Welcome to our June blog post in partnership with highly regarded employment team from 5 Essex Court.
Five from 5
Under our new partnership, Clare Harrington and Dan Hobbs, employment barristers from 5 Essex Court took over as editors of our employment law blog in April 2015. They add their ‘Five from 5’ articles to our blog, and will be adding other matters of interest also. Most months one of these articles will also link you through to a longer article on their own blog Five from 5 - In Depth.
We hope you enjoy reading these. If you would like to receive a discount off of your next employment law book from Bloomsbury Professional, look out for our advert further down the blog.
This month's '5 from Five'
The question of when an anonymity order should made in cases involving allegations of serious sexual harassment was recently considered by the EAT in BBC v Roden.
Allowing an appeal brought by the BBC, Simler J concluded that in making an order pursuant to rule 50 of the Employment Tribunal Rules an employment judge had erred in concluding that an anonymity order which precluded the identification of the Claimant should continue indefinitely. Simler J rejected the proposition that the order was justified because of the risk of the public misunderstanding that the allegations against the Claimant had not been investigated or proven and the devastating consequences which could flow from that. The public judgment could, and in fact did, make clear that the allegations against the Claimant had not been proven, that he denied them and that he had not been afforded any opportunity to contest them. The weight to be attached to the Claimant’s article 8 right was low.
The paramount principle of open justice, the strong public interest in the full publication of the tribunal’s judgment (which included the identity of the Claimant) and articles 6, 8 and 10 of the ECHR required, on the facts of this case, that the anonymity order should not have been extended permanently. The EAT made plain that departures from open justice can be justified only in exceptional circumstances and should be no more than strictly necessary to achieve their purpose. In order to establish a basis for derogating from the default position of full publication, a tribunal should be provided with clear and cogent evidence.
TUPE transfers, offers of employment and the duty to make reasonable adjustments...
In NHS Direct v Gunn, the EAT considered whether a TUPE transfer constituted an offer of new employment to affected staff and examined the interplay between TUPE and the duty to make reasonable adjustments under the Equality Act 2010.
The Claimant had disabilities such that her hours of work for Shropshire Doctors were limited to 8.5. She was due to beTUPE transferred to the employment of NHS Direct, who notified her that she would be required to work at least 15 hours a week and rejected her offer to work 10 hours. She objected to being transferred and was instead redeployed by Shropshire Doctors.
NHS Direct applied to have her disability discrimination claim against them struck out on the grounds that she was neither their employee nor a job applicant, and therefore did not come within the class of those who were entitled to bring a claim under the Equality Act 2010.
The ET held that she could claim against NHS Direct, accepting that she was an “applicant” for a job and fell within the protection of s.39(1) of the Equality Act 2010. The ET held that, without considering TUPE, NHS Direct had made an offer of new terms to the Claimant, and she was therefore an applicant.
The EAT dismissed the appeal by NHS Direct, agreeing that the Claimant came within the terms of s.39(1). The EAT held that the transfer of the Claimant’s contract under TUPE was not itself an offer of new employment as she could not be regarded as an applicant for employment she already enjoyed. However, as NHS Direct had contemplated ceasing work at the place where the Claimant had been employed post-transfer, thereby creating a redundancy situation, the offer of continued employment amounted to “an offer of suitable alternative employment” and rendered the Claimant an 'applicant'. The claim would therefore proceed to a determination on its merits.
Alan Payne represented the Secretary of State before the EAT who intervened as an Interested Party in relation to the TUPE issue, making submissions that the Claimant did not fall within s.39 Equality Act 2010 by virtue of simply being an employee subject to a TUPE transfer.
Small Business, Enterprise and Employment Act 2015
As of 26 May 2015, s.149, s.152 and s.153 of the Small Business, Enterprise and Employment Act 2015 (“SBEEA”) are now in force.
Zero Hours Contracts:
Section 153 SBEEA inserts new provisions into the Employment Rights Act (“ERA”) dealing with “zero hours contracts”.
