A new scheme came into force on 6 April 2016 that penalises employers who lose employment tribunal claims, employment solicitors Hatton James write.
If the employer does not pay an employment tribunal award or COT3 settlement the employee can contact the ET Penalties Team, who will liaise with the employer for payment.
A warning notice gets issued to the employer informing them that they may have to pay a financial penalty to the government if the employment tribunal claim award is not paid within 28 days. If the employer does not pay the award in this time, it costs them an additional 50% of the award by way of a fine (subject to a maximum of £5,000).
This system was brought in to deal with the problem of 35% of employment awards and settlements going completely unpaid and a further 16% being partly-paid. We have to say that our first advice looks into the chances of this and as a result we have only seen a couple of underpaid awards in our combined 15 years of practice of employment tribunal claims.
One such employment tribunal claim involved a hairdresser whose employer suffered financial problems and couldn’t pay staff on time. She resigned and brought a claim successfully but only recovered half of the award. Sadly, this is far from typical, though not so common with employees who are advised by employment solicitors.
Unpaid employment tribunal claims are difficult to deal with because they push up the cost of taking action against an employer for breaches of employment law. Solicitors’ fees can be high even without enforcement problems. You don’t know at the start of a claim whether you need to take enforcement action into account.
Enforcement action includes sending in the bailiffs, seizing bank accounts and forcing the employer to account for their income in a court. This process has been simplified in recent times but it is still far from straightforward.
It happens every couple of years, like clockwork. It seems to be the nation’s favourite pastime.
Yes, it’s that time when employment solicitors and legal commentators tell employers to to be flexible with football-mad employees as the football playing competition season starts and absence among men with coloured scarves experiences an increase.
On 10 June 2016 the month-long Euro 2016 football tournament will start. Acas has published guidance to help employers through this difficult time.
The issues to be aware of are:
- unhappiness with the way annual leave is distributed if several want the same day off
- staff taking sickness absence instead of annual leave
- internet / radio / tv use during working hours
- disciplinary issues like disagreements between supporters and drinking on the job
Issues that we have personally seen in recent years include:
- Ribbing between England and Italian fans turning into a stereotype-laden shouting match and an indignant resignation
- Staff calling in sick after being denied time off to watch a match and then being given a warning or even sacked
Acas suggests meeting with employees and making agreements with them to cover the above issues; that way, the rules are more likely to be respected. The aim is to keep staff happy and unauthorised absence to a minimum.
We advise managers to get to know the schedules, especially the UK teams’ games. The kick off times vary between 2pm and 8pm. Where you can, you might want to fit the business around the matches. This operates on the principle that if you can’t beat them, join them.
Acas also advises having a more flexible working day during the football game season, letting staff watch games at work if they make the time up.
And this is a good time to remind employers to have policies and procedures in the handbook which cover matters such as absence, social media use, nationality-based harassment, performance, alcohol and drugs and so on.Read More
We saw yet another news story recently about a female employee who was told by her employers what to wear in the office, which employment solicitors warn breaches sex discrimination laws.
Liberté Chan is a meteorologist (‘weather girl’ is considered demeaning these days) who was handed a cardigan live on air after viewers complained that it was too showy or revealing.
This is an American news story but it has gained international attention and is relevant to several recent news stories in the UK touching on work uniforms including this one and another that we reported on in our blog.
It may well give grounds for resigning and claiming constructive dismissal if your employer embarrasses you in front of colleagues / customers (or viewers in this case). Although the fact that live tv brings a very wide audience, publicity and little time to give properly-weighed consideration probably lowers the bar for the employer.
Employment solicitors have noted that it is overwhelmingly women who feature in these stories about what to wear at work. Men’s clothing appears never to be policed. This on the face of it is ‘institutionalised sex discrimination’ but to win a tribunal claim on this you would need to show that you in particular were treated that way because of your sex. It is a different thing altogether to show this in an individual case.
As we’ve said before, sex discrimination law recognises that the sexes have different bodies and that there are different cultural norms (it is normal for men to wear ties but unusual for women, who can show leg but men do not). The law allows employers to impose different dress codes on men and women for this reason.
This is odd from a conceptual point of view. The whole point of laws against direct sex discrimination (about treating men and women differently because of their sex) is to change cultural norms where necessary. That is why employers can no longer pay married women less or refuse to employ people of colour, which used to be common and even socially acceptable. So it is peculiar that a form of direct discrimination is permitted because it is socially acceptable.
However the law will step in if a certain boundary is crossed, it’s just that no-one knows where that is because so few cases come to tribunal. Our experience is that judges are very interested in picking on women for their clothing at work and will give the employee the benefit of the doubt when it comes to showing that it was different treatment; then the question becomes whether it was on the ground of their sex and the employer tends to get the benefit of the doubt about this issue of what is the cultural norm.Read More
An agency receptionist was sent home from work at PWC the accountants firm (though supplied by a third party) after refusing to wear high heels, the BBC has reported.
