Employment law changes – October 2016

April is not the only month when legislative changes are introduced – employers and employees should be aware of the following changes, which were implemented on 1st October 2016:

National Minimum Wage– the standard adult rate for workers aged 21 and over increased to £6.95, the development rate for those aged 18-20 to £5.55, the young workers’ rate for those aged 16-17 to £4.00, and the apprentice rate to £3.40.


It’s not enough to have fair procedures: they must be applied fairly

In Buchanan v Commissioner of Police of the Metropolis the Employment Appeal Tribunal considered the case of a serving police officer who was disabled as the result of a serious motor bike accident while on duty (the bike’s brakes failed). The accident happened in late 2012 when he was responding to an emergency call. Following the accident he was diagnosed with serious PTSD and did not return to work. By April 2013 he was recognised as a disabled person within the meaning of the Equality Act 2010. By May 2013 the employer knew or could reasonably have been expected to know that he was disabled and during that month he was placed on the employer’s rather unfortunately named “Unsatisfactory Performance Procedure” (UPP).

The Procedure is derived from provisions in the Police (Performance) Regulations 2012. The Regulations define unsatisfactory performance as “an inability or failure of a police officer to perform the duties of the role or rank he is undertaking to a satisfactory standard or level”. The Procedure has three stages. Under the first, a line manager may require an officer to attend a stage one meeting to discuss performance or attendance. Following such a meeting an improvement notice may be issued. Alternatively the meeting may be adjourned or postponed so that the process does not have to proceed to the next stage.

The second stage is invoked if there has not been a sufficient improvement and involves a mandatory meeting. If a notice is issued then it must be a “final improvement notice”. The third stage (which was not reached in Mr Buchanan’s case) also involves a mandatory meeting, this time before a panel and witnesses may be called.

Sitting in the Employment Appeal Tribunal, His Honour Judge David Richardson noted that the Regulations make no express provisions relating to disability, but the Procedure includes plenty of opportunities for allowances or adjustments for disability to be made (for example by exercising the discretion not to call a first stage meeting). However, although the Procedure could be made to work in the case of a disabled officer, the question of disability would have to be addressed carefully by management in order to comply with the requirements of the Equality Act 2010. Judge Richardson observed that what was really required for an informed decision to be made in respect of disabled employees was medical evidence concerning the prospect of an officer returning to work and, if so, in what capacity, as well as opportunities for consultation with the officer about available options.

In Mr Buchanan’s case he was told on 21 August that he had to return to work on 9 September or face “UPP and all that it entails”.


ACAS early conciliation certificate can relate to a claim where the claimant resigned after the certificate was issued

Many employers will by now be familiar with the ACAS Early Conciliation (EC) process which was initially introduced in April 2014.  The concept of Early Conciliation is that ACAS will attempt to resolve any potential claim before it is formally submitted to an Employment Tribunal – indeed it is now the case that claims must have completed the process and an EC certificate issued before a claim can be lodged.

There are some exceptions to this rule – for example in cases of a claim being made against the Security Services, or another joint Claimant already having an Early Conciliation certificate in respect of the matter, however generally the Tribunals have been quite strict in imposing the rule.  It therefore may come as a surprise to learn that in the recent case of Compass Group UK and Ireland Ltd v Morgan, the Employment Appeal Tribunal held that the Claimant’s constructive dismissal claim was covered by an EC certificate that had been issued before the Claimant had resigned.

The background to the case is that in October 2014 the Claimant submitted a grievance to her employer when she was instructed to work in an alternative location in a more junior capacity to her existing role. In November 2014 she commenced the EC process and on 3 January 2015, the EC certificate was issued after no action was taken to resolve her grievance. The Claimant subsequently resigned and brought two Employment Tribunal claims – constructive dismissal and disability discrimination.

The Respondent initially argued that the Claimant’s constructive dismissal claim was not properly instituted as she had not followed the EC process given that she resigned after the EC certificate had been issued. They further submitted that any cause of action occurring after ACAS had been notified, even in circumstances where it relates to facts occurring during the EC process, could not be capable of being pursued without ACAS being notified. At first instance the Employment Tribunal found in favour of the Claimant and held that there was a connection between the matters in dispute during EC and the matters in dispute in the claim itself.

The Respondent subsequently appealed to the Employment Appeal Tribunal (EAT), this time stating that the cut-off date after which the EC Certificate does not extend is the issue of the EC Certificate (not the date of notification to ACAS as was the argument to the Employment Tribunal).


Anti-abuse charity employee awarded £90,000 for “calculated and premeditated” harassment

Roshni is the Urdu word for “light”. In June 2002 millionaire Ali Khan founded the charity of that name which is based in Glasgow. Its stated objectives are: “The advancement of education; the advancement of citizenship or community development; the relief of those in need by reason of age, ill health, disability, financial hardship or other disadvantage”. Its intended beneficiaries include children and young people and people of a particular ethnic or racial origin.

