody wants to be a Scrooge, staff should be reminded that the party will be an extension of the workplace so the same ground rules will apply.  It is also worth putting a Social Media policy in place regarding unflattering pictures, videos and comment being shared without consent.  Further, any inappropriate behaviour or actions which are reported or are seen at the party should be dealt with as a priority to mitigate the risk of claims.

If you are an employer or employee and need advice on any of the issues above, contact our Employment Solicitors or our Dispute Resolution team.

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National Work Life Week

It’s ‘National Work Life Week’ – an opportunity to focus on well-being at work and work-life balance.National work life week

Any employee with 26 weeks service for the same employer has a legal right to make a request to work flexibly – you don’t have to be a parent or carer.  If your request has been refused you may be able to do something about it.

Call our Employment team to book an appointment for further information and advice.

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New Acas Religion & Belief Guidance

Religion will always be a sensitive subject and in a multicultural society like ours it can be tricky for employers to navigate without unintentionally discriminating.  With that in mind, Acas (the Advisory, Conciliation and Arbitration Service) have just issued new guidance on Religion and Belief discrimination.Acas

What is religion or belief discrimination?

The Equality Act 2010 makes it unlawful to discriminate against or treat someone unfairly because of religion or philosophical belief, or their lack thereof.  All protected beliefs are equal and so no one religion can override another. However, to be a protected philosophical belief, it must be more than an opinion, apply to a significant aspect of human life or behaviour, be worthy of respect and not conflict with other people’s the fundamental rights

The Guide

The Acas guidance suggests that discrimination is most likely to occur in recruitment, requests for time off and dress codes and suggests the following:

Recruitment

Job advertisements should be published widely, religion should not be mentioned in the posting but the employer should be clear in explaining the job’s duties and hours of work so there are no misunderstandings. Any potential issues should be flagged up early on in the recruitment process e.g. if the role involves client networking it would not be suitable for someone who refusesd to shake hands for religious reasons.

In rare circumstances employers can specify an ‘occupational requirement’ that a candidate must have (or not have) a particular religion or philosophical belief.

Leave Requests

Requests for time off for religious festivals or for religious reasons should be considered carefully and sympathetically and ideally, agreement on such requests should be set out within the employment contract. The guidance warns that refusing requests for leave for religious holidays and time to pray without good business reasons can lead to a claim for discrimination and also, that employers should acknowledge that employee performance may be affected during fasting.

Dress Codes

Where possible, employers’ dress codes should be flexible and reasonable and any restrictions must be based on solid business reasons that are proportionate, appropriate and necessary.

Is it useful?

In the absence of any government guidance, the Acas guide is long overdue and whilst it does go some way to inform and comfort employers it fails to address real life complexities of the workplace. For example, employers can be liable for their employees’ acts so it’s advisable to provide training to all staff on religion or belief discrimination and lay down firm rules on what behaviour is unacceptable. Employers should also note that if a discrimination cases got to an employment tribunal, the focus would be on how an individual ‘perceived’ words or actions and this is of course subjective.

If you are an employer or an employee and have concerns about discrimination in the workplace, contact North Ainley for expert legal advice.

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Dress Codes: “Don’t tell me what to wear!”

As a society we are becoming increasingly averse to being told what to do, not least in the workplace and especially when the British summertime hits and we want to ditch the suits and keep cool……

Can I be told what to wear? There are many valid reasons why an employer may impose a dress code (corporate image, identification, health & safety) but it must relate to the job, be reasonable in nature and ideally be set out clearly in the organisation’s policy. Employees must also be informed of the policy and given enough time to buy the required attire.

But is it fair? A dress code must not be discriminatory against any of the ‘characteristics’ protected by the Equality Act 2010 (age, disability, gender reassignment, religion or belief, sex, or sexual orientation). For example, if a dress code is in place, reasonable adjustments may need to be made for disabled people and employers must respect clothing worn for religious reasons. However, this must be balanced against other relevant factors i.e. loose clothing may be a hazard when operating machinery.

