In a claim ongoing since 2016, three homecare service providers have agreed to pay ten care workers the national minimum wage (NMW) for travelling and waiting time between care appointments.  Approximately £100,000 is the amount of the backdated payments in total.

The agreement between the parties is recorded by the employment tribunal in a short judgment by consent. This does not give any opinion on whether the NMW is legally due to the claimants in respect of travelling and waiting time based on the specific facts of the case.

The judgment states that the claimants asked for the methodology they used to calculate the value of their claims to be appended as a “useful guide” for similar claims.

Key aspects of the claimants’ methodology are as follows:

• A sample reference period was chosen.
• To calculate waiting time, the case of Whittlestone v BJP Home Support Ltd [2014] ICR 275 was used as a yardstick. Two issues not explicitly addressed in this case were raised: first, that care workers should not be penalised if the employer rosters them inefficiently; and second, that they should be paid for gaps between appointments that are not sufficient to allow them to return home and relax. Gaps exceeding 60 minutes were disregarded for the purpose of the calculation.
• Google Maps and Citymapper were used to estimate travel times between postcodes, based on off-peak journeys.
• To calculate the total value of their claims, the claimants added together travelling time between appointments during the day for gaps of 60 minutes or less, waiting time between appointments where travel was undertaken and there was an additional gap after travel and before the next appointment (but where the overall gap between appointments was less than 60 minutes), and the total duration of an appointment.

This methodology is not binding on future cases. Although suggested by the claimants, there are aspects of it which potentially underestimate the value of their claims (for example, disregarding gaps between appointments exceeding 60 minutes, and using off-peak travelling times when a number of claimants allegedly travelled at peak). It therefore remains to be seen whether the methodology is useful enough to be relied upon by claimants going forward.

A Christian teaching assistant lost her job over a Facebook post where she shared a petition against teaching about LGBT relationships in primary schools claims that the dismissal breached her freedom of speech and freedom of religion.   The teaching assistant, who is supported by the Christian Legal Centre, was dismissed for gross misconduct after her school found that she had discriminated against LGBT pupils in a disciplinary process.

New legislation introduced by the government to make several technical changes to employment tribunal and early conciliation procedure aimed at reducing bureaucracy and increasing the capacity of the employment tribunals to hear claims.

They amendments provide that, from 8 October 2020, non-employment judges may sit as employment judges, subject to certain criteria. Additionally, some functions currently carried out by employment judges may be delegated to legal officers. Further, various changes are also to the Employment Tribunal Rules which include making it easier for tribunals and parties to conduct remote hearings, giving the tribunals greater powers to accept claims which contain administrative errors and giving parties wider scope to deal with multiple claims or responses in one form.

Additional changes to the Acas early conciliation procedure will come into force on 1 December 2020. From this date, the Amendment Regulations provide for a six-week conciliation period in all claims instead of the one-month period which currently applies, although the parties will no longer be able to agree to extend the conciliation period by 14 days. It will also be possible for conciliators to correct errors in the early conciliation form at any time during the early conciliation period.

The employment tribunal has awarded an employer £432,000 in costs, which is thought to be the largest costs award made by the tribunal to date. A former employee had unsuccessfully brought claims of unfair dismissal, age discrimination, race discrimination, sex discrimination, victimisation, harassment, whistleblowing detriment and unfair deduction from wages following a redundancy process. The size of the award follows a judgment finding that the employee had been “duplicitous” and had undermined the trust and confidence between himself and his employer.

April to June 2020 employment tribunal quarterly statistics have been published by the Ministry of Justice.  During this period, single claim receipts and caseload outstanding rose by 18% and 31% respectively, while disposals decreased by 21% to 4,496 compared to the same period in 2019. The mean age of cases at disposal decreased to 32 weeks.

In contrast, multiple claim receipts and disposals dropped by 43% and 47% respectively, while caseload outstanding increased by 6%.

