Employment Tribunals

In Flowers -v- East of England Ambulance Trust [2019] EWCA Civ 947 – the Court of Appeal held that voluntary overtime should be counted when calculating holiday pay if it is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration.

Employment Law covers many different aspects of employer responsibilities and employee rights, including contracts of employment, hours of work, Statutory Sick Pay and dismissal. Your employer should comply with employment law else they are at risk of employment tribunal claims. Let’s take a look at 20 key facts about employment law, that your employer should be abiding by:

  1. Your employer must register with HMRC (HM Revenue & Customs) before their first pay day when taking on their first employee. A payroll must be run and employees should be issues payslips outlining earning before and after deductions and include all detail of Tax and National Insurance. Payroll information must be reported to HMRC every time an employee is paid and they must pay any tax and National Insurance owing.
  2. An employer must ensure that all employees have the legal right to work in the UK and keep copies of all provided documents, before they start working.
  3. Within a two month period of starting work, employees are entitled to a written statement of employment terms, however if you are employed for less than one month you are not entitled to such.
  4. The terms of an employment contract can only be changed by an employer if they have reserved the right to do so or the employee has given agreement or consent. Any alterations to the contract must be agreed by both parties with written confirmation within one month of the change taking effect.
  5. A contract of employment exists once a potential employee has accepted an unconditional offer of employment, which is often before they have commenced employment
  6. A probationary period of three to six months is typical, with the period being long enough for an employer to reasonably judge whether an employee can do the job.
  7. Minimum wage applies to almost all employees, whether casual, part-time, full-time or agency workers. Workers aged 25 and over are entitled to the National Living Wage, which is £7.83 per hour. There are also four different hourly rates for National Minimum Wage, which are: £7.38 for workers aged 21 to 25, £5.90 an hour for 18 to 21-year-olds, £4.20 per hour for 16 and 17-year-olds, £3.70 for apprentices under 19 or older than 19 but in the first year of their apprenticeship.
  8. You are entitled to 5.6 weeks’ paid holiday per year as an employee (at least 28 days a year for a full time employee). Part-time employees are entitled to the same holiday, but on a pro rata basis. Holiday entitlement begins to accrue from the first day of employment and accrues even through periods of absence such as sick leave or maternity.
  9. SSP (statutory sick pay) is £92.05 per week but it isn’t uncommon for an employer to pay more than this amount. If an employer believes you are not genuinely ill or you do not comply with notification requirements, they are entitled to refuse to pay SSP.
  10. Employees must be ‘auto-enrolled’ into a workplace pension and an employer must also contribute unless an Employee specifically opts-out of the scheme.

If you believe you have received poor treatment in the workplace by your employer, or any other grounds for a claim , you will be faced with the choice of whether you could like to pursue an Employment Tribunal Claim or try to settle your claim, usually via a ‘settlement agreement’ contract. Lets break down the most important factors to consider when deciding which avenue to take.

  1. What potential claims do you have, and how likely are those claims going to be successful?
  2. What outcome are you seeking from an Employment Tribunal Claim?
  3. Is settlement an option for you, or is an Employment Tribunal Claim a point of principle?
  4. What impacts could a claim have on you in the long term?
  5. How committed are you to the process an employment tribunal claim?

What potential claims do you have, and how likely are those claims going to be successful?

The first step is to determine what potential claims you may actually have based on the circumstances of your case – have you been a victim of workplace harassment, discriminated against, victimised or unfairly dismissed? The nature of claims you choose to pursue will of course have a significant impact on your chances of success and the value of any Employment Tribunal Claim. You will also need sufficient evidence to reinforce the particular claim(s).

What outcome are you seeking from an Employment Tribunal Claim?

Generally speaking, if you are only pursuing an Employment Tribunal Claim to seek compensation (a financial payment),  it is more likely that you will be able to settle your claim. If you are looking for another form of remedy however, then you might have to seek this through a successful claim in the Employment Tribunal (as it is normally difficult to persuade an employer to re-engage you through a settlement agreement).

Is settlement an option for you, or is an Employment Tribunal Claim a point of principle?

There is very little point in entering into a settlement agreement negotiation if you aren’t interested in a settlement. If you are strongly set on not settling from the get-go, then your time and effort is best focused on preparing your Employment Tribunal claim. On the other hand, if you are open to settlement, then it is best to approach the other party at an early stage to negotiate and agree upon the terms of the settlement.

