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Innes Clark

Innes Clark

Employment Lawyer
Morton Fraser Solicitors 

Website URL: http://www.morton-fraser.com/blog/employment

Monday, 04 May 2015 10:20

19,500 awarded for sexual harassment

Miss Southern was a 22 year old employee of Britannia Hotels Ltd, who worked on a zero hours contract and had a history of mental health issues. She reported that her line manager subjected her to 8 months of sexual harassment from February 2013 including

Sunday, 12 April 2015 21:20

Important employment law changes

The beginning of April is one of two key dates each year when employment legislation is introduced in the UK (the other being 1 October). Various legislative changes took place on 5 and 6 April, including the introduction of shared parental leave. I have set out a summary of the changes below.

Sunday, 12 April 2015 21:17

Holiday pay and commission payments

Holiday pay was back in the news last week when the long awaited decision in Lock v British Gas was issued.

Sunday, 01 February 2015 16:54

Abolition of ET fees in Scotland?

The UK Government published a document last week entitled Scotland in the United Kingdom: An enduring settlement which includes draft clauses which will form part of a new Scotland Bill. This is intended to implement the recommendations in the Smith's Commission's report published in November 2014 following on from the Scottish referendum.

Of particular interest from an employment law perspective is draft clause 25. This clause would devolve powers in relation to the administration and management of Tribunals to the Scottish Parliament.

Sunday, 25 January 2015 15:10

Employment Law - What to expect in 2015

May 2015 will, of course see a general election and in the run up to that the various parties will be setting out their manifestos which will include their views on how UK employment law should develop moving forward. It will make for an interesting debate.

In addition to this, the following legislative changes are expected in 2015:

Monday, 05 January 2015 13:10

Employment Law in 2014

As 2014 draws to a close, I though that it would be a good time to reflect on what was a big year for Employment Law. I've set out below the key statutory changes, one or two significant cases and some other employment related snippets from 2014.

January

The year started with the amended TUPE Regulations coming into force on 31 January 2014. The amending legislation made some significant changes to the law governing a Transfer of Undertaking.

TUPE regulations amended 31 January

February

Unison's application for judicial review of the UK Government's introduction of Employment Tribunal fees for Claimant was dismissed by the High Court.

The case of USDAW v Woolworths was referred by the Court of Appeal to the Court of Justice of the European Union. This case considerably widened the employer's duty to collectively consult in redundancy situations.

March

An interesting report from the Cabinet Office highlighted the level of job satisfaction people feel in relation to their work. Those happiest in their work were the clergy, chief executives, agriculture/horticulture managers and quality assurance/regulatory professionals. Those less contented in their roles included publicans, elementary construction workers, debt/rent collectors and industrial cleaners.

Which jobs make employees happy?

We launched the 2nd generation version of our employment law app.

The Employment Appeal Tribunal decided that covert recordings will usually be admissible in an employment tribunal provided that the evidence is relevant.

Employment law podcast: Covert recordings

April

A major change in procedure was introduced from 6 April 2014 with the introduction of Early ACAS Conciliation. This was voluntary between 6 April 2014 and 6 May 2014 when it became a mandatory requirement.

April also saw an increase in compensatory award limits from 74,200 to 76,574 or 12 months' pay whichever is lower, with a week's pay increasing from 450 to 464.

Discrimination questionnaires were abolished and discretionary financial penalties for employers who lose Tribunal claims came into force.

May

May brought to light a worrying finding from The Federation of Small Businesses that nearly one fifth of all candidates for jobs have provided false references on their application, compounded by the existence of websites offering fraudulent references. The findings highlighted just how important it is for employers to ensure that they follow up on all references and don't just assume that they are genuine.

One fifth of job candidates in the UK provide false references

Another report discovered that one fifth of all new employees either fail their probationary period or have it extended - the same one fifth who had submitted a false reference? A correlative study would be interesting.

Report finds that one fifth of staff fail probationary period or have it extended

The European Court of Justice decides that statutory holiday pay should include commission in the case of British Gas v Lock.

June

The Government's changes to the flexible working regime came into force on 30 June. All employees with 26 weeks' service no have the right to request flexible working. Previously this right was limited to employees who were parents or carers and had 26 weeks' service.

The Small Business, Enterprise and Employment Bill was published.

The High Court rejected an application for a judicial review of the cap on the maximum compensatory award tribunals can award in unfair dismissal cases.

The EAT decided that 65 was an appropriate age for mandatory retirement in the long running case of Seldon involving a partner in a law firm.

The Government announces plans to ban exclusivity clauses in zero hour contracts.

July

The Equal Opportunities Review published their annual survey of compensatory awards in discrimination cases.

Compensation awards in discrimination claims survey

July also saw the submission of a 100,000 signatures e-petition seeking to recognise Eid and Diwali as public holidays. This idea has political support and is one to watch in coming years.

