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
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.
Tel: 0844 8000 263
43% rise in
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!
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
- 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
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
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
What do I need to know?
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
- 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
Legal representation at internal
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.
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
The teacher had sought legal representation
throughout but this was refused. The teacher sought a judicial
review of this decision which was successful.
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.
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.
before clarity is received, you need to embark upon
disciplinary proceedings in such circumstances and the
employee requests legal representation – take advice.
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”.
an employee allowed to call, and cross examine, witnesses in a
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.
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
It would be well worth reviewing
carefully your disciplinary and grievance procedures to ensure
they meet the statutory code requirements.