ELiAction News: June 2019
Welcome to this month’s edition of the Employment Law in Action newsletter
This month we are focussing on some key cases which have recently been decided and the impact they may have on your business. We have been assessing the impact of the provisions of the Good Work Plan and the new rules in terms of employment contracts. We are working with our clients using this as an opportunity to review current contracts so that they comply with the new legal requirements and are also fit for purpose in respect of meeting business needs.
We hope you enjoy reading this month’s edition. If you need any further information, please do give us a call to discuss the support we can offer your team, whether this is through our advice line or via our ad hoc HR Consultancy service.
With best wishes
Julia and Ros
In this month’s issue:
Employment Tribunal Statistics
The Ministry of Justice has published tribunals statistics for the latest quarter (January to March 2019), compared with the same quarter the previous year, alongside annual data for 2018/19.
The figures show an increase of 6% in receipts of single Employment Tribunal claims and 13% in receipts of multiple claims cases compared with a year ago. This continues the increase in claims since the abolition of tribunal fees in July 2017, although in most categories (including sex discrimination and redundancy), they remain significantly below what they were when fees were introduced in 2013. This is no doubt partly as a result of the Acas pre-claim conciliation process introduced in April 2014.
Of concern are the figures showing that single claim cases took an average of three weeks longer to dispose of than this time last year, that is 30 weeks, rather than 27. This is a statistic borne out by our own experience as we are seeing increasingly long delays for hearing dates in some cases. The figures do however show that the average length of time for disposal of multiple claim cases (which represent less than 10% of the total number of claims) were down from 245 weeks to 126 weeks (still over 2 years).
The figures also show that £17.3 million has been paid out in ET Fee refunds since the launch of the refund scheme to 31 March 2019. Of 22,000 applications for refunds received, 21,700 refund payments were made.
Change of May Bank Holiday Date
You may already be aware that the Early May Bank Holiday in 2020 is moving from Monday 4 May to Friday 8 May. This is to mark the anniversary of VE day. When calculating holiday entitlement for part timers you should be aware of the impact that this may have, in particular when allocating pre-determined dates. Calculating holiday entitlement for part timers can become complicated.
Our recent article gives you some tips (Calculating Holiday Entitlement for part time employees or workers with no fixed hours) but if you would like any further advice, please do contact one of the team who would be happy to help!
The ‘Good Work Plan’ – New Rules on Contracts
In response to a Government commissioned report known as ‘The ‘Good Work Plan’, a number of significant changes in relation to the written particulars of employment required by the Employment Rights Act 1996 will come in to force from 6th April 2020.
At present, employers must provide a written statement of particulars (usually in the form of a contract of employment) to all employees within the first two months of their employment. With effect from 6th April 2020, the main changes are:
- The employer will be required to provide the written statement on or before the employee’s start date.
- The information required by the Employment Rights Act must be provided in one document; the only exceptions being particulars relating to pensions, collective agreements and any training requirements (such as mandatory training), which must be provided within the first two months.
- The right to a written statement will be extended to workers as well as employees.
- The list of particulars that should be included in the statement will be extended to include: the days of the week the employee is required to work, whether the working hours may vary and how any variation is determined, entitlement to paid leave such as maternity and paternity leave, any probationary period and information about any mandatory training or training that must be paid for by the employee.
All employers should check their current documentation, including any documents that are provided to casual workers, to ensure that they comply with the new requirements.
If you are not already doing so, you should adjust your on-boarding process so that new employees and workers have a copy of their full written particulars on or before their start date. It is also important that the contract is signed – see our article The Potential Complications of Unsigned Employment Contracts.
If you provide the written particulars in a number of documents such as an offer letter and a handbook, you will need to produce a new single document. This should contain all the required particulars and any other clauses that are relevant to particular roles or your industry, such as post termination restrictions. Policies, procedures and codes of conduct can be included in a non-contractual handbook.
Our team are here to help and can review and update your current documentation and processes to ensure that they comply with the new legal requirements. Contact one of the team today to chat through your requirements!
Record Keeping – Working Hours
A recent European Court decision has held that employers should keep accurate records of the hours that their employees work, including any breaks, in order to demonstrate compliance with the Working Time Directive.
This goes further than the current guidance in the Working Time Regulations and from the HSE, which states that adequate records must be kept, but does not specify what should be recorded.
This decision is most relevant to employers who employ night workers (who are subject to particular limits on their working hours), or full time employees who work overtime and have not signed an Opt Out Agreement. These are the groups of workers who are the most likely to be in breach of the Directive. To be in a position to defend any claims, employers should have an accurate method of recording hours worked, whether in paper or electronic form.
More information on the provisions of the Working Time legislation can be found here.
Shared Parental Leave and Discrimination
Ever since Shared Parental Leave was introduced, there has been a debate about the effect of an employer providing enhanced maternity pay on entitlements to shared parental leave pay. In the case of Ali v Capita Customer Management Ltd the Court of Appeal ruled that a male employee was not subject to sex discrimination when he was paid shared parental leave at the statutory rate, even though his female colleagues were entitled to enhanced maternity pay. The Court decided that a woman on maternity leave was not an appropriate comparator as the purpose of maternity leave is to protect the health and well-being of the mother before and after the birth and assist with breastfeeding etc and it is, in part, compulsory, whereas parental leave is optional and is concerned with childcare. Therefore, employers do not need to be concerned if they enhance maternity pay, but only pay paternity and shared parental leave at the statutory rate.
However, the decision could have been different if the employer had paid enhanced pay to a female employee on shared parental leave.
Tribunal Awards in Discrimination Cases
In successful discrimination cases, a Tribunal will make an award for the ‘Injury to Feelings’. Case law has established 3 bands for such awards, known as Vento bands, as follows:
- Lower £900.00 to £8,800 for less serious cases
- Middle £8,800 to £26,300
- Upper £26,300 to £44,000 for the most serious cases
It is possible to award over £44,000, but only in exceptional cases.
The appeal in the case of Base Childrenswear Ltd v Otshudi was against an award in the middle band when only one of the Claimant’s seven allegations of discrimination was successful. The Company tried to argue that a one-off act of discrimination should always be in the lower band. The EAT disagreed and confirmed that the award for injury to feelings should be decided on the basis of the effect on the complainant and that one act of discrimination could have a very serious effect justifying an award in the middle band.