Will the abolition of Employment Tribunal fees result in ‘old’ 2013-2017 cases being permitted in Tribunal?

Broken clockEmployment Tribunal fees are illegal. This was declared on 26th July 2017 by the Supreme Court in R (on the application of Unison) v Lord Chancellor. Put simply, from that day onwards, Employment Tribunals completely scrapped both issue fees (the fee for submitting a claim form to Tribunal) and the hearing fee (the fee incurred 3 weeks before a final hearing date) due to their illegality.

Unfortunately, however, it’s not that simple. This is because tribunal fees were ruled to be ‘unlawful’. This means that all previously obtained Tribunal fees from the introduction of the fees in 2013 onwards were illegally obtained and must be paid back. Now, whilst that sounds simple, in reality, it’s far from it.

Why? Well, to start with, employees bringing group actions through one main claimant paid a combined fee. So, how do you handle returning a split fee to each applicant (particularly in situations where some settled and others continued to final hearing)? Also, many COT3 (ACAS brokered) agreements (the legal document by which parties agree to settle claims) provided for employers to repay the equivalent of the employee’s tribunal fees to the employee on top of their separate settlement amounts; do those employers now have the right to claim that portion back from Her Majesty’s Courts and Tribunals Service (HMCTS) upon simply producing the relevant paperwork?

The only comment from HMCTS so far is that a system for reimbursing fees will be announced soon, hopefully by September. Until that date, there is uncertainty as to what will happen.

The biggest question, however, is what happens to the claims of employees who would have brought a claim but who were put off by the tribunal fees. It is undeniable that thousands of employees acted in this way – in this case the statistics don’t lie, namely that there was an appropriate 70% drop in Tribunal claims following the introducton of tribunal fees.

Usually, employees have a three month time limit in which to contact ACAS and then, allowing for time spent during ACAS Early Conciliation, issue a claim to Tribunal. However, many solicitors believe that the ‘unlawfulness’ of the Tribunal fees opens the door to former prospective claimants to bring post-2013 claims. Is this true?

The honest answer is ‘nobody really knows’ and, eventually, this question will be decided by tribunal judges.

One of the reasons this question hasn’t been effectively answered yet is partly due to the President of the Employment Tribunals issuing a universal stay on all claims linked to the ‘unlawful’ Tribunal fees judgment. This has, so far, prevented claims to tribunals asking this question.

However, one case, that of Dhami v Tesco Stores Ltd, slipped through the net. It did so because the case also included confusion over the effective date of termination by Tesco (which took it outside the stay imposed by the President of the Employment Tribunals).

In the Dhami case, the Claimant brought claims for disability and age discrimination against Tesco. However, her case was previously thrown out for non-payment of Tribunal fees due to her application for a fee remission being rejected. In the recent hearing, the Tribunal allowed her application for an extension of time in which to bring her case. Put simply, the Tribunal agreed that it was “just and equitable” (the legal test for extensions of time in employment tribunals) to do so in light of her case having been rejected due to unlawfully applied fees.

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Emoji use at work: the good, the bad and the cringeworthy

Stuffed emoji cushionsI’m known for using the occasional emoji. (For those not in the know, an emoji is the little symbol (normally a little yellow face) which communicates emotion in text and email messages.)

Having just reviewed my “most frequently used” emojis on my iPhone, I can report that my most popular include a penguin (no surprise to those who know me), a horse (to advertise Martin Malone’s recent horse racing-related employment law blog, which can be found here), a bride (due to hitting wedding-planning crisis mode due to my wedding being just 2 months away), an umbrella (for obvious reasons) and a steaming coffee cup (for even more obvious reasons).

In saying this, however, I’ve never actively used emojis at work. Why? I just don’t think they’re very professional. There will be exceptions, such as internal emails to colleagues who you have a close and/or long-term friendship with but, on the whole, I don’t believe many of my clients would expect or require a smiley face at the end of my emails.  I think emoji use creates a real risk of emails being misconstrued and/or considered condescending.

And, rather bizarrely, it appears that science agrees with me. The Social Psychological and Personality Science journal has just published the results of a study focusing on the perception of people who use emojis in work emails. Put simply, the vast majority viewed the senders of emails containing just one emoji as less competent at their job. Is this true in practice?