Annual compensation and costs awards figures have also been published for the employment tribunals and the EAT.  A total of 160 discrimination cases were awarded compensation in 2019/20; the highest award was for disability discrimination amounting to nearly £266,000. Age discrimination claims received the largest mean average award £39,000 compared to other discrimination jurisdictions.  No awards for religion or belief discrimination were recorded.  Unfair dismissal mean average awards decreased to £10,812, from £13,704 in the previous annual figures.

As a result of the figures, the Ministry of Justice stated that the increase in single claim receipts was likely due to rising levels of unemployment and changes to working conditions during the COVID-19 pandemic, noting that this was “the highest level of single employment tribunal claims since 2012/13”.  Similarly, caseload outstanding surpassed its peak levels recorded in 2009/10, driven by the increase in single claim receipts and the reduction in disposals. Looking ahead, employment lawyers have warned that the number of cases concerning redundancy, employment terms, and contractual issues surrounding pay and benefits is set to “skyrocket”.

https://www.gov.uk/government/publications/tribunal-statistics-quarterly-april-to-june-2020/tribunal-statistics-quarterly-april-to-june-2020

https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-april-to-june-2020

The number of employment tribunal claims continues to rise according to the Ministry of Justice’s quarterly statistics for the period 1 July to 30 September 2019. Compared to the same period last year, single claim receipts, disposals and caseload outstanding all increased (by 38%, 4% and 40% respectively). For multiple claims, receipts decreased over the same period, by 10%, while disposals and caseload outstanding increased by 77% and 7% respectively.

During this quarter, 33% of disposals were dismissed upon withdrawal; 19% were Acas conciliated settlements, 17% were withdrawn, 13% were struck out (not at a hearing) and 9% were successful at hearing. The most common jurisdictional complaint disposed of was unauthorised deductions from wages (which was also the most common complaint in July to September 2018).

59 applications for refunds of tribunal fees were received (down from 140 in the first quarter of this year) and 170 refund payments were made with a total value of £364,000. Since the launch of the refund scheme in October 2017, 22,000 refund payments have been made with a total value of £18 million.

The Employment Rights (Increase of Limits) Order 2020 (SI 2020/205) has been laid before Parliament and increases the limit applying to certain awards of employment tribunals and other statutory payments on 6 April 2020.

In particular, the maximum compensatory award for unfair dismissal will rise from £86,444 to £88,519 and the maximum amount of a week’s pay, used to calculate statutory redundancy payments and various awards, including the basic and additional awards for unfair dismissal, will rise from £525 to £538.

The draft Social Security Benefits Up-rating Order 2020 has also been published and increases the rates of statutory sick pay, maternity, paternity, adoption and shared parental pay as follows:

• The statutory sick pay rate will increase from £94.25 per week to £95.85.
• The statutory rate of maternity pay, paternity pay, adoption pay and shared parental pay will increase from £148.68 per week to £151.20.

The Employment Appeal Tribunal (EAT) has upheld a tribunal’s decision that deductions from wages for rent were not to be treated as reductions for the purposes of calculating the national minimum wage (NMW), where the landlord was a separate property company connected to the employer.

The same individual was also director and sole shareholder of the employing company and the property company.  The Judge held that, as the appeal had been brought solely on the basis that the term “employer” should include a connected company, it had to fail. 

The Judge further commented that, if the appeal had been brought on wider grounds, i.e. that the employer had still been responsible for providing the accommodation to the worker notwithstanding that it was not the landlord, the outcome could have ‘quite possibly’ been different.

In addition, the EAT upheld the tribunal’s decision that deductions for training costs, taken out of the workers’ wages pursuant to a contractual provision if they left employment within 12 months of completing mandatory induction training for any reason other than redundancy, did constitute reductions for NMW purposes.  The situation would have been different if the deduction had been made during employment, which would be a reduction for NMW purposes, and the fact that it was deducted post-termination, or was contractual in nature, or was contingent, did not alter the position.

An employment tribunal has found that a hairdresser who worked under a consultancy agreement with a salon for five years was an employee.