What impacts could a claim have on you in the long term?

The public nature of an Employment Tribunal should be considered as early as possible. All Employment Tribunal judgements are now published online and the parties to the litigation will therefore want to think carefully about what impact any publicity could have on their careers or business.

How committed are you to the process an employment tribunal claim?

The process of an employment tribunal claim can be stressful and daunting. However, using a no win no fee employment solicitor like ourselves, your stress can be alleviated as we guide you through the entire process from initial assessment to making a claim.

A whopping £390,000+ worth of employment tribunal claims went entirely unpaid last year following the employers in question being placed in administration or being dissolved or liquidated. Experts have stated that these figures may indicate the continued struggle with ‘phoenixing’ businesses avoiding tribunal debts.

It was revealed, thanks to figures from the Department for Business, Energy and Industrial Strategy (BEIS) by People Management under a freedom of information (FOI) request, that 56 awards (worth a total of £394,505) were unpaid due to insolvency in 2017. This figure was broken down further, bringing to light that of the 56 unpaid awards two (worth £20,695) were unpaid due to administration, twenty six awards (worth £87,544) went unpaid due to dissolution and twenty eight awards (worth £286,267) were unpaid because of liquidation.

A company is placed in administration as a means of attempting to save it from insolvency. This involves control being handed over to an administrator, who will attempt to pay off, or reach a deal with, as many creditors as possible, as to reduce the company’s debts.

A company is liquidated when, as a means to pay off debts, its assets are sold off. This usually occurs after administration is unsuccessful. Finally, a company is dossolved once it is struck off the Companies House register.

The particular companies in question were not revealed, however the figures suggest that there is a continued issue of ‘phoenixing’, the unscrupulous practice of company owners avoiding tribunal awards or other penalties by making their business insolvent only to set up a very similar, new company afterwards.

Croner associate director, Paul Holcroft stated ““In the current climate, where we hear of town centres being depleted of their shops and pubs at an alarming rate, there will be very many genuine insolvency situations which mean tribunal awards go unpaid, however, with the possibility that ‘phoenixing’ is contributing to that number, employers may well be intentionally circumventing the system.”

“Without detailed analysis, it is difficult to tell which are genuine insolvencies and which aren’t, but anecdotal evidence from claimants has suggested that many insolvent ex-employers are now trading again.”

It’s clear that phoenixing is a common problem that continues to grow. However, the Taylor Review on Modern Working Practices, which was published in July 2017, called for the government to take further action against companies which dodged paying tribunal awards, and to establish a “naming-and-shaming” system for those who did not pay awards within a reasonable time period.

As stated on gov.uk, UK law allows directors, owners and employees of insolvent companies to set up brand new companies and carry on a similar business as long as the individuals involved aren’t personally bankrupt or disqualified from acting in the management of a limited company.

Last week a 98 page White Paper was released that outlines the UK Government’s suggestion for the future relationship between the UK and EU. Also the post-Brexit status of the UK’s employment legislation derived from European Union law appears to be no longer in doubt. The document indicates that there tends to be no intention to repeal or amend equality or employment law, including a commitment to the “non-regression” of labour standards. This “Brexit Blueprint” also states that the European Court of Justic (ECJ) won’t have any further sway over the UK’s legal decisions, therefore bringing accountability of UK laws back to the UK.

The paper states that “existing workers’ rights enjoyed under EU law will continue to be available in UK law at the day of the withdrawal”, referring to the United Kingdom’s plan for their relationship with the EU in the future by suggesting that it will commit to a “non-regression of labour standards”. Therefore any UK employment laws which are based on EU law will remain unchanged after Brexit.

The blueprint offers a new framework where EU workers who are previously established can apply for ‘settled status’ and remain in the UK. Any Irish workers can remain in the UK indefinitely under ‘special status’ – Irish and UK citizens alike will be able to freely move between the UK and Ireland (the Common Travel Area). However without an agreement in place, EU and UK workers will no longer be able to freely move between each other’s countries without certain restrictions.

There has been an indication that there will be a commitment to a “mobility network”, so that EU and UK citizens can travel between their countries to work and study. However

Whilst the white paper supports the notion of there being ‘no automatic right’ to work in the UK, it does suggest that possible ‘reciprocal arrangements’ could take place that would mean businesses can relocate “talented staff” in particular situations.

