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Employment Law Bulletin April 2018

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News round up

We are delighted to announce the appointment of a new team member to our growing Employment team. Associate, Charlotte O'Connor, has joined the team this month and is very much looking forward to meeting the businesses we support.

With the legislative changes to compensation limits, leave and wages in force this month, we have provided you with a handy summary of current facts and figures from 2018. The employment facts and figures should prove to be a useful reference tool, but are for guidance only.

We have several exciting events in the pipeline and seminars already scheduled for later in the year. Please click here to view our seminar programme and keep an eye on your inbox for invitations to these events in due course.

Our next event is later this week on Thursday 3 May 2018 where we will be discussing mental health in the workplace. This event is now sold out but if you’d like to receive details of the seminar content or have any queries, please get in touch with the team directly.

You should have also received an invitation to our next Mock Employment Tribunal on Thursday 28 June. The event was so popular last year that unfortunately, not all of those who wished to attend were able to do so. Therefore, to give everyone the opportunity to benefit from this valuable learning experience, we have decided to examine the same claim again. You can find more information on our website.

In the meantime, here is our round up of key cases and legal changes over the last few weeks.

Employment Tribunal Statistics

The fee to bring a claim to the Employment Tribunal was removed in July last year, so it was probably inevitable that the number of claims would increase. The government has recently released data relating to the number of claims between October and December 2017.

The number of single claims (i.e. claims from one individual, rather than a group of employees) increased by 90% compared to the same time period the previous year. The backlog for single claims has now increased by 66%.

These figures demonstrate that, with the fees removed, employees seem to be getting more confident about making a claim to the Employment Tribunal. This does mean, therefore, that you might want to think carefully about whether you should try to reach a settlement during the Acas Early Conciliation process.

As many of you will know, a potential claimant has to engage with the Acas Early Conciliation Service prior to making a claim to the Employment Tribunal. One month is allowed for the parties to try to reach a settlement through this process, which can be increased by two weeks if both parties agree. If a claimant is planning to make a claim against you, Acas will make contact and ask if you want to try conciliation.

Of course, every claim is different. There might be some that you do not want to settle maybe because you are adamant that you were right to take the action you took, or because you do not want to suggest to other employees that you will rush to offer a settlement. However, given the ease with which a claimant can now go to the Employment Tribunal and the increase in claim generally, an early settlement should be at least be considered as an option.

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Snow Leave

Hopefully we have seen the last of the snow for now, but the heavy snowfalls that we have seen have prompted a number of queries about payment for employees who do not make it to work. The best advice is to prepare in advance, take time to write a snow policy, or to review any policies that you already have in place, so that there is clarity for your employees when the white stuff next starts falling. What do you need to consider?

Defining working time

The working Time Regulations 1998 apply to employees and to workers. These Regulations set out that an individual should not work for more than an average of 48 hours a week (referenced over a 17-week period) and that the individual should have a rest of 20 minutes after 6 hours of work, 11 hours’ rest in every 24 hours and 24 hours’ rest in every 7 days (or 48 hours’ rest in every 14 days).

That might seem relatively straightforward, but confusion arises when it is not clear if an employee is working, as shown in the case of Ville de Nivelles v Matzak [2018].

In this case, the Court of Justice of the European Union was asked to rule whether a Volunteer Firefighter was working when he was on standby. During standby periods he was required to respond to calls within eight minutes, and to be physically present at a place which was determined by his manager. His employer argued that he was only working if there was a call that he had to respond to.

The Court of Justice ruled that he was working throughout the standby time because of the restrictions that were placed on him. He was not free to do what he wanted, and he was geographically restricted.

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Can an employer discriminate on the grounds of pregnancy if they do not know the employee is pregnant?

This was the question that the Employment Appeals Tribunal was asked to consider in the case of Really East Car Credit Ltd v Thompson [2018]. The employee was in the early stages of pregnancy and had not told her employer. During her probationary period she did not meet the required standards of performance or conduct and was emotionally volatile and lost some time due to hospital visits. It was decided to terminate her employment.

She phoned her employer to say that she would be back at work the next day (when it was planned to tell her that her employment was terminated) and in that conversation she said that she was pregnant. The employer went ahead and ended her employment, and she argued that was discrimination on the grounds of pregnancy.

The Employment Tribunal upheld her claim, but the EAT have remitted it back to a different Tribunal to consider whether the decision to terminate the employment was linked to the pregnancy. If the decision had been made before the employer knew that the employee was pregnant then it cannot be discrimination. However, if the pregnancy confirmed a decision to terminate which had not been finalised it will be discrimination.

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Dismissed for associating with a criminal

A school headteacher has been dismissed because she did not tell the school governors that she had a close (non-romantic) relationship with a man who was convicted of downloading indecent images of children.

In Reilly v Sandwell Metropolitan Borough Council [2018] the headteacher was found to have breached her contract, with the situation therefore amounting to gross misconduct, when she did not disclose her relationship. This was found to be a fair dismissal because of her role working with children, and it was found to be an unacceptable error of judgment when she decided not to inform the school of the relationship.

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Duties to agency workers

As a result of the Agency Workers Regulations 2010 an agency worker must receive the same terms and conditions of employment as a permanent employee in an organisation who does comparable work, once the agency worker has been placed in the organisation for 12 continuous weeks. In addition, the agency worker should be able to access any facilities in the organisation (e.g. a subsidised restaurant) from day one of the placement.

A recent case has highlighted that the ‘same terms and conditions of employment’ means that all terms should be comparable. It is not possible to total up the terms and say that overall the package is equal.

In Kocur v Royal Mail [2018] the agency worker received a higher rate of pay than permanent employees in the organisation where he was working. However, he received 2.5 fewer days of annual leave and when he took a 1 hour rest break he was only paid for 30 minutes (the employees were paid for the full hour).

The employer argued that, in total, his package was the same as permanent employees and therefore there was no breach of the Regulations. This argument was unsuccessful. The requirement is to have parity in all terms and conditions of employment.

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Uncertainty over disability

If an employer dismisses an employee who thinks he might be disabled, could this be disability discrimination? In Toy v Chief Constable of Leicestershire [2018] the employee was dismissed during the probationary period due to poor performance. The employee raised the possibility that he had dyslexia, but was not sure if he had. He then claimed disability discrimination.

This was found not to be disability discrimination because at the time of dismissal the employer did not know, and could not reasonably have known, that the employee was disabled (it was later conceded that he was dyslexic and that this was a disability).

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