The Advocate General issued an opinion decided that obesity was not, in itself, a disability but that someone who was obese could be disabled. The decision of the Court of Justice of the European Union on this case is awaited.

August

A study carried out by Saga highlighted that there has been a 36% increase in the number of workers over the age of 65 in the last four years. This means that there are currently 1,100,000 over 65s employed in permanent positions in the UK. The advice to employers is to treat all employees (or prospective employees) equally, irrespective of age and not to make any assumptions regarding someone's ability to do a job based on their age.

Number of workers over the age of 65 rises sharply

Glasgow hosted an excellent Commonwealth Games in August but one employee who was seen at the Opening Ceremony dressed as a Tunnock's teacake and dancing whilst signed off work sick.

Dancing Tunnock's teacakes and shark wrestling

PwC published findings that a third of British workers admit they have pulled a 'sickie'. PwC surveyed over 2,000 UK workers and found that the most common reasons for pulling a 'sickie' are: Hangovers (32%), Boredom with job (26%), Interviews (26%), Mondays (11%), Good weather (10%), To watch a sporting event (8%).

Sickies - most common reasons & unusual excuses

September

September was dominated by the independence referendum and people's hopes and fears for the future of Scotland. The impact independence might have on employment law was, like everything else, up for debate.

Another landmark vote took place on 18 September 2014 when members of the Royal and Ancient Golf Club voted to admit women as members of the club. Whilst a welcome step, the vote was not as a consequence of any legal requirements the Equality Act 2010 allows 'single characteristic associations' to directly discriminate on grounds of a protected characteristic in certain circumstances.

Richard Branson sent out an almost too good to be true message to some of his employers by implementing unlimited holiday entitlement provided that the leave was not detrimental to the running of the business.

Unlimited holiday entitlement too good to be true

Zero Hours Contracts led to more litigation as employees of Sports Direct raised a claim for breach of contract in relation to the Company's refusal to include zero hour contract employees in the bonus scheme.

Statistics were published showing the most up to date figures of the number and nature of Employment Tribunal claims raised in Scotland, England & Wales. The statistics showed that the total number of cases received from August 2013 (after fees were introduced) until the end of March 2014 was 16,206 compared to 39,567 in the same 8 month period the previous year. This is a drop of 59%.

Employment tribunal statistics 2013-2014

The statistics were of particular interest in relation to the Court of Appeal case heard on 18 September 2015 which considered Unison's challenge to the introduction of Employment Tribunal fees. The Court of Appeal decided to put the appeal proceedings on hold so that fresh judicial review proceedings could be raised in the High Court.

September also saw a further warning to employees regarding their use of social media as an Employment Tribunal heard a case involving an employee who was dismissed for 'liking' a Facebook post which appeared to threaten violent behaviour towards his manager.

Employee dismissed for Facebook "like"

October

A fresh judicial review hearing took place on 21 and 22 October in the High Court following Unison's application to admit new evidence at a preliminary appeal hearing in September.

The 2014 CIPD annual survey report on absence management was published in October. It reported that overall absence levels have fallen from an average of 7.6 days absence per employee in 2013 to 6.6 days in 2014.

CIPD absence management survey 2014

Annual increase to the national minimum wage rates.

Right to take time off work to attend antenatal appointments with the child's mother introduced.

From 1 October Tribunals are required to order employers who breach equal pay legislation to carry out equal pay audits in certain circumstances.

The statutory qualifying period for unfair dismissal was removed where the dismissal is connected with the employee's membership of the Reserve Forces.

November

4 November was Equal Pay Day. Despite legislation being brought into force over the years, including the Equality Act 2010, in 2014 the gender pay gap is still around 16%.

The eagerly anticipated Employment Appeal Tribunal's (EAT) decision on holiday pay in the case of Bear Scotland Limited and others was issued.

Holiday pay implications for employers

The Government launched a review regarding the employment status of workers and also proposed that there should be a single national minimum wage rate for apprentices and those aged 16 to 17 years.

ACAS published statistics for the first six months of Early Conciliation scheme which showed that only 24% of claims progressed to an Employment Tribunal.

ACAS early conciliation statistics - a roaring success?

The Smith Commission on further devolved powers for Scotland indicated in its report that 'All powers over the management and operation of all reserved tribunals (which includes administrative, judicial and legislative powers) will be devolved to the Scottish Parliament other than the Special Immigration Appeals Commission and the Proscribed Organisations Appeals Commission.' It is considered that this will include Employment Tribunals. The Scottish Government have previously made clear their opposition to Tribunal fees. This suggests that we could end up with a situation where there are no fees for claims in Scotland but fees where the claim is raised in England & Wales. This is one to watch with interest in 2015.