Men v. women:  The Government Equalities Offices has recently published new guidance on dress codes and sex discrimination. The Guidance highlights that whilst dress policies for men and women do not have to be the same, the standards imposed on each sex should be equivalent. For example a policy can require men to ‘wear a tie’ whilst ‘business dress’ is required for women and requiring any gender-specific items (high heels, manicured nails or lipsticks) is likely to be held unlawful.

Recent media hype surrounding dress codes has caused many employers to review and even scrap their policies. Last summer male employees revolted against a ‘no shorts’ policy by wearing skirts to work and the Speaker of the House of Commons announced that male MPs no longer needed to wear a tie to speak, thus ending centuries of tradition.

What if I don’t want to? If the code is reasonable, staff can be dismissed for failing to comply but employers should be cautious of imposing high standards and risk having their policy tested by the Employment Tribunal.

Our Team at North Ainley provide clear and practical advice on all Employment Law issues.

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Annual Leave: Know your rights

Right about now, we are all feeling like we need a good dose of sunshine if not just a break from the hum drum of working life. So, what are your rights?

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Your basic rights – The Working Time Regulations 1998 ensure all employees and workers can take paid leave.  If you are full time, this is a minimum of 28 days every year to include bank holidays although your employer might be more generous.

When can you take it? – In theory, whenever you want as long as you give your employer notice.  There are no official rules so you should consult your contract of employment and company policies but you can expect to give your employer twice the length of notice as the time you propose to take off.  It’s also worth requesting your holiday in writing so you’ll have a record if you have to dispute it later.  Also note, you cannot be required to use annual leave when at home sick.

Can they say no? – Your employer can turn down your request if they have a good reason e.g they’d be understaffed at a busy time of year.  But, they have to give you the same amount of notice as the amount of time you were requesting to take off.

Unused holiday – Most employers will cover unused holidays in their policies with either a ‘use it or lose it’ clause or a limit on the number of days you can carry over to the next year.  If your employer isn’t clear on this they risk large claims for payments in lieu of holidays.

How much should I be paid?  You should be paid the same rate when on holiday as you’re normally paid.  If your pay or working hours vary you should get the average based on the last 12 weeks.

Unlawful deduction from wages  If you get commission, shift allowance etc on top of your basic pay, this should be included in your holiday pay i.e. you shouldn’t get paid less because you took time off.

This issue has been under the spotlight recently as it transpired that many individuals may have claims for unlawful deduction from wages as they earn a basic pay plus variable payments (shift allowance, overtime, commission) but only received basic pay when on holiday.  Workers should be alert to this and also to any sudden changes in holiday policy which could suggest their employer is trying to avoid such claims.

Resolving a problem – If you think your employer has breached its obligations the first step should be an informal chat to raise your concerns.  If this doesn’t work, check if your employer has a formal grievance procedure you can follow or raise a grievance by writing a letter setting out your concerns.  If this fails, you may be able to bring claim in the Employment Tribunal.  The time limit for a holiday pay claim is 3 months from either the termination of your contract or from the last unlawful deduction from wages.

For advice on all aspects of litigation and employment law please contact Laura Campbell in our Employment & Dispute Resolution team.

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City litigator joins North Ainley

Long established Oldham firm North Ainley is pleased to announce the appointment of experienced lawyer Laura Campbell to bolster its litigation practice.

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Laura has spent her career to date in Manchester city centre, having trained at a large national practice before moving to top global law firm DWF LLP.  With experience in all areas of litigation, Laura joins the Dispute Resolution team which has provided the people of Oldham and its surroundings with advice on personal injury, clinical negligence, employment, consumer rights, property and commercial disputes for over 100 years.

Laura explains “I’ve acted for all kinds of organisations and individuals from business owners and national companies to prisoners, nurses and athletes which has exposed me to all manner of claims and taken me to the Court of Appeal…you name it I’ve dealt with it”. She added “I’m sure my family would agree that I am a born litigator and I am passionate about what I do which means I will go above and beyond to secure the best result for my clients”.

When asked why she’s moved from the ‘bright lights’ of the city Laura was clear “I was keen to move away from the corporate culture but I didn’t want to compromise on quality and had been looking for an opportunity at a thriving local law firm with a long standing reputation.  North Ainley more than fits the bill and I am keen to use my experience for the benefit of a more local clientele”.  She added “From the moment I met with the partners I knew it would be a good fit for me…it’s a friendly, professional practice and client satisfaction is at the heart of everything they do”.

