Unfair dismissal and extensions of time

Most employment claims should be brought within a three-month time limit. If it is not 'reasonably practicable' for an employee to present his claim within the three-month time limit, an employment tribunal has the discretion to extend the time limit. There are two questions the tribunal must ask: was it reasonably practicable to lodge the claim within the time limit? If not, was it then lodged within a reasonable period? The ACAS early conciliation process provides a potential one-month extension of time following the conclusion of early conciliation. However, this only applies if ACAS were contacted within the initial three-month time limit. The EAT has looked at this issue in Pearce v Bank of America Merrill Lynch.

The employee was employed as Managing Director Head of Sterling Credit. He had been off sick since July 2017. He said his absence resulted from being treated badly because he blew the whistle on poor practice. He contacted solicitors in November 2017, two and a half months after the last 'detriment'. The time limit for lodging a claim expired later in November. ACAS early conciliation started in December, outside the three-month time limit. Conciliation ended in January 2018. The employee didn’t lodge a tribunal claim until February 2018, a month after ACAS conciliation had ended.

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Commute times

Analysis by the Office for National Statistics has shown that women who commute for an hour are nearly 30 per cent more likely to leave their jobs than if they have a ten-minute commute. The ONS believes this is due to childcare commitments. In comparison, men are more likely to look at money as the reason for leaving their job. They are prepared to travel for longer to get higher pay. The ONS believes this contributes to men doing the higher paid work which fuels the gender pay gap.

Amber Rudd, Minister for Women and Equalities, has said that women find it difficult to balance their job with their parenting responsibilities. She says she is determined to help women find a balance between higher pay, career progression and their childcare and family commitments. Plans include consultation on proposals to better support parents and improving access to information on family related matters such as childcare support and parental leave. They also intend to explore 'innovative pilots' to deliver more flexible working in SMEs and sectors with a high number of low paid employees. It will be interesting to see how these worthy principles translate into practice.

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Mental health in the work place

Is your workplace culture contributing to the ‘psychological harm’ of your employees? It sounds dramatic but a survey of 4000 employees commissioned by Business in the Community (BITC) and Mercer Marsh Benefits suggests that employers aren’t doing enough to address the effect of work on employees’ mental health.

Getting top billing for their negative effect on mental health are excessive targets, having to work overtime due to workload, and feeling unsupported. Managers talked about barriers to providing mental health support with more than half of managers putting business needs above employee wellbeing. Almost half of managers weren’t assessed on how they managed employee wellbeing.

The message coming from BITC is that employers aren’t making the changes necessary to improve employees' mental health. Mental health awareness has risen dramatically and a cultural shift is required to keep up. The report says three key areas to address are creating good work which enhances mental health, acknowledging and supporting poor mental health and publicly reporting on staff wellbeing performance.

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Disability discrimination

A person is disabled if she has a physical or mental impairment which has a substantial and long-term adverse effect on her ability to do day to day activities. To be 'long-term' an impairment must have lasted, or be likely to last, at least 12 months. An impairment can be treated as continuing when it has stopped if it is likely to recur. Likely means it is more probable than not.

In Parnaby v Leicester City Council, the employee was a head caretaker. He was dismissed for long term sickness absence due to work related stress. The employee brought several discrimination claims. The tribunal's first job was to decide if he was disabled. They found that his condition did not meet the 'long-term' requirement. His work-related stress had not lasted 12 months by the time his employment ended, and he hadn’t seen his GP since then. His recovery coincided with his employment ending. Therefore, it wasn’t long term.

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Vegetarianism and Philosophical belief

A philosophical belief might be a protected characteristic if it:

  • Is genuinely held and isn’t just a viewpoint or an opinion;
  • Relates to a weighty and substantial aspect of human life and behaviour;
  • Attains a certain level of cogency, seriousness, cohesion and importance and be worthy of respect in a democratic society;
  • Is compatible with human dignity and not conflict with other people's fundamental rights.

An employment tribunal has decided that an individual's belief in vegetarianism is not protected by the Equality Act 2010. In Conisbee v Crossley Farms, the tribunal said that vegetarianism was an opinion or viewpoint rather than a protected belief. The tribunal did not believe that vegetarianism was a weighty belief about a substantial aspect of human life and behaviour. Rather it was a lifestyle choice. A belief that animals shouldn’t be killed for food was an admirable sentiment but did not relate to a weighty and substantial aspect of human life and behaviour. In relation to requirement that the belief attain a certain level of cogency, cohesion and importance, the tribunal noted the many different reasons for people being vegetarian (lifestyle, health, diet, concerns about methods of animal rearing for food, personal taste). This could be contrasted with veganism where the arguments are largely the same, 'a clear belief that killing and eating animals is contrary to a civilised society and also against climate control'.

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Redundancy pay

In a redundancy situation, an employee might be entitled to both statutory and contractual redundancy payments. Statutory redundancy payments are calculated using age, length of service and weekly pay (currently capped at £525). Contractual payments can be more generous. What happens when a contractual sum isn’t paid, and the employee brings a breach of contract claim to recover it? Does the statutory redundancy element form part of the £25,000 cap for a breach of contract claim in the employment tribunal?

