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16
Apr 18

Posted by
Jennie Hussey

Tribunal claims up 90% since abolition of fees

The Ministry of Justice (MOJ) has published figures showing a massive 90% increase in single claims lodged at employment tribunals in the last quarter of 2017 compared to the last quarter of 2016 - the Supreme Court ruled tribunal fees to be ‘unlawful’ during last summer and abolished them going forward.

The MOJ has cited the reversal of fees as the cause of this rise in cases, as employees are no longer put off making claims and using the tribunal process.

The most recent quarter has also shown a 467% increase in multiple claims, filed by more than one complainant. Some of the major supermarkets, Tesco, Morrisons and Asda have all faced multiple pay claims in the last few months, with Tesco facing up to £4bn in fines from a single group claim.

With the abolition of the tribunal fees came a refund scheme which saw 3,337 claims processed for refunds of fee payments to the value of nearly £2.8m between October and December 2017. There is four years worth of fee payments that could be claimed for refund, adding to the growing headache that is the whole tribunal fee’s debacle.

All of this is putting significant pressure on the tribunals who had, after the fee’s were originally introduced, reduced staff numbers and had their funding cut, is now having to deal with huge backlogs and delays. The increase in employment tribunal claims since the removal of the tribunal fees indicates just how important it is for employer’s to have in place proper policies and fair procedures in relation to their employee / employer relationship.

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Posted in Company handbook, Contract of employment, Customer Update, Dismissals, Employment Tribunals

1
Feb 18

Posted by
Lauren Conway

£250,000 holiday back-pay paid out to construction workers

Over 100 construction workers are to receive an estimated £250,000 worth of holiday pay following a Unite campaign which ruled that voluntary overtime should be included in holiday pay.

Background

Workers across three high profile projects in London were paid holiday pay based on 39 hours a week whereas in reality they often worked 55 hours a week working overtime on Saturdays. The workers have secured payment of between £400 and £1,000 each with further back payments to be received after joining forces to demand their full holiday entitlement.

The construction workers were initially ignored when they brought the issue to Byrnes Bros management, until construction workers at different sites, backed by Unite, joined forces and commenced a campaign which developed into a collective grievance. Management then tried to deal with the grievances individually but workers insisted on a collective remedy to the underpayments. Management accepted that overtime should have been included in holiday pay and Byrne Bros are now in the process of paying each worker what they are owed including back pay.

Learning Points

The decision to accept fault comes as no surprise after the landmark ruling by the employment appeal tribunal in the Dudley Metropolitan Borough Council v Willetts (and others) case in July 2017. The case was the first to confirm that employers must include normal voluntary overtime when calculating holiday pay and it set a legally binding precedent which employment tribunals across the UK are obliged to follow. The pressure is now on for employers who still do not include overtime in holiday pay to urgently reconsider; otherwise they are at risk of being brought in front of the Employment Tribunal.


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Posted in Company handbook, Contract of employment, Employee Contracts, Employee Handbook, Employment Tribunals

4
Dec 17

Posted by
Marzena Ignar

Does my employee need a written statement of employment?

The main purpose of the written statement of employment, often referred to as the contract of employment, is to clarify the terms of a person’s employment and avoid uncertainty or misunderstandings, where employee expectations might not be the same as employer intentions.

All employers must provide an employee with a written statement of their terms of employment within 2 months of commencement of employment, including full-time staff, part-time staff, fixed-term and casual workers.

The written statement must include the following information:

  • The full name of employer and employee
  • The address of the employer
  • Place of work
  • Job title or nature of work
  • The date the employment started
  • Type of contract
  • Rate of pay
  • Pay intervals
  • Hours of work
  • Paid leave
  • Incapacity for work, sick pay 
  • Any terms relating to a pension scheme
  • Period of notice to be given by employer or employee
  • Details of any collective agreements
  • Pay reference period

Additional clauses can be recommended to further clarify the relationship. These might include:

  • Probation clause
  • Pay in lieu of notice clause
  • Confidentiality clause
  • Right to search 
  • The calculation of holiday pay

Failure to to provide contracts of employment could leave you wide open to a claim from their employees. Employers found not to have written terms of employment in place will be fined a maximum of 4 weeks’ remuneration per employee. Clearly worded contracts of employment are key to the success of any business. They will ensure your business is on the right side of employment law as well as help prevent disputes with employees.

