Thursday 17 December 2015

Another challenge to tribunal fee regime


A Significant employment law decision expected in 2016 –Employment Tribunal fees, R (on the application of Unison) v Lord Chancellor and another (Supreme Court). 2016 will see Unison have one last attempt at challenging the introduction of fees for bringing an employment tribunal claim. Case to be heard in the Supreme Court. While it was rejected by the Court of Appeal, it did say the decline in claims is “sufficiently startling”. For more information see:
 
 

Wednesday 29 July 2015

At last Government to simplify tax on settlements

It looks as if The Government is at last to simplify a delineated system of ascribing tax to settlements. We all know that tax and employment tribunal decisions have been at odds in the past and in order to advise clients you have to tip toe around case law and guidance of Byzantine complexity. Well fortunately, The Government have decided to launch a consultation.

The best bit is that the proposal as it stands (para 10) will remove the distinction between the tax and NICs treatment of contractual and non-contractual termination payments. This will hopefully remove the majority of the complexity and misunderstanding within the existing system.

This blanket exemption it is proposed will be set at a lower threshold than £30,000. It is reported at 4.16 that:

'One approach the government is considering is to create a new exemption which increases proportionately with the number of years of service the employee has completed. This would create a new fairer exemption which will proportionately reward long serving, lower paid employees.'

We shall wait and see whether there is devil in the detail.

Responses to the consultation can be emailed to: employmentincome.policy@hmrc.gsi.gov.uk.

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Tuesday 14 July 2015

Companies to publish gender pay gap information

The Government has confirmed that it will legislate under S.78 of the Equality Act 2010 to require companies with 250 or more employees to publish gender pay gap information. It has published a consultation paper on the detail of the regulations to be made under S.78, seeking views on the level of gender pay information to be required and the frequency of publication.


It asks whether the information should be the overall difference between the average earnings of men and women as a percentage of men's earnings, or whether it should be broken down by full-time and part-time employees, or by grade or job type. It also asks whether employers should be required to provide additional, contextual information, explaining any pay gaps and setting out what remedial action they intend to take; and how often employers should be required to publish such information. Under S.78 EqA, the information can be required to be published annually at most.  

The consultation closes on 6 September 2015. The regulations are expected to be made in the first half of 2016, although implementation may be delayed to give businesses time to prepare.

Link to consultation document: https://www.gov.uk/government/consultations/closing-the-gender-pay-gap

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Wednesday 3 June 2015

Updated list of prescribed people/bodies for whistleblowing purposes

The Department of Business, Innovation and Skills has updated its list of prescribed persons and bodies to whom individuals can make a protected disclosure see this download

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Monday 1 June 2015

New law introduced in May under the Small Business, Enterprise and Employment Act 2015


The first commencement order made under the Small Business, Enterprise and Employment Act 2015 has been published. From 26th May 2015, this brought into effect the following:

Section 153 which inserts a new section 27A into the Employment Rights Act 1996 to prohibit clauses that prevent exclusivity in zero hours contracts and a new section 27B which gives the Secretary of State power to make further provision dealing with the anti-avoidance aspects.

Section 152 which inserts section 19A into the National Minimum Wage Act 1998, to provide that the financial penalty in a notice of underpayment will be set at 100% of the arrears owed to each worker to who the notice relates, subject to a maximum of £20,000 per worker. Previously the £20000 limit applied to each notice of underpayment.

Section 149 which inserts section 49B in the ERA 1996 to provide the Secretary of State with a power through regulations to prohibit defined NHS employers from discriminating against a job applicant because it appears to the NHS employer that the applicant has made a protected disclosure.

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Thursday 28 May 2015

Case in point: John Yapp V Foreign and Commonwealth Office (FCO)


Courts may be reluctant to conclude that psychiatric injury is a foreseeable consequence of unfair treatment of an employee, unless there is some evidence of a pre-existing medical condition.

In the case of Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512, the Court of Appeal had to decide whether an employee could claim compensation arising from a depressive illness, following alleged breaches of contract and the employer's common law duty of care.

