Ministry of Justice confirm huge increase in Employment Tribunal claims

I’ll start with the big headline: Employment Tribunal claims (brought by individual Claimants) increased by 90% in the period between October to December 2017 (in comparison with the same period in 2016). To cut a long story short, the recent abolition of Employment Tribunal fees has led to Tribunal claims nearly doubling.

A small disclaimer is that the above statistic is currently a provisional figure, however, in reality, that figure tallies with my own expectations and experience over the past 12 months.

These statistics are slightly ironic given that, before the Supreme Court found Employment Tribunal fees to be unlawful, one of the main reasons the lower courts refused to find Employment Tribunal fees unlawful because there was ‘no evidence’ of the fees preventing individuals from accessing justice.

Is the National Living Wage causing problems?

I think that most employers would take the view that the principle that employees should be paid a fair wage for their work is one that should be supported. However, sometimes a one size fits all approach can throw up anomalies. I should be clear: I’m not talking about those who exploit people to work excessively long hours for very poor pay (as low as £2.00 per hour), often in plainly unacceptable working conditions. I’ve written in this blog about people who have been kept effectively as slaves in the most appalling circumstances and these employers should be rooted out and dealt with severely, where appropriate in the criminal courts.

It is worth remembering that, when introduced on 1 April 1999, the adult National Minimum Wage was £3.60 per hour. Since then, it increased steadily for a number of years (around or a little ahead of inflation) but the big jump came on 1 April 2016 when it was hiked from £6.70 to £7.20 as part of the merger and rebrand as the National Living Wage. Subsequent increases (including those coming into effect on 1 April 2018) are here.

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Employees who are paid below the minimum wage can complain to an employment tribunal or to HMRC. If HMRC upholds the complaint the employer can be sent a notice of arrears plus a penalty. The maximum fine for non-payment (in addition to making good the arrears) is £20,000 per worker. In recent years HMRC have made a point of publishing (with high profile PR) lists of those businesses that have paid below the prescribed rates. It is not widely known that, in addition, directors of defaulting companies can be banned from being directors (or shadow directors) of any company for up to fifteen years.

So, what are the problems referred to in the title?

Frozen out: Can it be too cold to work?

Spring is here. Or is that winter? All over the country, people are facing difficulty travelling on account of snow and ice and, here on Merseyside, things are no different.

In fact, this is quickly turning into that time of year when I receive multiple text messages from friends, some more jokey than others, asking if there is a minimum temperature at which they are required to work because their workplace is so cold or, as my favourite text states: ‘so cold as to give a polar bear frostbite!

Now, poorly polar bears aside, there isn’t a set temperature at which staff can suddenly declare it to be too cold and go home without recourse. Even if there was, those staff would be highly unlikely to be paid during their absence from office.

Instead, businesses rely on guidance from the Health and Safety Executive (HSE). The HSE recommeds that office-based workers be exposed to temperatures no lower than 16C and any workers whose work requires ‘physical effort’ (i.e. being on your feet and moving arond) are not exposed to temperatures below 13C.

However, be very aware of that word above: ‘guidance‘.

Dismissal for beard that was “too long” and “too religious” upheld

Back in December 2015 I commented on the decision of the European Court of Human Rights in Ebrahimian v France, which concerned the termination of employment of a health worker at a hospital who refused (on religious grounds) to remove her headscarf when she was on duty at work. By way of a brief recap, state secularism (or laïcité) is a strongly protected principle in French society. That is why you will not hear hymns or carols sung in French schools and there was a big fuss last month when a village commune tried to place a nativity scene in the square in front of the local mairie. It was determined that Ms Ebrahimian, by wearing a symbol of religious affiliation, was breaching her duties as a public official. In its judgment the court held that the non-renewal of her employment contract did amount to an interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights. However, that interference had the legitimate aim of protecting the rights and freedoms of others, pursuant to French law. Accordingly, her claim failed.

A similar case has now surfaced in the Versailles administrative Court of Appeal. A trainee doctor of Egyptian origin was dismissed from his job at Saint-Denis hospital centre in Seine-Saint-Denis because his “imposing” beard constituted an “ostentatious display of religious belief”. The individual concerned declined to deny or confirm that his appearance was intended to be a way to “demonstrate his religious activity”.  On 19 December, the Court of Appeal supported the decision, noting that although the wearing of a beard “even long”, cannot “on its own” cannot (necessarily) constitute a sign of religious affiliation, the “circumstances” entitled the hospital to at as it did.

The Santa Clause: Employment Law issues in Lapland

Penguin Santa You know who’s having a low media presence this year? Santa Claus! I mean, just look at the Christmas adverts this year! Without naming names, the ‘biggest’ Christmas adverts this year involve a monster, a carrot and a toy factory. The only ‘big’ advert that sees the big, red man is one in which Paddington bear mistakes a burglar for Santa!

So, why the low media presence? Where is Santa?

On that front, I may be able to help. You see, Mr Claus is currently having some Employment Law and HR issues with his workforce and has been busy obtaining legal advice on what to do next. It’s a stressful time of year, particularly with less and less people believing in him (there seems to be a rumour going around that he isn’t real) and certain big rival companies in the logistics business setting up in competition (the main one named after a geographical location considerably far away from Lapland).

