Tag: employment

Employment Law and Brexit

October 3, 2019, By

With the impending 31 October 2019 deadline for Brexit fast approaching, many commentators have been considering the potential impact of a departure from the EU on this date on employment law and employee and worker rights.

The government has shown appetite for implementing changes to employment rights in recent years; from the repeal of the statutory code for disciplinary and grievances, to the increase of the minimum continuous service required to bring a claim for unfair dismissal from one years to two years and the introduction (and subsequent repeal) of fees to bring a claim in the employment tribunal.

Many employment rights are derived from European legislation; such as protection against discrimination, the protection of employment in a business transfer (TUPE) and the right to paid holidays, to name but a few.

However, it is important to understand that, aside from a possible immediate effect on rights to work in the UK, an exit from the European Union will not automatically repeal those employment rights that are derived from European legislation.  This is not to say that a post-Brexit government will not address employee and worker rights at some point but what may change is difficult to predict and will depend on the makeup of any post-Brexit government.

It is also important to remember that many statutory rights are written into employment contracts and therefore, any repeals could have negative and confusing effects on businesses in terms of understanding, implementing and balancing legal and contractual positions in the event of any change.  As such, it is hopeful that any changes to employment rights are implemented only after consultation with industry, trade unions and professional bodies.

Waiting times for Employment Tribunal claims rise again

August 19, 2019, By

A recent report conducted by employment law firm GQ Littler has found that Employment Tribunal claims are taking an average of eight months to be heard, which is a rise in waiting time for the fourth year in a row.

According to the report, the average delay between a claim being lodged and a final hearing is now 237 days, compared with 207 days last year. Government funding cuts have been blamed for the increased waiting times because this has meant that it has been difficult to hire enough experienced staff, notably those required to handle larger caseloads.

The report calls for creative solutions to deal with the problem, including introducing a new step in the Tribunal process, similar to the ACAS early conciliation process, which would give both parties a chance to settle before a case is heard in Tribunal.

EAT decision on use of incorrect EC number on Claim Form

July 23, 2019, By
Incorrect legal documents

In the case of E.ON Control Solutions Limited v Caspall, the Claimant attempted to bring a number of claims against the Respondent, the Claimant’s previous employer. The Claim Form wrongly stated the EC number for a different Claimant, who was also bringing claims against the Respondent and who was also represented by the same solicitors as the Claimant.

A Preliminary Hearing was convened in order to consider whether the Claimant’s claims should be allowed to proceed. The Employment Judge (EJ) noted that the claim had not been rejected and decided that it was open to the Claimant to apply to amend his claim to include the correct EC number. The EJ considered that there would be no prejudice to the Respondent in allowing the amendment and that the error could be easily corrected.

The Employment Appeal Tribunal (EAT) disagreed with the Employment Tribunal. It considered that having submitted a Claim Form with an inaccurate EC number, there was an obligation on the EJ to reject the claim and return the Claim form to the Claimant, explaining why it had been rejected and explaining how he could apply for a reconsideration. This did not happen but the EAT considered that this did not mean that the obligation to reject the claim ceased to apply. The EJ had a duty to reject the claim and had the EJ done so, there would no longer have been a claim before the Tribunal that could have been amended by the exercise of the EJ’s case management powers. The EJ therefore had erred in purporting to allow an amendment to a claim that ought to have been rejected.

What is Constructive Dismissal?

July 19, 2019, By
What is constructive dismissal?

Constructive dismissal is the term used where an employee resigns in response to their employer’s conduct in breach of an important term of their employment contract.

If you have experienced the following problems at work, you may be able to bring a claim for constructive dismissal in the employment tribunal:

  • If your contractual benefits are taken away;
  • If you have been bullied or harassed at work;
  • Unreasonable changes to how you work (such as changes to your working hours);
  • If you have been demoted;
  • If your employer refused to pay you;
  • If your work environment is not safe; and
  • If you didn’t have the adequate support needed to do your job.

For a constructive dismissal claim to succeed, you will need to demonstrate the following:

  • Your employer was in repudiatory breach of the employment contract;
  • You resigned in response to that breach; and
  • You did not delay too long before resigning in response to the employer’s breach. If you continue working for any length of time without leaving, you are likely to lose your right to treat the contract as breached and will be regarded as having chosen to “affirm” the contract.

Given the requirements set out above, it can be difficult for an employee to succeed in a claim for constructive dismissal.  It is essential therefore that before commencing a claim, you have the right employment law specialists to guide you through the process.

The ability to secure practical, reliable and friendly advice from an experienced employment law expert will be invaluable during this difficult time. It is important to know the options available to you and the right expert can help to put your mind at ease, advising you in respect of any potential cause of action, preparing your case and keeping you updated with the progress of any proceedings.