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Focus on appearance makes employers unattractive

Three Doctor Who's

A jazz bar in London recently came under fire for posting a job advert looking for an “extremely attractive” employee. Predictably (and quite rightly), the internet reacted in protest against the wording of the advert.

Was the advert poorly phrased? Absolutely. Is the act of valuing the looks of an employee above skill morally acceptable? Not really. Was the advert illegal? Not directly, no.

Now, “not directly, no” is a bit of a non-answer. And that’s because a person’s looks and/or attractiveness is not protected under discrimination law in itself. By this, I mean that whilst you can be held to illegally discriminate against job candidates by refusing them the role due to a protected characteristic (the 9 characteristics listed later in this sentence), you wouldn’t illegally discriminate solely on the basis of judging by their looks unless your judgment on a job candidate’s looks was related to their race, gender, nationality, religion or belief, disability, pregnancy, sexual orientation, age or gender reassignment (which would then be discriminatory).

Myself? I can see a fairly easy age discrimination argument for any job candidate for that role who is refused the role, as it could foreseeably be argued that the employer has a stereotypical, ageist lean towards younger staff if they are judging on ‘attractiveness’.

But let’s step back from the legal side for a moment and look at the moral perspective. What we are looking at here is ‘lookism‘ – i.e. the perception that a person’s looks mean they can’t perform the job (or perform it as well as others). The issue for employers should be the impression they give out by acting in this way – what they are basically saying is ‘we judge more on style than substance’ when, in reality, they should be saying the opposite. Put simply, it risks a PR disaster, particularly if their behaviour goes viral online.

Let’s look at an example linked to two job roles: one for an actress and one for a receptionist.

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Defensive action against keyboard warriors: when social media use becomes a disciplinary issue!

smartphoneEveryone who knows me seems to associate me with employment law blogs. An example?  I went to one of my best friend’s wedding last weekend and, whilst at the meal following the wedding I caught up with the sister of my best friend.  We hadn’t seen each other in years and, naturally, I asked how she was. She said she was good and, after a brief chat, turned the conversation round and said ‘me and my husband follow your blogs, they’re very good’ and called her husband over. Instantly, the husband came over, we caught up and proceeded to spend 20 minutes chatting about employment law issues in the workplace, many of which were subjects of past blogs.

And therein lies the power of social media, even with a couple I’ve only managed to see on two occasions since their wedding in 2009, they had read my blogs and knew where I was up to career- and life-wise solely due to my social media.

The obvious problem that comes with social media is reach.  As I’ve just mentioned, it can reach people you don’t get the chance to directly contact but, at the same time, it can mean that comments meant for just a few can reach more people than realised.  And, unfortunately, it is common for employees to get into hot water by posting negative comments that come to the attention of their manager.

Now, obviously, simply posting content online concerning your work or about your employer isn’t a sackable offence.  As a writer of numerous blogs for Canter Levin & Berg, I’m very glad of that!  However, in saying this, negative comments and/or posting confidential information are exceptions to this rule, mainly because they can be shown to cause damage to the reputation of the employer (without which, the dismissal is likely to be legally unfair).

So, let’s look at two examples of social media posts that may concern employers using some entirely fictitious individuals…

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100 days of Sabbatical? – Are sabbaticals still a thing?

holiday sunsetI’m a complete bookworm. Just ask my fiancé. On several flights, she might as well as been sitting next to thin air due to me disappearing into a Kindle-fuelled trance with the latest bestsellers.

The latest book to be devoured is ‘100 Days of Solitude’ by Daphne Kapsali. Put simply, the author of the book wanted a break from stress, deadlines and the fast pace of modern life. So, she decided to stay in a small house up a mountain in a remote Greek island during the autumn and winter for, yep you guessed it, 100 days.

Whilst she didn’t turn into a complete hermit (she spoke to distant neighbours, post office staff and the island’s numerous cats), she did learn how to pause for breath and focus on the little things whilst, at the same time, missing aspects of daily life (companionship, coffee shops, etc.)  By the end, she was glad for the experience but ready to return to ‘normal life’.

In the author’s case, she gave up her day-to-day job to fulfil her ambition to attempt 100 days of solitude.  However, is it possible to have a career break without being so extreme as to quit your job?

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Unlike Justin Gatlin, is drug use at work the end of the track?

