Newsletter September 2011


On 3rd October, George Osborne set out changes in the conditions for access to Employment Tribunals. The headline grabber was the increase of the qualifying period for an unfair dismissal claim from one year of employment to two. This followed a bizarre week in which BIS announced the change only to backtrack and say the change was still under consideration, leaving the way clear for Mr Osborne to make the actual announcement.

This will no doubt impact the make-up of employment tribunal activity, the most recent statistics for which I summarise below. Query, though, whether the only impact will be a reduction in the number of unfair dismissal claims. Might aggrieved employees pin their hopes on another line of attack – age discrimination for example? And will the issue of whether a two year qualifying period discriminates against women, who tend to take jobs for shorter periods, resurface? It could easily be a case of One In, One Out, to coin a phrase.

Darryl Evans
T: +44 (0)7771 725341

Bringing Employment Tribunals claims – some new obstructions

On 3rd October George Osborne announced the following:

  • an increase in the qualifying period for making unfair dismissal claims from one year to two
  • the introduction of a fee for making a claim to an Employment Tribunal

I understand (and this may be wrong as it is hot off the not entirely reliable press) that the fee structure could be as follows:

  • £250 for making a claim
  • a further £1,000 when the case is listed for a hearing
  • higher fees for claims over £30,000 (although that could include every unfair dismissal claim, so this one is a bit baffling)
  • a refund if the employee wins
  • exemptions for those on low pay

These changes will apply from 1 April 2012. Between now and then the details will hopefully become clearer.

Latest Employment Tribunal statistics

The Ministry of Justice released statistics in September for the Employment Tribunal Service for the year ending 31st March 2011.

The figures record an overall number of claims in excess of 218,000 across the UK. This is 8% down on 2009/10, but it still represents a 44% increase on the year before. The number of individual claims has dipped slightly but has otherwise remained broadly static since 2000/1, while collective (multiple) claims have risen by over 100,000 over the same period.

61% of claims were either settled or withdrawn, 27% were unsuccessful and only 12% succeeded. The lowest success rates are for discrimination claims (1%-3% of all complaints brought) and the highest for things such as breach of contract, unlawful deductions, redundancy pay and working time issues.

Only 8% of all unfair dismissal claims brought are ultimately successful before the Tribunal, but only 10% are recorded as failing, showing that the vast majority are settled before the hearing. This implies that if you reach Tribunal your chances of winning are on average pretty much the classic 50/50.
As for compensation, the median unfair dismissal award was slightly under £4,600, and the medians for the various types of discrimination claims between £5,000 and £6,500 (excluding age at £12,700).
The whopping compensation figures often quoted in the press are a) very rare, and b) usually only apply in cases of very highly paid employees.

Can an employee dismiss himself?

The answer to this question is usually no. The employer has to do some work to bring about an end to a person’s employment.

In the case of Zulhayir v JJ Food Service Ltd (UKEAT/0593/10), despite there being no contact between employer and employee for nearly three years while he was absent without providing any reason to the employer, it was held that he was still employed by his employer, and they could not presume he had resigned.

In circumstances such as these employers should always make active attempts to trace the employee and then go about a dismissal process of some kind, whether or not they manage to make contact.

Fair dismissal for potential rather than actual damage

A recent Employment Appeals Tribunal case indicates that an employer is entitled to take account of serious adverse consequences that might arise from an employee’s negligence and is not prevented from fairly dismissing the employee just because those consequences fail to materialise.

In the case of Wincanton plc v Atkinson and another (UKEAT/0040/11) two drivers had failed to renew their HGV licences and were dismissed due to the potentially serious consequences of driving without a licence, even though nothing prejudicial actually happened.

More Facebook comments

An employment tribunal, in the case of Whitham v Club 24 Ltd t/a Ventura (ET/1810462/10), has held that the dismissal of an employee for making derogatory comments about her workplace on Facebook was unfair.

The employhee had commented that she worked “in a nursery” and “not…with plants”. She also agreed with another comment that she worked with “a lot of planks”.

The judge held that her comments were "relatively minor" and there was nothing to suggest that the employer's relationship with a key client had been harmed or jeopardised as a result. The employer had also failed to take into account the employee's exemplary employment record and mitigating circumstances.

Social networking sites guidance

Rather appositely, Acas has produced some ‘Guidance Notes on Social Networking’, offering tips on how to manage the impact of social networking on managing performance, recruitment, disciplinary and grievance issues.

There is also a section on ‘How to Draw up a Social Networking Policy’, including practical tips and an explanation of the legal considerations involved.

In view of the problems that are now being thrown up by employees making comments on Facebook, it is well worth considering implementing a policy, so that employees and employers know where they stand. If the employer in the above case had had a policy on the use of social networking sites, the employee might not have made the comments at all, or at least it would have been clear to all parties that an offence of gross misconduct might have been committed, making an unfair dismissal much more unlikely.

Age discrimination

Prigge v Deutsche Lufthansa AG (C-447/09) is a further case suggesting that a retirement age of 65 is possible. The European Court of Justice decided that pilots can be forcibly retired at the age of 65, although not at the age of 60, as was hoped for by the employer in this case.

Although there are obvious special health and safety circumstances relating to pilots, this is further evidence that courts are willing to hold that a forced retirement age can, in the right circumstances, be legal. What those right circumstances are remains open to argument though, and in more ‘ordinary’ jobs than piloting aircraft justification could be a very great deal harder and may not be possible at all. It is also worth reflecting that if 60 is too low a retirement age for air pilots, it is hard to think of a job in which anything lower than 65 would have any prospect of success at all.

New rates for National Minimum Wage

From 1 October the National Minimum Wage rates will be as follows (existing rates in brackets):-

  • over-20s: £6.08 (£5.93)
  • 18-20 year-olds: £4.98 (£4.92)
  • 16-17 year-olds: £3.68 (£3.64)
  • apprentices: £2.60 (£2.50)

The apprentice rate applies to apprentices under 19 or 19 and over in the first year of their apprenticeship.

Changing the reasons for dismissal

In the case of Perry v Imperial College Healthcare NHS Trust (UKEAT/0473/10) the employee worked for two different NHS Trusts, in different jobs, on different hours. In her role at Imperial College she needed to travel so when she had medical problems affecting her mobility she was signed off sick. She continued, however, with her other job which was based in a clinic and when Imperial discovered this it dismissed her for gross misconduct on the basis that she had defrauded Imperial by receiving sick pay.

She appealed and the appeal panel found the original decision unsupportable but confirmed her dismissal on completely different grounds, namely that she should have informed Imperial that she could do other work and they could have redeployed her.

The Employment Appeals Tribunal concluded that it was in principle open to the panel to terminate on different grounds, but they could not do so here. What she did was not serious enough to warrant dismissal.

Can a reference refer to unsubstantiated allegations?

Apparently yes (although I strongly advise caution). In Jackson v Liverpool City Council (2011 EWCA Civ 1068) the Court of Appeal decided that the fairness of a reference given for an ex-employee was determined by its overall balance. The Court did not see how the Council could honestly have answered the questions posed by the reference request without mentioning the concerns it had over the employee’s performance even though they were unsubstantiated.

The reality is that employers are increasingly avoiding this type of problem by giving references containing only factual statements about period of employment and role.

The information and any commentary contained in this newsletter are for general information purposes only and do not constitute legal or any other type of professional advice. Darryl Evans and Evans Employment Law Limited do not accept any and, to the extent permitted by law, exclude all, liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this newsletter. If you have a particular query or issue you are strongly advised to obtain specific, personal advice and not to rely on the information or comments in this newsletter.

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