Misconduct within the charity became the focus of attention when an employee rejected advances towards her by Mr Khan, a married father of two. According to an Employment Tribunal, sitting in Glasgow, the situation deteriorated when Mr Khan attempted to turn the employee’s family against her. He threatened to turn up unannounced at her mother’s house to reveal an alleged affair between them.

The employee was so concerned by Mr Khan’s behaviour that she had a priority emergency police phone line installed at her home.

Mr Khan reacted to the rejection of his advances by reducing the employee’s working hours and she was issued with a final written warning. These actions were accompanied a campaign of physical and verbal abuse including making sexually explicit remarks, threatening to “post a video of them online”, to disclose intimate details of her private life, isolate her in the community and “damage her prospects”.

A clinical psychologist diagnosed that the employee had been left with major depressive disorder and post-traumatic stress disorder.

The Tribunal noted that the charity did nothing to stop the catalogue of abuse. It found that the Mr Khan’s threats left her feeling “very depressed, low and upset as well as powerless” and that she suffered “a lengthy and sustained series of acts of victimisation”. She was left in a constant state of “fear for her personal safety”. She was awarded compensation amounting to £90,000.

However, the charity has shown a notable lack of contrition following the Tribunal findings.


Definition of a ‘worker’ in whistleblowing cases

Further to Susan Stafford’s article earlier this month in respect of whistleblowing, in the recent case of McTigue v University Hospital Bristol NHS Foundation Trust, the Employment Appeal Tribunal (EAT) has provided clarification regarding when an agency worker can claim protection for whistleblowing against an end user using the extended definition of a workers under section 43K of the Employment Rights Act 1996.


The claimant in this matter is a nurse who was employed by an agency and placed to work at the respondent NHS Trust.  She brought a claim for protected disclosure detriments against the respondent under the Employment Rights Act 1996 (ERA). Under the ERA , only employees and workers are eligible to bring such claims against their employers. At first instance, the Employment Tribunal found that the claimant could not be categorised as such an employee/worker and her claim failed. The claimant therefore appealed to the EAT.


The claimant argued that she was employed by the Trust for the purposes of bringing a whistleblowing claim because she fell within the extended definition of “worker” at s.43K(1)(a) ERA, which states as follows:

“…an individual who is not a worker as defined by section 230(3) who—

(a) works or worked for a person in circumstances in which—

(i) he is or was introduced or supplied to do that work by a third person, and

(ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them…”


The respondent however presented the counter-argument that the Tribunal had been correct to find that it had not “substantially determined” the terms of the claimant’s engagement, as her terms were largely determined by her supplying agency work. The respondent further stated that as the claimant was undoubtedly a worker  in relation to the agency, she could not also be a worker of the Trust for the purposes of s43K(1)(a) ERA as that extension only applies to “an individual who is not a worker as defined by section 230(3)”.


The EAT held


Brexit – what does this mean for EU Nationals currently residing in the UK?

Following on from my article last month covering the potential impact of Brexit on UK Employment Law, the debate goes on as to the possible implications for workers. So – what happens to the roughly 3.6 million EU Nationals living and working in the UK going forwards?

Prior to the Referendum, the Vote Leave campaign assured us that any new immigration system would have no effect on EU citizens already living in the UK and that these individuals would "automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present". The Remain campaign however warned of a different outcome, stating that "all current EU citizens here would lose their automatic right to come and work in the UK. This means that living and working in the UK would be significantly more difficult after a leave vote for EU citizens, and is likely to involve restrictions and barriers in the form of permits, visas or other costs and bureaucracy".

A recent study by think tank the Social Market Foundation, found that on the basis Article 50 is triggered next year and the process takes two years to complete (i.e. until 2019), more than 80¢ of the 3.6 million EU citizens living in the UK would meet the 5 year requirement to remain. This would mean that the vast majority of all EU citizens who arrived in the UK prior to 2014 and continuing to live here, would have the right to permanent residency by the time Britain leaves the EU.

The study also found however that up to 590,000 EU Citizens living in the UK may not have the right to remain once Brexit is complete.

New Prime Minister Theresa May has been under intense pressure from many Eurosceptics to impose a hard line Brexit that would mean EU citizens would lose their right to automatically come to the UK, however she recently told nearly 800,000 Poles living in the UK that she “wants and expects” them to remain in the UK after Brexit.


Subconscious motive for discrimination

The Equality Act 2010 states that it is against the law to discriminate against an employee on the grounds of their race, sex, age, marital status, religion, sexual orientation, disability, age or pregnancy (protected characteristics).