Mr Yapp was the British High Commissioner in Belize who was summarily withdrawn from post in June 2008 after false and offensive allegations of sexual misconduct were made against him by a Belizean politician in opposition, Mr Eamon Courtenay. He not only lost his job with attendant allowances and benefits but became ill with clinical depression after being withdrawn from post and then subjected to a lengthy disciplinary process, during the course of which the allegations of sexual misconduct were dismissed unequivocally and following hostile media intrusion and inaccurate reporting repeated internationally, which caused immense distress to Mr Yapp and his family and in respect of which he brought a successful libel action against the Mail on Sunday.

 Mr Yapp was offered no other position by the FCO and never returned to work. In due course he retired.

 In May 2013 the High Court (Cranston J) found the FCO liable to pay damages to Mr Yapp for breach of contract and for breach of its duty of care to Mr Yapp following his summary withdrawal from post.
The High Court found that the FCO should have treated the allegations concerning Mr Yapp’s conduct with some caution and conducted an initial investigation before taking any action. By removing him from his position without any discussion, it had acted in breach of an express clause in his contract that assured him of “fair treatment” during any disciplinary proceedings and in breach of its implied duty of care towards him. In addition, the judge held that it was reasonably foreseeable that Mr Yapp would suffer psychiatric harm as a result of the FCO’s actions and held that he could recover damages for this aspect of his claim. Although the judge accepted that Mr Yapp had “an ostensible robustness”, it remained reasonably foreseeable that his depressive illness could result from a “knee-jerk withdrawal from post”. Damages were agreed between the parties at £320,000 and the FCO appealed.


Court of Appeal decision

The Court of Appeal agreed with the High Court that the FCO had acted in breach of contract in removing Mr Yapp from his position without first conducting a preliminary investigation and putting the allegations to Mr Yapp. Whilst the FCO did have the discretion under Mr Yapp’s contract to withdraw him from his post for “operational reasons”, there was still a requirement to confirm the reliability of the allegations being made before such withdrawal. Accordingly, the FCO had acted in breach of Mr Yapp’s contract and in breach of the implied duty of care. The case was remitted to the High Court to decide the level of damages.

The Court of Appeal also dismissed FCO’s appeal on the issue of whether its actions had caused Mr Yapp’s depressive illness. The Court was satisfied that the High Court could rely on a medical opinion, which found that the unfair treatment of Mr Yapp was one of the factors that had caused or contributed to his illness.

However, the Court of Appeal allowed the FCO's appeal on the issue of whether Mr Yapp’s illness was reasonably foreseeable. Accordingly, Mr Yapp was not entitled to be awarded damages for his depressive illness as the Court determined that it was too remote a consequence from the breach of contract.

The Court came to the conclusion that it was wrong to find that it was reasonably foreseeable that the FCO’s conduct in withdrawing Mr Yapp from post without having had the opportunity to state his case might lead him to develop psychiatric illness. According to the Court, it would be exceptional for an apparently robust employee, with no history of any psychiatric ill health, to develop a depressive illness as a result even of a very serious set back at work. The FCO could not have foreseen, in the absence of any sign of special vulnerability, that Mr Yapp might develop a psychiatric illness as a result of its decision. It therefore followed that the losses were too remote to be recoverable following the breach of contract.


This decision demonstrates that the courts may be reluctant to conclude that psychiatric injury is a foreseeable consequence of unfair treatment of an employee, unless there is some evidence of a pre-existing medical condition. However, it is important to bear in mind that this will remain a risk even without any evidence of pre-existing conditions, particularly if there has been a significant breach of contract or duty of care. Future judgments will be watched carefully for guidance. The Court in this case found that the employer’s actions caused the depressive illness and it would still be open to an employee to argue that any conduct was so unfair and unreasonable that it was foreseeable that the employee would develop such an illness as a result.

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Tuesday 26 May 2015

New rules on exclusivity but zero hour contracts are useful only for the few

Exclusivity terms unenforceable in zero hours comes into force under s 164(1). This section inserts the Employment Rights Act 1996, Pt 2A, which renders unenforceable any exclusivity term (see s 27A(3)) in a “zero hours contract” (see s 27A(1)) and provides power to the Secretary of State to make further provision in relation to “zero hours workers” (see s 27B(2)) in regulations.

