Looking back and what lies ahead – 2015
Employment Tribunal claim statistics
60% reduction in cases since 29 July 2013 (the date on which issue and hearing fees were introduced).
67% reduction in cases since the introduction of ACAS early conciliation (“EC”) on 6 April 2014.
However, neither should deter a potential claimant from bringing a claim worthy on its merits. There is a Help with Fees scheme and fees can be claimed back in a successful claim.
Maternity after 5 April 2015
Shared Parental Leave and Statutory Shared Parental Pay are now possible for any parent of a child born after 5 April 2015.
Public interest test in whistleblowing claims
A whistle blower needs to make a “disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest…”
When is blowing the whistle in the public interest? This was recently considered by an Employment Tribunal which clarified that a qualifying disclosure will not include a disclosure of information about an infringement of an individual’s contractual rights, but may include a disclosure about an infringement of a group of employees’ contractual rights.
Lock v British Gas – Commission and holiday pay
An Employment Tribunal held that commission should be factored into statutory holiday pay calculations.
Overtime and holiday pay
Guaranteed and non-guaranteed overtime should be paid as part of a worker’s statutory holiday pay following the case of Bear Scotland v Fulton.
Non-guaranteed overtime is overtime where an employee is obliged to work the extra hours, but an employer is not obliged to provide those hours.
Your injury to feelings uplift is no more
It had been thought that the levels of award for injury to feelings in discrimination cases should increase by 10% each April.
However in 2015, two cases held that the general damages uplift should not apply to Employment Tribunal claims.
Mitigation of loss in unfair dismissal cases
In 2015, the Employment Appeal Tribunal reminded us that the burden of proof lies with the Respondent to prove that the Claimant acted unreasonably in failing to mitigate his/her loss.
Establishing substantial disadvantage in reasonable adjustment claims
For an employer’s duty to make reasonable adjustments towards a disabled employee to apply, the employer must apply a provision, criterion or practice which puts the disabled employee at a substantial disadvantage compared to a non-disabled employee.
In Griffiths v Secretary of State for Work and Pensions, the Court of Appeal unanimously held that to establish substantial disadvantage in a case involving a lengthy absence (almost 94% of which was) due to disability-related sickness:
1. The appropriate provision, criteria or practice was not the attendance management policy itself, but should be that “the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions”.
2. There must be an element of more favourable treatment towards the disabled employee regarding the duty to make reasonable adjustments.
Non-discriminatory “reason why” was crucial in indirect discrimination pay case
The Court of Appeal in Naeem v Secretary of State for Justice held that a Muslim chaplain had not been indirectly discriminated against on ground of religious belief.
Linking basic pay to length of service applied equally to Muslims and Christian chaplains. The non-recruitment of Muslim chaplains prior to 2002 had been based on a shortage of demand and was not discriminatory. So Muslim chaplains, albeit with a shorter average length of service, were not put at a particular disadvantage.
Tirkey v Chandhok and another
The Employment Appeal Tribunal held in 2014 that caste discrimination, where pleaded as ill treatment due to a person’s “ethnic origin” may amount to race discrimination.
Legislation explicitly dealing with caste discrimination may follow.
Your National Living Wage
The National Living Wage will replace the National Minimum Wage for over-25s from April 2016, starting at £7.20 and increasing to £9 by 2020.
Employment and Equalities Court – The future?
The Law Society suggested that employment claims (which can be currently heard in the Employment Tribunal, County and/or High Court depending on their type) are dealt with at four levels within a single forum, in future.
Another Immigration Bill?
It was a Conservative party manifesto pledge to legislate to ensure that every public sector worker operating in a customer-facing role speaks fluent English. This may sit uneasily with unfair dismissal and discrimination law.
Responsibility of child care to be shared with working grandparents
The press reported last year that George Osborne plans to extend Shared Parental Leave and Statutory Shared Parental Pay to working grandparents.