Below is a summary of some recent and important developments in employment law.
Injury to feelings in discrimination cases
The bands of awards for injury to feelings, known as the Vento bands, have been updated.
For claims on or after the 6th April 2018 the bands are as follows:
- Lower band of £900 to £8,600 is payable for less serious cases, such as a one-off or isolated occurrence of discrimination
- Middle band of £8,600 - £25,700 is payable where there is more than one act of discrimination or it has occurred over a period of time or it could be a one-off occurrence that was serious
- Upper band of £25,700 to £42,900 is payable in the most serious cases, for example, where there has been a campaign of discrimination
Exceptional cases can exceed £42,900.
Dismissal for Gross Misconduct just before qualifying to claim Unfair Dismissal
Can an employee, dismissed without notice for gross misconduct just before she would have qualified to claim unfair dismissal, add the one week's statutory notice to obtain the right to claim unfair dismissal?
In the Employment Appeal Tribunal (EAT) case Lancaster & Duke v Wileman, the employee was dismissed two days before she had two years’ service. She claimed unfair dismissal because adding the statutory minimum notice of one week would have taken her over two years’ service. The employer argued they were permitted to dismiss without statutory notice being added because of the alleged gross misconduct.
The EAT concluded that if the employer had been entitled to dismiss without notice, no statutory notice could be added to deemed service.
When does termination of employment take effect?
The effective date of termination of employment depends on when notice is given and the important case of Newcastle upon Tyne NHS Foundation v Haywood looked at when notice is deemed to be given.
In April 2011, Haywood was told she was at risk of redundancy. She was 50 on the 20th July 2011 and redundancy after this date would have entitled her to a much more generous pension than redundancy before her birthday. Haywood was entitled to 12 weeks’ notice but her contract did not state how notice was deemed given.
She went on holiday on the 19th April 2011. On the 20th April her employer sent her notice of termination by recorded delivery and ordinary post but she did not read it until her return from holiday on the 27th April.
The Supreme Court held there was no good reason to disturb longstanding case law from the EAT. The notice was only deemed effective when it was read by the employee (or she had a reasonable opportunity to read it). It was not deemed effective until the 27th April and she was entitled to the higher pension.
Acas has produced new Guidance on Overtime which includes:
- Different types of overtime
- Working time limits on overtime
- Overtime payments
- Part-time workers and overtime
- The impact of overtime on holiday calculations
The Government Equalities Offices has now published new guidance on Dress Codes and Sex Discrimination. The guidance states that dress policies for men and women do not have to be identical but standards imposed should be equivalent. Gender-specific rules such as requiring women to wear high heels, make-up etc, are likely to be unlawful and requiring men and women to dress provocatively also raises the risk of harassment.
Religion & Belief
Acas has recently launched new Guidance on Religion and Belief which contains practical guidance on a variety of issues. A Top Ten Myths document has been published to accompany the guidance.
Payment for Sleepovers
This is a long-awaited decision in a case which involved care workers who had to stay overnight on a sleepover as part of their job. A previous tribunal decision had ruled that care providers had to fund six years’ back pay.
In Mencap v Tomlinson-Blake the care workers had been paid a flat fee for sleepovers, however, HMRC said they should be paid at least the National Minimum Wage for every hour overnight.
Employers would have had to fund £400 million of back pay but Mencap and other care providers argued this was unaffordable and said smaller employers could be forced out of business by this decision.
The Court of Appeal has ruled that care providers had no liability for back pay and staff who undertake sleepovers are to be characterised for the purpose of the regulations as available for work, rather than actually working, and therefore fall within the terms of the sleep-in exception. The only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working.
The union, Unison, is considering appealing this decision to the Supreme Court.
The Government has published its White Paper on the future relationship between the UK and the European Union.
This document states that there will be no regression in employment laws when we leave the EU so potential areas for change including TUPE, Working Time Regulations will not take place.
Watch this space.....
For further information contact Sheila Watson at Hartlepool Borough Council on 01429 857082.