In De Mota v ADR Network and anor, the EAT has held that an employment judge erred in rejecting a claim on the basis that the early conciliation (EC) certificate named two respondents. Although rule 4 of the Schedule to the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014 SI 2014/254 (the EC Rules) requires a prospective claimant to present a separate EC form in respect of each respondent when contacting Acas, it does not apply to the EC certificate itself, and there is no rule that renders unlawful a certificate that names two respondents.

DM worked as an HGV driver for the Co-Operative Group Ltd (CG Ltd) between 2012 and 2015. He sought to claim unfair dismissal, breach of contract, unlawful deduction from wages, holiday pay and notice pay. His case was that he was employed by, or contracted to work for, ADR, and that ADR assigned him to work for CG Ltd. ADR and CG Ltd disputed this, saying that DM had set up his own company providing his services to ADR, and that ADR provided his services to CG Ltd. DM completed an EC form online. The information provided to online applicants states, in accordance with rule 4 of the EC Rules, that in order to make a claim against more than one respondent the claimant must complete a separate form for each one. However, DM completed just one form, putting ‘ADR Network and The Co-operative Group’ in the box for the respondent’s name. He gave an address which is both the depot of CG Ltd and a business address of ADR. Despite the error, Acas issued an EC certificate, which identified the ‘prospective respondent’ as ‘ADR Network and The Co-operative Group’. DM went on to present his claim to an employment tribunal, naming ADR and CG Ltd as two separate respondents.

An employment judge rejected DM’s claim for non-compliance with the EC Rules. He ruled that the form that DM had submitted to Acas named neither of the respondents but rather a non-existent entity whose name was the conjunction of the names of both respondents. He noted that rule 4 renders it necessary to submit separate forms in respect of separate respondents. He therefore concluded that DM had failed to provide the required information in the prescribed manner and so the tribunal was deprived of jurisdiction by S.18A of the Employment Tribunals Act 1996. DM appealed to the EAT.

The EAT allowed the appeal. His Honour Judge David Richardson, sitting along, noted that, following the EAT’s approach in cases such as Mist v Derby Community Services NHS Trust (Brief 1040) and Drake International Systems Ltd and ors v Blue Arrow Ltd (Brief 1040), it is clear that the purpose of the EC provisions is limited – it is not to require or enforce conciliation, it is simply to build in a structured opportunity for conciliation to be considered. Furthermore, it is no part of the provisions to encourage satellite litigation. HHJ David Richardson pointed out that S.18A ETA, which sets out how the tribunal’s jurisdiction depends on compliance with the EC provisions, focuses upon the existence of an EC certificate. In his view, Parliament did not intend that the process leading up to the certificate should be subject to criticism and examination by the parties or the employment tribunal. For one thing, as was pointed out in Mist, if the prospective claimant does not provide the prescribed information in the prescribed manner, the EC Rules make it plain that Acas is not bound to reject the claim. For another, if it were open to the parties or the tribunal to go behind the certificate, it would also be open to them to challenge Acas’s conduct of the conciliation procedure. Thus, the employment judge erred in law in going behind the certificate and finding that DM failed to provide the prescribed information in the prescribed form to Acas.

HHJ David Richardson went on to hold that the employment judge was wrong to rule, in effect, that Acas had issued an unlawful certificate. Rule 4, which requires individual respondents to be named on separate forms, does not apply to the EC certificate, and there is no similar mandatory requirement elsewhere in the EC Rules. Nor should such a requirement be implied, especially where the effect would be to bar access to the legal system for a litigant based on a technicality. It may be that the issuing of a single certificate was an error on Acas’s part but that is not the same as saying that it was an unlawful certificate. The appeal would therefore be allowed and the claim remitted to the employment tribunal for proceedings to continue.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0305_16_1309.html

Employment tribunal claims have plummeted by more than 9,000 a month, the Trades Union Congress has said, warning that steep fees have allowed discrimination at work to ‘flourish unchecked’.

TUC analysis of government figures shows that 83,031 claims were brought in 2015/16, down from 191,541 in 2012/13. Over the four-year period the number of single-claim cases has fallen by 69%; multiple-claim cases (where more than one person brings a claim against the same employer) has fallen by 79%.

