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January 2018 Newsletter

by | Jan 2, 2018

 

HAPPY NEW YEAR

WHATS COMING UP IN 2018?

Increases to the national living wage and national minimum wage

From April next year the NLW will increase by 4.4% from £7.50 to £7.83. At the same time the NMW will be increased as follows:

  • From £7.05 to £7.38 for 21 to 24 year olds;
  • From £5.60 to £5.90 for 18 to 20 year olds;
  • From £4.05 to £4.60 for 16 and 17 year olds; and
  • From £3.50 to £3.70 for apprentices.

General Data Protection Regulations – 25th May 2018

If you haven’t already started to look at these regulations, we suggest you start now.

Please contact us if you need assistance with Data Protection policies and Privacy policies. We can also assist you with a data audit.

Grandparental leave

Date to be confirmed by the government – watch this space.

Parental Bereavement Leave

This will entitle employees who lose a child under the age of 18 to two weeks’ leave, paid at the statutory rate if they have 26 weeks’ service. This will be passed through parliament this year.

Cases to note:

TK Maxx overlooked mental illness 

TK Maxx dismissed an employee who had sworn and abused a customer, knowing that he had a history of depression and anxiety, which negatively affected his sleep and mood and sometimes made him angry. He was taking medication and having therapy for his condition.

While the tribunal accepted that TK Maxx had genuinely believed the employees conduct to be gross misconduct, the tribunal found that dismissal did not fall within the range of reasonable employer responses as the employer had failed to take into account relevant mitigating factors.

Illegality not a fair reason to dismiss

Mr Baker was a Jamaican national who was known to have the right to live and work in the UK. Abellio carried out right to work checks, suspended Mr Baker without pay and then, when he did not provide sufficient documentary evidence of his right to work in the UK, dismissed him by reason of illegality.

The tribunal held that the dismissal was fair, but the EAT disagreed. The claimant wasn’t subject to immigration control under section 25 of the Immigration Act 2006 and so the “right to work” check under section 15 did not apply. In any case section 15 operates to excuse an employer from a penalty if it checks specific documents; it does not impose an obligation on the employer to obtain the documents. The EAT held that it was possible for Mr Baker to have been dismissed for some other substantial reason if Abellio had a genuine but erroneous belief that employment was illegal. The issue of the fairness of a mistaken belief was remitted back to the tribunal for further consideration.

Illegality will not be a fair reason for dismissal if no obligation exists on the employer to check documentation relating to their immigration status and right to work. However, the civil penalty can be up to £20,000 and the only way to protect against liability is to conduct a full right to work check.

Be honest about why your dismissing an employee

Mr Rawlinson was employed as an in-house legal counsel. A few months into his employment, his employer decided to dismiss him due to concerns about his performance even though it had not raised any issues with him. Mr Rawlinson was told that his employer had decided to outsource legal services and wanted him to work his three months’ notice to ensure a smooth handover. Mr Rawlinson resigned with immediate effect on the basis that TUPE would apply and that the employer was acting in breach of its statutory obligations. He brought various claims, including a breach of the duty to inform and consult under TUPE and wrongful constructive dismissal.

The tribunal rejected both of these claims. On appeal the EAT held that the implied term of trust and confidence should generally import an obligation not to deliberately mislead.

The EAT also held that although Mr Rawlinson had not resigned because of the lie (at the time he did not know he was being given a false reason for his dismissal) he could still rely on his employer’s conduct as justifying his resignation, irrespective of his reason for resigning at the time.

Although it may seem easier (and quicker) to terminate an employee’s employment without going through a capability procedure (especially in cases like this where the claimant has under two-years’ service and therefore has no right to bring an unfair dismissal claim) it’s better to follow the proper procedures and to give an employee the real reason behind a decision to dismiss. A failure to do so may result in successful breach of contract claims.

ET and EAT Fee refunds


The government has rolled out the refund scheme for ET and EAT fees in full. The scheme is open to both claimants and respondents who paid a fee and includes those who had to reimburse their opponent for a fee incurred by the opponent pursuant to an order. The scheme is also open to representatives and sponsors who paid a fee on behalf of a party to a claim (and who have not been reimbursed).

Those eligible can apply online or by post using the prescribed forms. Refund Form 1-C is for claimants. Refund Form 2-R is for respondents, and Refund Form 3-S is for representatives and sponsors who paid a fee, as well as for lead claimants in a multiple claim.
 
The refund scheme dos not cover payments under a settlement agreement designed to compensate a claimant for a fee that they might have paid. The claimant remains eligible to apply for a refund under the scheme.
 
Failure to risk assess breastfeeding sufficiently
 
The claimant was a nurse working in a hospital’s A&E unit.  Her employer’s risk assessment for her as a breastfeeding worker had concluded her work was ‘risk-free’ but when she requested for an adjustment to her working pattern, it was declined. 

The CJEU held that if a breastfeeding mother can show an assessment was defective or not carried out, it gives rise to a prima facie (“on the face of it”) case of discrimination. 

Smoking breaks

A Japanese company has taken the extraordinary step of rewarding non-smokers with six extra days holiday a year to make up for the time their smoking colleagues spend on cigarette breaks. They estimate it takes around ten-fifteen minutes for each break but did not want to restrict smoking breaks entirely. The company believes cigarette breaks are a positive use of time as they provide the opportunity for colleagues to get together and talk about work or come up with ideas away from their desks. Instead, they hope the incentive will make people want to quit smoking to receive more holiday leave.

For ideas on how to make your policies fairer for non-smokers please contact us.

First company to be found guilty of failing to auto-enrol

A bus operator has become the first employer in the UK to be found guilty of failing to auto-enrol its staff on to a workplace pension scheme.

Oldham-based Stotts Tours and its managing director, Alan Stott, admitted deliberately avoiding setting up workplace pension schemes for 36 staff, despite employees meeting auto-enrolment criteria, the Pensions Regulator reported.

Colour blindness a disability?

An employment tribunal has held that a claimant’s red-green colour blindness is not a disability.

In Bessell v Chief Constable of Dorset Police, Mr Bessell has deuteranopia. In other words, he has red-green colour blindness. He has difficulty distinguishing between red and green, the combination of grey and pink also causes him difficulty. Mr Bessell has no other vision problems.  Mr Bessell brought a disability discrimination claim under the Equality Act 2010. He claimed discrimination arising from disability, indirect disability discrimination and failure to make reasonable adjustments. He also brought a claim for indirect sex discrimination.

A preliminary issue before the disability discrimination claim could proceed was whether or not Mr Bessell’s condition constitutes a disability under the Equality Act 2010. The issue turned on whether or not the impairment has a “substantial and long term adverse effect on [his] ability to carry out normal day-to-day activities”.  This first-instance decision is not binding on other courts and tribunals and there would be nothing to stop a more severe form of colour blindness from being considered a disability.

Since colour blindness primarily affects men, by far the bigger risk for employers is a claim for indirect sex discrimination.

 

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