Managing Partner John Ainley, welcomed Laura, saying: “This is a fantastic appointment for the firm.  Laura brings a wealth of experience and a commercial attitude which will enhance our litigation practice” and her arrival coincides with an exciting time of development for both the practice and the new ‘Independent Quarter’ of Oldham, of which we are a proud part”. Geoff Lamb who heads up the Dispute Resolution team added “Laura is a confident and tenacious lawyer but she is also engaging and approachable which fits perfectly with our aim of combining a local, friendly, personal service, with city professionalism”.

Laura lives locally with her husband and two young daughters where they play an active part in the village and school communities. Laura concluded: “I look forward to being part of North Ainley’s continued success and to helping ensure they remain at the forefront of the local legal community”.

For more information or advice, please contact Laura Campbell at our office.

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UBER – Latest Case

Uber’s Application to take its Appeal straight to the Supreme Court, thereby bypassing the Court of Appeal, has been refused.

This means that the Appeal against the decision that Uber drivers are “workers” (rather than self-employed contractors) and entitled to the rights associated with that status (e.g. holiday pay) will now be heard by the Court of Appeal some time in 2018.

In February the Supreme Court is going to hear an Appeal in the case of Pimlico Plumbers.  That will be an opportunity to review the whole question of worker status.

Watch this space.

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Holiday Pay

The European Court of Justice has recently made an important ruling in an English case referred to it concerning holiday pay.  It is a decision which will have important and far reaching implications for Uber drivers and others in a similar situation.

The question for the Court was whether a worker who does not take paid annual holiday because the employer refuses to pay holiday pay carries over his entitlement to paid holiday or loses it at the end of each holiday year.

In a nutshell, it carries over in those circumstances.  The employer took the view that the worker was self-employed and therefore not entitled to holiday pay.  The worker was actually working on a self-employed commission only contract from the 1 June 1999 until he retired on the 6 October 2012.  When he took annual leave it was unpaid.  On retiring he sought to recover payment for his annual leave – both taken and untaken – for the entire period of his engagement.  The employer argued that under the UK Working Time Regulations if paid holiday is not taken in a leave year it is lost.

The European Court decided that, if the worker is prevented from taking their paid holiday because the employer won’t allow paid holiday, then the worker is being prevented from exercising his EU right to statutory holiday and cannot be stopped from bringing a claim simply because a new holiday year has started.  The Working Time Regulations that says a worker loses his right to carry over is incompatible with EU law and, what is more, the back pay claim could go all the way back to 1996 when the European Working Time Directive came into force.

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Therefore employers, whose self-employed contractors are now deemed to be “workers”, could face substantial claims dating back 20 years.  The only consolation for employers is that this only applies to 4 weeks’ holiday a year (rather than 5.6 weeks allowed in the UK) as that is the EU minimum holiday entitlement.  Nevertheless, if a worker has been engaged that long, the bill for an employer could be 20 years x 4 weeks = 80 weeks’ pay per worker.

For further information and advice, please contact Geoff Lamb at our office.

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Update on Recovery of Employment Tribunal Fees

The Refund Scheme is now open to everyone who has paid fees in connection with a Tribunal Claim or an Appeal since July 2013.

You can apply if one of the following circumstances applies to you:-

(1)      you paid the fees and made the claim;

(2)      you paid the fees for someone else to make the claim; or

(3)      you paid the fees a Tribunal ordered you to pay to someone who brought a claim against you.

To apply online go to https://employmenttribunals.service.gov.uk

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Leave for Grieving Parents

A long overdue Bill is to be presented to Parliament entitling parents who lose a child under the age of 18 to at least 2 weeks parental bereavement leave to be taken before the end of the period of 56 days beginning with the date of the child’s death.  Any employee, regardless of length of service, will be entitled to that leave.

Also, those parents who have 26 weeks’ continuous service will receive statutory parental bereavement pay.  Employers will be able to recover the cost from the Government.

The new entitlements will apply in the case of stillbirths after 24 weeks of pregnancy.

