NASHKNOWLEDGE
February 2019
February Edition
Head of Employment
Is the Judge bias or are you just a bad loser?
You can run but you can’t hide!
A lesson in the knowledge of disability
They’ve all got it infamy
Unhappy with your Christmas gift?
Highlights
One of the policies hanging on to that roundaboutis the status of EU citizens who wish to remain inthe UK after the UK leaves the EU, so called SettledStatus. Given the importance of this to businessesemploying EU nationals, we thought a briefsummary of the current position on Settled Statusand a link to where you can get useful posters andinformation for your staff might be handy.
The Government has already published its EUSettlement Scheme, which is available to all EUnationals who are resident in the UK on 31December 2020 (except Irish nationals whoserights to reside in the UK are protected separatelyto EU rights). If an EU National has been residentfor five or more years, they can apply for SettledStatus (if they have been in the UK for less thanfive years, they can remain in the UK until theyachieve five years’ residence and then obtainSettled Status).
What does Settled Status mean? The EUSettlement Scheme will allow EU Nationals andtheir close family members to continue to live andwork in the UK and remain eligible for publicservices, such as healthcare and schools.
There was a nominal cost of £65 to apply forSettled Status, essentially the same cost asrenewing a passport; however, this cost wasrecently revoked for no apparent reason, but thegood news is that this means that Settled Statusapplications will now be free.
We would recommend that employers make theirstaff aware of the scheme, as employees can startapplying from March 2019 and remain eligible toapply until 30 June 2021. There is a great deal ofinformation (as well as posters etc) available athttps://www.gov.uk/government/publications/eu-settlement-scheme-employer-toolkit
What happens though if the UK leaves without adeal? Well, it is currently proposed that SettledStatus will still be available to EU citizens, but thedeadline for applying for Settled Status will bemoved forward from 30 June 2021 to 31December 2020. We, like most people, hope thatthe Brexit roundabout comes to an end soon, sothat both businesses and individuals can move onwith certainty.
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Settling on the Brexit roundabout
The Brexit roundabout spins round and round – where it will stop nobody knows!
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The incident occurred on the third day of adifficult hearing to consider complaints of unfairdismissal and a myriad of discrimination(including pregnancy/maternity, race anddisability). The Claimant’s representative hadalready made a number of applications (includingan earlier attempt to get the Judge recused forbeing hostile) and, after the second applicationhad been refused, asked for an adjournment toexplain the Tribunal’s decision to the Claimant.
On returning, the Tribunal mis-heard theClaimant’s representative, believing that she hadsaid that she had asked for an adjournment to filean appeal to the EAT. The Judge responded, “youcould have told me, there is no need to lie”. TheClaimant’s representative appealed to the EAT,arguing that the Judge’s comments displayed bias.
When considering a question of bias, the legal testis whether a ‘fair minded and informed observer,having considered the facts, would conclude thatthere was a real possibility that the Tribunal wasbiased’. The EAT held that there was a distinctionbetween calling someone a liar and saying you donot need to lie: the former giving an appearanceof bias and the latter, being more of a carelessexpression. The EAT found that, whilst the Judge’scomments were inappropriate and intemperate,they fell squarely in the latter and dismissed theClaimant’s appeal.
Is the Judge bias or are you just a bad loser?
In the recent case of Balakumar v Imperial College of Health Care NHS Trust, the Employment Appeal Tribunal(EAT) was asked to consider whether comments made by a Judge constituted bias and, if so, whether the caseshould be remitted back to a fresh Employment Tribunal for a rehearing.
Our ViewJudicial bias is something that is unacceptable;however, what is clearly just a poor choice ofwords by a Judge should not lead to such seriousallegations being made by representatives.
For an example where Judicial bias was found, wecan look to the case of El Faragy v El Faragy, whichthe Supreme court referred to as an ‘unfortunateand embarrassing matter’. In this case, the Judgemade comments which were both inappropriateand, also, unintentionally racially offensive. Somechoice quotes include when the Judge sarcasticallyreferred to a Sheikh Respondent departing “on hisflying carpet” and that an unclear affidavit, was “abit gelatinous…a bit like Turkish Delight”.
In summary, it is always tempting when thingsaren’t going your way to suggest that there issomething wrong with the system; however, ourlegal system is a shining example of fairness andwe should only make suggestions that couldundermine this where there is real evidence ofbias; not simply where we disagree with thedecision.
BUSINESS CYCLE NETWORKAre you a keen cyclist looking for a new style of networking? Then why not give our BusinessCycle Network a go? Meeting monthly, we go for a 90 minute cycle as a group, leaving andreturning from the Nuffield Health Devonshire, and on the group’s return, we’ll spend sometime chatting and forging new business relationships over bacon sandwiches and tea/coffee.You’re then free to use the club’s facilities before going back to work.
