Tribunal Fees Refund

The government has announced its fees refund scheme.  In short, all fees will be repaid along with interest of 0.5%.
 
Criminal Finances Act 2017
 
The new corporate offence of failing to prevent the facilitation of tax evasion came into force on 30 September. An employer may commit an offence under the Criminal Finances Act 2017 (CFA 2017) if it fails to prevent an employee, agent or any other person who is performing services for the organisation from criminally facilitating the evasion of tax, whether the tax is owed in the UK or in a foreign country.
 
A “UK tax evasion facilitation offence” will be committed by a person who is:
 

• knowingly concerned in, or taking steps with a view to, fraudulent tax evasion by another person; or
• aiding, abetting, counselling or procuring the commission of an offence consisting of being knowingly concerned in, or taking steps with a view to, the fraudulent evasion of a tax.

 
The offence is punishable by a fine. An employer will have a defense if it can prove that, when the offence was committed, it had in place such prevention procedures as it was reasonable in all the circumstances to expect it to have in place. Alternatively, it will be a defense if it was not reasonable in all the circumstances to expect the employer to have any such procedures in place.
 
Injury to feelings awards increase
 
As of 7 September the following bands have applied to injury to feelings awards as part of discrimination claims (in line with guidance issued by the Presidents of the Employment Tribunals):
 

• £42,000 – £25,200 – This is awarded in the most serious cases such as where there has been a lengthy campaign of harassment;
• £8,400 – £25,200 – This is awarded in serious cases which do not merit an award in the highest band; and
• £800 – £8,400 – This is awarded in less serious cases such as where the act of discrimination is an isolated or one off occurrence.

 
Paid leave for parents who lose child
 
A Bill has been published today which will entitle parents who lose a child under the age of 18 to two weeks’ paid leave.  This leave will come into effect from 2020.
 
The Parental Bereavement (Pay and Leave) Bill will entitle all employees to parental bereavement leave, regardless of their service length. Those who have 26 weeks’ continuous service will also benefit from statutory parental bereavement pay, the cost of which employers will be able to recover from the Government.
 
Ryanair’s holiday mess
 
Earlier this month, Ryanair said it would be cancelling up to 50 flights a day for the next six weeks, after it “messed up” the planning of pilots’ holidays. The company revealed that the flight cancellations had cost Ryanair €25m.

Businesses should have an annual leave policy and stick to it, calculate holiday correctly, be unafraid to say no to holiday requests, plan ahead and check throughout the year to ensure employees use all their entitlement, regulate their holiday and avoid causing shortages in busy periods. Now is a great time to check on your employees outstanding leave if your leave year ends in December.

Monarch Airlines

Trade union Unite are set to launch an employment tribunal claim on the grounds that the airline failed to consult staff before they were made redundancy.

Prison’s unfair dismissal claim
 
The claimant was a gardener at a prison. The claimant was a Pentecostal Christian, and an ordained minister. As well as his role as a gardener he volunteered in services in the chapel. Following complaints that he had made comments during a service that same-sex marriage was wrong, he was instructed not to preach in the prison chapel in future. At another chapel service he again received some complaints. He was invited to a disciplinary hearing, promptly went on sick leave and then, subsequently, resigned.
 
He claimed that he had been indirectly discriminated against due to the application of two policies, the prison’s conduct policy and its equality policy. He claimed that these policies put employees who were of the Christian faith at a particular disadvantage because they were more likely to quote or discuss parts of the Bible that others might find offensive, resulting in complaints and disciplinary action under the policies.
 
The tribunal rejected the claimant’s complaints on the basis that he did not produce any evidence in support of either group or individual disadvantage. In any event, had it been required to do so, the tribunal found that it would have found that the policies pursued the legitimate aim of retaining order and protecting prisoners within the prison environment, and that they were a proportionate means of achieving that aim. The EAT agreed.
 
Company vicariously liable for sexual assaults
 
The women involved in the claim had been asked to undergo pre-employment medical examinations between 1968 and 1984 with an independently contracted doctor, Dr Bates. The claimants had applied for jobs at the bank and, as a condition of their employment, had to pass a pre-employment medical examination. Dr Bates was independently contracted by Barclays to carry out these examinations at his home.
 
The court found that the assaults had been committed as a result of activity being undertaken by the doctor on behalf of the bank, and the doctor was under the control of the bank as they could direct what he did, even if they didn’t direct how he should do it. It also found that there was a sufficiently close connection as the assaults were inextricably interwoven with the carrying out of the doctor’s duties.
 
