A round-up of links to news items on employment tribunal rulings in the week beginning 19 March 2012, including a blind former soldier who was made redundant by a council and has won his disability discrimination claim.
Soldier blinded by IRA wins pay-out over "inhuman treatment" by council (on the Daily Telegraph website) A soldier blinded by the IRA has won a legal battle over his "inhumane treatment" in a new job with a council.
We round up what caught Tribunal Watch's eye on Twitter in the week beginning 19 March 2012, including the important Court of Appeal decision in Woodcock v Cumbria Primary Care Trust (on the BAILII website) that, while the employer in this case was justified in making a senior member of staff redundant before he reached the age of 50 to avoid him getting a pension "windfall", employers cannot generally justify age discrimination solely on the basis of cost.
As you know (and if you don’t, where have you been?), the qualifying period for unfair dismissal is increasing to two years for employees who begin employment on or after 6 April 2012. There has been a huge amount of debate in the media as to whether or not this is a good or a bad thing, much of it focusing on exactly what the Government’s rationale is for making the change. But we haven’t really been given much from the Government on the issue, save that it believes the change will increase employment.
Well, debates on the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 (which will implement the change) in the House of Commons and House of Lords are now available for you to peruse at your leisure.
The debates are quite long but extremely interesting reading, particularly if you have strong views - one way or the other - on the change.
Further information
Qualifying period for unfair dismissal (and written reasons for dismissal) to be increased Get more information on the changes in XpertHR’s Forthcoming Law section
A round-up of links to news items on employment tribunal rulings in the week beginning 12 March 2012, including a French porter who claimed was he was called "Inspector Clouseau" and suffered inappropriate sexual greetings such as "How's it hanging?" by colleagues at the Royal College of General Practitioners. His race claim was found to have been made out of time, but his sexual harassment claim was upheld.
The reference by an employment tribunal to the ECJ to clarify legal protection for women who have children through a surrogate mother has also been reported.
French porter called "Inspector Clouseau" by colleagues in line for five-figure payout (on the Daily Telegraph website) A French porter who was called "Inspector Clouseau" by colleagues at Royal College of General Practitioners is in line for a five-figure harassment payout.
Surrogacy mother launches maternity leave challenge (on the Daily Telegraph website) A mother who had a baby through a surrogate has launched legal action for the right to paid maternity leave.
We round up what caught Tribunal Watch's eye on Twitter in the week beginning 12 March 2012. This week, discussion has been dominated by the Government's call for evidence on introducing the concept of "compensated no-fault dismissals" for micro businesses and the Govenment response to a challenge in the European Court of Human Rights in which several UK citizens are arguing that there should be a legal right to display religious symbols in the workplace.
The Government has called for evidence on possible changes to dismissal laws such as making the dismissal process simpler, particularly for small employers, and introducing the concept of "compensated no-fault dismissals" for businesses with fewer than 10 employees. What are the key questions for small employers in the consultation?
Under the concept of "compensated no-fault dismissals", employees dismissed in these circumstances would not be able to bring an unfair dismissal claim but would be able to bring a discrimination claim or an automatic unfair dismissal claim. Employers would still be able to dismiss employees without paying compensation where they had a fair reason for dismissal and acted reasonably in dismissing.
The call for evidence also looks at the effectiveness of the Acas code of practice on disciplinary and grievance procedures (on the Acas website).
(1) Employees dismissed under a compensated no-fault dismissal would not be able to bring an unfair dismissal claim, but would be able to bring a discrimination claim or an automatic unfair dismissal claim. Taking these constraints into account, do you believe that introducing compensated no fault dismissal would be beneficial for small businesses?
(2) What type of compensation would be appropriate for a no-fault dismissal (for example, a flat rate, or a multiple of a week's or a month's wages)?
(3) Would it be necessary to set out a process for no-fault dismissals in legislation, the Acas code or both?
(4) Before this call for evidence, were you aware of the "Acas code of practice on disciplinary and grievance procedures"?
(5) Has the Acas code prompted you to review your organisational discipline and grievance policies and procedures?
(6) Do you find the language of the Acas code easy to understand and appropriate for dealing with performance issues?
(7) Does the Australian small business fair dismissal code (PDF format, 128K) (on the Australian Government's Fair Work website) provide a useful model for the UK?
(8) Should the requirements of the code be different for small employers?
A round-up of links to news items on employment tribunal rulings in the week beginning 5 March 2012, including £40,000 for unfair dismissal and disability discrimination for an autistic chef who was paid £95 per week and threatened with the sack "for taking too much off the end of a cucumber".
Autistic chef 'exploited' by Plymouth's Astor hotel (on the BBC website) A hotelier who paid an autistic chef £95 a week because he "thought he could get away with it", must pay him more than £40,000 compensation.
