March 2018


Hello, we would like to share with you the latest news within Cluer HR, as well as keeping you up to date with developments in the world of HR and employment law as they occur.

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Employment tribunal claims up 90 per cent year on year

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The end of the fees regime has led to a leap in claims, as experts advise employers to take more care to avoid litigation. Single claims lodged at employment tribunals increased by a remarkable 90 per cent between October to December 2017 compared to the same quarter in 2016, according to new Ministry of Justice latest statistics published on 8 March 2018.

However, the disposal of single claims – made on the basis of an individual claim such as unfair dismissal, rather than multiple claims – has increased by 21 per cent over the same quarter in 2016. The backlog of single claims going through the system also rose by 66 per cent. The figures followed a 64 per cent overall rise in new claims brought to employment tribunals after fees were first abolished following a Supreme Court judgment in July 2017 that overruled the government’s fee system. The ruling found that the introduction of fees by the government was unlawful and discriminatory against women who were more statistically likely to have short term employment and therefore have to pay the required fees.

Are we heading for an employment tribunals crisis?

Employment tribunals are now facing real resourcing problems and these may get worse before they get better.
The most important open discussion of these matters on a national level occurs at the Employment Tribunal National User Group. What was reported at its most recent meeting was dramatic. Based on five months’ worth of management information since the Supreme Court’s decision in July and seeing trends across the country that were “stable and consistent”, employment tribunal president Judge Brian Doyle confirmed that the number of claims introduced into the system had doubled. It will take an increase of some 200 per cent to get back to pre-2013 levels of activity, but this is undoubtedly a step change from before.
Has the government prepared for this development? Unfortunately, not. Although there are welcome signs that some government circles do realise that they need to act to avoid meltdown.
In London South, for example, it is estimated that, for a discrimination case that may last two or three days, the parties will have to wait until late 2018 or early 2019 for it to be heard. This includes claims for sexual harassment – a prolific issue in the current climate – but these delays are being felt right across the system.

Employers not recognising smartphones as DSE (Display Screen Equipment)

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Research issued by Specsavers Corporate Eyecare reveals the extent of smartphone use for work purposes but highlights the lack of related employee eyecare. Conducted among over 500 senior decision makers in UK companies, the research shows that, on average, employers class two thirds (66%) of their employees as ‘smartphone users’. Yet just a quarter (25%) of employers provide eyecare for all smartphone users and 18% of employers provide eyecare for some smartphone users.

The Display Screen Equipment regulations and Health & Safety Executive (HSE) guidance make it clear that smartphones are included as DSE and that users should, therefore, be provided with the same level of eyecare as their colleagues who use traditional PC monitors.
Jim Lythgow, director of strategic alliances for Specsavers Corporate Eyecare, said: ‘The tools of our everyday working lives are changing, and with the dramatic increase in the use of smartphones over recent years, we suggest employers check and, if necessary, update their eyecare policy to ensure it reflects the use of modern-day technology.’

Can covert recordings be used as tribunal evidence?

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In Fleming v East of England Ambulance Service NHS Trust, the Employment Appeal Tribunal (EAT) considered whether an employment tribunal (ET) had been correct not to allow a claimant to rely, in his subsequent claims for unfair dismissal and disability discrimination, on recordings he had made of the discussions during breaks in a disciplinary meeting of the internal panel considering ‎disciplinary charges against him.
The claimant had recorded the disciplinary meeting in question – without informing anyone and left his mobile telephone in the meeting room during breaks, thereby recording the panel’s private discussions. The claimant argued that this was inadvertent but, as the EAT put it, the employer was “understandably rather sceptical about that”. The ET decided that the recordings – which were of discussions between the panel that in part referred to the employer’s legal advice as well as a telephone call with the employer’s legal adviser – should not be admissible at the hearing of the claims on the basis that they were “private/legally privileged”.
Before the EAT, the employer argued that what was said in the breaks in the disciplinary hearing was covered by ‘legal professional privilege’ – confidential communications between lawyer and client for the purpose of giving or obtaining legal advice. Legal professional privilege is an absolute bar to admissibility in proceedings, but not if the purpose of seeking or giving advice is to effect ‘iniquity’ – in effect, ‘sharp practice’ abusing the proper purpose of legal professional privilege that is to protect the genuine giving and receiving of advice.
On the facts of the case, there was no iniquity and therefore the EAT held that, on the basis of legal professional privilege, the claimant should not be allowed to make use at the ET hearing of his recordings to the extent that they included references to solicitors’ advice and a telephone call between the employer’s officers and its solicitor.
The issue with regard to the remainder of the recordings was whether such private deliberations of an internal panel should not be admissible in the ET proceedings on public policy grounds‎. Case law had established several principles on this issue. The fact that a recording is not covert is not of itself a ground not to admit it. However, there is an important public policy in preserving confidentiality so not to inhibit full and open discussion and to avoid undermining the proceedings’ eventual outcome. A balance needs to be struck by reference to the circumstances of the case and this may involve considering the nature of the deliberations and the value of the evidence. While there are no hard and fast rules, evidence is more likely to be admitted in a discrimination case where no reasons are given by the panel and the only evidence of discrimination is from a recording of the panel’s deliberations or a panel member, or where the deliberations show the panel is acting under instructions from management.
The EAT considered that there was a strong public policy in preserving the confidentiality of the discussions upon which the claimant sought to rely on in this case – even though they were not stated in advance to be private deliberations, they related to the panel’s decision. It also found that the evidence did not produce incontrovertible evidence of discrimination as the discussions related to the claimant’s conduct during the hearing and did reflect some sympathy for him as opposed to some animus against him.
However, the claimant had listened to the recordings and let the employer know his views on them before the employer took the decision to dismiss him – he became very upset and refused to participate further in the employer’s process.‎ In those circumstances, which the ET noted were unusual, it was considered that the material should be admissible in the ET proceedings to the extent that the material was not subject to legal professional privilege; the employer’s decision to dismiss could not properly be assessed without reference to the events following the disciplinary meetings and the position the claimant took once he had heard the recordings.
The decision is a reminder for employers of the legal principle that the fact a recording is covert does not mean the ET will automatically refuse to allow it to be relied upon. Also, while it may be an obvious practical point, the risk of having this sort of dispute can be avoided if private panel discussions take place away from the meeting room in which a participant may have left a mobile telephone in voice recording mode.

