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Employment Tribunal Time Limits Are Strict

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Rarely will an Employment Tribunal permit a claim advanced by a Claimant to proceed if it is out of time. Most, but not all, employment claims have a three month time limit.

A recent case taken to the Employment Appeal Tribunal this month (Bliss Residential Care Ltd v Fellows [2023] EAT 59) the Respondent employer successfully had overturned the Tribunal’s previous decision to allow a claim out of time. The claim had been issued during the start of the Covid-19 pandemic by a newly qualified solicitor. However, it was submitted using the wrong method and then re-submitted but not in time. The Tribunal had sympathy with the solicitor dealing with cases and the problems caused by the pandemic. However, the Employment Appeal Tribunal stated that it should have been right and that the Tribunal should not have allowed the Claimant to proceed out of time.

If you believe you have employment related claims seek our advice promptly so we can ensure that your claim, should you choose to pursue it, is issued correctly and in time to ensure that you can proceed with it.

Women in Law and International Women’s Day

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December 2022 marked 100 years from the time when the first woman was admitted as a solicitor in England and Wales.

The Sex Disqualification (Removal) Act permitted women to be able to work in the Civil Service and the judicial system. Prior, women were not allowed to join the legal profession as they were not recognised as ‘persons’ under the Solicitors Act 1843.

Following on from the Representation of the People Act 1918, which gave some women the right to vote, the Sex Disqualification (Removal) Act 1919 made it easier for women to become lawyers, and in December 1922, Carrie Morrison was the first woman to qualify as a solicitor, with others also being admitted.

Gloria Steinem, world-renowned feminist, journalist and activist once said “The story of women’s struggle for equality belongs to no single feminist nor to any one organisation but to the collective efforts of all who care about human rights.”

For women all over the globe, March 8th is a time to reflect on our past struggles and make stronger our shared voice. This year, the theme for the UN International Women’s Day is ‘DigitALL: Innovation and technology for gender equality.

Plans For Further Protections for Expectant Mothers

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The Protection from Redundancy (Pregnancy and Family Leave) Bill has had its first reading in the House of Lords. There is no detail yet as to when draft regulations will be published to amend the Employment Rights Act 1996. However, should the Bill be enacted it will provide protection against redundancy for pregnant women as well as during or after maternity leave, adoption leave or shared parental leave that is not currently available.

At present there is no reason why a pregnant woman, or someone on maternity leave cannot be made redundant as long as the selection for redundancy is not related to a reason connected to child birth or maternity leave. Women have the protection of the Equality Act 2010 in that regard in that it is unlawful discrimination to cause a woman to suffer unfavourable treatment for a reason connected to pregnancy, child birth or maternity leave. So, watch this space for new laws on their way affording even greater protection.

If you require advice about redundancy or your rights and entitlements during pregnancy and/or maternity leave our employment law specialist, Jennifer Carpenter, solicitor and managing partner has over 20 years experience of advising employees and employers.

Is A Worker Or Employee On Long-Term Sick Still Entitled To Be Paid Statutory Holiday Entitlement?

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A worker or employee on long term sick is entitled to be paid holiday entitlement under the Working Time Regulations 1998 even though they are absent from work.

Holiday entitlement continues to accrue even if an employee is absent due to sick leave. On return to work the employee is entitled to take the paid holiday which has accrued that they have not taken during the period of sickness absence.

If he or she is dismissed or leaves the employment before taking any accrued holiday he or she will be entitled to pay in lieu.

Case law has even established that when employment is terminated by the death of a worker/employee his or her right to be paid for accrued but untaken holiday under the Working Time Regulations does not expire but passes to the deceased’s estate.

National Minimum Wage – Enforcement

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The Government has just announced the new rates of pay for National Minimum Wage (NMW) that will take effect on 1st April 2023. The new rates of pay compared to those currently in place are:-

  • Age 23 or over (NLW rate): £10.42 (up 9.7% from £9.50).
  • Age 21 to 22: £10.18 (up 10.9% from £9.18).
  • Age 18 to 20: £7.49 (up 9.7% from £6.83).
  • Age 16 to 17: £5.28 (up 9.7% from £4.81).
  • Apprentice rate: £5.28 (up 9.7% from £4.81).

What can you do as a worker or employee if you are not paid the correct rate?

Even if you have agreed to accept a reduced rate, lower than National Minimum Wage you still have a claim.

Any agreement by a worker/employee to be paid a lesser rate is void.

A number of claims could be available to you:-

  • Unlawful deduction from wages
  • Breach of contract
  • Unfair dismissal
  • Detriment

Strict time limits apply so seek our advice early.

Unlawful deduction for wages

This is a claim that you have not been paid the correct amount and therefore, the difference in your actual pay and the NMW amounts to an unlawful deduction. Such a claim must be brought within three months of the date you received the pay. However, if the pay you are receiving is lower than NMW on an ongoing basis then you will be able to claim at any time within three months of the last payment. Relatively recent changes to the law though mean you can only claim back for a maximum of two years.

