02 Jun 2015

Employment Law Bulletin: June 2015

Insights, Publications

In its first month, the new government has set out some serious measures aimed at controlling immigration. There’s talk of wanting the UK to be less attractive to illegal workers.

One of the measures is to make illegal working a criminal offence, allowing wages to be seized. Another is to make it an offence for businesses and recruitment agencies to recruit workers from overseas without advertising the vacancy in the UK. This all comes after the introduction last year of greater penalties for employers of illegal workers.

So some employers will need to change the way they do things. And, while the new provisions may not directly hit those that have a good system of checks and controls in place, keeping on top of rules around immigration has to remain on everyone’s agenda.

Zero tolerance

As the debate over the rights and wrongs of zero hours contracts continues, the law has been changed to do away with one particular bone of contention.

As of 26th May, exclusivity clauses are banned. It means that employers can no longer include terms in zero hours contracts preventing workers from working elsewhere. That sort of clause is now unenforceable.

This has been a talking point for some time and is expected to curb some of the downsides of these types of contracts, enabling workers to take advantage of additional revenue streams. We don’t yet know what measures will be put in place to tackle employers’ flouting of the new provisions, but details are sure to emerge before too long.

Pay the wage or a (much bigger) penalty

As of 26 May, employers who don’t pay workers at least the National Minimum Wage (NMW) face a fine of up to £20,000 per worker. We emphasise “worker” because, while the fine itself isn’t new, its scope is.

It used to be the case that where pay fell short of the NMW, employers could be fined up to £20,000 in respect of a group of workers. Now that the penalty attaches to each worker, the potential liability is of course significantly higher.

In case you need reminding, here are the current NMW rates:

Workers aged 21 and over £6.50
Workers aged 18-20 £5.13
Under 18s £3.79
Apprentices £2.73

(The £2.73 apprentices’ rate applies to those aged 16-18 and those aged 19 or over who are in their first year of apprenticeship.)

Remember that these rates will increase on 1 October 2015.

How late is too late?
Higgins v Home Office

We often hear about claimants missing deadlines for lodging claims. Every hour counts where these timescales are concerned, but there are exceptions, as this case shows. It reminds employers that a claim can rear its head many months – or years – down the line. And claimants with a valid reason for their delay could find themselves able to pursue their claim after all.

Ms Higgins resigned in 2007 and went on to be admitted to hospital suffering from an acute psychotic illness. She instructed solicitors to prepare an unfair constructive dismissal claim but she wasn’t well enough to pursue it. The deadline for lodging the claim came and went and she finally filed it at the tribunal in 2014. It was rejected for (among other things) being out of time. The tribunal would not reconsider the rejection even though Ms Higgins produced a letter from her psychiatrist explaining that she had not been well enough to bring a claim during the previous six years.

She won her appeal. The Employment Appeal Tribunal held that the tribunal should have taken account of the fact that Ms Higgins was a litigant in person with a disability, and it ought to have taken a less drastic step than rejecting her claim. This was not a clear-cut case of abuse of the tribunal system, and there should have been more leniency.

The case has gone back to the tribunal to look again at the rejection of the claim form and whether or not the claim should proceed.

Disciplinary hearings and grievances
Janadu v Docklands Buses

A common problem for employers is what to do when an employee facing a disciplinary hearing raises a grievance either about the process itself or about one of the managers conducting it. Does the disciplinary have to be postponed while the grievance is dealt with? In truth, there is simply no rule one way or the other. The test is whether the employer has acted reasonably in choosing to dismiss the employee.

In this case, the employee – a bus driver – had been the subject of complaints about the standard of her driving. Examination of CCTV footage allegedly showed her driving with one hand, clipping kerbs, running a red light and pulling into the path of two cars. She was instructed to attend a training centre for assessment but refused to do so claiming that she was being bullied and discriminated against. She was dismissed for insubordination and the EAT refused to find that the employer should have postponed a disciplinary hearing to allow her grievance to be dealt with.

Importantly however, the employee’s grievance was not directed at the manager actually conducting the hearing. If that had been the case then the Tribunal might have been persuaded that a different manager should have been asked to step in.

Bakery discriminated against gay customer
Lee v Ashers Baking Co

Who would have thought that a cake could cause such a stir in discrimination circles?

It’s because the issue was not about the sponge, but about the pro-gay marriage decoration that a customer had asked to be iced on top. The family-owned bakery refused to process the order; the message went against their Christian beliefs. That’s when equality ears pricked up and pondering began over whether the religious beliefs of a Christian service provider took precedence over the rights of a gay customer not to be discriminated against.

The County Court in Northern Ireland held that the bakery had discriminated on grounds of sexual orientation. That was despite the argument that the issue was not about the customer being gay, but about the message on the cake. There was a breach of the Equality Act, the Court held, because the bakery had failed to provide goods and services to an individual on the grounds of their sexual orientation.

It’s been hailed as a landmark decision. But it’s one that could change, with the announcement that the bakery plans to appeal.

Claimant loses anonymity
BBC v Roden

A cornerstone of justice is that it’s an open process. Members of the public can watch and listen to hearings and cases can be reported. But there are exceptions, and it’s for judges to decide if particular circumstances call for restrictions on the disclosure of aspects of a case.

It was expected that, during the course of Mr Roden’s claims against the BBC, details of alleged sexual assaults (which weren’t directly in issue) would be heard in evidence. This led to a permanent anonymity order being made, protecting Mr Roden’s identity. The BBC challenged that order. It said that it should be able to inform certain interested parties, including the police and the Disclosure and Barring Service, about the contents of the judgment.

The tribunal’s view was that allowing details of the case to be made public would have devastating effects on Mr Roden because people might believe that he was guilty of the unproven allegations. But the Employment Appeal Tribunal (EAT) set the anonymity order aside. The mere publication of embarrassing or damaging material is not a good reason for restricting the reporting of a judgment, it said. The public should be trusted to tell the difference between an unproved allegation and guilt.

One of the relevant factors here was that Mr Roden had chosen to bring a claim in a public forum (also knowing that he had misled his employer about his past) and that came with the risk of publicity.

This emphasis on open justice is worth bearing in mind in the context of claims and defences. Parties must assume that, even in cases involving sensitive issues, details may not remain in the tribunal room.

And finally…

In a month that saw the Cannes Film Festival in the press for its rumoured ban on flat shoes, employers should take note of the problems the issue of prescribed clothing can cause.

The organisers reportedly say there was no high-heel specification. But the publicity around this has nonetheless brought dress codes into sharp focus. It’s a reminder that any rules about what may and may not be worn – whether at a glitzy affair or in day-to-day office life – must be well-conceived.

Allegations of sexism can quickly surface. And there’s also the possibility that not everyone may be physically able to conform.

So it’s easy to see how an employer who required female employees to wear stilettos at work (for example) would find all sorts of discrimination claims hot on their, um, heels.