Rogers & Norton News

Employment Law Bullettin

Thursday, April 24, 2014

Welcome

There’s a big change this month. Employees must now notify Acas (by telephone, or by filling in a form which can be posted or submitted online) before they are allowed to bring an employment tribunal claim. This is optional from 6th April, and becomes compulsory on 6th May.

If the employee doesn’t tell Acas before lodging a tribunal claim, the claim will automatically be rejected by the employment tribunal. If the employee does tell Acas that they intend to bring a claim, Acas will try to help both sides settle. Either side can refuse to negotiate, in which case the employee can go to the tribunal. Conciliation can last for up to six weeks, if everyone agrees a settlement is feasible, and the employee then gets at least a month from conciliation failing to bring a tribunal claim (the time limit rules are complex, but it’s always at least a month after the Acas conciliation ends).

Is this a good idea? We think it’s a really good idea in principle; it means employers won’t find a tribunal claim form landing on their doorstep unexpectedly. However, we’re not sure it will work with anything but the simplest, lowest-value cases – mainly because most employers will want to wait and see whether the employee will pay the £250 fee to start their tribunal claim. According to statistics last month, two-thirds of employees don’t.

April showers us with (even more) changes

From 6th April there are some new processes, penalties and pay to get to grips with. Here’s a summary:

Tribunal fines Employers who breach workers’ rights face a fine of between £100 and £5,000 where the case involves ‘aggravating features’ (eg a flagrant unfair dismissal). The penalty will be calculated as 50% of any financial award made to the Claimant by the tribunal, subject to the £5,000 maximum. The silver lining? The fine will be reduced by 50% if it’s paid within 21 days.

Increase in compensation limits New compensation limits apply to dismissals that take effect on or after 6th April. The maximum for a week’s pay (for calculating redundancy payments and the unfair dismissal basic award) rises to £464. The compensatory award cap for unfair dismissal increases to £76,574.

No more discrimination questionnaires Statutory discrimination questionnaires are being abolished as part of the government’s cutback on employment law red tape. These were a way of aggrieved employees who alleged discrimination gleaning information from their employers in support of a claim. Employers who didn’t comply faced the possibility of an adverse inference being drawn at a subsequent hearing.

So, employees who allege that discrimination took place on or after 6th April will not have this questionnaire procedure in their armoury. But that doesn’t stop them asking questions of their employer in the normal course of their claim, and employers should in most cases comply. Acas has issued some useful guidance on this.

New rates of pay From 6th April some important statutory pay increases take effect: -

  • Maternity, paternity (ordinary and additional) and adoption pay increases to £138.18.
  • Statutory sick pay is £87.55.

 

New law on spent convictions

Employers who require employees to disclose ‘spent’ convictions could be committing a criminal offence.

New rules on the rehabilitation of ex-offenders have come into force. They reduce the period of time after which an offence becomes ‘spent’ (no longer counts) and doesn’t need to be disclosed. There are some exceptions – mainly jobs involving contact with vulnerable adults and children – but on the whole people will be able to put their past behind them far more quickly and be treated as though their convictions never happened.

Employers should tread carefully here. It’s wrong to refuse to employ someone, or dismiss someone, based on a spent conviction. And in most cases, it’s now wrong to ask job applicants about spent convictions or cautions. Remember, too, that criminal convictions are ‘sensitive personal data’ under the Data Protection Act.

Secret recordings admissible

Punjab National Bank v Gosain

You may think there’s something underhand about an employee covertly recording their disciplinary or grievance hearing. But don’t bank on an employment tribunal sharing your outrage and excluding the evidence.

If it’s relevant to the employee’s case, then the tribunal is probably going to want to hear it.

Ms Gosain worked for Punjab National Bank. Immediately after her grievance and disciplinary hearing, she secretly recorded her employer’s private deliberations. She alleged that wholly inappropriate comments were made while she was out of the room. These included an instruction to dismiss her, and discussions about the deliberate skipping of issues in Ms Gosain’s grievance letter.