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Posted in Company handbook, Contract of employment, Employee Contracts, Employee Handbook, Employee Records, Employment Contract, Employment Tribunals, Staff Handbook, Workplace Relations Commission, WRC

17
Nov 17

Posted by
Lauren Conway

Be careful of discrimination in job interviews

Having a wide range of interview questions is vital to find out as much information about a candidate as possible to assess whether they have the right skills and attributes for the role. When conducting an interview you may veer off your pre-set questions when building rapport with a candidate and to do a little digging in some areas, however asking the wrong question could leave you at risk of a hefty discrimination claim.

Marital and family status, sexual orientation

Although it may seem friendly asking if a candidate has a family or children it is not suitable for an interview. Asking such questions may leave you appearing more favorable to someone who may seem more stable or someone who might not have family commitments.

Do you have or plan on having children? What childcare arrangements do you have?

The job may require some overtime at short notice. What days/hours are you available to work? Can you travel?

Place of birth, race, religious beliefs

Again, employers may think they are being friendly asking questions like: where are you from originally? Or do you get to visit home often? But be warned that any questions surrounding birthplace, background or religious beliefs can lead to discrimination.

Where were you born? What religion do you practice?

Are you eligible to work in Ireland? What languages do you speak or write fluently?

Gender, age

Asking a candidate questions about their gender or age in relation to their ability to do a particular role is discrimination. If there are certain challenges to a role you may certainly ask about their ability to handle those situations but never imply that their gender or age may affect this.

We’ve always had a man/woman in this role. Do you think you can handle it? How many years do you think you’ll have left until you retire?

What can you bring to this role? What are your long term goals?

Location, disability, illness

You may think asking questions regarding where a candidate lives and how far/long it will take to commute to work is innocent but asking these questions could cause discrimination relating to a neighborhood heavily populated by an ethnic group or social class. Also asking questions around gaps in a candidate’s employment is acceptable, but asking questions around a disability and how it may affect their capabilities to do a job is not.

How far would your commute be? Do you smoke/drink?

Are you able to start at 9 am? Have you ever been disciplined due to alcohol/drugs?

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Posted in Company handbook, Contract of employment, Discrimination, Employee Contracts, Employee Handbook, Employment Contract, Employment Tribunals

6
Nov 17

Posted by
Jennie Hussey

How to Avoid Harassment in the Workplace

The recent allegations against Harvey Weinstein in the US have created somewhat of a snowball effect worldwide with thousands of women and men speaking out about their accounts of sexual harassment and assault, many of them being work related. Allegations involving high profile individuals and people in authority have demonstrated just how widespread a problem this has become across all industries and professions and has exposed a sinister culture of silence, fear and acceptance which we must now turn on its head.

In the UK, the Equality Act 2010 prohibits sexual harassment, defined as conduct of a sexual nature which has the purpose or effect of violating the victim’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment. Examples might include unwelcome sexual advances, displaying pornographic images, or sending emails containing material of a sexual nature.

Employers in the UK are responsible for their employees’ actions in the course of their employment, even if such actions are taken without the employer’s knowledge or approval. Employers should be able to demonstrate that all reasonable steps to prevent the employee from taking discriminatory action were taken, in order to build a successful defense.

Employers are therefore compelled to take steps to ensure a harassment-free work environment. Effectively organisations must set down clearly defined procedures to deal with all forms of harassment including sexual harassment.

There are a number of steps an employer can take to help prevent this type of behavior from occurring in the workplace:

A Bullying and Harassment policy

  •  to protect the dignity of employees and to encourage respect in the workplace

An Equal Opportunities policy

  • to create a workplace which provides for Equal Opportunities for all staff

A Whistleblowing policy

  • to enable staff to voice concerns in a responsible and effective manner.

Transparent and fair procedures throughout

Disciplinary action

  • A sanction that is appropriate for the level of alleged harassment – to help try and change the culture of silence that has allowed harassment to become normal and protected.

Provision of on-going training

  • At all levels within organisation

Bright Contracts has a fully customisable Staff Handbook, which includes a Bullying and Harassment Policy and also an Equality Policy and Whistleblowing Policy.