At present, an individual subject to exclusivity terms in their zero-hours contract cannot seek work elsewhere, regardless of whether the employer offers only occasional, minimal, or even no hours of work but in my experience not many zero hour contracts contain this clause for the good reason that no one in their right mind would sign up to them. It is possible that in some areas of low employment the employers hold all of the cards and can engage workers in these onerous terms but surely these arrangements would be few and far between.

Zero hour contracts are not only flawed because the worker enjoys ongoing requirement to accept offers of work and no consequences but the on the flip-side the employer has a worker who does not have to accept the offer of work. No wonder then that this contractual white elephant is in danger of extinction and should be put out of its misery.

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Thursday 21 May 2015

Cameron's plan to seize illegal workers' wages "Emperor's New Clothes'?

The Government has announced details of a new immigration bill to be included in the Queen’s speech, which will propose a new criminal offence of illegal working that will allow police to seize the wages of anyone employed unlawfully see The Guardian .

It has been estimated that the backlog of people in Britain who have overstayed their visas and whose whereabouts are unknown is 300,000, but it is not known how many are working.

In my time working as a Barrister in immigration tribunals and hearing first hand accounts of migrants who had been working despite not having permission to do so, many ran the risk of working knowing that if they were caught their applications for further leave to remain would be more likely to be refused. If this doesn't work as a deterrent then why should a small prison sentence.

Furthermore, most sent all of their meagre illegal pay home to impoverished families and so it is highly likely that in the majority of cases there would be nothing to seize.

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Monday 18 May 2015

Anonymity order will not protect those facing allegations of sexual harassment

In BBC v Roden, the EAT held that a tribunal was wrong to take into account the risk of the public believing in the truth of unproven allegations of sexual harassment against an unfair dismissal claimant when deciding to extend an anonymity order. The public interest in open justice in such a case outweighed the individual’s right to a private life.

The EAT allowed the appeal against the privacy order. The employment judge had failed to carry out a proper balancing exercise between the public interest in open justice and R’s right to a private life under Article 8 of the European Convention on Human Rights. Furthermore, the judge’s acceptance that there was a risk that the public would conclude that R had actually committed the alleged offences was not a valid reason for continuing the anonymity order. The Supreme Court established in Guardian News and Media Ltd v City of Westminster Magistrates’ Court 2010 UKSC 1 that the risk of the public drawing unjustified inferences was not a reason for granting anonymity in a case where the unproven allegations related to terrorism offences. The EAT considered that the same principle fell to be applied in the present case. The public interest in open justice is regarded as outweighing the Article 8 rights of a person suspected of a serious criminal offence. The EAT noted that the public has become accustomed to the early identification of such persons (even before charge in many cases) and is trusted to distinguish between an allegation and a finding of guilt.

NB: There is also a useful discussion about Article 8 in relation to anonymity orders.

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Wednesday 13 May 2015

Short shrift afforded to claimant who failed to fully enter the ACAS conciliation number

Short shrift was afforded to a claimant who failed to fully enter the ACAS conciliation number on her ET1 in Sterling v United Learning Trust

Before THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

The Claimant submitted a claim form, fee, and application for remission to an Employment Tribunal office four days before time expired.  It was returned to her as rejected, mis-addressed by omission of her house number, at a time when it could not be re-submitted without being out of time, though the Claimant submitted it at the first opportunity.  The Judge inferred from her evidence and the material before him that she had not fully entered the ACAS conciliation number she had been given on her application form, and that the Employment Tribunal had been obliged by Rule 10(1)(c)(i) of the Employment Tribunal Rules to reject it.  No argument was made that it had not been reasonably practicable to submit the claim on time.  An appeal on grounds that the Employment Judge should not have drawn the inference he did, and that he had failed to hold it not reasonably practicable to submit the claim in time, was rejected - the former was a permissible conclusion, the second had not been argued before him but in any event he also dealt with the question and concluded that the reason for being out of time was the failure of the Claimant to record the ACAS number fully and correctly, a conclusion he was entitled to reach.