Ms Gorman started at Terence Paul salon in Manchester in 2013 as an apprentice.  Following her qualification in 2014, the salon provided her with an “Independent Contract for Services” in which it agreed to engage her as a “self-employed hairstylist”, which confirmed that Ms Gorman was not, and did not wish to be, an employee of the salon.

However, the salon closed in 2019.  Subsequently, she issued a claim for unfair dismissal, sex discrimination, notice pay, holiday pay and redundancy pay.  Since the salon disputed that Ms Gorman was an employee or worker, a preliminary hearing took place to determine this issue.

Ms Gorman was 19 years old when she started working for the salon and she didn’t understand and was not able to negotiate the terms of the contract.  It also found that the contract did not reflect the reality of her working arrangements.  She was subject to strict control by the salon when providing her services.  There was mutuality of obligation, since her clients were allocated to her by the salon, she was obliged to perform services for them, and the salon was obliged to pay her for providing those services.  Although, the contract theoretically allowed her to send a substitute if she could not attend work, in practice this was not possible.  If she was unable to work, her clients were covered by other stylists at the salon.  Including but not limited to, Ms Gorman:

• had no access to information about her clients (as this was password-protected by the salon).
• was prevented from working for a competing salon during her contract and subject to a 12-month non-compete following termination.
• had to seek permission to take holiday.
• had 67% of her fees deducted by the salon for use of facilities.

Based on these facts, the tribunal held that the tests for employee status were easily identified.

This is a further reminder of the approach a tribunal will take when establishing employment status, and that the underlying contract must be considered in the context of all the other facts.

The Employment Appeal Tribunal has upheld an employment tribunal’s finding that a dismissal for “some other substantial reason”, effected by an employer without following any procedure, was not unfair.  Following a breakdown in working relations between the claimant and her line manager, arising out of various workplace disagreements, the claimant was informed at her annual appraisal that she was being exited from the business due to a lack of trust.  However, there had been at least two previous meetings to consider the difficulties in the relationship.

The EAT noted that a failure to carry out any procedure would in many cases lead to the conclusion that the dismissal was outside the band of reasonable responses. However, where following procedures could reasonably be considered as being futile, the employer may dispense with them, a rare example of such a case.  The claimant was a senior manager whose continued good working relationship with her manager was critical during a difficult period for the employer’s business.  Having thoroughly considered the evidence, the tribunal had found not only that a procedure would not have served any useful purpose, but that it would have worsened the situation.  This was a conclusion it had been entitled to reach.  It was effectively a personality clash between two senior managers, where neither individual had trust and confidence in each other.  The evidence demonstrated that the claimant recognised the breakdown in relations herself and had no interest in repairing it.  Given the circumstances, the tribunal’s finding could stand.

The Employment Appeal Tribunal (EAT) has found that two foster carers who had signed a written “multi-treatment foster care” (MTFC) agreement were employees of the local authority who had approved them as foster carers.  The tribunal found that parts of the written agreement reflected the statutory regulatory framework and therefore, could not be contractual in nature, and that other parts were merely designed to provide helpful information to the foster carers and were not matters that were usually considered to fall within the province of contract law.   However, the parts of the agreement relating to a professional annual fee of over £30,000, which had the appearance of remuneration as opposed to simply covering costs, and which provided for the local authority to exercise a very high degree of control over the foster carers, were contractual in nature.  This contract had the hallmarks of a contract of employment and the tribunal had not erred in finding that the foster carers were employees.  However, the Judge expressly declined to express a view on whether the same finding would apply to “ordinary” foster carers not appointed under this arrangement.

 

 

The Employment Appeal Tribunal (EAT) found that a teacher was unfairly dismissed for misconduct after being charged of being in possession of indecent images of children, but he was not prosecuted.  The teacher admitted that a computer in his home contained indecent images but denied responsibility for downloading them. The school found that there was insufficient evidence to conclude that the teacher was responsible for the images but decided that he should be dismissed in any event because allowing the teacher to return to his post would pose an unacceptable risk to children.  In the dismissal letter, the school also referred to the “serious reputational damage” if the teacher was subsequently found guilty of this kind of offence and the school had been aware of the allegations.

