National Minimum Wage

The draft National Minimum Wage Regulations 2015 have been published. They consolidate the existing 28 (that's right - 28 - here's the proof) separate statutory instruments dealing with the national minimum wage since it was first introduced in 1999. It's an important piece of social legislation. But don't read it unless you have to!

Appeals against Dismissal

Thanks to Chesca Lord of Cloisters for preparing this case summary

Where an employer decides that an appeal against dismissal should succeed, is communication of the decision necessary to revive the contract?

No, held the EAT in Salmon v Castlebeck Care, upon an appeal succeeding there are no further steps that are needed in order to revive the contract. 

Mrs Salmon was dismissed for gross misconduct prior to a TUPE transfer. After the date of the transfer, the transferring HR Director decided that her dismissal was unsafe. She did not communicate that decision or make any direction as to reinstatement, but directed an employment consultancy to negotiate a settlement (although this never actually occurred).

The EAT, allowing Mrs Salmon’s appeal, held that once an appeal against dismissal under a contractual appeal procedure has been upheld, the contract is automatically revived. There is no need for a separate reinstatement decision or communication of that decision. The situation was not analogous to that in which an employee is notified of a dismissal (in which case communication is necessary for the decision to be effective).

Mrs Salmon was therefore employed immediately before the transfer and entitled to pursue her claim against the transferee as per G4S Justice Services (UK) v Anstey.

Tribunal Adjournments - BIS consultation

BIS has issued a consultation document, seeking views on new legislation restricting adjournments in employment tribunals.

The proposals are:-

1. if a party has already been granted two adjournments (for whatever type of hearing, preliminary or final), it will not be allowed a third adjournment.

2. if a request for an adjournment is made less than seven days before the hearing, it will not be granted.

3. BUT (1) and (2) will not apply if (a) exceptional circumstances apply; (b) both parties agree the adjournment and the tribunal believes it is desirable to facilitate a settlement; or (c) the adjournment is requested for a reason beyond the party's control (eg an administrative error by the tribunal, or late disclosure of documents by the other side). In such a situation, the postponement may be granted but a new rule will require the tribunal to consider whether a costs order should be made.

The consultation closes on 12th March 2015.

Changes to Acas Early Conciliation Form

Acas has, today, revised its Early Conciliation notification form (both online and hard copy versions). The changes are:- 1. a new field so the Claimant can include contact details of their representative (if s/he has one). If the Claimant gives details of a representative, Acas will contact the representative directly. 2. the employer address lookup facility has been removed, as it was proving difficult for Claimants to give the correct legal identity of their employer. So Claimants now have to input the correct address manually.

Redundancy - Meaning of Place of Employment

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

When employees lost the benefit of free parking near their homes, was this a place of work redundancy?

No, held the EAT in EXOL Lubricants v Birch.

The Claimants were employed as delivery drivers using HGVs. They lived in Manchester but the depot they had to attend to load up was situated in Wednesbury. Their employment contracts also stipulated that their place of employment was Wednesbury. Because of the cost of commuting, EXOL agreed to make available secure parking for the employees' HGVs in Stockport, near their homes. They would then drive from their homes to Wednesbury and the journey to and from Stockport was treated as part of their working day, for which they were paid.

A time came when the company could no longer afford to pay for the secure parking in Stockport and so they gave notice to terminate this arrangement. The employer sought to argue that there was a fair reason for dismissal, namely redundancy, on the basis that Stockport was the Claimants' place of work rather than Wednesbury. It therefore argued that the employer had ceased to carry on business in the place where the employee was employed. The employment tribunal rejected this proposition. The employees' place of work was not Stockport, but Wednesbury, because that was where their working day began and ended. The EAT agreed.

The proper test in determining where the employee is employed for the purposes of the redundancy provisions of the ERA is as follows. First, it is proper (but by no means conclusive) to have regard to a contractual provision. Secondly, it is appropriate to consider, depending on the facts of the case, any connection the employee may have with a depot or head office. Here, the employees' contractual place of work was at Wednesbury and, secondly, they had a close connection with the Wednesbury depot. There was therefore no redundancy situation at Wednesbury because the job and the need for people to do it remained. As the employer advanced no other potentially fair reason for dismissal, the dismissals were unfair.

Employment Tribunal Fees

The House of Commons Library has produced a superb briefing note on employment tribunal fees.

