ACAS is a public body which provides a free and impartial information and advice to both employers and employees on all aspects of workplace issues and employment disputes.
Before bringing an employment dispute to the tribunal, every would-be claimant must first notify ACAS, who will then attempt to act as mediator so the dispute can be resolved informally before reaching the stage where the claimant submits a tribunal claim.
ACAS have recently published their latest statistics (covering April 2017 to December 2017). Between April 2017 and July 2017, they received around 1,700 notifications per week. Since the scrapping of the ET fees (in July 2017), notifications have surged to 2,200 per week. This is an increase of around 30%.
Why has there been an increase? Looking at how the statistics have risen sharply since the scrapping of ET fees, shows that clearly the abolition of fees is the dominant factor. However, looking a little deeper brings to the surface some interesting questions that might be answered with time. These are:
- When the fees were in place, did employers tend to rely on the apparent safety net of fees pricing out employees access to justice, as an alternative to complying with employment laws?
- Are disgruntled employees taking advantage of the ‘free shot’ at taking their employers to ET, simply to try and induce a settlement?
- Are employees educating themselves better now they know there is no financial barrier to justice? And is this education persuading employees to bring more claims?
Claims that have progressed through the ACAS notification stage to the tribunal have increased by 57% when compared to the same period in 2016. This isn’t surprising, as in 2016 employees and former employees would have had to pay tribunal fees to proceed with an employment dispute. As this is no longer the case, the removal of this barrier simply means they have less to lose by bringing a claim.
The sharp rise in ET claims shows that employers must ensure they comply strictly with employment law, because if not employees have generally got nothing to lose by taking their employment disputes to the tribunal.
Redundancy can be a necessary, but never a positive process for any business, and can create much uncertainty and stress to those at risk of redundancy. It is because of the negative impact redundancy can have on employees, that the law requires employers to (1) consult affected employees; (2) look for alternatives to redundancy; and (3) adopt a fair process for selecting the employees who are to be made redundant.
‘Bumping’ is a procedure where an employee who is at risk of redundancy (employee A), is moved to another position within the business, with the current occupier of that position being dismissed instead (employee B).
The Employment Appeal Tribunal (EAT) in the case of Mirab v Mentor Graphics (UK) Ltd considered the extent to which employers must consider bumping as an alternative to redundancy.
The claimant, Dr Mirab worked as a Director of Sales for the respondent, Mentor Graphics (UK) Ltd (Mentor), starting in 2013. Dr Mirab was successful in his role, but Mentor’s sales in the Embedded Systems Division were lower than forecast in 2013 and 2014. On 1 February 2015 Mentor restructured the sales force, the effect of which was Dr Mirab no longer earned commission from the automotive sector (Mentor’s most successful sector at the time). Dr Mirab communicated his unhappiness to Mentor, but ultimately continued to work with Mentor. In November 2015, Mentor concluded that Dr Mirab’s position was no longer needed.
On 3 February 2016, Dr Mirab was informed he was at risk of redundancy. During subsequent consultation discussions, Dr Mirab accused Mentor of engineering the redundancy situation. Mentor gave Dr Mirab access to an internal website showing all their vacancies (around 10 in the UK, 275 worldwide). Dr Mirab found nothing suitable. On 29 February 2016, Mentor concluded they hadn’t been able to avoid Dr Mirab’s redundancy and said his notice of termination would start that day. Mentor sent Dr Mirab a letter outlining the reason(s) for redundancy, and advised he had a right of appeal. Dr Mirab appealed but it was rejected.
Dr Mirab went to the Employment Tribunal (ET), claiming that he was unfairly dismissed. The ET found that Dr Mirab was not unfairly dismissed, but curiously mentioned the following about the consideration of bumping when looking at alternatives to redundancy:
“It might have been possible for the respondent in the UK to consider within the wider company the possibility of “bumping”…but the claimant [Dr Mirab] himself did not suggest it…if the claimant himself had suggested it, the respondent would have been bound to consider that suggestion.”
Dr Mirab appealed to the EAT.
The EAT disagreed with the ET’s approach when considering bumping. The EAT clarified that there is no strict rule stating an employer must consider bumping in a redundancy situation, but that equally there is no rule that an employer does not need to consider bumping unless the employee raises it. The EAT confirmed that the key question is whether the decision to dismiss by reason of redundancy falls within the reasonable band of responses.
The EAT’s decision reinforces bumping off as a possibility that should be considered if relevant when looking at alternatives to redundancy. However, the overriding consideration should always be that of whether the decision to dismiss those selected to be redundant is reasonable. This is key to avoiding an unfair dismissal claim from a former employee.
By Zahid Reza
Case report: Mirab v Mentor Graphics (UK) Ltd
Image used under CC courtesy of nikoretro
From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Ian’s dismissal after an unfair disciplinary from a well-known company after 36 years of service.
Ian, age 56, was a foreman working on large infrastructure projects. With over 36 years of knowledge within his field, Gurdeep’s dismissal came as a shock.
Ian was issued with a company van to help complete his daily tasks. As the company owned many vehicles, it had its own fuel pump at the depot, where Ian was the only employee trained and authorised to fuel machinery. An electronic fob was issued to Ian which recorded how much fuel he dispensed from the pump.
