HMO Quarterly Employment Bulletin – October 2011

UNFAIR DISMISSAL CHANGES

The Coalition Government is proposing to make significant changes on the bringing of unfair dismissal claims.  These include:

• Increasing the qualifying service period to bring an unfair dismissal claim from one year to two years.  This is expected to take effect from April 2012
• Introducing fees for the bringing of Tribunal claims.  This is expected to take effect from April 2013

These changes would have a significant impact on the amount of unfair dismissal claims brought and would take the legal position back to 1985 when a qualifying period of two years was reduced to one.

REFERENCES: UNFAIR BUT LEGAL?

A recent Court of Appeal Case concerning Jackson v Liverpool City Council came up with a finding that a reference whilst potentially unfair was legal.

In essence the reference suggested that there were record keeping issues with Mr Jackson but qualified this comment by suggesting these issues had not been investigated.  Mr Jackson did not get the job he was seeking and was left unemployed for a year.  

The Court of Appeal upheld a finding of the Trial Judge that the reference was not inaccurate even though it referred to matters which had not been investigated.  Mr Jackson’s claim for negligence failed.

EMPLOYEES SLEEPING ON PREMISES: NATIONAL MINIMUM WAGE

A recent Employment  Appeals Tribunal decision concerning Wray v J W Lees & Co chose not to count the time spent by a temporary pub manager staying over night at the premises as hours worked for the purpose of a National Minimum Wage Claim.

The rationale for this decision was that the manager was not working for these periods and the position was distinct from that of a night watchman or care worker in a residential home who would continue to have responsibilities through the night.

DISMISSING EMPLOYEES WHO REFUSE A PAY CUT

In circumstances where an employer dismisses an employee for refusing a pay cut the stipulated reason for dismissal (in terms of the five defined fair reasons for dismissal) is “some other substantial reason” as opposed to redundancy.

In the recent case of Garside and Laycock v Booth the Employment Appeals Tribunal stated that it was wrong to say that an employer could only offer less favourable terms to an existing employee if circumstances were so serious that the very survival of the business depended on it.  So the employer was found to have acted fairly by dismissing the employee for refusing to accept reduced pay and offering to re-engage at the reduced rate.

DISCUSSION ABOUT SEXUAL ORIENTATION

The recent Court of Appeal Case of Grant v HM Land Registry dealt with the issue of whether or not a casual comment about an employee’s sexuality in circumstances where the employee has already made his homosexuality public would constitute discrimination.

The Claimant’s sexuality had been known at the Lytham Land Registry Office where he worked.  When he moved offices to Coventry, however, he chose not to disclose that he was gay.  In fact his new manager had been told of his sexuality by a colleague at Lytham, and the manager mentioned this to a colleague at Coventry.

The Court said that as the manager had no ill purpose there was no act of discrimination or harassment.

It was commented by Elias LJ that “outing” someone could be an act of direct discrimination and harassment in other circumstances.

EMPLOYMENT TRIBUNAL STATISTICS

The Ministry of Justice has published its annual statistics for 1 April 2010 to 31 March 2011 in respect of Employment Tribunals and Employment Appeals Tribunals.

• The statistics have identified an 8% fall in claims received in 2010 to 2011 from the previous year (albeit the figures are still 44% higher that the number of claims issued in 2008 to 2009).
• There was a 9% increase in the number of Employment Tribunal Claims disposed of (some of these claims obviously having been issued more than twelve months previously).  As at 31 March 2011 there was an outstanding case load for the Employment Tribunal Service of 484,300.  
• The average compensation for claims of unfair dismissal jurisdiction was £8,924 and the median figure £4,591

For advice and assistance in respect of employment matters contact Nigel Pepper, Consultant or Patrick Nelson, Associate on 01785 211411.

If you would like to read other articles, fact sheets and bulletins on Employment Law go to www.hmo.co.uk.

11 October 2011

Disclaimer
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published.  Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.