Allowing an appeal, the EAT found that the complaint as set out in the disciplinary invitation was based solely on misconduct and gave no notice that reputational damage was a potential ground of dismissal.  In these circumstances, the employer was bound to decide on whether the misconduct had been established.  Had it done so, it would have been bound to conclude that misconduct had not been established.  The EAT could not accept that an employee could be dismissed based on a matter that was only mentioned in an investigatory report, not in the actual complaint.  Although reputational damage may be regarded as a separate ground of dismissal, it raises separate considerations to those in a misconduct dismissal, which must be made clear from the outset.  In this case, the teacher had not been given an opportunity to address the reputational issue in any detail at the disciplinary hearing.

Considering whether a fair dismissal would have been possible, had the school referred to reputational damage in the original complaint as set out in the disciplinary invitation, the EAT found that the scant evidence available meant that the teacher was dismissed in the absence of any information about the nature or seriousness of the images, or the reasons why no prosecution was brought.  In view of this, the EAT found that the evidence was insufficient to support a dismissal based on reputational damage.

 

The Ministry of Justice has published the employment tribunal quarterly statistics for the period April to June 2019. During this period, single claim receipts and outstanding caseload increased by 14% and 19% respectively, when compared to the same period in 2018. In comparison, during the same period, disposals decreased by 3%. The mean age of cases at disposal increased from five weeks to 33 weeks.

Receipts and disposals in multiple claims decreased by 57% and 38% respectively compared with the same period last year, while there was an 11% increase in caseload outstanding. The mean age of multiple claims at disposal rose from 133 weeks to 140 weeks.

Between the launch of the fee refund scheme in October 2017 and 30 June 2019, 22,100 applications for refunds were received and 22,000 refund payments made, with a total value of approximately £17,600,000. The last quarter accounted for 138 of the applications and 310 of the refunds, with a value of £265,000.

The Ministry of Justice has also published employment tribunal annual statistics for the year 2018/19, providing information on representation and compensation levels. 64% of claimants were represented by a lawyer, compared with 74% in 2017/18. In contrast, 21% of claimants had no representative in 2018/19, up from 17% in 2017/18.

The mean average compensation for unfair dismissal and all forms of discrimination, save age, has dropped.

Overall, costs awards to claimants were made in a relatively small number of cases, dropping from 169 in 2017/18 to 51 in 2018/19. Awards to respondents dropped from 310 to 158.

Following the eradication of tribunal costs, the amount of claims brought in the employment tribunal are rising, based on the statistics between 1 January to 31 March 2019 produced by the Ministry of Justice.

When looking at the 1 January to 31 March 2018, single claims had increased by 6%, disposal of claims had increased by 22%, and ongoing claims had increased by 16%.

Last year, a disposal would take 27 weeks, however the new statistics show that it now takes 33 weeks. The Ministry of Justice are aiming to dispose 75% of cases within 26 weeks.

In respect of multiple claims, they are taking 122 weeks, which has decreased from 202 weeks. Receipts for multiple claims increased by 13%, and disposals increased by 19%. However, claims that were ongoing decreased by 16%.

Up until 31 March 2019, 21,700 rebates for Employment Tribunal costs have been made. Two applications for rebates per day are being received on average. The total amount that has been rebated is now £17.3 million.

An NHS radiographer, Sue Allison, previously made a series of protected disclosures regarding a series of cancer misdiagnoses and was asked to sign a non-disclosure agreement by her employer. Ms Alison brought an employment tribunal claim challenging the terms of the non-disclosure agreement, which prevented her from publicly airing her concerns or bringing future claims against the NHS. Ms Allison attempted to get the non-disclosure agreement revoked by arguing that it was unlawful to ask her to sign the agreement without her first obtaining legal representation. Ms Allison alleges that she has been blacklisted by the NHS and has been asked about the incident during several job applications.

