If an employee wins an unfair dismissal case, the employment tribunal will decide how much compensation is due. If the employer has made procedural errors during the dismissal, and the tribunal decides that the employee would have been dismissed anyway had a fair procedure been followed, the tribunal can reduce compensation to zero. This principle is known as the Polkey principle – named after the case from which the principle derived. The EAT has considered this issue recently in Teixeira v Zaika Restaurants.
The DWP has published its annual increases for various employment related pay rates which will take effect in April 2023. Statutory maternity, paternity, shared parental and parental bereavement pay will increase from £156.66 to £172.48. Statutory sick pay will go up from £99.35 to £109.40.
National minimum wage levels will also increase in April 2023:
COT3 settlement agreements, negotiated and arranged by Acas, can be a cheap and easy way to settle employment tribunal claims. The Court of Appeal has considered a case where an employee brought a claim after signing a COT3, the terms of which the employer said prevented him from bringing the claim. There is currently conflicting case law on the ability for settlement agreements to waive future, unknown claims. Royal National Orthopaedic Hospital Trust v Howard said that if parties want to settle unknown future claims, the wording of the agreement must be absolutely clear on that. However, in Bathgate v Technip, the Scottish EAT said that the law did not allow parties to settle unknown future claims.
Employers are obliged to make reasonable adjustments to remove or reduce any substantial disadvantage that disabled employees experience because of workplace arrangements. In Hilaire v Luton Borough Council, the EAT has confirmed the limits of that requirement. The employee was disabled. The employer went through a reorganisation and needed to make redundancies. All employees were required to interview for a place in the new structure. Adjustments were made for the employee, including extra time and support with his job application. However, he refused to attend an interview and submitted a sick note saying he was not well enough. He didn’t respond to requests about when he would be fit. All 13 other candidates had been interviewed and decisions needed to be made, so the employee was given a deadline to attend an interview. He said he was too ill. However, a week later he attended an appeal hearing against a sickness sanction. He was dismissed for redundancy.
The EAT has given judgment in an employment status claim which confirms that the ‘label’ that parties place on a working relationship is only one piece of the puzzle. Too much weight must not be given to that label if the reality of the relationship suggests something different. In Richards v Waterfield Homes and Unity Build and Repairs, the employee worked for the business as a skilled carpenter. At the time he was taken on, he was registered with the CIS as a contractor. CIS is a scheme where a sub-contractor can have 20 per cent, rather than 30 per cent, of earnings deducted and paid to HMRC in tax and NI (with a reckoning at the end of the year). The CIS scheme is an industry wide scheme where workers are treated as self-employed. All workers for the business were described as self-employed. The business switched the employee to an employment contract in 2018 after taking legal advice about ‘regularising’ contracts. The employee objected to the contract because it described him as an employee from 2018 rather than 2010 when he started working for the business..
If an employee wins a claim for unfair dismissal, a tribunal will decide what compensation is fair in the circumstances. The stakes are raised in a whistleblowing unfair dismissal because the statutory unfair dismissal compensation cap (currently £93,878 or a year’s gross pay, whichever is less) does not apply. Employees are required to ‘mitigate’ their losses by seeking employment elsewhere. If there are additional reasons why the employee in a whistleblowing case has not been able to secure alternative employment – because of stigma associate with the whistleblowing – they will need to provide evidence in support of that contention.
Dismissing an employee with a disability can seem risky but is not always unfair, even where the reason for dismissal is impacted by the disability. The EAT has recently upheld a tribunal’s findings that an employee’s dismissal was justified in a case where disability potentially impacted the behaviour for which she was dismissed. In Morgan v Buckinghamshire Council, the employee was a Supervising Social Worker. She was disabled with conditions including autism and dyslexia. She gave a child presents without prior authorisation, contrary to the employer’s code of conduct. She also included inappropriate case notes on the child’s file and failed to follow management instructions. The Local Authority Designated Officer said they didn’t need to get involved as the child was not harmed, but said the matter warranted investigation.
Exclusivity clauses are terms which prevent an employee from taking up work elsewhere or require an employee to ask permission before working for another business. These clauses have been unenforceable in zero hours contracts since 2015. From December 2022, they are also banned in contracts for low paid workers. ‘Low paid’ here means workers and employees whose net average weekly wage does not exceed the lower earnings limit, which is currently £123 per week.
Is it harassment to text a colleague in the wee small hours? Not accordingy to nkojihuy790- Mainali v New Godalming Sushi Limited. Mr Mainali was a sushi chef in business with a colleague, Mr Lohani, to provide sushi at Waitrose. Me Lohani was the main shareholder in the business. Relationships deteriorated. Mr Lohani sent a rota to staff on a group WhatsApp after midnight. Mr Mainali was furious, saying it was wrong to bother staff at that time of night. He told Mr Lohani to ‘go f*** yourself’.
There have been some key updates in Employment Law recently, which may have flown under the radar with everyone gearing up to enjoy the Christmas and New Year holiday.
In this article, we summarise the key updates for your benefit.
Flexible working
On 5th December 2022, the Department for Business, Energy and Industrial Strategy (BEIS) proposed to update the existing legal framework in respect of flexible working, as follows:
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