The Employment Appeal Tribunal (EAT) said that there is a balance to be struck between allowing relevant evidence to be heard and public policy interest in preserving the confidentiality of private conversations. Normally the evidence should be admissible, the EAT held, especially if the detail is outside the scope of the employer’s proper deliberations on the relevant matters. In this case the comments fell outside the area of legitimate consideration (as it was improper for the chair to be given instructions, and for a conscious decision to be taken to ignore aspects of the grievance) and so the recordings could be used in evidence.

Will this decision change the way you conduct yourself and your internal hearings? For some employers it will come as a stern reminder of the danger of careless conversations. So the biggest message to take from this case is: say only what you would be happy for a tribunal to hear you say (or perhaps go to a different room for your discussions!).

No maternity discrimination after maternity leave

Lyons v DWP JobCentre Plus

The beginning of pregnancy is also the start of a woman’s protected period for employment law purposes. That means that right up until the end of her maternity leave she must not be treated unfavourably because of the pregnancy or because of any illness she suffers as a result of her pregnancy.
 
But what about unfavourable treatment, related to her pregnancy, that happens once maternity leave has ended?
 
Ms Lyons worked for JobCentre Plus. She suffered post-natal depression and, after returning from maternity leave, was dismissed. She brought discrimination claims based on pregnancy and maternity, and sex.
 
The Employment Appeal Tribunal held that her dismissal did amount to unfair treatment for a pregnancy-related illness. But because that treatment took place outside the protected period it wasn’t discrimination, so her pregnancy and maternity discrimination claim failed.
 
Her claim for direct sex discrimination also failed. Because Ms Lyons’ pregnancy-related illness extended beyond her maternity leave period, her employer was entitled to compare her post-maternity leave absence period with any period of sickness of a man.

Immigration status isn’t ‘race’

Onu v Akwiwu
Two Nigerian women, who held migrant domestic worker visas, claimed that they were mistreated because of their immigration status. They were abused and exploited while working for families in the UK, and they brought a race discrimination claim.

But there was one big hurdle for them to overcome: the Equality Act 2010 doesn’t list immigration status as a protected characteristic, so how could it be unlawful to discriminate because of it? The workers in this case relied on nationality (which is a protected characteristic), arguing that it covered immigration.

The Court of Appeal held that mistreatment on the ground of immigration status is not direct discrimination. Even though the mistreatment was linked to the women’s immigration status, that status was not the same as, and couldn’t be protected as, nationality.

Surrogacy and maternity rights

Case C 167/12 CD v ST

It’s usually obvious who is entitled to maternity rights. But not so where surrogacy is concerned. Who has the right to maternity pay, maternity leave etc – the surrogate mother who gave birth, or the commissioning mother?

The Court of Justice of the European Union (CJEU) has looked at the case of Ms D, who commissioned a surrogate. Ms D breastfed the baby as soon as it was born, and she and her partner were granted a parental order. But after her employer denied her maternity and adoption leave (because she hadn’t given birth to or adopted the child) she brought a claim.

The CJEU held that maternity leave rights hinge on pregnancy and giving birth. That’s despite maternity leave being intended to protect the special relationship between a woman and her child.

So Ms D’s employers were not bound to grant her leave. But this is set to change next year when the Children and Families Act will give commissioning mothers like Ms D the right to paid leave.

And Finally…

It’s been reported that employers in the Philippines who discriminate on grounds of age could get more than they bargained for.

A Bill has been put forward setting a fine of P100,000 (£1,340) and P5million (£67,000), or imprisonment for between one month and one year, for those found to have been discriminatory in their job adverts, in their recruitment choices or in their retirement policies. The people behind the bill say that many recruitment adverts place an age ceiling of 40 on applications, effectively denying employment opportunities to those aged 40-plus.

If prison is what it takes to keep an aging population in work, then we guess that’s the price some employers will have to pay. But not in the UK. Yet.