Interested? Visit us at www.nash.co.uk/cycling to find out more information about the rides,read the guidelines and register to take part.
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BackgroundEmployment Tribunal judgments have alwaysbeen publicly available; however, since February2017, Employment Tribunal judgments have beenreadily accessible online. This means that, with asimple google search, anyone can find decisionsmade about employers (and employees) byEmployment Tribunals.
A Claimant, Ms Ameyaw, claimed she felt thebrunt of this and argued that the publishing of theEmployment Tribunal’s judgments onlinebreached her right to respect for privacy andfamily life under Article 8 of the EuropeanConvention on Human Rights. Consequently, MsAmeyaw, made an application to the EmploymentTribunal for two decisions concerning her claim tobe removed from the online public register, or, inthe alternative, for the judgments to beanonymised.
Ameyaw v PWC LtdWhat was Ms Ameyaw’s claim about? Ms Ameyawwas a Senior Manager for the Respondent, PWCLtd. The Claimant brought claims against PWC fordiscrimination on the grounds of sex and race. APreliminary Hearing was heard on 31 January2017. This was a private hearing (as is customaryfor Preliminary Hearings) during which MsAmeyaw and her mother were disruptive to theextent that Judge Hall-Smith had to requestassistance from a security guard and for thatsecurity guard to remain in the Tribunal.
Following the Preliminary Hearing, PWC sought tohave Ms Ameyaw’s claim struck out due to her‘scandalous and vexatious conduct’ at thePreliminary Hearing which, it argued, meant therecould no longer be a fair trial.
You can run, but you can’t hide!
The Employment Appeal Tribunal has held that an Employment Tribunal has no power to remove,or exclude, a judgment from the public register of judgments.
PWC’s application was heard on 10 March 2017.This was a public hearing during which MsAmeyaw’s conduct at the Preliminary Hearing wasreferred to. PWC’s application was dismissed andthe judgment (which detailed Ms Ameyaw’sconduct at the Preliminary Hearing) was enteredinto the online public register.
Ms Ameyaw applied for the judgment to beremoved from the public register, or in thealternative, for it to be anonymised as she wasembarrassed by her conduct and claimed that shehad been unable to get a job as a result.
At first instance, the Employment Tribunalrejected both of Ms Ameyaw’s applications on thegrounds that the Employment Tribunal does nothave the authority to remove a judgment from thepublic register and further found that theEmployment’s Tribunal’s powers in respect ofprivacy and restrictions on disclosure do notextend to overruling the principle of open justice.As such, the judgments would remain and wouldnot be anonymised.
Ms Ameyaw appealed to the Employment AppealTribunal.
Employment Appeal Tribunal decisionThe Employment Appeal Tribunal agreed with theoriginal decision and also dismissed Ms Ameyaw’sclaim that her right to privacy and family life hadbeen engaged as she had known at the time of thehearing that it was a public hearing and therefore,she did not have an expectation of privacy.Ultimately, the EAT found that the fact that ‘therecord of the proceedings […] might be ‘painful,humiliating, or deterrent’ would not, of itself,mean that it should not be made public’.
What does this mean?Whilst there is a certain justice in an individual’spoor behaviour being made public due to a claimthey themselves brought, it is also a reminder thatemployers should be conscious of the potentialrisk of reputational damage that may be caused iftheir management of employee issues gives riseto criticism by an Employment Tribunal.
NASH BUSINESS
Our second edition of Nash Business is due out on the 14th
February. Have you registered to receive it yet? If not, youcan do so by visiting:
https://www.nash.co.uk/nash-business-newsletter/
Nash Business is a quarterly publication, featuring helpfuladvice to assist you with running and growing your businessthe right way.
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Mr Ibrahim’s manager referred the complaint toHCA’s HR team who met with Mr Ibrahim todiscuss his concerns. At the meeting, Mr Ibrahimrepeated that he wished to clear his name andrestore his reputation. Mr Ibrahim’s complaint wasinvestigated and subsequently dismissed.
When Mr Ibrahim was later dismissed he broughta claim against HCA for, amongst other things,whistleblowing detriment.
To make a claim for whistleblowing, workers arerequired to make a qualifying disclosure ofinformation which is, in the worker’s reasonablebelief, in the public interest. The disclosure mustshow that one or more of the six types ofmalpractice listed in Employment Rights Act 199643B(1) is occurring, has occurred or is likely tooccur (examples of the types of malpracticeinclude both a breach of a legal obligation and amiscarriage of justice).
Mr Ibrahim argued that the information he haddisclosed, amongst other matters, was that therehad been a miscarriage of justice because MrIbrahim had been falsely accused of breachingpatient confidentiality.