Without a doubt, the main conversation within sport this last week (aside from Neymar Jr being sold to Paris Saint-Germain for the equivalent of 666 million Freddo chocolate bars) was Justin Gatlin’s victory over Usain Bolt in the 100m.  Aside from being an unpopular win due to beating Usain Bolt in his final race, Gatlin’s victory was controversial (and noticeably booed by loud sections of the crowd) due to his past two performance enhancing drug bans.

Many people have asked the question as to why ‘drug cheats’ don’t face lifetime bans and, also, asked why he should be allowed to return when drug-taking could result in loss of career.

And it’s that ‘loss of career’ point that we’re going to explore briefly today. Namely, does being caught with illegal drugs (i.e. drugs that you do not have a prescription from your Doctor for) at work automatically result in your dismissal.

The short answer? Yes, no and maybe not.

Yes, in terms of the fact that being found with illegal drugs is almost certainly going to be treated as gross misconduct and, for most employers, committing a gross misconduct offence results in an investigation into whether to dismiss.

No, simply because an effective investigation will still need to be carried out by the employer, hence the dismissal won’t be ‘automatic’ (i.e. the employer won’t simply dismiss on the spot but, rather, would be best advised to suspend the employee pending an investigation and the carrying out of a disciplinary meeting).

And ‘maybe not’, because some employers (depending on all the circumstances) will give employees the chance to undergo rehabilitation before acting. I.e. if the employee agrees to enter an alcohol dependence programme and/or rehab, the employer will consider limiting its action and aiming to get the employee back to work. However, this is not common practice at present and strongly depends on the individual circumstances.

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PC dismissed after being spotted on TV at Royal Ascot when off sick

Jonathan AdamsPC Jonathan Adams is, like me, a fan of horse racing. However, his enthusiasm for the sport caught up with him when he faked illness to watch horses in which he had an interest.

PC Adams was praised for his community policing work in Gloucester city centre and was described by a retired chief inspector as being “one of the most honest police officers I have ever come across”.

On 30 September 2015 he was off work, having called in to say that he was suffering from diarrhoea. However, this coincided with the running of Little Lady Katie at Nottingham, a then three year old filly trained by Karl Burke in which he had a 2.5% share. The horse was third of eleven at odds of 16/1. In the subsequent investigation his attendance at the racecourse was revealed by a number plate check.

He was at Nottingham races again on 6 April 2016, this time watching the same horse come seventh of twelve at odds of 8/1 and having called in sick with a migraine.

He subsequently requested the week off for Royal Ascot and was refused. Undeterred, he told Gloucestershire Constabulary that he had to take 17 June off because he was suffering from irritable bowel syndrome. Somewhat unwisely, particularly bearing in mind his occupation, he was spotted later that day on Channel 4 Racing, leaping about with joy (pictured: credit Channel 4 Television), when another Karl Burke horse in the same syndicate ownership (but in which he didn’t have a stake), Quiet Reflection, won the Group 1 Commonwealth Cup, having gone off at at odds of 7/4 favourite and beating, among others, the Aidan O’Brien trained Washington DC.

At a disciplinary hearing held over two days in July 2017 PC Adams said that he had decided that it would do him more good to go to the races than stay at home because racecourses were his “happy place” where he could alleviate his symptoms of crippling stomach ache and stabbing pains or migraines. In that case he must have acted quickly, notwithstanding his ailment, when arranging to attend the Royal Enclosure at Ascot suitably attired and bearing in mind that he lives in Ross-on-Wye.

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Severe consequences for breaching court order

HeathrowPeople often take the view that they can be quite blasé about their contractual obligations, mainly because employers often take the view that suing them is more trouble than it is worth. However, a recent High Court judgment shows that this is a risky course of action and the consequences for serious breaches can be very severe.

OCS Group UK Limited provides services in the aviation industry. It had a contract to provide cleaning and other services to British Airways at Heathrow Airport. In February 2017 it lost the contract which was awarded to a competing firm, Omni Serv Limited. Mr Jagdeep Dadi worked for OCS providing services under the contract until 28 February 2017, when his employment was TUPE transferred to Omni Serv. On 27 February OCS issued proceedings against Mr Dadi and others, seeking declaratory relief (an order determining the rights of the parties without awarding damages or directing anything to be done), an injunction against the defendants and damages for breach of contract, breach of fiduciary duty and/or breach of confidence. It was alleged that they had transmitted confidential documents and information to their home email addresses or external storage devices and that they had made unlawful use of them and/or transmitted them to third parties.

