Employment Law Newsletters
From time to time, and particularly when there are any significant developments in the field of Employment Law, Knight-Webb Solicitors publish a newsletter. To subscribe to this newsletter, please email firstname.lastname@example.org.
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In this edition of our Newsletter, we report on some recent developments in employment law which may be of interest to employers and employees.
Number of Employment Tribunal claims continues to surge
The latest Ministry of Justice statistics show that the number of employment tribunal claims has jumped by 165% since employment tribunal fees were abolished in July 2017. Anecdotally, we hear that some tribunals, such as the London Central Employment Tribunal have seen a trebling in the number of cases, with consequent delays in listing cases particularly multi-day hearings. With the risk of litigation that much higher, employers would be well advised to take legal advice when managing situations such as dismissals, which could result in claims.
Average Employment Tribunal Awards
The latest Ministry of Justice statistics also show that in the last quarter (April to June 2018) disability discrimination cases had the largest average award (£30,700). Religious discrimination claims had the lowest average award (£5,100). The average award for unfair dismissal claims was £15,007.
Useful new Acas Guidance on Employment References
ACAS have released new guidance on employment references, which can be found at www.acas.org.uk/index.aspx?articleid=5072.
The guidance covers matters such as:
- what a reference must include
- whether or not a reference must be provided
- whether an employer can give a bad reference
- problems with references
- job offers and references
The guidance confirms that whilst a previous employer can normally choose if they want to provide a reference or not, and how much information to provide, if they do decide to give a reference, it should be a true, accurate and fair reflection of the job applicant.
Limitation period which expires on a weekend or bank holiday is not automatically extended to the next working day
The decision of the Employment Appeal Tribunal in the case of Miah v Axis Security Services Ltd serves as a reminder that the normal 3 month limitation period for unfair dismissal, discrimination and other claims in the employment tribunal is not simply extended if it expires on a weekend or public holiday. Mr Miah’s claim for unfair dismissal was received by the tribunal on Monday 30th January 2017. The normal 3 month time limit expired on Sunday 29th January.
It was argued that rule 4 (2) of the Employment Tribunal Rules of Procedure 2013 gave an extra day to bring a claim. That rule says: “If the time specified by these Rules, a practice direction or an order for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day. “Working day” means any day except a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday…”
The EAT decided that the words “by these rules” at the start meant the time limit for an unfair dismissal claim under the Employment Rights Act 1996 was not affected by the rule. The case is also a reminder that limitation periods need to be strictly observed.
Disability-related discrimination – Looser link between disability and dismissal suffices
In Sheikholeslami v University of Edinburgh, the Scottish Employment Appeal Tribunal has confirmed that the concept of ‘something arising in consequence of disability’, which is an element of discrimination arising from disability under section 15 of the Equality Act 2010, entails a ‘looser connection’ than strict causation and may involve more than one link in a chain of consequences.
The Claimant was employed as Professor and Chair of Chemical Process Engineering with the University. She was diagnosed with work-related stress and depression in January 2010 and was then absent until the termination of her employment in April 2012. In April 2010, she raised a grievance complaining of sex discrimination. The University conducted a diversity review, which concluded that although individuals were not judged because of ‘gender bias as such’, there were cultural problems within the School of Engineering. In January 2011, S suggested that she be moved out of the School of Engineering. However, the University wished her to return to her existing laboratory, and the parties came to an impasse. The Claimant was eventually dismissed on 12 April 2012, the University giving as the reason the fact that her work permit had expired. The Claimant brought various claims, including a claim of failure to make reasonable adjustments in that she had been disadvantaged by the University’s insistence that she return to work at the School of Engineering, and a claim of discrimination arising from disability under section 15 Equality Act, in that her dismissal flowed from her disability-related absence.
The employment tribunal rejected both claims.
On appeal, the EAT allowed the appeal. With regard to section 15 Equality Act, it held that the tribunal erred in concluding that there was no evidence of any link between the Claimant’s disability and her absence or refusal to return to her post in the School of Engineering. The tribunal applied too strict a test of causation. The tribunal identified the key issue as being whether her refusal to return to her existing role was because of her disability or some other reason, such as her having been badly treated in the department. However, this was not a binary question – both reasons could have been in play if her disability caused her to experience anxiety, stress and an inability to return to the place where she perceived the mistreatment and hostility to be located, leading to her refusal. The critical question was whether, on the objective facts, the Claimant’s refusal to return arose in ‘consequence of’ (rather than being caused by) her disability. This is a looser connection that might involve more than one link in the chain of consequences.
As for the reasonable adjustments claims, the EAT held that the tribunal had made a number of errors. In particular, it had erred in holding that it was necessary for the Claimant to show that the provision, criteria or practice placed her at a disadvantage ‘because of her disability’. That is not what the statutory language requires – section 20(3) Equality Act does not contain a strict causation test. Rather, a comparison exercise is required to test whether the PCP has the effect of disadvantaging the disabled person more than trivially in comparison with others who do not have any disability.
Employment tribunal claim struck out after Claimant speaks to journalist in the middle of giving evidence
Chidzoy v BBC is a cautionary tale, emphasizing the rule that witnesses should not discuss their evidence with others whilst under oath. In that case, the Employment Appeal Tribunal upheld an employment tribunal’s decision to strike out a claim on the ground of the Claimant’s unreasonable conduct in discussing her case with a journalist during an adjournment while she was still under oath.
The Claimant, a BBC television reporter, brought whistleblowing and sex discrimination claims against the BBC, which were listed for an 11 day hearing. On the third day of her cross-examination, when the tribunal adjourned for a comfort break, she was warned by the Employment Judge, as she had been before each adjournment during the course of her evidence, that she remained under oath and was not to discuss her evidence or any aspect of the case with any person during the adjournment.
During the adjournment, she was seen in discussion with a journalist and overheard discussing the questions put to her in cross-examination.
The Respondent successfully applied for strike out, citing unreasonable conduct by the Claimant and the impossibility of a fair hearing. The tribunal held that Claimant’s conduct was unreasonable, that the breakdown in trust meant that it could no longer conduct a fair trial, and that it was proportionate to strike out the claim. The decision was upheld by the EAT.
Knight-Webb Solicitors are specialists in employment law. We pride ourselves in providing a first-rate, cost-effective and personal service to clients. We can advise you on employment law matters and update your policies and procedures, taking into account all the recent changes in the law, including those outlined in this Newsletter.
Contact Sunita Knight-Webb on 020 7207 6195 or at email@example.com