By the new s.27A ERA, exclusivity terms in “zero hours contracts” are now unenforceable: any term in a zero hours contract which prohibits the worker from doing work or performing services under another contract or arrangement, or requires the employer’s consent to do so will be deemed unenforceable. A zero hours contract is defined as a contract where the requirement to do work or perform services is conditional on the employer making work or services available and there is no certainty that there will be any such work. Section 27B provides a power for further Regulations to be made in relation to zero hours workers. Regulations are expected and will expressly deal with anti-avoidance measures. The Government has previously consulted and reported on this.
National Minimum Wage:
Section 152 of the SBEEA increases the amount of the financial penalty for underpayment of the national minimum wage under s.19A of the National Minimum Wage Act 1998 (NMWA). Under the amended provisions, the amount of any penalty is 100% of the amount underpaid to the worker, subject to a maximum of £20,000 for each worker. Previously the NMWA had provided a maximum penalty per employer. The new provisions only apply to pay reference periods commencing on or after 26 May 2015, and so will not start to bite for some time.
Section 149 (inserting a new s.49B into the ERA) makes provision that regulations may be made to protect applicants for employment in the health service who it appears have made a protected disclosure. It is understood that there will be a consultation in due course on any proposed regulations.
To lower the fees, or not to lower the fees – that is the only question
Last week the Government announced a ‘Review of the introduction of Employment Tribunal Fees’. The Terms of Reference as set out by the Ministry of Justice describe reviewing,
‘…the impact of the introduction of fees in the Employment Tribunals and the Employment Appeals Tribunal, including the scheme of fee remissions, to determine how successful this has been in achieving the original objectives:
1. financial: transfer a proportion of the costs from the taxpayer to those who use the tribunal where they can afford to do so;
2. behavioural: to encourage parties to seek alternative ways of resolving their disputes; and
3. justice: maintain access to justice.
It appears that the Review will gather evidence to support the analysis to be conducted, including data and research on the take up of alternative dispute resolution services, the volume of claims received and the characteristics of those who use the ET and EAT (in particular, users with protected characteristics). There is also to be some consideration of ‘other factors’ which have influenced trends in the number of ET cases – presumably an attempt to identify whether it can be argued that the downturn in claims presented to the ET has been for a reason other than the introduction of fees. To be included in this consideration is an assessment of whether there has been a reduction in unmeritorious claims and whether there has been any impact from changes to employment law. One concern which immediately arises however, is how a meaningful consideration of these matters is to be carried out without open consultation with either tribunal users or the employment judiciary – such a consultation not forming part of this process.
We are told that the aim is for the Review to make recommendations for any changes to the structure and level of fees including ‘recommendations for streamlining procedures to reduce costs’. It is of little surprise that abolition of the fees remains off the agenda.
No contractual obligation to inform employer about allegation of sexual assault
In Basildon Academies v Amadi, the EAT held that there was no express or implied contractual obligation on a tutor to inform the school at which he worked that an allegation of sexual assault had been made against him by a pupil at another school.
A worked 2 days a week for Basildon Academies as a tutor. In September 2012, he accepted a zero-hours contract to work at another college. He did not inform Basildon Academies about this, which was a breach of an express term of his contract of employment.
In December 2012, A was suspended by the college when a female pupil alleged that he had sexually assaulted her. A did not inform the Academy of this allegation either.
Following a disciplinary hearing, Basildon Academies concluded that A had deliberately not informed it of (i) his employment at the college; and (ii) the allegation of sexual misconduct. It took the view that both were acts of gross misconduct and dismissed him.
The Tribunal found that the Academy was not entitled to treat A’s failure to inform it about the allegation of sexual assault as gross misconduct in the absence of any clear contractual term requiring him to disclose such information. The tribunal did, however, reduce A’s compensation for unfair dismissal by 30% to reflect his contributory conduct in failing to inform the Academy about his second job.
The EAT dismissed Bristol Academies’ appeal. The Tribunal was entitled to find that A’s failure to inform them about the allegation of sexual assault did not breach any express contractual term. As for the mooted implied term, the EAT noted that, following the Court of Appeal’s decision in Item Software v Fassihi, there may be circumstances in which an employee can be under a duty to disclose his or her own misconduct. However, it is not the law that an employee must disclose any allegation of impropriety, especially if ill-founded. Consequently, it was difficult to see how A’s omission could amount to misconduct at all, let alone misconduct sufficient to justify dismissal.