News

We produce a monthly Employment Law Newsletter which is distributed by email.  In order to receive it, you need to subscribe.  Just enter your details into the Mailing List box to the right here.

Employment Law Update – November 19

November 6th, 2019

What is ‘off the record’?

Off the record conversations can play a vital role in resolving workplace disputes. Section 111A of the Employment Rights Act 1996 says that confidential discussions about ending an employee’s employment can be ‘off the record’ in certain circumstances. These are known as ‘protected conversations’. If s111A applies, termination discussions cannot be used as evidence in an unfair dismissal claim unless there has been ‘improper behaviour’ by the employer.  Section 111A only applies to ordinary unfair dismissal claims. Consequently, the content of termination discussions can be used as evidence in other claims, such as automatic unfair dismissal (for example a pregnancy related dismissal) and discrimination claims.

In Harrison v Aryman, an employee resigned and claimed constructive dismissal after a series of discriminatory acts relating to pregnancy and sex. She said the last straw was a ‘confidential settlement proposal’ she received from her employer shortly after she announced her pregnancy. The employer said the letter was off the record due to s111A. The employee said the letter was part of the employer’s improper discriminatory behaviour and she should be allowed to use it in evidence.

The employment tribunal found that s111A applied, meaning the employee could not refer to the letter in her unfair dismissal claim. The employee appealed. The Employment Appeal Tribunal said the tribunal had got it wrong. When an employee’s claim is for automatic unfair dismissal, such as a pregnancy related dismissal, s111A does not apply and the content of a protected conversation can be used in evidence. This is different from the situation in a normal unfair dismissal claim where an employee wants to refer to a protected conversation because they allege improper conduct. In that case the tribunal will need to hear evidence about the improper conduct before deciding whether the evidence can be used. 

This case is a reminder to employers that ‘off the record’ conversations can come back to haunt you.  If there is any risk of discrimination or an automatic unfair dismissal claim, take advice before starting any kind of dialogue about termination.  Read the rest of this entry »

Employment Law Roundup – October 2019

October 4th, 2019

Harassment has been in the legal news again this month. Anthony harasses Belinda if he does something in relation to a protected characteristic (race, sex etc) which has the purpose or effect of violating Belinda’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The connection between the protected characteristic and the conduct is key. The burden of proof – who must prove what – is important in discrimination cases too. If an employee can prove facts from which, in the absence of another explanation, a tribunal could conclude harassment has occurred, then the burden of proof shifts to the employer to show that it did not happen. The Employment Appeal Tribunal (EAT) has looked at both these issues in Raj v Capita Business Services.

The employee was employed for less than a year and had performance issues before he was dismissed. He brought numerous claims against the employer. One claim was for sex harassment, alleging that his female manager had massaged his shoulders in an open plan office. The manager denied that the conduct had taken place, but other witnesses supported the employee’s version of events. They said the massages were accompanied by words of encouragement in relation to the employee’s performance.  Read the rest of this entry »

Employment Law Roundup – September 2019

September 10th, 2019

Welcome article – TUPE

Employers have an obligation under the National Minimum Wage Act 1998 (NMWA) to keep pay records showing that they pay the national minimum wage (NMW). This requirement continues after employment has ended. The Employment Appeal Tribunal has looked recently at what happens when there is a TUPE transfer – does the transferor have to keep and produce those records for employees who have transferred to another employer?

In Mears Homecare v Bradburn, the employees transferred under TUPE. A few months later they requested pay information from their old employer (the transferor) as part of a query about payment of the NMW. The transferor didn’t respond within the time limit and the employees lodged an employment tribunal claim. The tribunal decided that the transferor was the relevant ’employer’ for the purposes of the NMWA. The query about pay related to the employees’ employment with the transferor and the duty to retain and produce pay records lasted beyond the end of employment. The tribunal ordered the transferor to pay compensation.

The Employment Appeal Tribunal disagreed. The employees’ employment had not ended – it had transferred to the transferee. When there is a TUPE transfer, the transferee steps into the shoes of the transferor in relation to the employees’ contracts. All rights, duties and obligations pass from transferor to transferee, including the obligation to keep and produce NMW records. The transferee was therefore the relevant employer, not the transferor. Any request for pay information should be made to the transferee, even though the request was for pay information which pre-dated their employment of the employees.

In this case, the EAT judges accepted that this situation is inconvenient for transferees who are required to produce another business’s pay records. They said that businesses should ensure that full pay records pass from transferor to transferee as part of the transfer. It’s worth remembering that criminal liability does not transfer under TUPE. Transferors should therefore ensure that the contractual paperwork also deals with the return of pay information if the transferor is ever prosecuted in relation to transferred employees. Read the rest of this entry »

Employment law Roundup – July 2019

July 3rd, 2019

Holiday pay

The holiday season is upon us and the next instalment of the Flowers v East of England Ambulance Trust saga has arrived from the Court of Appeal. The case involves voluntary overtime and whether it should be included when calculating holiday pay. European law says that holiday pay should be based on ‘normal remuneration’. If pay or hours vary, then an employer must look at the previous 12 weeks and pay the average.

In Flowers, the ambulance workers said that two types of overtime should be included in holiday pay: non-guaranteed overtime (when they were required to stay late at the end of a shift) and voluntary overtime. They brought claims based on what their contracts said as well as the provisions of the Working Time Directive. The employment tribunal said non-guaranteed overtime should be included in holiday pay, but voluntary overtime should not. The Employment Appeal Tribunal disagreed and said both should be included.   Read the rest of this entry »

Employment Law Roundup – June ’19

June 5th, 2019

Disability discrimination

A disability is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to do day to day things. The Equality Act 2010 specifically excludes from the definition any visual impairment which is correctable by contact lenses or glasses. Sometimes, the correction of visual impairments can create side effects. The Employment Appeal Tribunal has recently looked at whether side effects can stop the impairment being correctable.

In Mart v Assessment Services, the employee brought a claim for disability discrimination based on her diplopia (double vision). She also had a facial disfigurement, which caused depression and anxiety, but she chose to limit her claim to the double vision. She was prescribed a contact lens which corrected the problem. However, the lens visibly blacked out her eye, which the employee said was a disfiguring side effect (disfigurement can also be a disability if it is ‘severe’). The lens also restricted her peripheral vision. For these reasons, the employee said the lens had not corrected her vision and she was therefore disabled. Read the rest of this entry »