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Employment Law Bulletin September 2017


News round up

Summer is now officially over, the evenings are getting darker and suddenly Christmas cards are in all of the shops. We hope you all had enjoyable summers and, after a short break from our newsletter in August, we are now back with lots of events coming up and plenty of news and updates for you.

Places are filling up fast for our popular employment law update seminar on 17th October. Let us know if you want to reserve a place.

For the rising stars in HR, our next HR Breakfast Club event is happening on 9th October. It will include an empowering and interactive workshop to help you understand and manage people, drive behaviours and maximise potential. 

We also run a series of exclusive HR dinners for senior HR professionals. These dinners bring together a small, exclusive group of HR professionals to share one issue (whether it’s operational or strategic) and draw on the knowledge and experience in the group to resolve it, on a complementary, strictly confidential basis. Unfortunately, we have no spaces left at our October dinner, but please get in touch if you are interested in attending the dinners and we will let you know when the next one is in the diary.

In our bulletin this month, we will update you on the situation regarding employment tribunal fees and bring some case law updates regarding the right to suspend, your liability for the actions of contractors and what amounts to ‘in the public interest’ for whistleblowing claims.

Employment Tribunal Fees

In July the Supreme Court ruled that the fees to bring a claim to the Employment Tribunal (which were introduced on 29 July 2013) were unlawful. There were two levels of fee – for shorter and more straightforward claims (such as claims for outstanding notice pay or holiday pay) the total fee was £390. For more complicated claims (including claims for unfair dismissal and discrimination) the total fee was £1,200. Since the fees were first introduced Unison  has brought a number of legal challenges to get them removed.

Unison’s primary argument was that the fees were excessive, and restricted access to justice. It was also argued that they were indirectly discriminatory because women were more likely to bring equal pay claims, and these attracted the higher fee. All the challenges brought by Unison had previously been unsuccessful - until now.

As a result of this recent Supreme Court decision the requirement to pay any fee in order to bring a claim has been removed. There is a possibility that the government will introduce a lower fee, but at present that is just speculation.

In addition, the government has committed to repay all those who have paid a fee since they were introduced back in July 2013. The process for doing this is currently being determined. The government is also looking into repaying respondents who have been ordered to reimburse issue fees as part of an order for compensation to a successful claimant.  If you have been in this situation, and have had to repay a fee to a claimant, it is likely that you will be contacted about a reimbursement.

Individuals who have brought a claim which has been rejected because the correct fee was not paid can now apply for those cases to be reviewed. This could mean that you have an individual bringing a claim against you that would otherwise have been out of time (most claims have to be brought to the Employment Tribunal within three months of the situation occurring).

Employment Tribunal claims dropped by around 70% when the fees were introduced. It is therefore very likely that we will see a sudden increase in the number of claims to the Employment Tribunal. If you are addressing any issues that could result in a potential claim it is more important than ever to ensure that you operating in a legally compliant way. Accordingly, if you have any queries or concerns at all, please do not hesitate to contact us.

Employers liable for Actions of Contractors

It is clear law that employers are liable for the actions of their employees (assuming such actions are carried out in the course of employment). In addition to this, a recent case has concluded that the employer can also be responsible for the actions of a contractor working on its behalf.

In Various Claimants v Barclays Bank plc (Dr Bates (deceased) and Barclays Group Litigation) [2017] a number of individuals claimed that they suffered a sexual assault whilst attending a pre-employment medical check. Most of the individuals were women, who were  around 16 years old at the time of the assaults. They alleged that the assaults were carried out by a doctor (who has since died) who was contracted to carry out the medicals by Barclays Bank. He was not an employee of the bank, but was independently contracted to do the work. The bank argued that they were not liable for the actions of the doctor because he was not their employee.

The High Court concluded that the relationship between the bank and the doctor was sufficient for the bank to be vicariously liable for the doctor’s actions. The medical assessments were for the benefit of the bank, and were part of its business activities. The bank had control over the work of the doctor, and was very prescriptive about what he was required to do. The assaults were carried out during the work that the bank had asked the doctor to do. As the doctor had died the bank is the only route for legal recourse for the claimants. As a result, the High Court concluded that the bank was liable.


