EMPLOYMENT LAW UPDATE – JULY 2017
Termination Payments
The government has confirmed that termination payments that are subject to income tax on amounts in excess of £30,000 will be subject to employer NICs from April 2018. The £30,000 exemption on termination payments will remain. Employer NICs will be imposed on these payments.
IT’S ALL ABOUT BEING ACCOMPANIED!
Breach of right to be accompanied
The employment tribunal has considered whether there was a breach of the right to be accompanied, in Gnahoua v Abellio London Ltd.
The claimant was dismissed from his employment as a bus driver. He was suspended for a failure to carry out a walk round check (before first taking a bus out the driver was responsible for carrying out a check). It then transpired that he had been using his iPad when the bus was moving (albeit only very temporarily and without passengers on board) and he was dismissed for gross misconduct. He brought a number of claims, including a claim for a breach of his right to be accompanied.
The claimant, who was a member of the PTSC union, wished to be accompanied by one of two trade union representatives who had been banned from representing employees in disciplinary or grievance hearings due to their threatening behaviour towards members of staff and their dishonesty. His employer responded that they were happy for him to be accompanied by a member of the PTSC union but explained the reasons why he could not be accompanied by either of the ones he wanted.
The tribunal found that this was a breach of the claimant’s rights. The tribunal was satisfied that no loss or detriment was suffered by the claimant and so awarded nominal compensation of £2! The compensation awarded was minimal, however it shows that the employer has very little say over who can accompany an employee.
The employee’s right to be accompanied
In Stevens v University of Birmingham, the claimant was seeking a declaration that he was entitled to be accompanied at an investigatory meeting by a person who did not meet the criteria as stipulated by the University conducting the investigation. A declaration was made giving the claimant permission to be accompanied by his choice of person.
The claimant explained that he had no friends who were employees of the University who would be suitable to accompany him to the meeting nor was he a member of a trade union. He requested to be accompanied by someone who did not satisfy these criteria saying that if he could not, he would be compelled to attend the meeting unaccompanied and that this would be unfair. Despite the university refusing on the grounds of setting a precedent, the court decided in the claimant’s favour on the grounds that it would be conspicuously unfair to insist that on the literal adherence to the terms specified.
The law says that you have the right to be accompanied at a dismissal decision hearing by a fellow worker, a trade union official or a trade union representative (who has been certified by their union as being competent to accompany a worker) if you so wish. Your companion will, be able to put your case; sum up your case; and respond on your behalf to any view expressed at the hearing. He/she will also be allowed to confer with you during the hearing. However, he/she will not be able to answer questions on your behalf. Employers often rely on this well-known guidance, however it might not always be the case!
Bereavement and compassionate leave – what are your obligations?
After the COO of Facebook, Sheryl Sandberg announced that employees can take up to 20 days paid leave if an immediate family member dies – it makes us all ask this question.
The Employment Rights Act gives employees a day-one right to have “reasonable” time off to deal with an emergency, which could include a bereavement involving a dependant, but that’s as far as the law goes.
It’s therefore important you have a policy in place for when the inevitable happens and an employee comes to you asking for leave. This will ensure that you are consistent across your workforce.
BHS in redundancy tribunal
After an employment tribunal recently awarded 110 BHS head office workers up to 90 days’ wages (up to £1m) for ‘complete failure to consult’ staff before dismissal, it highlights the need to ensure that employers follow the correct procedures for redundancy.
The employee’s lawyers, successfully argued that BHS failed to fulfil its legal duty to consult with staff for at least 45 days before making them redundant when the retailer collapsed last April.
BHS will have to hand the staff the equivalent of 40 days’ pay, and the defunct company’s estate will be liable for the remaining 50 days’ money. Payments will vary in size depending on salaries but the government’s contribution is capped at £3,800 per person.
This case serves as a stark warning to employers to follow the correct procedures when making redundancies. It is so important to get the process right.
Mother fired for putting her disabled daughters needs first
A woman who lost her job at a community advice centre has won a disability discrimination case – on behalf of her disabled daughter. She was awarded £19,000 including £10,000 for injury to feelings.
Employers need to be careful when dealing with employees who are the primary carer for a disabled person.
£182,000 compensation win!
An accountant won £182,000 compensation from his firm because he was pushed out of the business when he turned 65. The accountant did not want to retire, yet the firm had even recruited a replacement in anticipation for his departure!
Aspergers syndrome candidate ruled as discriminated against
The individual was a candidate in a recruitment process and was asked to take a situational judgement test.
She scored 12 marks but needed 14 or more to pass. She argued that she ought to have been allowed to submit written answers to the questions rather than pick from the multiple choice responses.
It was ruled that the reason she failed the test was due to her disability, the company failed to make reasonable adjustments and had indirectly discriminated against her.
Advice from the National Autistic Society on making adjustments during the recruitment process includes avoiding hypothetical or abstract questions, being aware that candidates may interpret language literally and taking into account that asking candidates on the autism spectrum (which includes aspergers) the same interview questions as all other candidates may not offer them an equal chance.
Reference claim
A tribunal ruled that a man had been discriminated against after his ex-employer made comments linked to his sickness absence in a reference.
During the course of his employment, the individual had two lengthy periods of absence – one after he and his partner lost a baby, and a further stint for shoulder pain and hearing loss in his right ear. After being made redundant, he brought a separate case, arguing that his dismissal was unfair and he was discriminated against because of his disability. The Company has since conceded, but the disability discrimination claim is ongoing.
After a three-year period of unemployment, he was offered a job in 2015 and his former employer was approached for a reference. Shortly after receiving the reference, the job offer was withdrawn. In the reference, the company noted it would not re-employ the individual, with the CEO later explaining at tribunal that this comment was linked to his sickness absence. However, the tribunal found that the employer’s records on his absences were overestimated to a “substantial degree”, therefore his potential employer had been provided with inaccurate figures.
The tribunal ruled that the organisation had “failed to provide any favourable information about the individuals personally or about his performance. This amounted to a detriment and it created what appeared to be an entirely false and misleading impression of his successful eight-year career.
Our recommendation is that you adopt of a blanket policy of confirming dates of employment and the role held only
Jaguar Landrover in £20k “hurt feelings”payout
A worker has been awarded £20,000 after laying claims of disability and race discrimination, harassment and unfair dismissal at his ex-employer.
The individual told the tribunal that a poster, which JLR claimed was created to discourage disruptive workforce behaviour, was deliberately brought to his attention. The poster read: “Don’t let one bad apple spoil the bunch.” He alleges that a process leader asked him if he’d seen the poster and that the same leader asked a non-white colleague: “Have you heard about the black apple campaign?”