HMO Quarterly Employment Bulletin – June 2015
Employment Tribunal Fees
The Government has announced a much awaited review of the introduction of Tribunal fees. The review is to consider how successful the introduction of fees has been achieving its original objectives;
(a) Financial; to transfer a proportion of the costs from the tax payer to those using the Tribunal “where they can afford to do so”.
(b) Behavioural; to encourage parties to seek alternative ways of resolving disputes.
(c) Justice; to obtain access to justice.
Whilst there would undoubtedly be significant debate on the financial objective, and little dispute for need to encourage parties to resolve their disputes without recourse to litigation, the greatest concern, at least from the Employee perspective, is the access to justice with the substantial decline in Employment Tribunal claims (at one stage statistics suggested this was as high as 70%).
Cynics may observe that this review is announced in the same month that the Court of Appeal hears an appeal from UNISON in respect of a refusal by the High Court to allow two judicial review applications challenging the lawfulness of the fee regime.
Gay Customers and Religious Beliefs
The County Court for Northern Ireland recently dealt with the case of Gareth Lee and Ashers Baking Co Ltd. This dealt with the difficult issue of whether a gay customer’s entitlement to access goods and services was entitled to more protection than a service provider’s religious beliefs.
In this matter the Bakery had been sued following a decision to cancel an order for a cake which Mr. Lee had arranged to be iced with a graphic of his own design containing an image and slogan supporting gay marriage. The Bakery had cancelled the order on the basis that they were a Christian business and the cake contravened their particular religious beliefs. Their argument was that they were not discriminating against the customer because of his sexuality and had cancelled the order because of the message on the cake.
The Judge found the Bakery to be guilty of direct discrimination for refusing to provide goods and services to an individual on the grounds of their sexual orientation (and political opinion).
A significant factor in the Judge’s decision was that the Bakery was a commercial venture and there was no reference in the limited company’s Memorandum and Articles of Association of the objective of furthering religious values.
Zero Hours Contracts
With effect from 26 May 2015 the Government has outlawed the use of exclusivity clauses in all zero hours contracts.
Under the same legislation (the first commencement order of the Small Business Enterprise and Employment Act) there is an increase in the fine that can be imposed for the failure to pay National Minimum Wage. Previously this stood at £20,000 per notice to the employer, it now stands at £20,000 per employee paid below the requisite wage, potentially a substantial increase.
National Minimum Wage
From 1 October 2015 the rates will increase again as follows;
· The adult rate will increase by 20p to £6.70 per hour
· The rate for 18 – 20 year olds will increase by 17p to £5.30 per hour
· The rate for 16 – 17 year olds will increase by 8p to £3.87 per hour
· The apprentice rate will increase by 57p to £3.30 per hour
Out of Time?
Employment Tribunals are normally extremely strict with their observation of time limits for unfair dismissal claims with Claimants having to demonstrate a relatively extreme set of circumstances to demonstrate that it was not “reasonably practicable” to have brought the claim.
The Employment Appeals Tribunal recently heard a fairly extreme case of Higgins v Home Office.
In this case Miss Higgins had resigned in 2007 and was subsequently admitted to Hospital suffering from an acute psychotic illness. She had taken steps to prepare a claim for constructive unfair dismissal but was not well enough to pursue it. The three month deadline for filing the claim came and went and it was eventually filed at the Employment Tribunal in 2014 (claims for unfair dismissal must normally be brought within three months of the date that the employment terminated).
In the first instance the Employment Judge rejected the claim on account of being out of time (amongst other reasons) and the Tribunal refused to reconsider the objection despite a letter from Miss Higgins’ psychiatrist stating that she had not been well enough to bring a claim during the previous six years.
Miss Higgins was successful in her appeal, the Employment Appeals Tribunal held that the Tribunal should have taken into account the fact that Miss Higgins was a litigant in person with a disability and had taken a less drastic step than rejecting the claim. The case has been referred back to the Employment Tribunal to reconsider the question of the rejection of the Claim Form.
Changes to the ACAS Code
In March of this year the ACAS Code on grievance and discipline was updated in respect of an employees right to be accompanied at a grievance or disciplinary hearing.
The position in respect of a request to be accompanied is now as follows;
· Employers must agree to a request to be accompanied where the chosen companion is within one of the statutory categories (a work colleague or Trade Union representative).
· A worker may change their choice of companion.
· If a worker’s chosen companion is unavailable the employer must postpone the hearing to a time proposed by the employee.
The Code does suggest as a matter of good practice employees should consider the practicalities of their request e.g. the location of that colleague and their willingness to attend.
The employee must make a reasonable request. What is reasonable will depend on the circumstances of each individual case but does not mean that the request has to be in writing or within a certain time frame.
18 June 2015
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For advice and assistance in respect of Employment matters contact Nigel Pepper, Consultant or Patrick Nelson, Associate on 01785 211411.
The contents of this article are for the purpose 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.