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Posted in Bullying and Harassment, Company handbook, Dismissals, Employee Handbook, Employment Tribunals, Staff Handbook

25
Oct 17

Posted by
Lauren Conway

Government have launched Employment Tribunal fee refund scheme

Following the ruling in July this year which saw the Supreme Court rule employment tribunal fees as unlawful, the Government is now ready to start repaying the thousands of people that were charged.

The ruling, which was heralded as possibly the biggest employment law decision ever in the UK, saw the Supreme Court unanimously ruling that the Government was acting unlawfully when they introduced the fees back in 2013. Fees of up to £1,200 were introduced resulting in a dramatic fall from 5,847 employment tribunal cases the year before the fees were introduced, to 1,740 the following year.

The first steps

The first stage of the refund process will see up to around 1,000 people contacted individually and invited to complete their forms before the full scheme is opened up in the coming weeks. The Government is also working with Trade Unions who have supported large multiple claims, potentially involving hundreds of claimants.

People who were ordered by the Tribunal to reimburse their opponent their fee and who can show that they have paid it are also eligible to apply for a refund under the scheme.

Successful applicants to the scheme will be refunded their full fee and will also be paid interest of 0.5% calculated from the date of the payment right up to the date of the refund.

The opening phase of the refund scheme will last for around 4 weeks. Further details of the scheme will be made available once the scheme is rolled out fully.

For further details please see gov.uk

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Posted in Dismissals, Employee Contracts, Employee Handbook, Employment Tribunals, Employment Update

3
Oct 17

Posted by
Jennie Hussey

£25,000 awarded for unfair dismissal due to pregnancy

Leeds Employment Tribunal recently awarded just over £25,000 in compensation after it ruled a woman was unfairly dismissed from her training job at Bradford District Training Agency after she became pregnant.

The woman told the tribunal that her contract had been verbally extended at the same time as she received a promotion and pay increase. She spent a number of weeks chasing the company for her written terms of the extended contract, which would have kept her in her role until March 2017. She was later dismissed, shortly after announcing her pregnancy.

The company stated that the woman lost her job due to redundancy and that her fixed-term contract had expired, it was nothing to do with her pregnancy. However, the tribunal found that the company had offered unreliable evidence and the company’s behavior was ‘substantially and procedurally unfair’ and stated that firing an employee because of being pregnant was a ‘serious act of discrimination’.

The woman was awarded £9,130 for loss of earnings and £15,600 for injury to feelings and £435 for loss of statutory rights.

Naeema Choudry, a partner at law firm Eversheds Sutherland, stated that; “Tribunals will undertake a thorough evaluation of the facts and evidence whether there is an inference of discrimination. While it is not unlawful to make redundant a pregnant employee if the decision is linked in any way to the pregnancy it will amount to unlawful discrimination and unfair dismissal. Similarly, if the contract of employment of a pregnant worker is not renewed because of her pregnancy or future maternity leave, this would also amount to unlawful discrimination.”

This case shows us that tribunals take discrimination very seriously and that they will not simply accept at face value the reason for dismissal put forward by an employer. Employers should also be aware that as there is no cap on the amount of compensation that a tribunal can award in a claim for discrimination.

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Posted in Awards, Company handbook, Contract of employment, Dismissals, Employee Contracts, Employee Handbook, Employment Contract, Employment Tribunals, Staff Handbook

9
Aug 17

Posted by
Lauren Conway

Employers must now include voluntary overtime when calculating holiday pay

A landmark legal victory for Unite union means that employers must now include normal voluntary overtime when they are calculating holiday pay. The ruling is of major significance to workers who receive payments for working voluntary overtime but these payments are not reflected in their holiday pay. The union says that the ruling has set a legally binding precedent which employment tribunals across the UK are obliged to follow.

The Case

The case against Dudley Metropolitan Borough Council was brought by 56 council employees who worked on maintaining Dudley’s housing stock as electricians, carpenters, and plumbers. The employees worked regular voluntary overtime, beyond their fixed contractual hours, including Saturdays and they also elected to go on a standby rota every four weeks, to deal with emergency call-outs and repairs. The loss of earnings from holiday pay underpayments varied between £350 and £1,500 a year depending on each worker and how much voluntary overtime they carried out.
The decision by the employment appeal tribunal is the first to confirm that payments for entirely voluntary duties, such as voluntary overtime, standby, call-out work and travel-time linked to that work, should be included in the calculation of workers holiday pay.