Perhaps the crucial paragraphs can be found here:


22.          Once it is accepted that the Tribunal was entitled to think that the form did have a couple of digits missing, the question is whether the Tribunal was then obliged to reject the form.  The wording of Rule 10 was not significantly in issue before me.  Where the rule requires an early conciliation number to be set out, it is implicit that that number is an accurate number.  The Tribunal had found it was not.  Once that appeared to be the case, the Tribunal was obliged to reject it, and that rejection would stand, subject only to reconsideration, which here was not asked for.  Although that might have been the failure of Mr McKenzie and not the Claimant herself, the Tribunal Judge had Mr McKenzie before him as her representative and was entitled, therefore, to think that there was no application for reconsideration. 

23.          As to the second ground, the difficulty here too is the lack of argument to the effect that it had not been reasonably practicable for the Claimant to present the claim earlier than she did.  Where an argument is not pursued before a Tribunal, a Judge is entitled to conclude that, since the burden is on the Claimant to show that it was not reasonably practicable, she has failed to discharge that burden.  That decision was in accordance with the law. 

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Monday 11 May 2015

Whistleblowing: Guidance for Employers and Code of Practice

Whilst doing a bit of research into whistleblowing I found this guide published by the Department of Business, Innovation and Skills on 20 March 2015:

This guidance will help employers:

understand the law relating to whistleblowing
put in place a whistleblowing policy
recognise the benefits whistleblowing can bring to an organisation
The code of practice gives examples of the commitments required in a whistleblowing policy and how it should be managed.

As most employment lawyers will agree there are so many technical tests to satisfy with whistleblowing    complaints that seeking advice from an employment specialist is crucial.

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Friday 1 May 2015

CLFIS v Dr Mary Reynolds judgment 'Focus on the discriminator'



Is it discriminatory to dismiss where a manager has decided to dismiss an employee on the basis of an adverse report about her from another employee who is motivated by her age?

No, held the Court of Appeal in CLFIS v Dr Mary Reynolds Neutral Citation Number: [2015] EWCA Civ 439

Crucial paragraph in the judgment of Lord Justice Underhill ::


In my view the composite approach is unacceptable in principle. I believe that it is fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination. That means that the individual employee who did the act complained of must himself have been motivated by the protected characteristic. I see no basis on which his act can be said to be discriminatory on the basis of someone else's motivation. If it were otherwise very unfair consequences would follow. I can see the attraction, even if it is rather rough-and-ready, of putting X's act and Y's motivation together for the purpose of rendering E liable: after all, he is the employer of both. But the trouble is that, because of the way the Regulations work, rendering E liable would make X liable too: see the analysis at para. 13 above. To spell it out:
(a) E would be liable for X's act of dismissing C because X did the act in the course of his employment and – assuming we are applying the composite approach – that act was influenced by Y's discriminatorily-motivated report.

(b) X would be an employee for whose discriminatory act E was liable under regulation 25 and would accordingly be deemed by regulation 26 (2) to have aided the doing of that act and would be personally liable.

It would be quite unjust for X to be liable to C where he personally was innocent of any discriminatory motivation.

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Wednesday 29 April 2015

Supreme Court Guidance on Redundancy and limited term contracts

University and College Union (Appellant) v The University of Stirling (Respondent) (Scotland) [2015] UKSC 26


An employer which proposes to “dismiss as redundant” 20 or more employees at one establishment within a period of 90 days or less has an obligation to consult the appropriate representatives, usually a recognised trade union, of any of the employees who may be affected: section 188(1), Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”). The question in this case is whether those employees include people employed on limited term contracts (“LTCs”) whose contracts will come to an end without renewal during the relevant period. This in turn depends upon two questions. The first is whether the expiry and non-renewal of an LTC amount to a dismissal for this purpose: it does (see para 15 below). The second is whether such a dismissal is “for a reason not related to the individual concerned”, which is the statutory definition of a dismissal “as redundant” in this context: section 195(1), 1992 Act.