We round up what caught Tribunal Watch's eye on Twitter in the week beginning 5 March 2012. This week, we have been discussing when an employer can harmonise employees' terms and conditions of employment after a TUPE transfer, with new articles including:
On the XpertHR Weekly podcast, we discussed the dangers of changing employees' terms and conditions after a TUPE transfer, including the recent Employment Appeal Tribunal decision in Abellio London Ltd (Formerly Travel London Ltd) v Musse and others; Centrewest London Buses Ltd v Musse and others EAT/0631/11.
With the Government's controversial increase in the qualifying period for claiming unfair dismissal from one to two years grabbing most of the headlines, it's easy to forget that there are some important changes to employment tribunal procedure also taking effect on 6 April 2012.
XpertHR employment law editors and Jeya Thiruchelvam and Susie Munro, who wrote up FAQs on tribunal procedure for XpertHR, have discusssed the changes on the XpertHR Weekly podcast, which include a move towards employment judges sitting alone when hearing unfair dismissal claims.
Additions to the FAQs section on employment tribunal procedures include:
On the evening of 6 March, George Osborne announced a call for evidence (not a full consultation) on “compensated no-fault dismissals” for small businesses.
Anya Palmer usefully collated some reaction - including from Anna Birtwhistle (CM Murray LLP) and Flip Chart Fairytales (both of whom I agree with) to the original Beercroft proposals in The Lawyer, but I thought I’d add some comments.
I’m going to focus on Osborne’s comment: “But what about your right to start a business and not be sued out of existence?”.
Unless I’m missing something, no employer has a right not to face tribunal claims from aggrieved employees who feel that they have been treated unlawfully. When it comes to unfair dismissal, employers have only to act reasonably in the circumstances to dismiss an employee fairly. I don’t think that most people would argue that that’s too much to ask. I appreciate that small employers, perhaps without dedicated HR functions, might be panicked about employment law generally and unfair dismissal in particular. But there’s help available: ACAS produces a wealth of guidance on dismissing employees, and if you follow that (and - sorry, shameless plug - subscribe to XpertHR!) then you won’t go far wrong.
Of course, employers (small or otherwise) can be put to great expense and hassle by vexatious claimants, or where the employee simply doesn’t have a very good case. The former situation will no doubt be helped by (as Osborne noted) the Government’s decision to introduce fees for bringing a tribunal claim, and the latter by the standard tribunal procedure, which allows claims to be thrown out where they have little or no prospect of success. If claims have a reasonable prospect of success, then there’s no reason why the employee shouldn’t be able to bring the claim.
So, bearing all that in mind - particularly that reasonable employers can dismiss employees already with little or no risk of being “sued out of existence” - who is Osborne trying to protect? Unreasonable employers? Osborne’s statement almost implies that employers can be sued out of existence regardless of how they treat their employees.
I agree that these proposals will probably save employers time and expense when dismissing employees, but I doubt that they will increase employment, and they strike at the heart of the most basic protection for employees, protection that is there for a reason.
A round-up of links to news items on employment tribunal rulings in the week beginning 27 February 2012, including a Credit Suisse trader who claimed that his boss told him to "pull himself together" when he complained of feeling suicidal losing his tribunal claim.
Credit Suisse trader loses employment tribunal (on the Daily Telegraph website) A Credit Suisse trader who claimed his boss told him to pull himself together when he complained of feeling suicidal has lost his tribunal claim.
We round up what caught Tribunal Watch's eye on Twitter in the week beginning 27 February 2012, a week in which we have been debating some of the doubts that have been raised over a Court of Appeal judge's assertion in Crawford and another v Suffolk Mental Health Partnership NHS Trust that employers should be wary of making suspension an automatic response to serious allegations of misconduct.
We have also been providing guidance on one of the major challenges for employers in 2012: pensions auto-enrolment (on the Personnel Today website).
The recent comments by a senior judge that employers should be wary of making suspension an automatic response to serious allegations of misconduct have caused something of a stir among HR professionals.
To recap, Court of Appeal Judge Elias LJ in Crawford and another v Suffolk Mental Health Partnership NHS Trust (on the BAILII website) said that suspension should not be a "knee-jerk reaction". It appears to him to be the "almost automatic response" of many employers to allegations of the kind in this case (two nurses accused of using inappropriate methods to restrain an elderly patient) to suspend immediately, irrespective of the likelihood of the complaint being upheld. Although Elias LJ's comments are not binding on tribunals, they are likely to be quoted by claimants in the future and, given the seniority of the judge making them, should not be taken lightly.
Commenting on the case [subscription required], XpertHR's consultant editor Darren Newman argues that employers should review their approach to suspension in the light of Elias LJ's points. Newman says that, in the past, many employers would not have thought twice about suspending an employee when there was an allegation of gross misconduct. Now, "thinking twice is precisely what they should do". He goes on to say that "Employers would be wise to have no general practice of suspending employees; each case should be decided individually".
XpertHR has been hearing concerns from employers that a failure initially to suspend an employee can undermine the employer's arguments in any subsequent tribunal proceedings that the employee committed a breach of the implied term of trust and confidence.
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