Redundancy – Collective Consultation

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Can events occurring after over 20 dismissals are proposed, provide a defence to a claim for failing to inform and consult?

No, held the EAT in Keeping Kids Company (in compulsory liquidation) v Smith & Ors, but the events may affect the size of an award. In June 2015, KKC applied for emergency government funding to avoid financial ruin with a business plan envisaging a restructure whereby half its staff might be dismissed within a few months.

On 29 July a grant was offered but revoked on 3 August when a police investigation into safeguarding issues at KKC became apparent. On 5 August KKC closed, dismissing its staff.
The tribunal heard a number of claims for protective awards for failure to inform and consult under s188 TULR(C)A. It found the business plan constituted a ‘proposal to dismiss’ and s188(1A)’s reference to consulting within ‘good time’ meant KKC should have consulted ‘promptly’ after the business plan, such that events in August did not constitute a defence of a ‘special circumstance’ for s188(7). KCC appealed. EAT held the Tribunal was entitled to conclude the obligation to consult arose in June not August as the business plan in June foresaw only immediate insolvency or large-scale redundancies. Whilst events in August did not excuse the obligation to consult, which crystallised beforehand, they could be relied on to reduce the size of the award.

High street firms’ minimum wage breaches may be ‘tip of iceberg’?

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Many more employers may face fines and demands for back payment of wages in the coming months, unions and legal experts have warned – as policy around uniforms, improper reimbursement of expenses and ‘genuine mistakes’ were blamed for almost 200 employers failing to pay the minimum wage.
Restaurant chains Wagamama, TGI Fridays and high-street retailer Karen Millen – along with hotel group Marriott – were among the 179 UK employers the government said had failed to pay nearly 10,000 workers the correct minimum.
The Department for Business, Energy and Industrial Strategy (BEIS) released figures last week revealing that hospitality, hairdressing and retail were the worst offending sectors. Wagamama topped the list of individual employers, underpaying a total of £133,212 to 2,630 employees, while TGI Fridays failed to pay £59,348 to 2,302 staff.
Wagamama said there had been a ‘misunderstanding’ on staff uniform rules and admitted that by stipulating specific uniform colours, it was inadvertently expecting staff to pay for their own uniforms.
The employers were collectively required to compensate workers a total of £1.1m in back pay and pay government fines of £1.3m. The BEIS fines come ahead of the national minimum wage increase next month, following recommendations from the Low Pay Commission.
From April, the national living wage will increase from £7.50 to £7.83 for workers aged 25 and up, and from £7.05 to £7.38 for 21- to 25-year-olds.
“Employers who pay staff close to minimum wage need to be particularly careful they don’t inadvertently breach the law,” said Julia Kermode, chief executive of the Freelancer & Contractor Services Association. Unpaid breaks, requiring staff to arrive early for their shift and time spent in meetings could all lead to underpayment of wages, Kermode added.
Euan Lawrence, employment law expert at Blacks Solicitors LLP, warned that employers making deductions from staff for the cost of the Christmas party could also fall foul of the law if these lowered employees’ wages to less than the minimum wage. “Moreover, additional payments such as tips, service charges and premiums for working at unsociable times should not count towards wages. BEIS makes that absolutely clear,” he said.
If you’re concerned you’re not paying employees correctly, please get in touch at [email protected] or call us on 01386 751 740

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