The Supreme Court held that dismissal because of expiry of a limited term contract was a reason not related to the individual.  Even though the individual had agreed to the expiry date.

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Wednesday 15 April 2015

Tupe: When are employees assigned to a service?



The EAT in London Borough of Hillingdon v Gormanley 12 November 2014 has affirmed that the key authority on the definition of assignment remains the CJEU decision in Botzen v Rotterdamsche Droogdok Maatschappij BV [1985] ICR 519. This ruling requires consideration of the contractual duties of employees and their role in the organisational framework of the putative transferor.

At para. 66 we are also reminded of when the EAT may make a costs order against a party:


66.               The Employment Appeal Tribunal Rules 1993 (as amended) provide:
“34A(2A) If the Appeal Tribunal allows an appeal, in full or in part, it may make a costs order against the respondent specifying the respondent pay to the appellant an amount no greater than any fee paid by the appellant under a notice issued by the Lord Chancellor”


Langstaff P gave guidance on the application of Rule 34A(2A) in Look Ahead Housing v Chetty UKEAT/0037/14.  At paragraph 53 he held:
“For the benefit of other cases which may follow, it seems to me that in a case in which an appeal is brought which is entirely rejected, there is no basis for any payment by the successful party to the Appellant.  Where there is an appeal which is partly successful, all will depend upon the particular facts.  The Rule does not permit the payment of the actual costs of litigation, apart from fees, from one party to another.  What the court centrally has to assess is whether it was necessary to incur the expense in order to bring the appeal – this includes asking whether the appeal, as in the present case, could have been avoided by the Appellant taking reasonable steps, or was made more likely to proceed by the behaviour of the Respondent to it; it should then recognise the fact, if it be the case, that an appeal has largely failed or for that matter largely succeed in deciding, in its discretion, exercised reasonably, whether it should award the full extent of the payment made by way of fees, or whether it should moderate that amount to a reasonable extent.  A reasonable extent includes making no award at all, though in circumstances in which an appeal has been partly successful this would have to be carefully justified and is likely to be rare.”

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Tuesday 14 April 2015

At last some guidance on 'public interest' in whistleblowing cases

Recently the Government decreed that whistleblowing complaints have to satisfy yet another technical test in that the protected disclosure must be of a nature to be 'in the public interest' before 'liftoff'. Most of us have been feeling in the dark as to what this could mean but finally the EAT has lobbed us a few pearls of wisdom in the case of Chestertons v Nurmohamed Appeal No. UKEAT/0335/14/DM
The crux of the matter determined by the EAT can be found in para. 36 'The sole purpose of the amendment to section 43B(1) of the 1996 Act by section 17 of the 2013 Act was to reverse the effect of Parkins v Sodexho Ltd'.

The appeal before Mr Justice Supperstone concerned the meaning of the words “in the public interest” inserted into section 43B(1) of the Employment Rights Act 1996 by section17 of the Enterprise and Regulatory Reform Act 2013.

The nature of the protected disclosure involved a large group of staff rather than the general public.

The Respondent was Director of the Mayfair office of the First Appellant, a well-known firm of estate agents.  He made three alleged protected disclosures, two to the Area Director for the Central London area and one to the Second Appellant, the First Appellant’s Director of Human Relations.  The Respondent stated that he believed the First Appellant was deliberately misstating £2-3million of actual costs and liabilities through the entire office and department network which affected the earnings of 100 senior managers, including himself.

The Employment Tribunal concluded that the disclosures were made in the reasonable belief of the Respondent that they were in the interest of 100 senior managers, and that that is a sufficient group of the public to amount to be a matter in the public interest.  The decision of the Tribunal was that the Respondent was unfairly dismissed and automatically unfairly dismissed by the First Appellant and that the First and Second Appellants subjected him to detriments on the grounds that he had made protected disclosures.

