Welcome to this month's edition which includes a summary of the Employment Tribunal Statistics showing an increase in employment tribunal claims. With the economic downturn there is likely to be a further increase this year.

The Employment Team at Taylors are happy to assist with any HR or employment issues you have – just give us a call on 0844 800 263.

Please keep your questions coming in. To submit a question please click here and I’ll provide the information you need in the next edition.

Oliver McCann
Associate
Taylors

Tel: 0844 8000 263
Email: oliver.mccann@taylors.co.uk
Web: www.taylors.co.uk

43% rise in claims
Just one of the statistics from the belated annual statistics from the Employment Tribunal Service for 1st April 2007 - 31st March 2008 which is cause for concern!

For April 2007 to March 2008 there were 189,303 claims (year before only 132,039).

The largest proportion of claims were equal pay claims, followed by working time claims and then unfair dismissal claims. As anticipated the number of age discrimination claims jumped sharply from 972 the previous year to 2,949.

The highest award for unfair dismissal was £76,536, the average level of award being £8,058. Other average awards:

• Sex discrimination = £11,263 (highest £131,466)
• Race discrimination = £14,566 (highest £68,991)
• Disability discrimination = £19,523 (£227,208)
• Age discrimination = £3,334 (£12,124)

What do I need to know?
Tribunal claims are on the increase year in year out. This will be even more so with the economic downturn. With less jobs available dismissed employees have little to lose from pursuing claims and this has become more noticeable over the past 6 months. Not only that, due to the pessimistic outlook employees are hardening their position on settlement and seeking larger payouts!

Simple steps can be taken to avoid claims including taking HR advice before committing to a course of action or dismissing employees. Often preventative action is much cheaper than the cure! Consider taking out Employer Protection insurance to cover against costly claims, both in relation to compensatory awards and legal costs. Look at how Taylors can help with your HR and employment needs.

New disciplinary rules – 6th April 2009
Don’t forget that the current statutory dismissal and grievance procedures will be abolished and replaced with the ACAS Statutory Code of Practice.

In short the technical breaches of procedures will no longer render dismissals automatically unfair. However an unreasonable failure to follow the Code of Practice entitles the Employment Tribunal to increase or decrease any award by up to 25%.

What do I need to know?
Given the ramifications for not following the code it goes without saying you need to know what the code says. Read more about the code here.

There is also accompanying “guidance” here.

You would be well advised to print the code and guidance and put in a drawer close to hand. Again the need to take advice from a specialist at the outset cannot be over emphasised.

Note the ACAS code only applies to disciplinary issues on or after the 6th April. Confusingly, in relation to grievances, the old rules apply to grievances in relation to actions or omissions before the 6th April even if raised after this date, but the new code applies where the grievance relates to actions or omissions after 6th April 2009. There is a cut off point however where the ACAS code will always apply which is 4th July 2009.

Other legislation/changes April 2009

• Flexible Working – the right increases to those who have children under the age of 16
• Minimum Holidays – increases to 5.6 weeks ie 28 days for an individual who works 5 days per week
• Statutory Sick Pay – increases from £75.40 to £79.15
• Statutory Maternity/Paternity/Adoption Pay – increases from £117.18 to £123.06
• P45’s – change to a new version which must be used

Legal representation at internal hearings?
It has long been the position that an employee attending an internal hearing (either disciplinary or grievance) is allowed a work colleague or trade union representative but that right to be accompanied did not extend to external representation such as that of lawyers.

Indeed not so long ago a case against an NHS trust by a doctor reaffirmed that point. However a recent case has reopened the issue with the High Court confirming that in some circumstances there is a right to legal representation at an internal hearing.

A school teacher was alleged to have kissed a 15 year old boy and sent text messages pressing to meet up with the pupil. Following disciplinary proceedings the teacher was dismissed for gross misconduct on grounds of a breach of trust. The school was also under a duty to report the matter to the Secretary of State for Children Schools and Families to determine whether he should be entered on the register for those individuals who are unsuitable to work with children (similar registers exist in the social care sector).

The teacher had sought legal representation throughout but this was refused. The teacher sought a judicial review of this decision which was successful.

What do I need to know?
The principal argument was that the disciplinary process against him was in essence a dual process which could result in him being placed on a register as unsuitable to work with children and as such affecting his ability to work in the profession ever again. As the remedy for unfair dismissal would be inadequate to rectify that it was held to be only right that the teacher be entitled to be legally represented at the internal hearings.

The matter has been appealed so watch this space. It has potential ramifications for those employers in the education and social care sectors where the conduct giving rise to the disciplinary process may also need to be reported to a regulating body ie those who work with children or vulnerable adults.

If, before clarity is received, you need to embark upon disciplinary proceedings in such circumstances and the employee requests legal representation – take advice.

Your Questions Answered

1. What is the position when an employee has pre booked holidays but immediately before taking the holiday is signed off sick from work for the entire period?

The current UK position is that you cannot take holiday leave at the same time as sick leave and as such if the worker submits a sick note before the pre booked holiday then strictly speaking the absence becomes sick related as opposed to holiday related.

However recent European Court decisions did state that the Working Time Directive did not preclude holiday leave being taken during sick leave but stopped there, saying it was a matter for the national courts to decide. The case of Stringer v HMRC has therefore been referred back to the House of Lords to decide on this and a number of other issues. As such I’m afraid it is a case of “wait and see”.

2. Is an employee allowed to call, and cross examine, witnesses in a disciplinary process?

There is presently no specific legislation on this point. If the matter relates to one which could result in dismissal then you need to be able to demonstrate that the dismissal was fair in all the circumstances and that you followed a fair procedure. As such this leaves the issue open to interpretation and each case will be assessed on its own facts. Where the witnesses are critical to the decision that it maybe unfair to deny the employee the opportunity to call and cross examine witnesses. If you are unsure take legal advice having regard to the specific issues.

However the ACAS Statutory Code of Practice, which comes into force on the 6th April 2009, states “the employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses.” As such being allowed to call witnesses and cross examine does, in my view, become a statutory right on the 6th April subject to the issue of “reasonableness”.

It would be well worth reviewing carefully your disciplinary and grievance procedures to ensure they meet the statutory code requirements.