The company were well aware that the small tanks they issued could only hold a certain amount and this was not sufficient to last for the working day. Therefore, Ian (thinking proactively) would fuel up several jerry cans to top up the tank whilst out on site. This is precisely why the company issued jerry cans in the first place!
Ian’s employer became aware that Ian was drawing more fuel than the van’s tank’s capacity to hold fuel. This led it to believe that Ian was taking the extra fuel for his own personal use and therefore an investigation was. carried out. Evidence included in the investigation was offered by another employee, Steven, who had a personal vendetta against Ian and wanted him sacked. Other colleagues of Ian stated when they need extra fuel, Ian gave them some of his fuel, showing where the extra fuel went too and was in fact not for Ian’s personal use as alleged.
It is important to remember when an employer is carrying out an investigation, it must be conducted fairly and reasonably. Making a decision after an unfair disciplinary investigation can make any subsequent decisions or action unfair, and leave an employer vulnerable to legal action.
In the appeal, Ian’s employer refused to hear new evidence produced by Ian and his representative. He complained the accusations made were instigated by his manager, who for an unknown reason, took a dislike to him.
Unfortunately, Ian was unfairly dismissed from his job.
We helped Ian to bring a claim of unfair dismissal in the Employment Tribunal on the basis that the employer simply conducted an unfair disciplinary and as a result got the decision wrong.
Image used under CC courtesy of DennisM2
Cancer has always been a disability for the purposes of disability discrimination under employment law. There are particular conditions that are whitelisted as disabilities under the Equality Act, cancer being one of them.
The Employment Appeal Tribunal (‘EAT’) recently looked at whether a ‘pre-cancerous’ diagnosis is a ‘deemed disability’ under the EA.
Mrs Lofty was a café assistant from 2001. In 2014 she noticed a blemish on her left cheek. The hospital told that her biopsy results were consistent with lentigo maligna, cancerous cells that could result in skin cancer. She signed off work on 17 August 2015 to go through surgery to deal with these cells. In mid-September, she was cleared of any possible cancer. She continued to be signed off work for related health issues and suffering extreme anxiety until 17 December 2015.
First Café reviewed her attendance and dismissed her for failing to attend meetings to discuss her continued absence from work.
Mrs Lofty lodged a tribunal claim for disability discrimination. She argued that her pre-cancer was deemed to be a disability under the Equality Act. The tribunal observed her diagnosis as ‘pre-cancerous’, and so thought Mrs Lofty hadn’t suffered cancer within the meaning of the Equality Act, concluding that she wasn’t disabled.
Mrs Lofty appealed to the EAT.
The EAT concluded that because Mrs Lofty had cancerous cells in the top layer of her skin, that this was a deemed disability for the purposes of the EA. The EAT commented that Parliament didn’t exclude minor cancers from this protection. The EAT also commented that a diagnosis of pre-cancerous cells may mean something different depending on where the cells are to be found, but that for skin cancer, it is a type of cancer.
The EAT’s clarification that pre-cancerous conditions can be recognised as cancer has potentially expanded the number of people that are protected automatically by the Equality Act. In light of this, employers should be cautious about how they treat employees with pre-cancerous conditions because this case illustrates that such conditions can, depending on the medical evidence, be recognised as a deemed disability.
By Zahid Reza
Case report: Lofty v Hamis (t/a First Cafe) 
Image used under CC courtesy of bndF1Read More
A failure to make reasonable adjustments is a type of disability discrimination claim that individuals can bring against their employer. This is where an employer fails in its duty to provide suitable (or reasonable) adjustments to accommodate disabled employees at work. One of the ingredients is to show that there is a practice, criterion or provision (‘PCP’) that puts the disabled person at a particular disadvantage compared to those who are not disabled.
We look at a recent Court of Appeal case which looked at whether an expectation can count as a PCP.
The claimant, Mr Carreras, worked for United First Partners Research (‘United First’) in October 2011. Upon starting his employment, he worked long hours (from 8.00am until around 11.00pm). In July 2012, Mr Carreras was involved in a cycling accident which affected him physically and emotionally. He returned to work in a few weeks, but experienced symptoms such as dizziness, fatigue and headaches. United First were aware of this and were content for him to tell them how long he felt able to work. He initially worked up to 8 hours per day, then gradually worked longer hours. From October 2013, United First asked Mr Carreras to work long hours. Although working these hours were difficult, Mr Carreras didn’t complain until February 2014, when he had an argument with one of the owners and then resigned.
Mr Carreras lodged a claim in the Employment Tribunal, accusing United First of ‘requiring’ him to work unsuitable hours. The tribunal found there was no discrimination because he was never ‘required’ to work in the evenings; this was only an expectation and therefore not a PCP. Mr Carreras appealed to the Employment Appeal Tribunal (‘EAT’), who allowed his appeal and found that the ‘expectation’ from United First constituted a PCP.
United First appealed this decision to the Court of Appeal, which dismissed the appeal. They commented that a ‘requirement’ does not necessarily mean ‘coercion’, and that it may represent no more than a ‘strong form of request’.
The CA’s decision to loosen the law in this way means that employers must recognise the dangers of pressurising disabled employees at work, as this could give rise to a PCP that is discriminatory to disabled employees. The rationale in stating ‘no more than’ a strong form of request implies that a one-off request by an employer wouldn’t give rise to a PCP.
By Zahid Reza
Case report: United First Partners Research v Carreras 
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