We would assist you in calculating the arrears of pay and the period for which you could claim.

Unfair dismissal and Detriment

If you are dismissed because you have sought to ensure that you received the correct rate, or because your employer has been prosecuted for an offence for failing to pay NMW under The National Minimum Wage Act 1998 then this will be automatically unfair.

This means you do not need a specific length of service to be eligible to bring a claim for unfair dismissal

If you suffer any detriment as a result of:

  • becoming or being eligible for NMW
  • taking action to ensure you receive it;
  • or your employer being prosecuted for an offence relating to NMW

then you can bring a detriment claim for compensation. The Employment Tribunal will award such compensation as it considers just and equitable in the circumstances.

If you are a worker and you are fired because you have asserted your rights regarding NMW then although normally workers cannot claim unfair dismissal (as this is only available for employees) you can advance an unfair dismissal or detriment claim in this situation.

In these cases it will be assumed that the worker qualified for the NMW unless then employer can prove otherwise.

The worker/employee bringing legal action is just one consequence for the employer of failing to adhere to the NMW and the National Minimum Wage Act 1998. There are criminal proceedings, civil enforcement and public naming of organisations.

Contact our employment law specialist, Jennifer Carpenter solicitor and managing partner if you need advice on the National Minimum Wage legislation as a worker, employee or employer.

Long Covid May Amount To A “Disability”

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There are certain conditions that automatically qualify as a disability as set out in the Equality Act 2010.

The Equality and Human Rights Commission has stated that Long Covid should not be a condition that automatically constitutes a disability.

However, if a person’s symptoms have a substantial and long term adverse effect on their ability to carry out normal day to day activities it might amount to a disability. This is the same statutory test for any condition/illness.

It is estimated that 1.8 million people in the UK are experiencing Long Covid symptoms. It is classified as Long Covid if Covid-19 symptoms last for more than four weeks.

If you suffer with a condition that amounts to a “disability” then you are afforded the full protection from disability discrimination.

For advice and representation on your right not be discriminated against in the work place contact Jennifer Carpenter, our specialist employment law solicitor.
[email protected]

Huge payment of compensation ordered in case brought against a London bank

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A huge payment of compensation ordered in sex discrimination, equal pay and victimisation case brought by Ms Macken against a London bank, BNP Paribas.

An Employment Tribunal previously concluded that the bank has spitefully and vindictively discriminated against Ms Macken and caused her psychiatric harm. The bank has been ordered to pay £2,081,449.70 in compensation.

The case is interesting because in addition to the compensation figures being high it is believed to be one of the first cases where a Tribunal has ordered an employer to undertake an audit within the provisions of the Equal Pay Audit Regulations 2014. The bank tried to argue that an audit was not necessary but the Tribunal have ordered that it was and must be thorough and completed by June 2022.

For advice as an employee or employer on discrimination claims please contact Jennifer Carpenter, specialist employment law solicitor and partner at Adams Harrison.
[email protected]

Vicarious Liability: Employer not liable for injury caused by practical joke in the workplace

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Case Update – Employer not liable for injury caused by practical joke in the workplace (Court of Appeal)

In the case of Chell v Tarmac Cement and Lime Limited, [2022] EWCA Civ 7 (12 January 2022) the Court of Appeal considered whether an employer was responsible for a serious injury sustained by a third-party contractor, caused by a practical joke of one of its employees.

Background

Tarmac engaged Mr Chell at a quarry site. Mr Chell had reported tension between external contractors and employees of Tarmac to his supervisor. Subsequently, an employee of Tarmac played a prank on Mr Chell. He brought explosive pellets into work and hit them with a hammer proximate to Mr Chell’s ear. The explosion resulted in Mr Chell suffering a perforated eardrum, hearing loss and tinnitus. Mr Chell unsuccessfully claimed damages for personal injury from Tarmac in the County Court, arguing that it was vicariously liable for its employee’s actions, and directly liable for breaching its own duty of care and failing to provide a safe working environment. The High Court upheld the County Court decision. Mr Chell appealed to the Court of Appeal. Dismissing the appeal, the Court of Appeal confirmed that there was not a sufficiently close connection between the act which caused the injury and the employee’s work to make it fair, just and reasonable to impose vicarious liability. Among other things, the real cause of Mr Chell’s injuries was the explosive pellet, which was not Tarmac’s equipment and not used in the employee’s work. It could not be said that Tarmac authorised what the employee did, nor was his act an unlawful mode of doing something authorised by Tarmac. The wrongful acts were not done in the course of employment. Regarding breach of duty of care, there was no reasonably foreseeable risk of injury arising from the prank and the reported tension did not suggest potential violence. Even if such a risk of injury had been established, it would be unreasonable and unrealistic to expect an employer to have in place a system to ensure employees refrained from horseplay. Employees were expected to carry out their tasks using reasonable skill and care, and by implication to refrain from horseplay. Common sense decreed that horseplay was inappropriate at a working site.