This story has parallels with a similar one we wrote about recently. This very firm of employment solicitors had one Birmingham client who recently complained in a sex discrimination claim about being told NOT to wear high heels in the office.
Nichola Thorpe was told by managers to wear shoes with at least a two-inch heel and was laughed at when she complained that male colleagues were not asked to do the same (which could be sex discrimination).
She didn’t want to wear high heels throughout the day for comfort reasons and argued that it didn’t impact her ability to do the job.
She has started a petition to Parliament calling for the law to be changed so women cannot be forced to wear high heels to work. 10,000 people have signed it so the government will now have to respond.
The legal position is that employers can dismiss staff who do not comply with reasonable dress code standards and there can be different standards for men and women, as long as there’s an “equivalent level of smartness”. This particular issue has never been ruled on, though our bet is that an employer would be wrong to insist on this level of detail to footwear from female employees.
We believe that high heels have a particularly sex-skewed purpose. As relayed in the film Kinky Boots “Sex is in the heel. Stilettos require constant balance from the upper leg causing the muscles of the backside to tense and appear pert and ready for mating.”
Her employer said that it would change its policy and PWC distanced itself from the decision.Read More
An interesting case from the Employment Appeal Tribunal has been reported. Employment solicitors are noting its employee-friendly slant.
Mr Risby was a paraplegic following a road collision and worked for the council. He also had a short temper, which was nothing to do with his disability.
His employer invited staff to a meeting and when Mr Risby found out that it was in a basement with no wheelchair access, he was angry and worked himself into a state about it overnight.
At work, he shouted about it at a junior, almost reducing her to tears. He said, in the open office, “the Council would not get away with this if they said that no f***king n***ers were allowed to attend”.
He was suspended and dismissed, despite his defence that he was not racist, just making a point in a strong way. He lost his case at the employment tribunal but appealed, hoping to show that the dismissal was unfavourable treatment “in consequence of his disability”. This is the hurdle of showing that the dismissal was in some way linked to his disability, which is what this case is about.
If he could get over this hurdle, he would still need to show that dismissal was disproportionate but (a) this might be easier than showing it was unfair and (b) one hurdle at a time.
The tribunal had said that there was “no logical connection between his behaviour on 19 June and the fact that he is wheelchair bound“.
The EAT however said there was such a connection. It was hidden behind a couple of layers i.e. wheelchair user status → inability to attend meeting → anger → rudeness.
So that first hurdle can be overcome quite easily for an employee and these cases will tend to turn on whether the employer’s treatement is proportionate or not, which is just a question of reasonableness. This case will go back to the employment tribunal for another look, though we suspect that the answer will be the same for the employee.
Case report: Risby v Waltham Forrest BCRead More
In this short article, Birmingham employment lawyers Hatton James Legal look at what an employment contract actually means. What does it mean when it says “this contract may only be varied in writing“.
Any employment solicitor will tell you that the terms and conditions of an employment relationship consist of:
- Anything agreed between you and a manager at interview or afterwards, orally (verbally) or in emails.
- Practices common in your industry (eg that waiters get to keep or share tips).
- Practices common at your place of work (eg christmas bonuses every year).
- Things a bystander would consider obvious or without which the employment relationship wouldn’t make sense (eg a term that the parties should behave in a manner consistent with an employment relationship, which includes being civil to each other in an office situation).
- Terms implied by parliamentary statute (eg that men and women get paid equally).
- Whatever is recorded on the A4 piece of paper that is the ‘statement of terms and conditions’ or the contract of employment.
Confusion sometimes stems from the fact that “employment contract” can refer either to the A4 piece of paper in the last bullet-point above, or the totality of the terms and conditions in the whole employment relationship – that is, all the bullet-points above.
Sometimes the A4 employment contract says that the parties can’t agree further terms and conditions unless some hoops are jumped through, eg that they be recorded in writing. This is intended to stop employees from relying on oral promises made, eg about bonuses or salary increases.
The counter-argument for the employee is that when a manager made such a promise, that promise was able to override the A4 contract about salary and the part about not being able to change the terms of the contact except in writing.
Does this argument work? It is unclear because caselaw goes both ways. The latest from the court of appeal is that such a clause doesn’t stop later oral agreements, but because of a technicality in the way that precedent works (this was an off-the cuff comment that didn’t impact on the court of appeal case itself), it is not binding at the employment tribunal level, so technically such a clause is binding and an employee with such a clause in their contract can’t rely on anything later agreed unless it is writing.
The message is that if the terms and conditions change, get that confirmed in writing. Not only will this be evidence on what was agreed (in a he-said, she-said scenario), but it will also defeat an employer’s argument that the agreement was invalid because it wasn’t in writing.
It will also defeat an employer’s argument that the manager’s promise wasn’t meant to be contractual since it wasn’t written down after they had previously agreed to make changes in this way (though there may be good reasons why parties agree an oral variation, such as where the employment became long-standing and informal over time or in an urgent situation.Read More