If you think that you have a potential claim for constructive dismissal, get in touch with our experienced employment law team who can advise you in respect of any potential cause of action you may have and guide you through your case.  You can contact one of our employment experts on 0161 969 3131, get in touch on our website.

Can You be Dismissed for Your Social Media Activity?

July 8, 2019, By
Social media rights in work

From blogs to business forums and social gaming to social networks, it is hard to escape social media, with some commentators predicting that, by 2021, at least one third of the world’s population will be active users.

Despite this, many are unaware of the potential legal implications of social media use, particularly upon their employment. Social media or internet misuse may be misconduct amounting to a potentially fair reason for an employee to be dismissed by their employer.

In an effort to understand what may or may not be acceptable social media use from an employer’s perspective, it is useful to examine how the courts have dealt with dismissals due to social media or internet misuse.

Private or Public Usage?

Case law shows that it is possible for an employer to fairly dismiss an employee for conduct outside of work, including an employee’s use of social media.

The courts have seen many employees who have been dismissed by their employers due to “private” social media use claiming that their dismissal was not fair because the post or comment made was done so on a private social media account that only friends can see.

Unfortunately, the very fact that an employer knows about a social media post and uses it as a reason for dismissal has, in the eyes of the courts, often negated the argument that the post was private.

Even if the social media use takes place on the employee’s own computer outside of work, the key issue for employers to consider regarding whether it is appropriate to discipline or dismiss an employee as a result of this is whether or not the employee’s social media post damages or has the potential to damage the employer’s reputation.

Using Social Media in Work

Due to social media still being relatively new phenomenon it can be hard for both employers and employees to know where they stand when using social media.

A common problem for many employers is employees’ social media usage affecting their productivity and work rate. This is why more employers are adopting a zero tolerance approach to the usage of social media during working hours, whether it be by implementing social media and internet policies or blocking access to social media platforms on work networks.

If you’re trying to find out where you stand with social media usage in your place of work, you should find out whether your employer has a policy in place relating to the use of social media.

Using Social Media Outside of Work

Although many employees don’t think twice about using social media outside of working hours, this is when disciplinary actions now commonly arise.

When you set up your social media accounts, it is important to consider whether or not you state your place of work on your profiles. Having the name of your employer clearly visible on your profile details means that you are a self-stated representative of that employer; in simple terms this means that any comments, posts or opinions that are viewed in a negative light could seriously affect the reputation of the employer.

If your employer can prove that these comments had or were likely to have a negative effect on its reputation, it may be within its rights to take disciplinary action against you, which could even include summary dismissal.

Overall, social media use in the workplace can be hard to understand due to it being a grey area for many businesses; not least because a business itself may heavily rely on social media platforms for things like advertising and business development. There are not always defined acceptable use policies which can assist employees and employers alike in dealing with social media use and misuse.

If your work life has been negatively impacted by the use of social media and you’re unsure whether there is anything you can do, get in touch with our employment law specialists who can help you find out more and support you through the claim process.

Employment Law Case Update – Religious Discrimination

July 1, 2019, By

The claimant in this case, Mr Page, was a non-executive director of the Respondent NHS trust. He was also a Magistrate, participating in decisions involving family matters such as adoptions. In his position as a Magistrate, Mr Page was part of a panel hearing an application by a same sex couple to adopt a young child. Mr Page was a Christian and held the firm view that a child should always be brought up by a mother and a father and not by a same sex couple. Mr Page expressed his views to his fellow magistrates and was disciplined for misconduct. He did not inform the NHS trust of what had happened, nor did he inform the NHS trust of the significant media interest around the matter.

When the NHS trust eventually found out what had happened, it warned Mr Page that his public expression of his views could affect his position as non-executive director of the NHS trust as it could suggest that he was unable to exercise his judgement impartially. He was instructed to inform the NHS trust of any further media interest. However, despite this instruction, Mr Page continued to engage with the media, even giving interviews on the subject.

As a consequence of his actions, Mr Page was removed from his position as a Magistrate and the NHS trust decided not to renew his non-executive directorship.

Mr Page brought claims of direct and indirect discrimination against the NHS trust claiming that he had been removed from office because of his religious beliefs.

The Employment Tribunal dismissed Mr Page’s claims. In so dismissing his claims, the ET decided that the NHS trust had decided not to renew his non-executive directorship because of the manner in which he had expressed his beliefs, rather than because of his beliefs themselves. In this situation the NHS did not discriminate against him.

Mr Page appealed to the EAT and the EAT dismissed his appeal. The Tribunal was entirely correct in its findings and the appeal was therefore rejected. Mr Page was not discriminated against on the ground of his religious beliefs.

Employment Tribunal Statistics

June 13, 2019, By
Employment statistics update

13 June 2019 saw the release of the Employment Tribunal statistics for January to March 2019 inclusive, which showed again a steady quarter-on-quarter increase in claims presented to the Employment Tribunal compared to the same period in 2018.

