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I spent an evening with two former colleagues recently and as you can imagine we spent large chunks of the time discussing employment law. Well, 10 minutes maybe. Anyway, it was the day on which the Government published its response to the Taylor Review of Modern Working practices, so that was the subject of our 10 minute debate.
A summary of our reaction: underwhelmed. It was perhaps best demonstrated by our collective answer to the question: ‘what do clients need to know and do differently in light of this announcement?’ That answer: nothing.
I have summarised here the ‘highlights’ of the Government’s press release and resolve to let you know in due course if any clear proposals as opposed to rather vague and not necessarily workable ideas come from it. (They are, to be fair, quite busy on Brexit.)
Darryl Evans
T: +44 (0)7771 725341
E: dfe@evansemployment.co.uk
But first, the increased compensation limits and minimum awards payable for dismissals and other causes of action occurring from 6 April 2018 onwards have been announced. The main ones are:
- the maximum compensatory award for unfair dismissal will go up from £80,541 to £83,682, and
- the limit on a week's pay for the purposes of calculating, among other things, statutory redundancy payments and the basic award for unfair dismissal, will increase to £508.
According to the Government's Press Release, it will:
- introduce a right to request a more stable contract for all workers, including zero hour workers
- help enforce workers' sick and holiday rights
- introduce a 'naming and shaming' scheme for employers who do not pay tribunal awards
- make sure new and expectant mothers know their rights
- ask the Low Pay Commission to consider introducing a higher rate of the national minimum wage for workers on zero hour contracts
In addition, there will be four separate consultations, related to:
- enforcement of Taylor's employment rights recommendations
- protecting agency workers (including the removal of the so-called ‘Swedish derogation’)
- measures to increase transparency in the UK labour market
- employment status
The new national minimum and living wage rates, to apply from 1 April 2018, have been announced. They are:
- 25 and over - £7.83 (previously £7.50)
- 21-24 - £7.38 (previously £7.05)
- 18-20 - £5.90 (previously £5.60)
- under 18 - £4.20 (previously £4.05)
The accommodation offset will be £7.00 per day (previously £6.40).
The Employment Appeals Tribunal (EAT) has held that a worker's right to compensatory rest for a 20-minute rest break under the Working Time Regulations 1998 (WTR) must be given as an uninterrupted break of 20 minutes.
As a special case worker, the claimant, a railway signalman, was excluded from the normal entitlement to rest breaks under the WTR, but he was entitled to an ‘equivalent period of compensatory rest’ under regulation 24(a).
The employer argued that a number of smaller breaks which amounted to significantly more than a total of 20 minutes complied with the WTR. The EAT disagreed. The compensatory rest must amount to a break from work that lasts at least 20 minutes. (Crawford v Network Rail Infrastructure Ltd UKEAT/0316/16.)
In the case of Lopez Ribalda & Ors v Spain (Application nos. 1874/13 and 8567/13), a supermarket suspected theft by both customers and its employees. It installed covert and visible surveillance cameras, but staff were only told about the visible cameras. Several employees were dismissed relying partly on the covert footage. They alleged breach of Article 8 and of their data protection rights.
A Spanish court held that the measure was justified, appropriate, necessary and proportionate, and that no other equally effective means of protecting the employer's rights would have interfered less. The European Court of Human Rights disagreed, saying that Article 8 had been violated, and that a fair balance between the parties' rights had not been struck. However, the employees’ dismissals were still held to be fair because the employer did not rely solely on the covert evidence.
As with the decision in the Bărbulescu case, which I reported last October, this case does not prohibit monitoring or surveillance, it just re-establishes that doing so without any notification to the employees, or for an indefinite period and without a very specific purpose, can fall the wrong side of the line of acceptability. In this country the Information Commissioner has set out very specific guidelines in the Employment Practices Code which allows covert surveillance in cases where criminal activity or equivalent malpractice is suspected, but only under strict conditions.
The EAT has decided that a person who subjects a whistle-blower to a detriment must personally be motivated by the protected disclosure in order for a claimant to succeed with a detriment claim.
It follows that there is broad uniformity in whistleblowing detriment, unfair dismissal on whistleblowing grounds, and discrimination claims, in that personal knowledge and motivation of the person carrying out the act complained of is required in order to establish liability (Malik v Cenkos Securities Plc UKEAT/0100/17.)
In Donelien v Liberata UK Limited (2018 EWCA Civ 129), the Court of Appeal has upheld an employment tribunal’s decision that an employer did not have constructive knowledge of an employee’s disability and therefore had no duty to make reasonable adjustments.
In order for an employer to become obliged to make reasonable adjustments, it must know that the employee is disabled. In this case the employer had taken reasonable steps to ascertain whether the employee was disabled or not and had at its disposal a range of medical information which, in the court’s view, entitled the employer at the time to decide that the employee was not disabled.
The test was what it was reasonable for the employer to know, not whether it could have done more. Therefore, it did not have to make reasonable adjustments, despite the court’s finding that the employee was in fact disabled in the last two months of her employment.
The case of Royal Surrey County NHS Foundation Trust v Drzymala (UKEAT/0063/17) is a reminder that employing someone on a fixed term contract does not allow the employer a low-cost dismissal when that contract comes to an end.
The expiry and non-renewal of a fixed term contract amounts to a dismissal in law, so any fixed term employee with at least two years’ service has the right to claim unfair dismissal. The fact that the fixed term has expired is not of itself sufficient to render the dismissal fair. The employer can only dismiss fairly if the reason for dismissal falls within one of the statutory potentially fair reasons.
In this case the employer thought that merely by complying with the non-discrimination laws with regard to fixed term employees, the dismissal would be fair. However, the EAT held that the dismissal was unfair, partly because the Trust had failed to discuss alternative roles for the Claimant as it would do in a redundancy situation.
The question before the European Court of Justice (ECJ) in Ville de Nivelles v Matzak (C-518/15) was whether, when Belgian firefighters were on "stand by" when at home, that was "working time" under the Working Time Directive.
In the circumstances here, it was, concluded the ECJ. The firefighters had to remain physically present at a place designated by their employer and they had to able to reach work in eight minutes. This limited their ability to devote themselves to their personal affairs.
This was not the same as a situation where someone must simply remain contactable whilst on stand-by, but not present at the place of work. In those circumstances, if the worker could manage his or her time and outside interests with fewer constraints, only time spent in the actual provision of services would be working time.
The test in Lawson v Serco is the basis for determining whether an overseas employee can sue their employer in a British employment tribunal. The EAT has decided that this test also applies when it comes to deciding whether claims for detriment from whistleblowing can be made against co-workers.
Mr Bamieh was an employee of the Foreign and Commonwealth Office who was on secondment with two FCO colleagues to an EU Mission in Kosovo. He made a claim for detriment against the Mission and also the two colleagues. The tribunal had no jurisdiction to hear the claims against Mission, primarily because it had no domestic legal personality. However, the claims against colleagues were allowed to proceed.
The two colleagues were resident overseas and took day-to-day instruction direct from the Head of Mission in Kosovo, but they were employed by the British government under English law contracts and the FCO remained responsible overall for disciplinary matters, contract renewal and dismissal. An assessment of the strength of the connection between each individual respondent and Great Britain and British employment law meant that the jurisdiction of the tribunal extended to them. (Bamieh v EULEX (Kosovo) and others UKEAT/0268/16.)
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