It sets out, impartially and dispassionately, the impact of fees and the various arguments for and against fees in employment tribunals. It also summarises the various legal challenges to the fees regime. This is a document worth reading.

Caste discrimination

Thanks to Michael Reed, Employment Legal Officer at the Free Representation Unit, for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this week.
 
Is caste protected under the Equality Act?

Sometimes, held the EAT in Chandhok v Tirkey - but only where caste is part of a protected characteristic, usually ethnic origin.

Ms Tirkey was a migrant worker from India employed by Mr and Mrs Chandhok as a nanny. She alleged that she had been mistreated by them, in part, because she was from a lower caste.

Mr and Mrs Chandhok argued that this aspect of her claim should be struck out because caste was not a protected characteristic under the Equality Act.

The EAT, upholding the employment tribunal's decision, disagreed. Caste is not a freestanding protected characteristic. But elements of caste identity may form part of an individual's ethnic origin, particularly where caste is determined by descent or contains an identifiable ethnic identity. Therefore caste discrimination may be protected as a form of race discrimination. These factual matters are ones for the employment tribunal deciding any individual case.

Practitioners will also be interested in President's Langstaff's remarks on the importance of employment tribunal's resolving the pleaded case in the ET1 & ET3 - and not allowing themselves to be diverted into deciding allegations that are only put forward in other documents, such as witness statements (see paragraphs 16-18).

Unfair dismissal - geographic jurisdiction

Thanks to Sheryn Omeri of Cloisters for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this week.

Can an employee who returns to Australia, at her own request, but who continues to work for a UK company, bring an unfair dismissal claim?

Yes, held the EAT in Lodge v Dignity & Choice in Dying.

The Claimant was an Australian citizen employed jointly by both Respondents. After having commenced her employment at the Respondents' only office, on Oxford Street, London, her mother became ill and she sought to return to Australia.

The Claimant put forward a proposal to the Respondents whereby she would continue in her role as Head of Finance remotely from Australia using the VPN. The Respondents agreed to this proposal which operated from 2009 until the Claimant's resignation in 2013. The Claimant sought to bring claims for unfair dismissal and subjection to detriment for having made a protected disclosure. The employment tribunal held that she could not.

On appeal, HHJ Peter Clark adopted the approach of the EAT inFinancial Times Ltd v Bishop which had been approved by Lord Hoffmann in Lawson v Serco. HHJ Clark held that although, unlike Mr Bishop, the Claimant had not been posted overseas, the examples given by Lord Hoffmann in Serco, were just that.

The EAT was particularly impressed by the fact that all of the work the Claimant did from her computer in Melbourne was for the Respondents' benefit, that the Respondents had not disputed the Claimant's contention that she had no right to bring a claim in Australia and that a grievance she had raised while in Melbourne had been dealt with in London.

The EAT concluded that the Claimant did not lose her right to bring her claims in England simply because, instead of working as a physical employee in the Oxford Street office, she continued to do so as a virtual employee from Australia.

Public (and press) access to witness statements

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this week.

If an employment tribunal decides to exclude part of a witness statement under Rule 43, is that part excluded from public inspection under Rule 44?

Yes, held the EAT in Compass Group plc v Guardian News and Media Limited. At a preliminary hearing in a whistleblowing case, the parties agreed to deal with only two of five preliminary issues, leaving other issues for a final hearing. The parties agreed to 'excise' parts of the Claimant's statement dealing with 'whistleblowing' matters irrelevant to that hearing, and the Employment Judge read the excised statement. It was unclear whether the Employment Judge made an order under Rule 43 to exclude the 'excised' parts of the Claimant's statement from evidence (and public inspection under Rule 44), or whether he simply decided not to pay them any attention. A reporter for the Guardian asked to inspect the parties' entire witness statements, the Employment Judge agreed.

The EAT remitted to the Employment Judge for reconsideration as to whether he had excluded the 'excised' parts of the statement under Rule 43 or decided to pay no attention to them. The EAT noted that "what is required for inspection to be precluded by Rule 44 is simply that an order or decision has been made that parts of a witness statement should not be admitted in evidence", whereas, if an employment tribunal decides to pay no attention to parts of an admitted statement, those parts would be open to public inspection.

Therefore, parties contesting whether statements (or parts of them) should be excluded from evidence and public inspection should seek (or oppose) orders under Rule 43 to that effect.