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Employment Law Newsletter - September 2017


In this issue ...

  Employment Tribunal Fees Abolished   Can you monitor employees' e-mail?  
  Suspension is a neutral act. Isn't it?   Are you responsible for an employee's crime?  
  Can you discipline a Christian employee for making homophobic comments?   Does voluntary overtime count towards holiday pay?  
  Is a negative reference disability discrimination?  

Employment Tribunal Fees Abolished

Traditionally July and August have been the quietest periods in the world of employment law. The House of Commons enjoys its recess while employment lawyers and HR professionals enjoy a breather before the next raft of changes.

Not so this summer. The Supreme Court's historic decision to uphold the challenge to employment tribunal fees was described by Unison's General Secretary as 'the most significant judicial intervention in the history of British employment law.' It is difficult to disagree.

In R (on the application of UNISON) v Lord Chancellor, the Supreme Court unanimously declared that employment tribunal and EAT fees are unlawful, under both domestic and EU Law. While acknowledging the government's aims of transferring the cost of the tribunal system to its users, encouraging earlier settlements and discouraging weak claims, it found that the bar had been set too high. Many households couldn't clear it and others could only do so by sacrificing their ordinary spending. The Court went further, saying people needed to know that they could enforce their rights and businesses needed a deterrent to encourage them to meet their obligations. If not, society would lose out.

What now?

The government must reimburse all fees paid since 29th July 2013 and fees are no longer payable for future claims. The cost of repaying claimants along with employers who paid for EAT appeals, judicial mediation and counterclaims for breach of contract is estimated at around £30 million. Answering questions on 5th September 2017, Minister of State, Dominic Raab, said, vaguely, that the practical arrangements would be announced 'shortly'. Although he noted the Court's recognition that fees had a role to play he said nothing about their return. Fees may be back one day. But not soon. After a chastening defeat, the Government will not rush into battle again. Particularly when it has a reduced majority and other priorities (remember Brexit?).

Expect tribunal claims to increase. Not only the number of entirely new claims, but also those dismissed for non-payment of fees will be reinstated and claims that employees would have presented but for the fees regime may now be presented out of time. However, we do not expect a return to pre-2013 levels. The increase in the length of service required to present a normal unfair dismissal claim from one year to two, the cap on compensation for such claims at one year's pay, and mandatory early conciliation with ACAS also contributed to the 70% reduction in claims.

What you should do

Be aware that we now live in a fee-free world where disgruntled employees will be more willing to issue proceedings.

Review your policies and procedures to check that they are legally compliant and ensure that decision-makers follow them.

Factor the new landscape into your strategies when considering settlement agreements, responding to early conciliation and whether to contest tribunal claims.

Consider whether you have the internal and external support to deal with more employment tribunals than you have faced for the last four years.

Record any fees that you have paid to the tribunal or claimants with a view to recovering them.


Suspension is a neutral act. Isn't it?

Many of us have written letters of suspension that assure employees of the neutrality of the act. Of course, in reality, if any of us were suspended we know that, even if we are later cleared of wrong-doing, the stain could remain for some time.

In Agoreyo v London Borough of Lambeth, the High Court considered a primary school's suspension of a teacher accused of using force to control two difficult pupils. The school's letter to Ms Agoreyo described the suspension as a neutral, rather than disciplinary, action, which would allow a full and fair investigation. The Court decided that the school's decision to suspend Ms Agoreyo had been a knee-jerk reaction that entitled her to resign because it breached the implied term of mutual trust and confidence. It added that suspension was not a neutral act, particularly where it concerned a qualified professional.

What you should do

You should exercise caution before suspending an employee, particularly where the employee has a vocation rather than simply a job.

Speak to the employee about the allegations before suspending them.

Consider the available evidence and whether there are alternatives, such as supervision or transfer to another part of the business.

Keep the period of suspension as short as possible and review it regularly to determine whether it is still necessary.

Consider what you will say to colleagues and clients about the suspension.


Can you discipline a Christian employee for making homophobic comments?

Yes. But there's more. In Trayhorn v Secretary of State for Justice, Mr Trayhorn, a Pentecostal Christian, volunteered at a prison, preaching at chapel services. During a service, he said that 'marriage between homosexuals', among other things, was 'wrong' and 'needed stopping'. Prisoners complained and the prison invited Mr Trayhorn to a disciplinary hearing. He resigned, claiming indirect religious discrimination because he was being prevented from expressing a Christian view of sexual ethics and his human rights had been breached.