Unite announced that they would not be appealing the Employment Appeal Tribunal's (EAT) decision on holiday pay in the case of Bear Scotland Limited and others thereby reducing the spectre of significant backdated Tribunal claims for unlawful deductions of wages in holiday pay claims.

Unite not to appeal landmark holiday pay ruling

December

Holiday pay and the controversy surrounding Tribunal fees were the hot topics of 2014 and the year ends with the Ministry of Justice publishing details of the number of new Employment Tribunal claims received between July and September 2014. The report indicates that in 2012/13, the Employment Tribunal received on average 48,000 new claims per quarter. Figures for July to September 2014 show that there were 13,612 new claims.

ACAS recently published statistics relating to the operation of early conciliation during the first six months since it was launched.

From 6 April 2014, the early conciliation process with ACAS was voluntary. This then became compulsory on 6 May 2014. This means that in any employment dispute where one of the parties wishes to raise an Employment Tribunal claim, they must first instigate the ACAS early conciliation process. In doing so, ACAS will attempt to settle/conciliate the claim and prevent it from proceeding to an Employment Tribunal. If agreement is reached between the parties, this is detailed in a COT3 agreement. If the parties do not reach an agreement, ACAS will issue an early conciliation certificate which is required by the claimant in order to raise a claim in the Tribunal. This process also extends the time limit for raising a Tribunal claim.

The 2014 CIPD annual survey report on absence management has just been published. I've set out below some of the key points from the survey plus some practical tips on how to deal with absence issues in the workplace.

The report considers key workplace absence issues and is based on survey replies from 518 organisations from a range of sectors throughout the UK employing a total of 1.4 million employees. The survey reveals some interesting information that can assist employers with improving their absence management procedures. It also provides useful benchmarking data.

The survey reports that overall absence levels have fallen from an average of 7.6 days absence per employee in 2013 to 6.6 days this year. In fact the statistics from the last five years show a fluctuating downward trend in all business areas, apart from manufacturing and production which have stayed largely the same. However, the level of absences, as you would expect, vary between organisations with public sector organisations having the highest average absence rates.

Public sector sick days have fallen to an average of 7.9 days per employee per year from last year's figure of 8.7 days. As with last year, this is higher than the private sector figure of an average of 5.5 days absence per employee per year.

One point worth highlighting from the report is the increased impact of absence related to stress which is ranked as a common cause of both short term (four weeks or less) and long term absences. However, minor illnesses, such as colds or migraines, are the most common cause of short term absences, with stress being a more common cause of long term absences.

Two fifths of employers participating in the survey have reported that stress absence has increased in the last year once again, with public sector and larger organisations being more likely to report an increase in stress related absences.

As with last year, the most common cause of stress identified by the survey is workload, suggesting employees are taking on greater amounts of work due to a more streamlined workforce. It is therefore important that employers have in place effective procedures to deal with workplace stress including monitoring workload levels. Despite many organisations surveyed taking steps to tackle stress related absences, one third of employers who included stress in their top five reasons for absence are not currently taking any action to address this issue.

Short-term absence of up to seven days accounts for two-thirds of workplace absences. Of the organisations surveyed, 96% of these reported that minor illnesses such as colds, flu and stomach upsets were in the top five causes for short-term absences. Unfortunately for employers, there may be little that can be done to prevent this type of absence. The survey does though show that family and home responsibilities are seen as one of the top five causes of absence by a significant number of employers (the survey reveals this to be a bigger issue among private sector employers) and it may be beneficial for employers to consider whether additional flexible working availability may help reduce short-term absence if this is a problem.

While costs are hard to estimate and can depend on the size of the employer, the median cost of workplace absence of those surveyed who had financial records was 609 per employee per year. So if nothing else having good absence procedures in place can be a boost to the bottom line.

The report as a whole contains some very useful benchmarking information for employers looking to improve their absence management procedures.

If absenteeism is a problem for your organisation then it is important to consider issues such as:

  • Management Reporting e.g. cost of absence, lost time rate, Bradford factor
  • Ensuring that absence figures are circulated to the relevant people within the organisation
  • Being clear who is responsible for absence management HR or Employee's manager or someone else?
  • Being proactive in dealing with any issues without delay
  • Return to work interviews
  • Use of trigger points so that matters are escalated after a certain number of absences
  • Use of occupational health advice where appropriate.
  • Formal procedure and formal warnings where appropriate
  • Being aware of any underlying disability issues
Monday, 22 September 2014 09:03

Employment Tribunal Statistics 2013-2014

Statistics have been published by the Ministry of Justice showing the most up to date figures of the number and nature of Employment Tribunal claims raised in Scotland, England & Wales.

