Employment Review – November 2017
- Employment Tribunal Fee Refund Scheme launched
- Contracts are important – but what happens in practice matters too
- Watch Out! Assurances Given to Employees Can Have Contractual Force!
- Statistics Wrongly Ignored in Airline Purser Employment Case
- Parental Bereavement (Pay and Leave) Bill published
- Data Protection: the GDPR from an Employer’s Perspective
Following the decision of the Supreme Court that the introduction of Employment Tribunal fees in July 2013 was unlawful, the Ministry of Justice announced that the Government would cease charging fees immediately and take steps to refund payments made since their introduction – no easy task.
The first stage of the Employment Tribunal fee refund scheme has now been announced. Up to 1,000 people will now be contacted individually and given the chance to complete applications before the full scheme is opened up in the coming weeks. The Government is also working with trade unions that have supported large multiple claims potentially involving hundreds of claimants.
Successful applicants to the scheme will not only be refunded the fee amount but will also be paid interest at a rate of 0.5 per cent, calculated from the date of the original payment up until the refund date.
This opening phase of the refund scheme will last for around four weeks. Further details, including information on how it can be accessed, will be made available when the scheme is rolled out fully.
This case demonstrates the importance of looking beyond the contract and examining what happens in practice. As always, the wording of a contract is the first port of call for judges who are asked to interpret them but context matters too. The Court of Appeal made that point in resolving a long-running dispute that arose from the closure of a packaging factory and the loss of over 100 jobs.
The factory’s demise was marked by bitter dispute between the company that owned it, its employees and their trade union. Four workers were summarily dismissed after occupying the premises and the union ran a high-profile campaign which generated much damaging publicity for the company. After the factory ultimately closed, all 109 remaining employees were made redundant.
Following negotiations between the company and the union, a settlement was finally agreed, one of the terms of which was that the employees would receive ’90 days’ gross pay’. However, a dispute arose thereafter as to the correct interpretation of that phrase. The union argued that the sums payable should be worked out by calculating the average gross daily pay of each worker and multiplying that figure by 90. The company argued that the phrase referred to 90 days on the calendar, an approach that resulted in a less generous outcome for the employees.
Following a hearing, a judge preferred the union’s reading of the phrase. The Court, however, took the opposite view and allowed the company’s appeal. It noted that its task was simply to ask what the phrase meant in the context of the facts known to both the union and the company. When that holistic approach was taken, it was clear than an objective reader would have naturally understood that the mutual intention was to employ the calendar method of calculating the 90 days.
Promises made and assurances given to employees can have contractual force, so it is vital not to make such commitments without taking legal advice. That point was made by one case in which a council went back on an assurance that a group of workers would have the opportunity to apply for voluntary redundancy.
The council was subject to severe budget cuts and had informed the review and monitoring officers over its intranet that they would be contacted and invited to make applications for voluntary redundancy on generous terms. They were, however, subsequently told that voluntary redundancy was not available to them and they were made compulsorily redundant. Their complaints of breach of contract were later rejected by an Employment Tribunal (ET) on the basis that the intranet announcement did not give rise to contractual rights.
In upholding the workers’ challenge to that ruling, the Employment Appeal Tribunal (EAT) found that the ET had made a number of errors of law. It had, amongst other things, wrongly focused on an irrelevant issue as to whether the council had a policy, or custom and practice, of offering voluntary redundancy. The intranet notice, on the face of it, committed the council to inviting applications for voluntary redundancy and questions as to whether these would in fact have been granted went to damages, not liability.
The EAT remitted the case to the ET for reconsideration of whether the workers had a contractual right to apply for voluntary redundancy and, if so, the amounts of damages, if any, they should be awarded. Subject to argument to the contrary, the EAT was minded to send the matter back to a differently constituted ET.
Statistics do not have the best reputation, often being equated with ‘damned lies’, but they can be of critical relevance to employment proceedings. That was certainly so in one case concerning a part-time airline purser who was alleged to have been less favourably treated than her full-time colleagues.
The woman had worked full time in the past but had taken on a part-time role after returning from maternity leave. Her contract envisaged that she would work half as many hours as her full-time co-workers and would receive half their salary.
Full-time cabin crew members were required to be available for work for 243 days per year. Half of that was 121.5 days, but the woman had to be available for 130 days. On that basis, she complained that, when viewed proportionately, she was required to be available for 3.5 per cent more days than her full-time comparators.
In upholding her complaint, an Employment Tribunal (ET) found that, in requiring her to work an additional 8.5 days annually, without equivalent additional pay, the airline had breached the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The difference in treatment was in pursuance of a legitimate aim, but was not objectively justified in that the same operational objective could have been achieved by the simple, non-discriminatory, expedient of increasing her salary.
In ruling on the airline’s challenge to that decision, the Employment Appeal Tribunal upheld the ET’s conclusion that the woman had been less favourably treated. However, in allowing the appeal, it found that the ET was wrong to ignore statistical evidence put forward by the airline in support of its justification defence.
The airline had argued before the ET that it was in practice impossible to maintain absolute mathematical parity between the number of hours proportionately worked by the woman and her full-time comparators. Statistics showed that, during some periods, she worked longer hours than full-time colleagues and, in other periods, fewer. A broad approach to comparability was appropriate and any difference in treatment could be regarded as trivial or minimal. The objective justification issue was remitted to a freshly constituted ET for reconsideration.
The Parental Bereavement (Pay and Leave) Bill 2017-19 was introduced into Parliament on 13 October 2017 with the aim of it becoming law in 2020. Whilst it has been introduced as a Private Members’ Bill, it has full government backing and is therefore likely to become law.
Whilst the Bill does not set out the actual rights to be created, it provides the broad parameters within which Government can introduce regulations setting out the details of the scheme. The Bill is accompanied by explanatory notes providing further details.
It is envisaged that the Bill will give employees who lose a child below the age of 18 (including a still birth after 24 weeks), a right to at least two weeks’ leave to grieve the loss of their child away from the workplace. This right applies irrespective of their length of service.
In addition, employees with a minimum of 26 weeks’ continuous service will also be entitled to two weeks’ statutory flat rate of pay (currently £140.98) or 90% of their average weekly earnings per week (whichever is the lower).
If an employee loses more than one child, they will be entitled to take leave in respect of each child.
Employees taking Parental Bereavement Leave will also be protected from detriment, redundancy and dismissal.
Whilst many employers have a policy of offering compassionate leave to employees who suffer a bereavement, currently there is no legal requirement compelling employers to provide paid time off to grieving parents.
In response to rapid technological developments and growth in the collection and sharing of personal data, an updated data protection law comes into force next May. The GDPR will have a much more significant impact on employers as it introduces new and varied concepts to strengthen the core principles.
In case you missed our recent update on what employers should be aware of in order to prepare, you can read this now.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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