The discriminatory act is straightforward to establish where there is an obvious or direct act of discrimination however what is not so clear is the approach to take in the event that no direct intent can be established.

It has long been accepted that proof of intent is not required to prove an unlawful act of discrimination. However the application of these rules has proven to be problematic in practice. This issue again arose in the recent case of Geller v Yeshurun v Hebrew Congregation in which the Employment Tribunal failed to explore the possibility of subconscious discrimination despite, on the facts, there being good cause to do so.
The facts
Mr and Mrs Geller both worked for the Yeshurun Company. Mr Gellar was an employee and Mrs Gellar worked on an ad hoc basis for which she submitted time sheets. In 2013 the couple began to receive a joint salary. Mrs Gellar was not paid for the work that she had done previously.

Mr Gellar was provisionally selected for redundancy and Mrs Gellar argued that she too should have been involved in this process as an employee. They were subsequently both made redundant. Mrs Gellar brought a claim for sex discrimination on the basis that both the unlawful deduction of wages and the fact that the company had failed to recognise her as an employee were both acts of discrimination which related to her sex.
The Employment Tribunal
The Employment Tribunal dismissed the claim. They found no evidence that she had been treated unfavourably on either ground commenting that she had actually been treated more favourably as a result of being married to Mr Gellar and that the deductions of wages were as a result of an administrative oversight not as a result of her sex.
The appeal


Exit discussions are no bar to a constructive dismissal claim

As you may be aware constructive dismissal occurs when an employee terminates their employment in response to their employee’s treatment of them. The employee has to show that they have resigned in response to fundamental breach of contract by the employer. The Employment Rights Act essentially say that if the employee terminates their contract in circumstances which they are entitled to do so without notice because of the employer’s conduct that termination constitutes a dismissal.

In the case of Gibbs v Leeds United FC the Court was required to determine liability for breach of contract, considering whether Leeds United FC was in breach of its contract with the Claimant, whether that breach was repudiatory and whether, when the Claimant resigned, he did so at least in partly as a result of that breach.

The Claimant (here photographed when at Tottenham) had worked as an assistant manager at Leeds United Football Club. When the head coach was dismissed it was expected that, as is usually the case, the Claimant would also be dismissed despite working under the terms of a fixed term contract which was due to expire in June 2016.

Following the departure of the head coach the claimant did enter into discussions concerning the early termination of his employment however the Chairman made clear that he wanted him to remain at the club. The Claimant returned to work as requested although discussions continued with the club in an attempt to negotiate the early termination of his contract. During this period the Claimant was not assigned work which fell within his contract to do, although he turned up ready and willing to do it. He complained and said that he had been left with nothing to do and expressed that he was unhappy about this situation. However subsequently on the 23 June he received an email from the club secretary, Graham Bean, which read as follows:


Can the privilege that covers protected conversations under section 111A ERA be waived?

No, held the Employment Appeal Tribunal in Faithorn Farrell Timms LLP v Bailey, giving the first appellate judgment on protected conversations.

Protected conversations are a mechanism whereby employers can enter into discussions concerning the proposed termination of an employee’s employment where there is no existing ‘dispute’ (i.e. that there are no ongoing formal disciplinary/capability issues). The pre-termination conversations and terms of settlement are protected in so far as they cannot be used as evidence in any subsequent employment tribunal claim for unfair dismissal. Protected conversations which are covered by section 111A of the ERA 1999 were implemented in July 2013 and have sought to bridge the gap to allow employees to enter into conversations with a view to agreeing the exit of an employee where there is no previous dispute. It is of course common ground that employers have always been able to rely upon without prejudice “privileged” communications, however this will only apply in the event of a genuine attempt to resolve an existing dispute. The aforementioned case demonstrates the difficulties an employer may encounter when there is an overlap between the without prejudice and section 111A rules.

The Claimant complained of constructive unfair dismissal and indirect sex discrimination in part as a result of the discussions she had initiated for the agreed termination of her employment. She referred to the protected conversation in both her grievance and ET1 (claim form) as did the Respondent when providing a response. It was not until the preparation of the full merits hearing that the Respondent sought to challenge the admissibility of evidence under both section 111A ERA and the without prejudice rules. The Tribunal ruled that the material in question was generally admissible, subject to redaction of specific references to any offer.

The Respondent appealed and the Claimant cross appealed on the basis that the Tribunal had failed to deal with the Claimant’s contentions that the Respondent could not rely on the without privilege or section 111A material given its improper behaviour and had ruled that in any event the parties had waived their privilege.

The Employment Appeal Tribunal (EAT) drew a distinction between the without prejudice rules and section 111A and noted most importantly that common law without prejudice rules will only apply when there is a dispute between the parties.