Single Employment Tribunal claims – receipts, disposals and caseload outstanding – all increased, by 6%, 22% and 39% respectively, compared to a year ago. Multiple Employment Tribunal claims – receipts and caseload outstanding – rose, 13% and 19% respectively, while disposals fell by 16%.

From the launch of the Employment Tribunal fee refund scheme in October 2017, three months after the abolition of fees in July 2017, there were 22,000 applications for refunds received and 21,700 refund payments made to 31 March 2019, with a total value of £17.3m.

Given the increase in claims presented to the Employment Tribunal and the vast number of applications for fee refunds, heralding an almost unprecedented workload for the Tribunal, it is perhaps unsurprising that adjournments and postponements of cases increased 5% and 13% respectively in 2018/2019 compared with 2017/2018, with rises seen across all tribunals where the information is recorded.

Rather interestingly, the most common jurisdictional complaint disposed of between January to March 2019 was for unauthorised deductions from wages, which would include claims for holiday pay; the very type of claim that the Supreme Court heard from workers were cost-prohibitive prior to abolishing Employment Tribunal fees in July 2017.

The statistics continue to show a renewed willingness of workers to pursue their employment rights within the Employment Tribunal now that there are no fees associated with bringing a claim and that each party, in general, will bear its own costs.

Advocate General Opinion on Holiday Carry-Over

June 10, 2019, By
holiday rights

In the case of TSN v (1) Hyvinvointialan liitto ry (2) Fimlab Laboratoriot Oy the Advocate General (AG) considered two referrals from the Labour Court in Finland.

The cases involved two workers who were entitled under a collective agreement more than the four weeks’ minimum holiday entitlement provided by the Working Time Directive. The workers in this case wanted to carry over holiday that they had not used in the relevant holiday year because they had not been able to use them due to sickness absence. Their employer only allowed them to do so up to the minimum four weeks provided for by the Working Time Directive.

The AG confirmed that the relevant European provisions/decisions relating to carry over of holiday apply only to the minimum four weeks’ holiday provided for by the Working Time Directive. The holiday entitlement provided in excess of the basic minimum four weeks provided for by the Working Time Directive can be treated differently and there is therefore no obligation on employers to allow this excess to be carried over.

It is worth bearing in mind that under the relevant domestic legislation, the Working Time Regulations 1998, holiday entitlement cannot be carried forward into the next annual leave year where the individual is unable to take their holiday entitlement due to sickness absence.

Although it is possible for the opinion of the AG not to be followed, this would be unlikely given that this opinion reflects recent Employment Appeal Tribunal authority on the subject.

Baldeh v Churches Housing Association of Dudley and District Ltd

May 13, 2019, By
controversial employee dismissal case

The Claimant was employed by the Respondent as a Support Worker, initially on six months’ probation.  She was dismissed by the Respondent at the end of the six-month probationary period and the reason stated by the Respondent for the dismissal was due to concerns around her performance and interaction with colleagues. The Claimant appealed against the decision to dismiss and she raised the fact that she was suffering from depression which she contended, affected her behaviour towards colleagues.

It was accepted by all parties that the Claimant suffered from depression which amounted to a disability.  The Claimant (who was a litigant in person) claimed that her dismissal was an act of disability related discrimination under section 15 Equality Act 2010.

The employment tribunal rejected the claim on the basis they concluded that the Respondent did not and could not reasonably have been expected to know that the Claimant was disabled at the time of the dismissal.  It also found that there was no evidence to suggest that her behaviour towards her colleagues “arose in consequence of” her disability as the Claimant had alleged in her appeal against dismissal.  The tribunal concluded that there were other reasons for her dismissal which were sufficient and that even if the Claimant had suffered unfavourable treatment because of something arising in consequence of her disability, the dismissal was justified under section 15(1)(b) Equality Act 2010.

The EAT allowed the appeal.  They concluded that the tribunal had made errors in relation to each stage of the reasoning.  The EAT held that although the Respondent did not know about the Claimant’s disability at the time of the dismissal, they may have acquired actual or constructive knowledge of it when considering the appeal and the rejection of the appeal formed part of the unfavourable treatment of which she was complaining.  Secondly, the EAT found that here was in fact some evidence that her depression caused the relevant behaviour which the employment tribunal ought to have considered.  Thirdly, it was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment despite the fact that there may have been other factors in the decision to dismiss was not in itself an answer to the claim.  Finally the EAT held that the employment tribunal failed to consider the section 15(1)(b) defence properly; in particular, they failed to address the question whether dismissal was a proportionate response in the circumstances.

The EAT therefore remitted the matter back to a fresh employment tribunal the issue whether the rejection of the Claimant’s appeal was an act of discrimination under section 15 Equality Act 2010.