In Uradar v Lancashire Care NHS Foundation Trust, the employee's contractual redundancy pay was about £44,000, including the statutory element of around £6000. The employee was dismissed but the employer said he had refused suitable alternative employment so refused to pay the redundancy pay. The employee brought a tribunal claim and won. The tribunal said the statutory redundancy element was part of the breach of contract claim and awarded him £25,000 (the maximum allowed), rather than £25,000 plus £6000 for the statutory redundancy pay. The employee appealed.

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Gig economy

Worker status is the holy grail in the gig economy, including the fields of taxi rides, food delivery and courier services. Workers are entitled to certain employment rights such as the national minimum wage and paid holiday, whereas the genuinely self-employed are not. Section 230(3) of the Employment Rights Act 1996 defines a worker as someone who works under a contract of employment or another contract 'where the individual undertakes to do or perform personally any work…for another party who…is not...a client or customer of…the individual'. Case law has expanded on this definition and looked at issues such as mutuality of obligation, control, integration into the business and personal service.

Various questions have been referred to the Court of Justice of the European Union (ECJ) in the case of B v Yodel. The claimant was a courier who delivered parcels for Yodel. He used his own vehicle and mobile phone. His wore no uniform and carried no Yodel ID. He had a handheld Yodel device from which to receive information from Yodel and for Yodel to track his performance. He was not obliged to do any work and Yodel was not obliged to give him any. His contract said he could work for other companies. The contract also said he could send a substitute to do his work provided the substitute had the same level of skills and qualifications. B never sent a substitute to do the work but others on the same contract had done so. Does this defeat his claim to worker status? His contract says he is self-employed, but is he? The ECJ is being asked to decide whether the ability to send a substitute will defeat worker status. The referral includes numerous other questions relating to this gritty issue in the hope of finding some clarity. We continue to watch this gig economy space.

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Injury to feelings

If an employee wins a discrimination claim, the employment tribunal will award compensation for injury to feelings. There are three bands: top band for the most serious cases (currently £26,300 - £44,000); middle band for serious cases not worthy of a top band award (£8,800 - £26,300) and bottom (£900 - £8,800) for less serious cases including one off incidents. The award is based on the effect of the discrimination on the employee, rather than the gravity of the discrimination. The EAT highlighted this important distinction in Komeng v Creative Support.

The employee won his claim for race discrimination. His employer had treated him less favourably than colleagues in relation to training opportunities and weekend work. In assessing compensation, the tribunal said that the treatment must have caused the employee 'significant upset and distress'. They awarded compensation at the top of the lower band, £8,400. That equated to two thirds of his net annual salary. The tribunal said that they would have awarded middle band compensation if the training course could have resulted in promotion and the employee had been disappointed about that loss of opportunity. However, this argument had not been raised.

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Working time

Under section 45A of the Employment Rights Act 1996, workers have the right not to be treated badly by their employer for refusing to work in breach of the Working Time Regulations 1998 (WTR). If such a refusal is the reason (or main reason) for an employee’s dismissal, their dismissal will be automatically unfair. The case of Paxur v Lexington Catering Services examines how explicit that refusal needs to be.

The employee was a kitchen porter. He had previously been assigned to a client, Lexington, who did not allow him to take his 20-minute rest break. When asked to return to Lexington for work, the employee refused. He was threatened with the sack, and then sacked, for refusing to go. He brought a detriment claim and a claim for automatic unfair dismissal.

The employment tribunal said that the requirement to return to Lexington was a requirement to work in a way which breached the WTR (because of the refusal to allow a rest break). However, the tribunal said that the employee had not provided enough evidence to show that his refusal related to the WTR issue, rather than just a general dislike of the chef at Lexington. The EAT agreed that an explicit WTR-related refusal was required. However, in this case the tribunal had overlooked evidence that the refusal was related to the WTR issue. The EAT upheld the detriment claim and sent the unfair dismissal claim back to the same tribunal panel to decide whether the dismissal was related to the refusal to work without rest breaks.

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Harassment

Harassment has been in the legal news again this month. Anthony harasses Belinda if he does something in relation to a protected characteristic (race, sex etc) which has the purpose or effect of violating Belinda's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The connection between the protected characteristic and the conduct is key. The burden of proof – who must prove what - is important in discrimination cases too. If an employee can prove facts from which, in the absence of another explanation, a tribunal could conclude harassment has occurred, then the burden of proof shifts to the employer to show that it did not happen. The Employment Appeal Tribunal (EAT) has looked at both these issues in Raj v Capita Business Services.

The employee was employed for less than a year and had performance issues before he was dismissed. He brought numerous claims against the employer. One claim was for sex harassment, alleging that his female manager had massaged his shoulders in an open plan office. The manager denied that the conduct had taken place, but other witnesses supported the employee's version of events. They said the massages were accompanied by words of encouragement in relation to the employee's performance.

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