In Mr Dadi’s case, it was claimed that, between 2014 and February 2017, he had sent confidential documents to his personal web-based email account, including information about the logistics and costs of providing aircraft cleaning and other services to British Airways.

The matter came before Mr Justice Marcus Smith on 27 February, without prior notice to Mr Dadi. He granted an interim injunction against Mr Dadi (and others), prohibiting him from disclosing confidential information belonging to OCS and requiring him to provide information about prior disclosures to third parties. He was ordered to retain hard copy and electronic documents, pending a further hearing. He was also ordered not to disclose the existence of the proceedings and the possibility of proceedings against others to anyone other than his legal advisers.

He decided not to defend the underlying proceedings and a default judgment was entered against him.

As is usual in such cases the order of Mr Justice Marcus Smith included a penal notice which warned him that disobedience of the order rendered him liable to be imprisoned or fined or to have his assets seized. He was served with the order at Heathrow by in-house counsel for OCS at 3.10 p.m. on 27 February. While doing so she drew his attention to the penal notice on the front page of the order and read it to him. She also advised him to obtain legal advice as a matter of urgency.

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What happens if an employment relationship ends within the initial 6 week ‘honeymoon period’?

You know when something is so awful, it’s good? Well, that describes my relationship with the Channel 4 show Married at First Sight at the moment. I know it’s car crash TV and edited to within an inch of its life (with cheesy dramatic music at regular intervals) but I can’t seem to stop watching it.

Put simply, Married at First Sight is a ‘dating’ show where six individuals are married to a stranger who they literally meet for the first time at the altar. They don’t know their future spouse’s full name or even see a picture of them beforehand. This means they must buy the dress/suit and ring on their own and then meet their partner for the first time in front of their family and friends at the altar with the accompanying vicar. Each couple are then given 6 weeks (with the TV crew continuing to trail them at every turn) to have the wedding party, go on honeymoon, rent a house together and see if their lives can fit together. At the end of that ridiculously short period, they then decide whether to stay married or seek a divorce. Cue romance, tears, fights and one woman with a fear of dogs freaking out at having to live with her new husband’s two hyperactive dogs…

Why am I talking about this? Well, it happens to be a useful link to a regular employment law issue – namely, what happens if an employee/employer ‘divorces’ (i.e. leaves) the other within the 6 week ‘honeymoon’ (or not-so-honeymoon) period.

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Voluntary overtime included within holiday pay: freely given time isn’t free!

The Employment Appeal Tribunal (EAT), the Tribunal which hears appeals from the regular Employment Tribunal, has recently confirmed that regular payments for overtime incurred voluntarily by employees should be taken into account when calculating an employee’s allowance of 20 days of holiday pay (this is the statutory minimum amount of holiday leave outside of the 8 days usually allowed for bank holidays). This was in a case called Dudley Metropolitan Borough Council v Willetts.

 

This follows the well-publicised case of Bear Scotland v Fulton in 2014 which stated that overtime should be factored into holiday pay calculations (mainly by averaging payments over a defined period of time  and ‘bumping up’ employee’s holiday pay accordingly).

 

However, there have been arguments that there should be a distinction between mandatory overtime and voluntary overtime. Just for clarity, when I say ‘voluntary’ overtime, I mean overtime that an employee isn’t contractually obliged to perform (i.e. I don’t mean unpaid overtime).  You can see both sides on this one – from one point of view, employees have no choice but to accept mandatory overtime and therefore only that should increase holiday pay amounts, whereas on the other hand, employees will still be working overtime whether voluntary or mandatory and shouldn’t they therefore be rewarded for their voluntary act?

 

On this occasion, the EAT has come down on the side of employees and concluded that, as long as the voluntary overtime is ‘regular’ enough, it should be used within holiday pay calculations.  This is because ‘regular’ payments will constitute ‘normal pay’ for the purposes of holiday pay calculations.  Naturally, the phrases in quotation marks are still prone to argument and a lot depends on the individual facts.

 

So, what does this mean going forward for employees?  Well, it suggests that employees on a voluntary rota (or similar) who are called to work voluntary overtime are entitled to an increase in their holiday pay in respect of that voluntary overtime.

 

Let’s take the case of six employees: Monica, Rachel, Phoebe, Joey, Ross and Chandler (yes, as you probably suspected, this is the cast of FRIENDS).

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