In the case of more than one child dying the entitlements will be in respect of each child.

Hopefully this Bill will receive a smooth passage through Parliament.  All employers are no doubt understanding and flexible when an employee suffers the loss of a child but until now there has been no legal obligation to allow parents time off to grieve.

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Employment Law Update – Support for Parents with Premature or Sick Babies

Acas has recently published a very helpful advice and guidance note in relation to workplace support for parents with premature or sick babies.  This can be accessed at www.acas.org.uk.

Employers in such situations often find it difficult to know how best to deal with parents in a sensitive way.  The ACAS advice encourages them:Acas

  • To be compassionate and sensitive in all communications
  • To ask parents what they would like them to tell their colleagues about their situation
  • Make employees aware of their statutory entitlement to leave including, for example, shared parental leave; and
  • To be flexible in allowing time off when parents return to work for follow up appointments or treatment

We are able to provide advice to employers and parents facing what can be a difficult and anxious time.  If we can be of help, please contact Partner, Geoff Lamb at our office.

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More on Tribunal Employment Fees

Further to my previous piece regarding Tribunal Fees, the President of the Employment Tribunals has issued an Order staying all tribunal claims brought in reliance on the Supreme Court’s recent decision pending decisions of the Ministry of Justice and the Tribunal Service as to the implications of the decision.DSC_2846-2

The effect appears to be that all Applications for refunds of fees, claims that were rejected or dismissed for non-payment of fees, and new claims not brought earlier because of fees and where an extension of time is now sought, will now be stayed to await the Government’s response to the Supreme Court decision.

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Employment Tribunal Fees

The big news in Employment Law is the Supreme Court’s declaration that Employment Tribunal and Employment Appeal Tribunal fees are unlawful both in Domestic and EU Law.  Tribunal fees have been payable by Claimants since 29 July 2013.  The effect of the decision is that all fees paid since that date must be reimbursed by the Government and fees are no longer payable for any claims being started now.  The Government has accepted the decision.Tribunal

So what happens next?

  1. The Employment Tribunals will need to update the online system for new claims and Tribunal Rules will need to be revised. Claimants wishing to lodge a claim now will find the online system has been suspended.  You will therefore have to make a claim on paper and send it by post to the relevant Tribunal Office.  No fee will be payable.  I understand the online system will be up and running again soon once reference to fees has been removed.
  1. It could be that you have been put off submitting a claim within time because you could not afford the fees. It might be possible to secure an extension of time but you must act quickly by lodging your claim without delay and be able to convince a Tribunal that it was the prospect of paying fees that put you off lodging your application within the prescribed period.
  1. The decision does not necessarily mean that fees will not be reintroduced. Commentators think the Government will issue a consultation paper and bring in a different fees regime which might even involve the Employer, as well as the Employee, paying a fee.  Watch this space.
  1. How long it will take for fees paid since 2013 to be refunded remains to be seen. No doubt some Civil Servants will have the unenviable task of trawling through each claim where fees were paid and no exemption applied.  What if the Respondent ended up reimbursing the Claimant the fees in a final award?  Will the payment be made direct to the Respondent in these cases?  Again, watch this space.

For advice on this and any other Employment Law issue, please contact our Employment Partner, Geoff Lamb.

Update – The online service has now resumed.  Anyone wishing to submit a Tribunal claim can do so online or by completing a hard copy of an ET1 form and posting it to appropriate central office.

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Employment Law Titbits

Our Employment Law Partner Geoff Lamb brings a couple of recent decisions which may be of interest.DSC_2846-2

The first concerns a Company making an employee redundant after a period of disability related sickness and whether that amounts to disability discrimination. No said the Employment Appeal Tribunal on the facts of the particular case.  It had become apparent to the employer during the employee’s sickness absence that they could manage without his post.  The Employment Tribunal had found that, although there was some link between the employee’s absence and the decision to make him redundant, this was not the same as finding he was dismissed because of his sickness absence.  The EAT upheld the Tribunal’s decision.