The EAT found no discrimination because the prison had not investigated him for manifesting his belief but for the way in which he did so, which went beyond quoting from scripture.

What you should do

Ensure your employees are not placed at a disadvantage for manifesting their religious beliefs at work. However, where someone manifests their beliefs in an inappropriate way, apply your disciplinary rules as normal.


Can you monitor employees' e-mail?

Yes, with qualifications.

In Bărbulescu v Romania The European Court of Human Rights (ECHR) found that a Romanian employer had violated its employee's right to a private life. It had monitored Mr Bărbalescu's personal Yahoo! messages, sent from his work computer, to enforce its prohibition on its employees using company resources for personal purposes. It had told Mr Bărbalescu its rules but had said nothing about monitoring. Mr Bărbalescu won the battle but not the war; the ECHR awarded no compensation as it felt its decision was 'sufficient'. 45 pages of Yahoo! messages, including messages to his brother and fiancĂ©e about his health and sex life, may not have helped Mr Bărbalescu's cause.

What you should do

If you plan to monitor your employees' e-mails consider why and whether that reason is legitimate.

Consider whether a less intrusive method would achieve the same result.

Tell your workforce that that their communications may be monitored, why and in what circumstances.

Review your policies on the use of the internet and social media at work and on work devices.

Ensure that you have evidence that your employees have read, understood and accepted those policies.


Are you responsible for an employee's crime?

Yes, you may be vicariously liable. In Various claimants v Barclays Bank plc, the High Court decided that Barclays Bank was vicariously liable for 126 alleged sexual assaults carried out by Dr B during medical examinations that the bank had requested.

Employment was conditional on passing the medical examination. The bank chose the doctor, made the arrangements and paid for the medical examination. The examinations took place at Dr B's home. The medical reports were prepared for the bank's benefit and headed with the bank's logo. The two stage test of whether the relationship was one of employment or 'akin' to employment and whether the wrongful act was sufficiently closely connected with that employment had been satisfied.

What you should do

Be aware that even an independent contractor may commit acts for which your business may be held liable.

Make sure that volunteers and contractors receive the same instruction and training as employees.

Review your contractual arrangements with non-employees to ensure that they are aware of your procedures and their obligations.


Does voluntary overtime count towards holiday pay?

Yes, if it is sufficiently regular, according to the EAT in Dudley MBC v Willetts. It said that where the recurring pattern of work extends for a sufficient period of time to justify the description 'normal', voluntary overtime pay must be included in holiday pay. However, each case must be decided on its own facts.

What you should do

There is no need for an immediate change in the way that you pay holiday pay. You can deal with employee challenges to your calculations as they arise.

You should review your pattern of entirely voluntary overtime payment to assess whether your business is vulnerable to a challenge and make a realistic provision for the possibility.


Is a negative reference disability discrimination?

Yes in the case of Mefful v Citizens Advice Merton and Lambeth. Mr Mefful had three significant periods of absence. Two in 2009 and 2010 after losing a baby and 63 days in 2013 owing to shoulder pain and a loss of hearing. After unfairly dismissing Mr Mefful in 2012, his employer agreed to provide a reference.

Despite a policy that it should only provide standard information, his employer issued a reference that gave details, some of which were inaccurate, of Mr Mefful's absence and said that it would not re-employ him. Mr Mefful's job offer was withdrawn and his claims of disability discrimination and victimisation succeeded. His former employer knew of his disability and knew that it would be giving an impression that it would not re-employ him because of his level of absence.

What you should do

If you have a policy of only providing basic details when responding to requests for references, then ensure that your managers, and HR people, stick to it.

Although generally there is no obligation to provide a reference, if it is your policy to provide one then a failure to do so could lead to an allegation of discrimination. Be consistent.

If you provide a reference make sure its details are true, accurate and fair.


Just a quick reminder that Collinson Grant does a lot more than advise clients in all sorts of organisations about the complexities, constraints and opportunities presented by employment law. Our consultants also provide support regularly on: employee relations, reward, restructuring, recruitment, leadership and HR strategy. And we have well-honed skills in operations: managing and reducing costs, organisational design, process improvement, procurement and managerial controls. Do ask if you would like to know more.


If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Peter Howarth on 0161 703 5600

Although care has been taken in the preparation of this Newsletter, Collinson Grant cannot accept responsibility for errors, omissions or advice given. Readers should note that only Acts of Parliament and Statutory Instruments have the force of law and only the courts can authoritatively interpret the law.