The Employment Appeal Tribunal rejected both grounds of appeal:

(i) that the Tribunal erred on concluding that disclosures made in the interest of the 100 senior managers was to a sufficient group of the public to amount to being a matter in the public interest; and

(ii) that it was for the Tribunal to determine objectively whether or not the disclosures were of real public interest, and this the Tribunal failed to do.

The EAT concluded that: The question for consideration under section 43B(1) of the 1996 Act is not whether the disclosure per se is in the public interest but whether the worker making the disclosure has a reasonable belief that the disclosure is made in the public interest; (2) the sole purpose of the amendment to section 43B(1) by section 17 of the 2013 Act was to reverse the effect of Parkins v Sodexho Ltd.  The words “in the public interest” were introduced to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications. 

Noteworthy paragraphs:


34.          I accept Ms Mayhew’s submission that applying the Babula approach to section 43B(1) as amended, the public interest test can be satisfied where the basis of the public interest disclosure is wrong and/or there was no public interest in the disclosure being made provided that the worker’s belief that the disclosure was made in the public interest was objectively reasonable.

35.          In my view the Tribunal properly asked itself the question whether the Respondent made the disclosures in the reasonable belief that they were in the public interest.  The Tribunal proceeded to answer that question at paragraphs 146-151 of the decision (see paragraph 14 above).  The Tribunal concluded (at paragraph 151) that the disclosures were made in the belief of the Respondent at the time that it was in the interests of the 100 senior managers and that that belief was reasonable.  There is now no challenge to the finding that the Respondent had a reasonable belief that he was making protected disclosures (see paragraph 6 above).

36.          The objective of the protected disclosure provisions is to protect employees from unfair treatment for reasonably raising in a responsible way genuine concerns about wrongdoing in the workplace (see ALM Medical Services Ltd v Bladon at paragraph 16 above).  It is clear from the parliamentary materials to which reference can be made pursuant to Pepper (Inspector of Taxes) v Hart [1993] AC 593 that the sole purpose of the amendment to section 43B(1) of the 1996 Act by section 17 of the 2013 Act was to reverse the effect of Parkins v Sodexho Ltd.  The words “in the public interest” were introduced to do no more than prevent a worker from relying upon a breach of his own contract of employment where the breach is of a personal nature and there are no wider public interest implications.  As the Minister observed: “the clause in no way takes away rights from those who seek to blow the whistle on matters of genuine public interest” (see paragraph 19 above).

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Monday 26 January 2015

Underpaying Minimum Wage: A National Concern Guest Post



A recent report released by the Department for Business, Innovation and Skills has brought to light the full extent of some employer's failure to pay national minimum wage to their workers.
In total 37 firms have been shown to violate the law, which has resulted in a combined fine of £51,000 and a payout of £177,000 to employees missing their wages.

Who is to blame?
One of the most prominent companies under examination is high street clothing retailer H&M. The organisation which employs over 9,500 people in the United Kingdom has blamed their actions on 'time logging errors' in their system. The average wage paid to those affected was a mere £4.82.
Another business found to have underpaid their customers is  the motorway service station company Welcome Break, which underpaid 20 of its workers for a sum totalling 1,319; creating an average underpayment of £66 per employee.
Welcome Break's actions were exposed when an employee lodged a complaint with the HMRC to explain that her pay rate had not increased in line with the national minimum wage following her 21st birthday. Before long other employees were revealed to be in the same position.
Of all the companies to be exposed, the organisation responsible for the biggest violation of payment is Kings Group; a Hertfordshire estate agent. This organisation's main company cost 53 workers a total of £53,809, while their sister company Kings Group Lettings LLP underpaid 49 staff for a total of £26,893.

Minimum wage: Employment law facts & figures
Minimum wage is a completely non-negotiable figure that differs depending on an employee's age. Adults ages over 21 must receive a minimum of £6.50 an hour,  18-20 year olds are given £5.13, and 16-18 year olds take home at least £3.79.
When an employer deviates from providing fair pay they're in direct violation of the National Minimum Wage Act 1998, and a failure to provide the amount of money due is certainly grounds for an employment law tribunal.