Clarity on the Burden of Proof

It is often very difficult to prove that discrimination has occurred. The approach that has always been taken by the Employment Tribunal is that the individual claiming discrimination must first show a ‘prima facie case’ – i.e. that something has occurred, which could be discriminatory. The burden of proof then passes to the employer to show a non-discriminatory reason for the actions.

This was clarified in Efobi v Royal Mail Group Ltd [2017], in which the Employment Appeal Tribunal ruled that the claimant is not actually required to prove anything. Efobi was a postman and had applied for around 30 different jobs in the Royal Mail Group. All the applications had been unsuccessful. He argued that the rejections were race discrimination.

The EAT ruled that there was no burden on Efobi to prove facts from which the Employment Tribunal could conclude that there had been discrimination. Rather, the Employment Tribunal was required to assess all the information it had received at the end of the hearing to decide if there were facts from which it could decide that the employer had discriminated. Then, the employer was required to give a non-discriminatory reason for the actions. This does mean that it is more important than ever for you to have robust reasons for any decisions that you take, which could be challenged as discriminatory.


Suspending an Employee is not a Neutral Act

It is quite common to suspend an employee who is accused of something which amounts to gross misconduct, to allowan investigation to  take place. However, a recent ruling has found that suspending an employee is not a neutral act and could potentially be a breach of contract.

In Agoreyo v London Borough of Lambeth [2017] the employee was a school teacher who was accused of using unnecessary force when managing some difficult children. She was suspended without being asked for her response to the allegations, and without any alternative to suspension being considered. She resigned the same day, and successfully claimed constructive dismissal. She argued that the suspension was a breach of mutual trust and confidence. The High Court ruled that suspension was not a neutral act and should not be an automatic reaction to a potential disciplinary situation and, in this case, it was a breach of contract.


‘Public Interest’ Defined Broadly in Whistleblowing Case

If an employee raises an issue which amounts to a protected disclosure, they must not suffer a detriment for doing so. A protected disclosure is something which is in the public interest. The employee should first raise the matter with the employer. However, if that is not possible, or the employee is not satisfied with the response, they should raise the issue with a prescribed body (for example, an employee could raise health and safety issues with the Health and Safety Executive).

The question in Chesterston Global Ltd v Nurmohamed and others [2017] was what is the ‘public interest’?  The employee stated that the employer was mis-stating its accounts and as a result he, and around 100 other employees, were receiving a reduced amount of commission. He argued that this was a protected disclosure, but the employer disagreed saying that it was not in the public interest because it only affected individuals working in the company. The Court of Appeal did not accept the employer’s argument and ruled that it was in the public interest because of the number of people that it affected.

This ruling should not be viewed as a precedent to say that all company issues (involving only employees of that business) can be protected disclosures. The question will be how many people are affected, and the nature of the issues.


Deciding When Collective Consultation is Required

In a redundancy situation, there is a requirement to consult collectively (with a recognised union or elected representatives) if 20 or more jobs are to be made redundant at one establishment within a 90 day period. If this consultation does not take place, affected employees can seek a protective award of up to 13 weeks’ gross pay each. A recent case has addressed both the definition of an ‘establishment’ and also the territorial scope of the duty to consult.

In Seahorse Maritime Ltd v Nautilus International (A Trade Union) [2017] the employees worked on 4 different ships. The crew were UK domiciled, and were assigned to duties around the world for 4-6 weeks at a time. They would then return to the UK for a rest and after that they would return to work, often in the same place. There was a downturn in work, which resulted in redundancies. There were less than 20 redundancies on each ship, and no collective consultation took place. In addition, the employer argued that the employees were outside the jurisdiction of the UK because they were working outside the UK.

The EAT ruled that collective consultation should have taken place. Each ship was not an individual establishment, because some individuals did move from ship to ship. Also, the individuals were covered by UK law. They were domiciled in the UK, their employment contracts said that they were governed by UK law and a UK registered company was used to manage them. The question was whether the individuals had a sufficiently strong connection to the UK, not whether the company had a sufficiently strong connection.