Ms Allison’s case was heard in Manchester on 2 April, during which bosses from the University Hospitals of Morecambe Bay NHS Foundation Trust applied for her case to be dismissed on the grounds she had signed an agreement in 2015 which prevented her from bringing future claims against the Trust amid allegations she was bullied by colleagues. The employment judge ruled in her favour and paved the way for a full tribunal next Spring. Since Ms Allison’s case was heard, Health Secretary Matt Hancock has promised that gagging orders for whistleblowers will be banished from the NHS.

The employment tribunal quarterly statistics for the period October to December 2018 published by the Ministry of Justice.  

During this period, receipts, disposals and outstanding caseloads all increased (by 23%, 30% and 53% respectively) compared to the fourth quarter of 2017.  Receipts in multiple claims fell by 78% in the quarter, while disposals and caseload outstanding in multiple claims rose by 35% and 18% respectively.

Between the launch in October 2017 and 31 December 2018, a total of 21,800 applications to the employment tribunal fee refund scheme were received.  However, only 300 of these were received in the quarter October to December 2018.  As explained in the report, the decline was due to the e-mailshot campaign which culminated in July 2018 as it resulted in exceptionally high receipts, in the previous quarter, particularly in England and Wales.

Over the period of October 2017 to 31 December 2018, a total of 21,300 fee refunds were made, with a total value of £16,950,000; 1,300 refunds being made in the quarter October to December 2018.

A plan has been announced to modernise employment tribunals. The aim is to have an electronic case management system which will enable tribunal users, panel members and judges to view cases electronically, and judges will be able to manage cases online. A database of precedent orders, notices, letters and documents will be available on the system also.

This will begin in the employment tribunals between January and March 2020.

At all hearing rooms in the employment tribunals, applicable IT equipment will be available so that tribunal users can view and show documentation electronically. Further, during 2019, recording equipment will be at all hearings to ensure transparency, and so that judges and panel members have a report of what was discussed during the hearing. This is currently being trialled in the employment tribunal in Cardiff.

The Department of Business, Energy and Industrial Strategy (BEIS) has published guidance for users of employment tribunals on the powers available to tribunals. This is a response to feedback that a lack of awareness or rather confusion over exactly what powers tribunals have. Clarity was provided in the following areas:

– tribunal powers to act against specific employment law breaches

– poor behaviour in bringing or defending a claim

– the way a case is conducted

– the ways powers are applied

 

The hope is that the guidance will provide an accessible explanation for all tribunal users as to the extent of tribunal powers available and the use of illustrative case law ill demonstrate how tribunals use their powers.

Source: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/780614/employment-tribunal-powers-user-guidance.pdf

The Ministry of Justice has recently published, the employment tribunal quarterly statistics for the months July to September 2018.

When compared to the same period of 2017, receipts, disposal and outstanding case loads all increased with case loads surging to an increase of 77%. However, multi-claims fell by roughly 30% in respect of receipts and disposals, adversely, the caseloads for multiclaim rose by 30% during that period.

A further point noted from the statistics is 28% of complaints were disposed of via ACAS conciliated statements, 24% of complaints were withdrawn and 10% were completely struck out. Whilst a mere 8% were successful. The most common of complaints being “unauthorised deductions”.

Since the launch of the Employment Tribunal Fee Refund scheme introduced back in October 2017, over 21,000 applications were received. With around 20,000 of the claims receiving refund payments totally £15,825,000.00.

Link: https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-april-to-june-2018

Employment Tribunals are looking to the future and have announced a trial period of pilot online trials, like those of Tax Tribunals. This system will allow cases to be conducted online from beginning to end using online resources and video hearings.

 

The Senior President of Tribunals  believes this system could alleviate issues such as accessibility for disabled users of the courts. However, the scheme has been published with the main objective of encouraging settlements.