Learning Points for Employers

The area of whether overtime should be included in employees holiday pay is a hot topic. This ruling echoes that of Fulton & Baxter v Bear Scotland Ltd when the ET found that overtime and other payments should have been included in the calculation of holiday pay.

Employers who do not pay employees normal voluntary overtime as part of their holiday pay are urged to reconsider this and make a change otherwise they might see themselves in hot water if a case were brought against them.

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Posted in Annual Leave, Company handbook, Contract of employment, Employee Contracts, Employee Handbook, Employment Contract, Employment Tribunals, Employment Update, Pay/Wage, Staff Handbook, Wages

28
Jul 17

Posted by
Laura Murphy

The biggest employment law decision ever in the UK?

This week saw the Supreme Court rule employment tribunal fees as unlawful. The ruling has been heralded as possibly the biggest employment law decision ever in the UK.

Employment tribunal fees of up to £1,200 were introduced in 2013. Consequently, we saw a dramatic fall in a number of tribunal cases being brought. In the year before the fees were introduced, there were 5,847 claims taken to employment tribunals. This fell to 1,740 in the year after fees were introduced.

The ruling has been welcomed across the board and is seen as a win for justice. In welcoming the ruling, the CIPD has said that fees were denying access to justice for many people, consequently, it is highly likely that some perfectly valid claims have never been heard.

What does it mean now?

First and foremost, any employee who brought a claim since 2013 will be refunded any fees they paid.

Going forward it is likely that we are going to see a significant rise in the number of claims being brought. Although there might be an initial rush, over time it is doubtful that claim levels will reach the dizzy heights seen pre-tribunal fees. There are two main reasons for this; we now have the Acas mandatory conciliation scheme, as well as the fact that unfair dismissal rights now accrue after two years service rather than one.

To help prevent being caught in a precarious tribunal situation or with a costly settlement, employers should at the very minimum ensure they have robust policies and procedures in place to rely on in such situations.

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Posted in Employee Contracts, Employee Handbook, Employment Tribunals, Employment Update

6
Jul 17

Posted by
Lauren Conway

Shared Parental Pay: Father wins sex discrimination case

A father, who was given only two weeks full paid parental leave when his wife was advised to return to work to combat post-natal depression, has won a sex discrimination claim. Mr. Ali was originally an employee for Telefónica whose maternity policy gave females with 26 weeks service the option of 14 weeks’ enhanced maternity pay, followed by 25 weeks at the rate of statutory maternity pay. The policy also offers new fathers two weeks full paternity pay leave. 

Mr. Ali’s wife was diagnosed with post-natal depression following the birth of their child and was advised by medical staff that returning to work would assist with her recovery. Mr. Ali took two weeks paternity leave followed by a number of week’s annual leave. Upon returning to work Mr. Ali was informed that he was entitled to take shared parental leave but that he would only be paid statutory shared parental leave. Mr. Ali claimed direct sex discrimination in an employment tribunal.

Acknowledging that two weeks maternity leave is compulsory for new mothers, Mr. Ali argued that male employees should be given the same right to leave on enhanced pay for the next 12 weeks as their female colleagues. Mr. Ali argued that his employer’s policy viewed that a man taking care of his baby is not entitled to the same pay as a woman taking care of her baby, a choice that was denied to him and his wife.

Findings

The ET upheld Mr. Ali’s sex discrimination claim. The ET believed that the role of primary carer should be the choice if the parents and that it should be free of “generalised assumptions” that the mother should be the primary carer and get full pay. According to the tribunal, in this case, Mr. Ali was best placed to perform that role, given his wife’s post-natal depression.

Learning Points

Employers are advised that if they enhance maternity pay that they also enhance shared parental pay. 24.7% of employers already enhance, or plan to enhance, shared parental pay to match the enhancement of maternity pay. Employers should always have a clear maternity, paternity, adoptive and shared parental leave policies in their staff handbook.

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Posted in Company handbook, Employee Handbook, Employment Tribunals, Parental Leave

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