The Court found that it was fair, just and reasonable to impose vicarious liability on Barclays as this was now the claimants’ sole legal recourse (Dr Bates had died in 2009). Barclays had the resources to pay the claimants’ claims and therefore it was just that they should be held liable.
 
Company held responsible for psychiatric illness
 
The Claimant claimed that she was subjected to bullying and harassment. She was removed from her role to work with another team at a different location. A little over a year later the claimant’s line manager suggested that she return to her previous team. A meeting followed during which she broke down in tears and her line manager suggested to her that women took things more emotionally than men, while men tended to forget things and move on. She was signed off with work-related stress and, following her ultimate dismissal, she brought a number of tribunal claims.
 
The tribunal upheld a sex discrimination complaint in relation to the comment made by the Claimant’s line manager. It also held that the Claimant’s dismissal had been unfair, discriminatory and an act of victimisation. A large award was made for pecuniary loss and there then followed some debate as to whether the psychiatric illness the Claimant had suffered from was capable of being divided between the sex discrimination said to have occurred on the day of her line manager’s comment, and the other alleged incidents which were said to have occurred previously (none of which had resulted in the tribunal making a finding of sex discrimination). The tribunal held that it was indivisible and the EAT agreed, at which point BAE appealed.
 
In this instance the tribunal had accepted that the line manager’s comment had been the final straw that had pushed the claimant, who had not been suffering from mental illness at that point, over the edge into mental illness.
 
EAT rule in Asda Stores Ltd v Mrs S Bierley and others that claimants who work in Asda’s retail stores can compare themselves with higher paid men who work in distribution centres

Employees can compare any terms in the contract of employment with the equivalent terms in a comparators contract.  A comparator is an employee of the opposite sex working for the same employer, doing like work of equal value.

Doing like work of equal value is the key here. Even if a woman does not perform like work to a male comparator and the employer has not carried out a job evaluation scheme, she can still claim her work is of equal value. The value of the jobs is measured by comparing them in terms of demands such as effort, skill and decision making.

Humping a table claim

A man who was accused of ‘humping’ a table in front of colleagues has won £15,000 at an employment tribunal after bringing a claim against his dismissal. 

The tribunal was told that Siemens’ engineering factory in Newcastle was often home to conversations including strong, sexual language, and it was not uncommon to see photos of nude women.   On 25 October 2016, a sex toy in a parcel without a named addressee arrived at Siemens’ reception. This stirred up some discussion, during the course of which Cuthbertson twice lowered his trousers to expose his underpants. He then proceeded to “hump a table”, in the words of a female colleague who witnessed the second incident.
Siemens decided this behaviour was sufficient to dismiss Cuthbertson without notice. The company’s disciplinary rules specifically prohibited using bad language or undertaking serious actions or behaviour, either inside or outside the workplace, which were likely to bring the organisation’s name into disrepute. These were listed as examples of gross misconduct warranting a dismissal. 

During the subsequent investigation, disciplinary hearing and appeal, Cuthbertson apologised for his behaviour and vowed to not repeat it, calling it a “moment of madness”.

Finding the dismissal wrongful and unfair, the Judge decided that the decision to dismiss was “wholly disproportionate” to the actions committed, particularly as conversations of a sexual nature had been treated as commonplace at Siemens in the past.

Gig economy claim

The Tribunal has held in the test case of Mr Lange and others v Addison Lee Limited that the Addison Lee drivers were workers and were therefore entitled to bring claims for holiday pay under the Working Time Regulations as well as National Minimum Wage claims.

The drivers had to apply to be drivers and Addison Lee has to carry out certain checks. They need the relevant licence, are interviewed for suitability, and are tested about their knowledge of London. They then sign a couple of agreements, the second of which, the Hire Agreement, entails a weekly rental fee and, although there is an insurance opt-out which allows drivers to seek alternative insurance arrangements, few if any ever do so. The obvious conclusion is therefore that the drivers are undertaking to carry out driving work for Addison Lee in the vehicles they are agreeing to hire.
 
They remain under Addison Lee’s rules between driving jobs, their use of the car is restricted and regulated and they cannot remove the Addison Lee insignia from the car. Whenever a driver logs onto the system there is a contract “whereby the individual undertakes to do or perform personally any work or services” for the other party.
 
The drivers are in a subordinate position. They need to hire a car supplied by Addison Lee to do their work, and do not use the vehicle for other commercial or income earning purposes. The claimants in this case derived their whole income from the driving work they carried out.