Criticism of minimum wage
The adult minimum wage is already largely considered to be too low to assist the personal situation of most UK residents. The Tory, Labour and Liberal Democrat parties have all expressed a desire to raise the amount.
Labour has pledged to raise the minimum wage if they win the 2015 general election, while Conservative Councillor of the Exchequer, George Osborne, has spoken of the possibility that minimum wage could rise to £7.00 an hour within the next few months if the economy continues to improve.

Recent issues
This is one of many recent issues affecting employees on minimum wage. Several firms have been  accused or finding ways to avoid paying employees their share through the use of underhanded tactics like charging employees for the use of company uniforms and underpaying interns.
Other unfair methods prevalent in the underpayment of minimum wage include deliberately under-recording working hours, and refusing to pay travel expenses where necessary.

Result of the revelations
The TUC has drafted a plan to ensure that minimum wage payments are enforced, and Frances O’Grady, the general secretary of TUC, has summed up the shameful, dishonest nature of underpayment by claiming that “Failing to pay the minimum wage is an antisocial act that squeezes those workers who have the least.
She has also spoken about the need for larger government assitance: “Ministers must also step up enforcement action with more prosecutions, higher fines and a bigger team of enforcement officers to catch the cheats."
Will these new rules make a difference? We'll have to wait and see.

If you have concerns regarding minimum wage issues or the legislation of any other form of employment law concern, be sure to contact a professional employment law solicitor to better your rights ans entitlements.
Submitted on behalf of Nationwide Employment Lawyers

Please note that whilst every effort is made to maintain accuracy of the content in this article; we cannot take responsibility for any errors. This author is not a Lawyer or HR Specialist and this cannot in any way constitute a substitute for Employment Law advice. All facts should be cross-checked against other sources. Contact Nationwide Employment Lawyers should you require specific advice.




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Friday 23 January 2015

New case whistleblowing – knowledge of detriment and time limits

In McKinney v London Borough of Newham the EAT looked at when the three-month time limit starts to run where an individual is alleging he has suffered a detriment for whistleblowing.

Croner have produced a useful case summary....they helpfully conclude with:

'The decision clarifies that time begins to run in detriment for whistleblowing cases in the same way as detriment in discrimination cases. This means it is more difficult for whistleblowers to bring their claims in time when they are not aware of the date of any detrimental decision or failure to act. However, it is also likely, in most circumstances, that a tribunal will find it was not reasonably practicable to do so and will extend the time limit.'

Baili

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Monday 19 January 2015

Judgment reaffirms law in Ladd v Marshall when a judgment may be reviewed in the light of new evidence

According to Outasight VB Ltd v Brown the principles set down by the Court of Appeal in Ladd v Marshall still apply to the question of whether the ‘interests of justice’ require a review (now known as ‘reconsideration’ under rule 70 of the 2013 Rules).

At the reconsideration hearing, the tribunal did not accept B’s assertion that he had been unable to find the evidence before the liability hearing. It noted that, under the ‘strict’ rule 34 of the Tribunal Rules 2004, this would not count as ‘fresh evidence’. However, the tribunal took the view that it had wider discretion under rule 70 of the 2013 Rules, which allows for reconsideration where necessary in the interests of justice, and agreed to revoke its judgment.

Her Honour Judge Eady QC, sitting alone in the EAT, reviewed the change of language between the 2004 and 2013 Rules. Rule 34(3) of the 2004 Rules set out specific circumstances in which a judgment may be reviewed. These included, at paragraph (d), where new evidence became available that was not available at the time of the hearing. Rule 34(3)(e) also provided for review where the interests of justice required it. Thus, rule 34(3)(d) reflected the principles governing the admission of new evidence on appeal set out by the Court of Appeal in Ladd v Marshall 1954 3 All ER 745, CA, and rule 34(3)(e) recognised that, even where these principles were not strictly met, the interests of justice may still require new evidence to be considered. In HHJ Eady’s view, the fact that rule 70 of the 2013 Rules dispenses with the specific categories did not indicate any change of position, nor did it suggest that the Ladd v Marshall principles no longer applied.