Put simply, Christmas needs saving and Santa can’t operate without solving his current employment law issues. With this in mind, let’s go on a Christmas journey and help Santa save Christmas!

Can an employee be disciplined for looking for another job?

Job Application Form You’d think this would be a weird question but I actually get asked this question on a fairly regular basis. Thankfully, I mostly get asked it by employees rather than employers but, in saying that, I can recall two employers (at a past law firm) that asked me this exact question.

The answer? Quite simply: it depends. It depends on the circumstances but, theoretically, yes, an employee can be disciplined for job hunting. In practice, however, it would be a rare occasion where an employer could safely do so.

To explore the dividing line, let’s look at three examples.

A bitter feud played out in the High Court

Embed from Getty ImagesOver the last few weeks the High Court has heard some astonishing evidence in the bitter wrongful dismissal claim brought by the former CEO of Signia, a wealth management company, as reported in The Independent.

High profile entrepreneur John Caudwell has frequently made the news over the last couple of decades. The founder of mobile phones retailer Phones 4U has presented himself as a forthright, no-nonsense style of businessman. According to the website Caudwell.com (owned, registered and administered by one John D Caudwell and which is currently “down for maintenance”) he is a “successful entrepreneur and philanthropist” who “built an immensely successful mobile telecoms company”.

Signia is a wealth management company that was jointly founded by Nathalie Dauriac and six of her Coutts Bank colleagues in 2010. Another co-founder was Mr Caudwell. The business focuses on high end wealth management. All appeared to be well until details emerged of an extraordinary dispute between Ms Dauriac and Mr Caudwell, ostensibly in connection with expenses claims amounting to some £33,000. Ms Dauriac claimed that the expenses investigation was unfair and was, in effect, trumped up to deprive her of her £12 million 49% stake in the business, which was bought out for a nominal £2.00 fee.

Giving evidence in the High Court trial Ms Dauriac says that when they set up the business in 2010, “Mr Caudwell had asked me…as a last minute condition of jointly setting up the business, to give an undertaking to him not to have children, a proposal I did not agree to”.

Ms Dauriac claimed in evidence that Mr Caudwell orchestrated an “elaborate conspiracy” against her, resulting in her claim of constructive dismissal.

For its part, Signia maintained that she wrongfully claimed the expenses, that her approach to them was “brazen” and that she was “guilty of gross misconduct”.

In his evidence, Mr Caudwell said that the breakdown of his business relationship with Ms Dauriac, who he considered to be a “best friend” was like suffering a “bereavement”:

Solving the riddle – Uber, Addison Lee, workers, employees and the self-employed

Confusing road sign The media has been awash with stories about ‘worker’ status recently. The most obvious being the recent Employment Tribunal decision that Addison Lee drivers are workers, not self-employed as the private hire taxi firm argued, and the similar decision against Uber a few months ago. The appeal for the Uber case was heard last week in the Employment Appeal Tribunal, albeit the decision will probably be announced in December.

So then, you may conclude, all taxi drivers are workers? No. Okay, so most of them are self-employed? No. Well, they must be full employees then? Not really.

To get into this, we should acknowledge one thing. The definition of “worker” in the Employment Rights Act 1996 is purposefully fuzzy. No, that’s not legal jargon, but an acknowledgement that the status is meant to catch those people who fall between the more obvious categories of employee and self-employed. Stereotypically-speaking, employees are those who work in an office on a rolling contract for a specified number of hours per week and self-employed individuals work for their own business and are ‘their own boss’. Now, in practice, it isn’t that simple, but let’s use those examples as vague signposts for now because, otherwise, I’ll need to name enough qualifications and exceptions to fill an employment textbook chapter!

So, ‘worker’ status is designed for those who aren’t ‘full’ employees or self-employed. But where is the line? Where does a ‘worker’ merge into an employee and when does a ‘worker’ get so far as to be effectively self-employed?

These are very good questions. In fact, they are such good questions that a lot of employers, including Uber, Addison Lee and Deliveroo, end up finding out at Employment Tribunal precisely because it is hard to specify otherwise.

Handling Honeymoons

Moose sign Full disclaimer: I’m off on honeymoon soon. I plan to spend 3 weeks driving around Canada and, in my head at least, spotting many moose and bears and eating my body weight in maple syrup and pancakes! But, fear not Canter Levin & Berg, this article isn’t published as a hint to you but, rather, because I get a lot of questions from employees and employers alike about ‘honeymoon etiquette’!

Now, honeymoons are a curious beast. Firstly, because it tends to be one of the few occasions where an employee is allowed more than two consecutive weeks of annual leave and, secondly, because it remains a symbolic event in which a newly married couple are seen to go away and focus on each other which, naturally, doesn’t really interlink with the concept of working.

Does the recent European Court of Human Rights decision actually ban employee email monitoring?

You’ve probably seen the recent headlines: ‘Employer breached employee’s human right to privacy by reading workplace emails’, ‘Employers can’t place employee communications under surveillance due to human rights’, et cetera, et cetera. The thing is, broadly speaking and barring one key exception, those headlines are wrong.  Why?  Firstly, because the facts of the case were…