Comment

Vicarious liability is when the employer is held legally responsible for the acts/omissions of its staff is causing damage or injury. There have been a number of cases recently on vicarious liability and it is clear that the courts are taking a firm line on what liability an employer has for the actions of its employees/contractors. It is not enough to say that they were given the opportunity to do so because of their employment. Where those actions are committed during the course of a claimant’s employment but it is not reasonable for that kind of action to have been taken into account in a risk assessment then the claim will likely fail. Another example can be found in the case of Mohamud v WM Morrison Supermarkets 2016. In this case, Mr Mohamud visited a petrol station owned by Morrisons where he was racially abused and assaulted by an employee of the Company. At first glance it might not be obvious why the Court of Appeal found against Mr Chell, when it was decided in the Mohamud case that Morrisons were liable for assault caused by its employee on a customer. The difference between the two cases is that, Mr Mohamud assaulted a customer during the course of his normal duties: namely, serving a customer. Whereas in the Chell case, Mr Chell was assaulted during the course of a practical joke, outside of the normal activities of the wrongdoer in question. The Judgment serves to re-enforce the general principle that an employer will only be vicariously liable for the actions of their employee when the wrongful conduct is closely connected with acts the employee was authorised to do. Anton Bilinski has many years’ experience representing Claimants in relation to various claims for personal injury, including those against employers. Anton can also advise whether an employer may be vicarious liable. Working with Jennifer Carpenter, Partner, employment law advice can be given about these circumstances. For employers it is always a good idea to have a clause in an employment contract making it clear that the employee will not commit unlawful acts or engage in any inappropriate behaviour whether meant in jest or otherwise. Whether you are an employer or employee contact us for advice at [email protected]

Cuts to sick pay for unvaccinated employees

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You may have seen in the media that some large organisations, like Ikea, Next and some Water authorities have amended their sickness absence policies to state that those employees that have to self-isolate as a result of being unvaccinated and a close contact of a positive Covid-19 case will not receive pay. Self-isolation is only a requirement currently following close contact if someone has not received two vaccinations and is not clinically exempt from vaccination. Ikea do have “special mitigating” circumstances in their policy as to when they would allow sick pay.

These organisations are still paying sick pay if an unvaccinated employee contracts Covid-19 and is absent from the work place.

Despite this, these decisions do however, have the potential for discrimination or breach of contract claims by the affected employee. We will have to see if any claims are brought as a result.

We can advise and represent employees and employers in relation to employment related unlawful discrimination.

Contact [email protected] to arrange a consultation with Jennifer Carpenter, our solicitor and managing partner who has 20 plus years’ experience of practicing employment law.

Calls For Long Covid To Be Recognised As A Disability

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The Trade Union Congress (TUC) has called for long Covid to be recognised as a disability and for Covid-19 to be classified as an occupational disease, a move that would grant legislative protections and access to compensation for workers.

A TUC report demonstrated that 5% of those questioned revealed that they had lost their jobs as a result of the impacts of long COVID.

Under the Equality Act 2010 it is unlawful discrimination to treat an employee or worker less favourably due to a “protected characteristic”. Disability is a named protected characteristic under the Act. Some conditions and diseases are automatically deemed by legislation to amount to a disability, including cancer, multiple sclerosis and blindness. Other conditions can be regarded as a disability, and therefore afforded the protection of the Equality Act 2010, but only if the definition in section 6 of the Equality Act 2010 is made out. This poses four essential questions:-

  • Does the person have a physical or mental impairment?
  • Does that impairment have an adverse effect on their ability to carry out normal day to day activities?
  • Is that effect substantial?
  • Is that effect long-term?

It is necessary to carefully analyse each question and support it with medical evidence. It is entirely possible that a person with long Covid could satisfy the above requirements. But it would give individuals with the condition much greater protection if it was one of the conditions deemed to be a disability, like cancer. The hoops in section 6 would then not have to be gone through.

There are various ways in which an employer can unlawfully discriminate as a result of a person’s disability. This protects workers, employees and job applicants:-

Direct disability discrimination: being treating less favourably than others because of a disability.
Discrimination arising from a disability: treating someone unfavourably because of something arising in consequence of disability without objective justification.

Indirect disability discrimination: Applying a provision, criterion or practice that disadvantages someone with a disability without objective justification.

Reasonable adjustments: Failing to comply with the duty to make reasonable adjustments where a person with a disability is placed at a substantial disadvantage.

Harassment: subjecting someone to harassment related to disability.

Victimisation: Victimising someone because they have made or intend to make a disability discrimination complaint, or because they have done or intend to do other things in connection with the Equality Act 2010.

For detailed advice on all types of discrimination and related claims please contact our employment specialist, Jennifer Carpenter, solicitor and partner.