What did we get up to last month?
Apart from enjoying the lovely early summer weather…we have had a good month with a number of new instructions to get our teeth into and some interesting cases and changes to legislation to keep us on our toes.
We have reviewed a number of business contracts and handbooks over the last few weeks and months and have been surprised at some of the fundamental flaws we have found. These range from out of date policies, handbooks having contractual effect, inconsistencies between the handbook and contracts of employment and senior executives having non-contractual or poorly drafted restrictive covenants in their contracts. Poor standard documentation of this type really does put you on the back foot in handling staff issues and could have expensive consequences for your business.
Tribunal fees
We now know that Tribunal fees will be in place for all claims issued on or after 29 July 2013. From this date, all claims must be either accompanied by payment of a fee or an application for the fee to be waived based on the Claimant’s inability to pay (referred to as a “remission application”). If the correct fee has not been paid or if the remission application is rejected by the Tribunal because the claimant does not qualify, the Tribunal will provide the claimant with a further date by which the fee must be paid. If the Claimant complies with the deadline, the claim will be accepted with effect from the date that it was originally received from the Tribunal; if not the claim will be struck out.
As far as we can tell, there is nothing in the rules which prevents a Claimant from making a remission application – even if they know that the application will not be successful – simply to buy more time before being obliged to pay the full fee. Other commentators have also suggested that Claimants could pay a token fee of £1 to achieve the same result. Aside from the inevitable delay and increased Tribunal admin that this could create, we think that there is every possibility that a Claimant’s financial situation may have changed to such an extent by the new payment deadline that at the point they will be eligible to make a successful remission application, even if they were not eligible at the date that the claim was originally issued. We’re not entirely sure that this is something the Coalition was intending to accommodate and we are going to be very interested to see how it works out in practice when the new rules come in.
As an aside, it is worth mentioning here that Unison has applied for judicial review of the implementation of Tribunal rules on the basis that they prevent access to justice. You can read more about their application here – and we will of course keep you updated on the outcome of this process once its known.
Our attention on Twitter was recently drawn to a brilliant response penned by a US lawyer to a “cease and desist” letter received by his client. We can imagine what it must have been like to be on the receiving end of that!
Any new cases in June?
There have been three cases in particular this month that we’d like to draw your attention to:
- In a decision that will act as a warning shot to employers who need to manage situations where there has been an apparent total breakdown in employer/employee relationships, the EAT held in Woodhouse v West North West Homes that the dismissal of an employee who had raised 10 grievances and issued nine separate Tribunal claims against the employer for racial discrimination over the course of just five years was both an unfair dismissal and an act of victimisation on the grounds of the employee’s race.The dismissal, which West North West Homes had said was for some other substantial reason (namely Mr Woodhouse’s loss of trust and confidence in the company) was held to be unfair because when problems first started to occur Mr Woodhouse had been advised by his manager that if he had any concerns about work matters he should raise a grievance in accordance with the company’s policy. As such it was held to be unfair to terminate his employment when he was simply complying with the advice that he had been given. This was especially so in light of the fact that he had not at any point prior to the dismissal process been told that his employment could be in jeopardy if he continued to raise unfounded grievances.With regards to the victimisation point, the EAT overturned with the Tribunal’s original decision and held that Mr Woodhouse’s dismissal occurred as a result of the grievances and Tribunal claims that he had issued and that it could not be separated from those protected acts. On that basis the victimisation claim has to be upheld.
This was a very difficult situation for both the employee and the employer to be faced with, particularly where it was found that neither of them had acted in bad faith at any point. In trying to resolve these difficulties, it would seem as though mediation could have been a very good starting point and for employers it is worth bearing this form of dispute resolution in mind.
- In City and County of Swansea v Gayle, the EAT found that the employer’s use of covert surveillance in an investigation into suspected misconduct did not affect the fairness of the dismissal. Mr Gayle had been spotted on a number of occasions playing squash at a local sports centre during working hours when he was clocked in at work. The Council decided to obtain video footage of Mr Gayle outside the sports centre to support the witness evidence that he had obtained. This decision seemingly backfired in the Tribunal where it was held (somewhere unbelievably in our view) that Mr Gayle had been unfairly dismissed. The Tribunal held: (1) that the Council’s investigation had been “too thorough” and was therefore unreasonable; (2) that the dismissal process had been in breach of Mr Gayle’s right to a private life under Article 8 of the European Convention of Human Rights; and (3) that the Council had acted in breach of its obligations under the Data Protection Act 1998.On appeal by the Council, the EAT overturned the Tribunal’s decision. It found that although the Tribunal may have disapproved of the Council’s actions in covertly videoing Mr Gayle, this was in fact irrelevant as it did not impact on the Council’s decision to dismiss him. It further found that Article 8 had not been breached, on the basis that Mr Gayle had been filmed in a public place, that he was in the Council’s time when he was filmed (and it was reasonable for his employer to know what he was doing during his time) and that where Mr Gayle was committing fraud against his employer he could have no reasonable expectation of privacy. With regards to the breach of the DPA, the EAT concluded that the Council had not acted in breach of its statutory obligations, given that Mr Gayle was filmed in a public place.It is important that employers don’t take this case as a green light to use covert surveillance in any case where misconduct is suspected. On the facts of this particular case the use of covert surveillance was found not to have adversely affected the fairness of the investigation, but we think that it is likely to be the exception rather than the rule.
- In a European Court of Justice judgement (Riezniece v Zemkopibas Ministrija), it was held that an employer had discriminated against an employee who had recently returned from parental leave in the way that it conducted a redundancy process which lead to her dismissal. As part of the scoring process the employer used selection criteria from a recent appraisal process. However, given that Ms Riezniece had not been able to participate in the recent process due to being on leave at the time, Zemkopibas Ministrija used an older appraisal in her case to carry out the scoring. This lead to her being selected for redundancy. She was offered another post in a different department, but shortly afterwards this new post was abolished. The ECJ found that Zemkopibas Ministrija had been in breach of the Framework Agreement on parental leave as well as the Equal Treatment Directive in two respects: (1) by using data from a different appraisal period to that which was used for all other employees involved in the process; and (2) following her redundancy selection, by putting her in a post which was due to be eliminated.This case drills home the important point that when going through a redundancy process employers must make sure that any employee who has been absent from work on parental leave is not disadvantaged as a result of either the selection criteria or the reference period used for scoring against those criteria. Although this may in practice cause some difficulties, it is important to make adjustments to the process to ensure equal and consistent treatment.
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