These statistics are of particular interest following the introduction of Employment Tribunal fees in July 2013. Since 29 July 2013, anyone wishing to raise a claim in the Employment Tribunal has required to pay an issue fee when lodging a claim and, before the claim proceeds to a full hearing, a hearing fee. The level of fee depends on what type of claim is being raised. A fee remission system is in place but statistics have revealed that the number of remissions granted are low.

Unison unsuccessfully challenged the fee regime before the High Court last year but the union's appeal is due to be heard on 18th September 2014. The timely publication of these statistics provides further strong evidence that the Tribunal fee system is denying access to justice. These statistics will increase the pressure on the government to reform the system and will almost certainly be used by Unison in their appeal.

The statistics show that the total number of cases received from August 2013 (after fees were introduced) until the end of March 2014 was 16,206 compared to 39,567 in the same 8 month period the previous year. This is a drop of 59%. The statistics for April 2014 to June 2014 show total claims lodged of 4245 compared to 13,899 in the same quarter the previous year. However the report points out that from April 2014 the figures were impacted by the introduction of Early Conciliation. This requires ACAS to be notified of any dispute before a claim can now be lodged. This is with a view to trying to settle the dispute. Individuals who previously could simply lodge a claim now have to normally wait up to one month until ACAS agree that they can do so. This time delay means that the latest quarterly figures are not directly comparable. However they still show a vey significant downward trend in the number of claims.

The more detailed statistics highlight some interesting trends.

The highest sum awarded by the Employment Tribunal in 2013-2014 was 3,402,245 and was awarded in an unfair dismissal claim. High awards were also made in claims arising from race discrimination, sex discrimination, disability discrimination and age discrimination.

The number of costs awards made by the Employment Tribunal in 2013-2014 has risen since last year. Eight hundred and eighty-nine costs awards were made compared to 651 last year. Six hundred and forty seven of the costs awards were made in favour of respondents. Given the overall number of claims raised this demonstrates that Tribunals are still reluctant to make awards of costs. However, over the past few years there has been a year on year increase in the number of costs awards made so Tribunals are perhaps not as reluctant as they once were.

The maximum costs award was 58,022 The median figure is 1,000 (a decrease from last year's median figure of 1,842).

Below is a list of the maximum, median and average awards for unfair dismissal and discrimination claims:

Maximum Award Median Award Average Award
Unfair Dismissal 3,402,245 5,016 11,813
Race Discrimination 162,593 5,513 11,203
Sex Discrimination 168,957 8,039 14,336
Disability Discrimination 236,922 7,518 14,502
Religious Discrimination 22,762 3,191 8,131
Sexual Orientation Discrimination 22,762 6,284 8,701
Age Discrimination 137,000 6,000 18,801

You will notice from the figures above that the highest unfair dismissal award of 3,402,245 is in excess of the statutory cap of 76,574 but remember that this cap does not apply where the unfair dismissal is for whistleblowing or for raising certain health and safety issues.

I noticed an interesting article in the Guardian this week commenting on Britain's ageing work force. The study carried out by Saga has shown that there has been a 36% increase in the number of workers over the age of 65 in the last four years. This means that there are currently 1,100,000 over 65s employed in permanent positions.

One of the main reasons for this has been the abolition of the default retirement age of 65 in 2011. There were various reasons as to why this was necessary including the fact that people are living longer, the failure by many people to save adequately for their retirement and the value of the state pensions in comparison with the rising cost of living.

In most cases, the retirement age is now when an employee chooses to retire. If an employee chooses to continue to work in their older years then, in terms of the Equality Act, an employer cannot retire an employee compulsorily unless the retirement can be justified as a "proportionate means of achieving a legitimate aim". This is a hard test to meet in these circumstances.

But what about the over 65s who are not currently working and want to get back into work? It is well known that people approaching retirement age or over retirement age find it harder to obtain employment. In response to this, Paul Green, Saga's Director of Communications said "we need to stop writing older workers off simply because they have found themselves out of work at an older age, and start making the most of the invaluable skills and experience many have to offer".

A common argument to employees working on beyond what used to be the retirement age is that young unemployment rates are directly affected by too many older workers refusing to retire. As I have mentioned in previous blogs on this topic, this argument is flawed. Similar arguments were made after the Second World War when the number of female workers started to rise significantly, with it being said that men would have fewer jobs because of the influx of female workers. However, the reality is that if more people work there is greater spending power, which, in turn, creates more jobs.

It will be very interesting to see to what extent the number of over 65s continues to rise over the coming years. I have just googled "worlds oldest worker" and there are a number of employees mentioned who are aged over 90 and even over 100. I would hope to retire before then but you never know!

As ever, the best advice to employers is to treat all employees (or prospective employees) equally, irrespective of age and not to make any assumptions regarding someone's ability to do a job based on their age.

- See more at: http://www.morton-fraser.com/knowledge-hub/number-workers-over-age-65-rises-sharply#sthash.seDSksXS.dpuf

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