TUC general secretary Frances O’Grady said: ‘These figures show a huge drop in workers seeking justice when they’ve been unfairly treated. Now bosses know they can get away with it, discrimination at work can flourish unchecked and people can be sacked without good reason.’

A further breakdown of Ministry of Justice figures show that 12,652 unfair dismissal claims were brought in 2015/16, down from 49,036 in 2012/13. Sex discrimination claims fell from 18,814 in 2012/13 to 5,371 in 2015/16. There were 2,001 race discrimination claims in 2015/16 compared to 4,818 in 2012/13. Disability discrimination claims fell from 7,492 to 2012/13 to 3,468 in 2015/16.

Figures for 2015/16 show that conciliation service Acas was notified of more than 90,000 disputes, but 65% of these were not settled by Acas nor progress to an employment tribunal.

O’Grady said: ‘The evidence is there for all to see. These fees – of up to 1,200, even if you’re on the minimum wage – are pricing out thousands each month from pursuing cases. Theresa May has repeatedly said she wants to govern for ordinary working people. Here is a perfect opportunity. She could reverse employment tribunal fees, and make sure workers can challenge bad employers in court.’

Last month the ministry was asked by Dawn Butler, Labour MP for Brent Central, what progress the department had made on its review of the effect of the introduction of employment tribunal fees, and whether a fixed publication date would be issued for the review.

Justice minister Sir Oliver Heald responded last week that the review ‘is making good progress and I expect to announce its conclusions in due course’.

In Science Warehouse Ltd v Mills, the EAT has held that a claimant was not required to go through the early conciliation (EC) procedure in respect of a victimisation claim that she wished to add, by way of amendment, to her existing claim of pregnancy/maternity discrimination. The amendment of existing proceedings is a matter for the tribunal’s case management powers and the tribunal is not required to refuse to add a claim in respect of which the EC procedure has not been observed.

M was employed by SW Ltd from April 2013 until she resigned, during her maternity leave, on 9 March 2015. On 28 January 2015 she had submitted details of prospective claims of sex and pregnancy/maternity discrimination under Ss.13 and 18 of the Equality Act 2010 to Acas. She received an EC certificate on 27 February and on 8 April she presented the tribunal claim. SW Ltd’s response to that claim included an allegation that M would have been investigated for misconduct had she not resigned. M wished to bring an additional claim of victimisation, under S.27 EqA, based on this allegation. She made an application to amend her claim to include this ground. SW Ltd objected to the amendment solely on the basis that M had not complied with the EC procedure in relation to the additional claim. The tribunal dismissed that objection and allowed the victimisation claim to be added. SW Ltd appealed to the EAT.

The EAT dismissed the appeal. HHJ Eady QC, sitting alone, noted that the power to allow a new claim to be added by way of amendment is a matter of judicial discretion, to which no time limit formally applies. As for the EC procedure, S.18A of the Employment Tribunals Act 1996 requires that it is complied with in relation to any ‘matter’, rather than any ‘cause of action’ or ‘claim’. HHJ Eady QC rejected SW Ltd’s argument that ‘matter’ had to be read as referring to the claim in question. A broader interpretation was required, in order to avoid the EC rules giving rise to disputes and satellite litigation as to whether proper notification had been given of each and every possible claim subsequently made to the tribunal. Although amendments to an existing claim are not listed in S.18A(7) as a category of exception to the EC rules, this is because amendment is a matter for the tribunal’s case management powers in respect of which no specific exemption is needed.

HHJ Eady QC went on to reject SW Ltd’s contention that this broad interpretation would undermine the objective of the EC procedure by allowing new claims to be accrued without conciliation. Amendments are only permissible if allowed by the tribunal. If the tribunal refuses permission then the claimant might become a prospective claimant in respect of the new matter, within S.18A ETA, and so might have to invoke the EC procedure. If the amendment is permitted, however, the EC process does not arise. Accordingly, the tribunal in the present case was not bound to decline to add the new claim, which could not have been the subject of the original EC process. Had the subsequent claim been entirely unrelated to the existing proceedings then the tribunal might have refused to admit it, but that decision would be informed by a variety of factors, not merely the fact that no EC process could have been engaged in.

Link to transcript: http://www.employmentappeals.gov.uk/Public/Upload/15_0224fhwwATDA.doc