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Friday 16 January 2015

Plans to limit the number of adjournments


The Department for Business, Innovation & Skills (BIS) (the department for economic growth) has issued a consultation document, seeking views on new legislation restricting adjournments in employment tribunals.

The proposals are:-

A. if a party has already been granted two adjournments (for whatever type of hearing, preliminary or final), it will not be allowed a third adjournment.

B. if a request for an adjournment is made less than seven days before the hearing, it will not be granted.

However there will be exceptions to these rules:


(i) both parties agree the adjournment and the tribunal believes it is desirable to facilitate a settlement; or (ii) the adjournment is requested for a reason beyond the party's control (eg an administrative error by the tribunal, or late disclosure of documents by the other side). In such a situation, the postponement may be granted but a new rule will require the tribunal to consider whether a costs order should be made.
(iii) or cryptically if exceptional circumstances apply/

The consultation closes on 12th March 2015. I cannot help that this formulaic approach is unnecessary when Employment Judges are able to make the decision themselves.

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Thursday 15 January 2015

Acas early conciliation form changes and slanted market research

ACAS have now added a box which allows the Claimant to include the contact details of their rep so that they might be contacted directly.

Also now the employee must add the employer's details manually.

As an aside, I am expecting market research results to be published soon which show the whole process to be given a big thumbs up not because those forced to used the system think it is necessarily useful but because the questions I was asked as a representative using the system were entirely leading in my view and set up in order to make sure the conciliation process came out glowing.

I am not sure how many representatives have been asked about the specific performance of their ACAS conciliator in a particular case but from my experience their use has been varied depending on the case and the energy of the individual. One worrying point has been that quite a few Claimants have contacted me to say that they had actually received legal advice from an ACAS conciliator, indeed on conciliator actually tried to tell me what I should be advising my client.

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Wednesday 14 January 2015

The Government produce briefing on employment tribunal fees

The Government has produce a briefing which helpfully sums up the arguments for and against the introduction of fees to employment tribunals. For those interested, it also sums up in some detail the legal challenges so far and pending to the fee regime.

Briefing papers

Simply go to the site and use these search terms Published 12 January 2015 | Standard notes SN07081

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Monday 5 January 2015

Tupe: When are employees assigned to a service?

The EAT in London Borough of Hillingdon v Gormanley 12 November 2014 has affirmed that the key authority on the definition of assignment remains the CJEU decision in Botzen v Rotterdamsche Droogdok Maatschappij BV [1985] ICR 519. This ruling requires consideration of the contractual duties of employees and their role in the organisational framework of the putative transferor.

At para. 66 we are also reminded of when the EAT may make a costs order against a party:


66.               The Employment Appeal Tribunal Rules 1993 (as amended) provide:
“34A(2A) If the Appeal Tribunal allows an appeal, in full or in part, it may make a costs order against the respondent specifying the respondent pay to the appellant an amount no greater than any fee paid by the appellant under a notice issued by the Lord Chancellor”


Langstaff P gave guidance on the application of Rule 34A(2A) in Look Ahead Housing v Chetty UKEAT/0037/14.  At paragraph 53 he held:
“For the benefit of other cases which may follow, it seems to me that in a case in which an appeal is brought which is entirely rejected, there is no basis for any payment by the successful party to the Appellant.  Where there is an appeal which is partly successful, all will depend upon the particular facts.  The Rule does not permit the payment of the actual costs of litigation, apart from fees, from one party to another.  What the court centrally has to assess is whether it was necessary to incur the expense in order to bring the appeal – this includes asking whether the appeal, as in the present case, could have been avoided by the Appellant taking reasonable steps, or was made more likely to proceed by the behaviour of the Respondent to it; it should then recognise the fact, if it be the case, that an appeal has largely failed or for that matter largely succeed in deciding, in its discretion, exercised reasonably, whether it should award the full extent of the payment made by way of fees, or whether it should moderate that amount to a reasonable extent.  A reasonable extent includes making no award at all, though in circumstances in which an appeal has been partly successful this would have to be carefully justified and is likely to be rare.”

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