Employment Newsletter

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Employment tribunal fees – permission to appeal granted

UNISON has been challenging the introduction of fees in the employment tribunals.

UNISON’s second judicial review challenge was rejected at the end of last year. UNISON has been granted permission to appeal against the judicial review decisions which are due to be heard this coming June. We will keep you posted of the outcome in one of our future Employment Law Updates.

Cap on unfair dismissal compensatory awards – an update

Compromise Agreements Ltd tried to defeat the introduction of the statutory cap of 52 weeks’ pay on unfair dismissal compensatory awards by arguing that it amounted to indirect age discrimination on the basis that older workers are more likely to be out of work for more than a year.

Last year the High Court rejected their application for judicial review. Compromise Agreements Ltd has applied for permission to appeal to the Court of Appeal which is due to decide whether to grant permission on 19 May 2015.

Changes to statutory adoption leave

Since 5 April 2015, statutory adoption leave is now a ‘day 1’ right such that employees will not need to have a qualifying period of service. Furthermore, statutory adoption pay is paid at the earnings related level in the first 6 weeks which now mirrors the statutory maternity pay rules.

 

Recent Case Law

Decision in the “Woolworths” case – collective consultation

The European Court of Justice (“ECJ”) delivered its decision in the case of USDAW and another v WW Realisation 1 Ltd and others (C-80/14) on 30 April 2015.

As a reminder, the EAT held in this case that the words “at one establishment” contained in the Trade Union and Labour Relations Conciliation Act 1992 were to be disregarded for the purposes of collective redundancy consultation which meant that employees working in Woolworths stores employing fewer than 20 employees had the right to be collectively consulted.

Following an appeal, the case was then referred to the ECJ by the Court of Appeal. One of the questions to be decided in this case was whether the words “at one establishment” were to be disregarded for the purposes of any collective redundancy process involving 20 or more employees.

The ECJ has held that ‘establishment’ in this context refers to an individual workplace rather than an employer as a whole. Therefore, when determining whether there is a need to engage in collective consultation employers would be correct to treat each workplace as a separate establishment and consequently Woolworths was correct in treating each store as a separate establishment. It therefore did not need to engage in collective consultation with staff who worked in stores with less than 20 employees.

The ECJ has referred the case back to the Court of Appeal.

We will report in full on the judgment and its implications in our next Employment Law Update.

 

Injury to feelings award of £19,500 made to a zero hours worker in harassment claim

In the case of Southern v Britannia Hotels Ltd ET/1800507/14, an employment tribunal made an award of £19,500 to Miss Southern after finding that she had been subjected to harassment related to her sex.

In making the significant award the employment tribunal took into account certain aggravating features which included Miss Southern’s vulnerability and the inadequate handling of the complaint by her employer.

Section 26(1) of the Equality Act 2010 defines harassment as unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

By way of summary, Miss Southern worked as a waitress and was engaged under a zero hours contract. She raised a complaint to one of her line manager’s about another of her line managers saying that he would frequently ask her to talk about matters relating to her sex life. She was told to lodge a written complaint but no further action was taken. Following this, Miss Southern alleged that the conduct of her line manager towards her worsened and she claimed that he began touching her bottom, kissing her on the neck, making inappropriate comments about her personal life, standing behind her and making a grinding movement on her back and on one occasion kneeling down and stroking her back package with a pen when she was leaning over a work surface.

During a meeting with the hotel manager to discuss a separate issue of alleged bullying, Miss Southern informed the hotel manager of the harassment by her line manager and she was asked to lodge a formal complaint, which she did.

An investigation took place which concluded that certain ‘mannerisms and behaviour’ towards her by another colleague was inappropriate but no disciplinary action was taken against her line manager. There was witness evidence supporting Miss Southern’s claims of harassment but the witness was only spoken to briefly.

At this time Miss Southern submitted a claim for harassment in the employment tribunal against her employer and her line manager. Following the lodging of the claim, Miss Southern’s employer decided to re-investigate the complaint ultimately finding that there was no ‘conclusive evidence’ that the harassment had occurred but her line manager was required to attend a bullying and harassment course. Miss Southern’s appeal against the findings was unsuccessful.

The employment tribunal found that the line manager had harassed Miss Southern and that Britannia Hotels Ltd was vicariously liable for those acts of harassment.

Britannia Hotels Ltd had failed to successfully plead the statutory defence which required them to show they had taken all reasonable steps to prevent the acts of harassment from occurring. The employment tribunal found, amongst other things, that they had not implement their own internal policies, that the investigations had been inadequate and flawed for reasons including that the line manager had not been suspended, there had been a failure to following up on evidence corroborating Miss Southern’s allegations and no disciplinary action had been taken against the line manager.

The tribunal awarded Miss Southern £19,500 in injury to feelings compensation having taken into account her young age and vulnerability due to health issues and the handling of the process by Britannia Hotels Ltd.

This case highlights the importance to employers of ensuring correct internal processes and policies are in place for effectively handling complaints of harassment in the workplace and that the policies are consistently followed.