Rogers & Norton News

Employment Law Bulletin October Part 1

Tuesday, October 18, 2016


The month of tricks and treats is upon us. If there’s one thing that is sure to give employers the heebie jeebies, it’s the thought of reputational damage caused by having got something badly wrong in employment law.

This autumn there is due to be a new mechanism by which the public at large can read all about employers’ failures. The Courts and Tribunals Service announced earlier in the year that employment tribunal decisions will be placed online. Those decisions are not currently as readily available as those of higher courts, which have been online for some time.

Of course this works both ways. Employers who win cases will have that fact known. For those who don’t, there may well be greater publicity around mistakes and bad judgment calls. It will be interesting to see the extent to which the online availability of tribunal decisions will affect each party’s negotiating position in the run-up to a hearing. Will we see an increased appetite for, or more resistance to, settlement?
Maintaining higher pay could be a reasonable adjustment
G4S Cash Security v Powell

The duty to make reasonable adjustments can tie employers up in knots. What is reasonable in one case won’t necessarily be reasonable in another. It really comes down to how far the employer should go to combat the disadvantage that the employee has been put to at work because of their disability.

Mr Powell was disabled because of a back injury. His employer gave him a lesser role, but didn’t cut his pay. That arrangement lasted for nearly a year until the employer told Mr Powell that it would only continue to employ him in that role at a reduced rate of pay. Mr Powell didn’t agree to that and was dismissed.

Maintaining the original level pay was a reasonable adjustment in this case, said the tribunal and the Employment Appeal Tribunal (EAT). However, the EAT made it clear that it won’t always be reasonable to maintain a pre-existing pay level – it will come down to the circumstances, including the ongoing financial considerations. In this case, Mr Powell had been in the new role, paid at the old (higher) rate, for almost a year. He expected the arrangement to be long-term. That was all relevant to the reasonableness of withdrawing the benefit of higher pay. Notably, the discontent of other employees was not a good enough reason to reduce pay in these circumstances.
New Minimum Wage rates

1st October means one thing: changes to the National Minimum Wage. Here goes:

  • The rate for those aged between 21 and 24 has risen from £6.70 per hour to £6.95.
  • For workers aged 18 to 20, it’s now £5.55 instead of £5.30.
  • The young workers’ rate for those aged 16 and 17 is £4.00 instead of £3.87.
  • The apprentice rate has risen by 10p to £3.40.
  • For workers aged 25 and over, the national living wage of £7.20 per hour continues to apply.

Acas certificate could cover future claims
Compass Group v Morgan

Before someone can bring a claim in the employment tribunal they must usually have first notified Acas. A conciliation period follows, during which settlement is explored. If the case isn’t settled within the conciliation period, Acas issues a certificate to that effect. It’s at that point the Claimant can take their claim further.

In Compass Group v Morgan there was a question over which claims were and were not covered by the Acas certificate. Could the tribunal hear a constructive dismissal claim where the resignation happened after the conciliation certificate had been issued (meaning it could not have been contemplated when the certificate was issued)?

Yes, held the EAT. There is flexibility in the rules to enable events that happened post-certificate to be covered by it. However, the issues need to be connected. In this case there was a sequence of events. Ms Morgan initiated the early conciliation procedure in respect of her grievance, which was about having been told that she would be working at an alternative location and in a less senior position. Although she didn’t resign until after the early conciliation certificate had been issued, there was a connection between her constructive dismissal claim and the complaints that had formed part of early conciliation.