The second case of interest poses the question whether departing employees are under any duty to disclose to the employer their intention to set up a competing business once the period of their post-termination restrictions has expired. Two fairly senior employees (Technical Manager and Technical Sales Manager respectively) planned to set up a new Company in competition with their employer’s business.  When questioned by the employer after handing him their notice they lied.  The employer sought an Injunction and damages alleging they had breached their duty to answer questions truthfully and had misused confidential information to which they were privy.

A Deputy High Court Judge in the Chancery Division ruled “I am far from satisfied that these employees were under a duty to disclose their true intentions to [the employer]. The law will step in to prevent unfair competition or to hold employees to enforceable restrictive covenants or to protect confidential information.  Equally, employees must not induce others to breach their own contracts of employment, conspire to cause their employer injury or, in most cases, solicit their colleagues for their new enterprise.  Subject to these matters, employees are otherwise free to make their own way in the world.  I should therefore be reluctant to hold that an incident of the duty of fidelity is that, when asked a straight question, a departing employee is under a contractual obligation to explain his own confidential and nascent plans to set up in lawful competition”.

This may seem harsh upon the employer but I wonder what difference it would have made if they had been open about their intentions. The employer could not stop them once the post-termination restriction period had expired.  What the case is really about is whether the employees had misused confidential information to design and sell their own machines.  The claim for damages proceeds to trial.

The issue of truthfulness might have produced a different result if the employees had been more senior, for example, Directors of the Company, who owe greater fiduciary duties to the Company.

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Do adjustments have to be made for a job candidate with Asperger’s Syndrome?

In a case recently before the Employment Appeal Tribunal a job applicant was found to have been discriminated against by being required to sit a psycho metric test.  The applicant, Ms Brookes, applied for a job with the Government Legal Services (GLS).  Along with all other candidates she had to undertake a multiple choice Situation Judgment Test.  Brookes requested adjustments to the Test on the grounds of her Asperger’s Syndrome.  (Her Psychiatrist had made previous recommendations in relation to her university course that a multiple choice format would not be appropriate for her).  She was told that an alternative test format was not available, although time allowances would be made.  She completed but failed the test.  She then claimed disability discrimination.

The Employment Tribunal concluded that the requirement that all applicants take and pass the test put a group of people, such as Ms Brookes, at a particular disadvantage compared with those who did not have Asperger’s Syndrome.  Whilst the requirement served a legitimate aim, the means of achieving that aim were not proportionate to it.  Brookes was put at a disadvantage.  Her claim of indirect discrimination and failure to make reasonable adjustments succeeded.  The decision was upheld on Appeal by the Employment Appeal Tribunal.

Put simply, whilst GLS needed to test the competency of its candidates to make effective decisions, a psycho metric test was not the only way to achieve this.  A salutary warning for prospective employers.

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  • In This Section

  • Thank you Cassie for your professional and efficient service. Excellent job!
    Miss J Gregory - Huddersfield
  • Lisa Wright
    Lisa Wright
    15:05 25 Feb 19
    Cassie was fantastic throughout our sale and would recommend North Ainley if selling or buying a house.read more
    Lynn Findlater
    Lynn Findlater
    18:55 01 Dec 18
    I have used North Ainley for a number of years. They have successfully dealt with my parent's wills and more recently the sale of 2 properties. The staff are exceptional and imparticular Cassie who took care of the whole process from start to finish whilst I was overseas. She diligently chased all third parties and kept me informed at all times. I would recommend North Ainley as they have proved themselves time and again over the last 10 years in all of my family's legal affairs.read more
    Idnan Ahmed
    Idnan Ahmed
    12:57 30 Nov 18
    Excellent service. handled my latest commercial purchase professionally. Would recommend to anyone who is looking for a solicitors who are proffesional and easy to work with. Top service.read more
    Lucy Hoy
    Lucy Hoy
    16:39 27 Nov 18
    Excellent! Very friendly and fantastic communication throughout. Nothing was to much trouble. Thankyou Vinesh and Cassie. Would definitely recommend.read more
    Anil M
    Anil M
    15:11 04 Nov 18
    Fantastic Solicitors firm. Very professional. Close to Oldham Town Centre. Answer all your questions and concerns. Keep you upto date at every stage. I have used this firm for many years in buying and selling property. You can not go wrong using North Ainley Solicitors.read more
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