The Employment Tribunal considered MrIbrahim’s case and subsequently dismissed it. Inthe Tribunal’s view Mr Ibrahim’s disclosure did notshow any malpractice had occurred and, in anyevent, the disclosures were not made in the publicinterest, rather ‘they were made with a view to [MrIbrahim] clearing his name’. Further, the Tribunaldid not agree that false rumours were capable ofamounting to a miscarriage of justice.
Mr Ibrahim appealed the decision on the basisthat his disclosure tended to show a breach of alegal obligation, specifically, the duty not tocommit defamation. The Employment Appeal
They’ve all got it infamy!
Mr Ibrahim worked for HCA International (‘HCA’), a group of private medical hospitals and GP practices, as aninterpreter. In March 2018, Mr Ibrahim met with a senior manager of HCA and asked her to investigate rumoursamongst patients and their families that Mr Ibrahim had breached patient confidentiality. Mr Ibrahim followedthis up with an email to his manager saying that he needed to ‘clear his name’.
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Tribunal allowed Mr Ibrahim’s appeal andconsidered two points (1) what amounts to abreach of a legal obligation, and (2) had theTribunal interpreted the public interest testcorrectly.
The Employment Appeal Tribunal found that thewhistle blowing protection was wide enough toinclude allegations of defamation and it was clearfrom Mr Ibrahim’s conduct that he was making anallegation of defamation despite him not using theprecise terminology in his initial claim.
In relation to the public interest element, theEmployment Appeal Tribunal found that theevidence suggested that Mr Ibrahim did not havea subjective belief in the public interest element ofhis disclosure: emails from Mr Ibrahim showedthat he only had a personal concern of therumour’s effect on him and his reputation.
We all remember when whistleblowing wasabused by workers in relation to purely personalmatters, for example bringing claims that theymade a protected disclosure when in fact they hadjust raised a concern about their own contract ofemployment; the “public interest test” wasdesigned to stop this abuse. This case is a timelyreminder that a disclosure does not have toactually be in the public interest; a worker simplyneeds to reasonably and genuinely believe that itis in the public interest.
The issue with this is that the subjectivity that isinherent in the test leads to what could have beena beacon of clarity in this complicated area of lawadding an additional layer of unwelcomecomplexity.
What to do in bad weather
In recent weeks, we’ve seen snow and ice return andwreak havoc across parts of the UK. We thought itwould be a good time to remind you how to tacklethe myths that often exist around working throughbad weather.
Should employees still be paid?If a worker is unable to get to work because of traveldisruption or bad weather, they must inform theiremployer as soon as possible.
Contrary to popular belief, workers are notautomatically entitled to pay if they are unable to getto work because of travel disruption or bad weather.
If the employer decides to close their businessbecause of bad weather, workers who were ready,willing and able to work are usually entitled to theirnormal pay.
Some workers may have clauses in their contractswhich set out alternative workplace policies in thecase of bad weather, such as working at the nearestoffice, change in duties or working from home etc.
If schools have had to close…All employees have the right to take unpaid time offto deal with emergency situations for their childrenor other dependants. A school closing at short noticeis usually considered to be an emergency.
There is a popular belief that when the office istoo cold, workers will all be sent home. Is thistrue?No! The Health and Safety Executive recommends aminimum temperature of 16C for offices where thework is deskbound and fairly sedentary. If the workrequires physical effort, the minimum recommendedtemperature is 13C.
These temperatures are not a legal requirement butas an employer, you have a duty to provide a"reasonable" temperature in the workplace.If workers are vulnerable in any way, such as beingpregnant, then you would normally send them hometo protect their heath, and they should be paid asnormal.
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Mr Atherton and another employee made adversecomments about this less generous gift to otheremployees and on Facebook. Mr Atherton’scomments were derogatory of the ManagingDirector, including the observation “well, he canstick his bottle where the sun doesn’t shine, because Irefuse to be insulted in this way!!!”. What a delightMr Atherton was!
Mr Atherton was dismissed, but the otheremployee who made adverse comments was not.
Somewhat pleasingly, despite this difference intreatment between employees and the fact thatthe Managing Director, the same person aboutwhom the comments were made, carried out theinvestigation and made the decision to dismiss, anEmployment Tribunal found the decision todismiss was fair.
The Employment Tribunal took into account thatthe business was a small one and that the onlyother senior person in the business then heard
the appeal by way of a re-hearing. In relation tothe different treatment of the employee who,unlike Mr Atherton, wasn’t dismissed, the Tribunalfound that this was reasonable given that theyhad made a speedy apology and his commentswere not personal to the Managing Director.
The disappointing element of this case is that,whilst the dismissal itself was found to be fair, theTribunal found that the employee should havereceived their notice pay, so awarded £5,376.00.
So, what do we learn: firstly, EmploymentTribunals can take account of the more limitedresources of smaller employers when decidingwhether, procedurally, a dismissal was fair and,secondly, if you’re going to be ungrateful for a gift,keep it to yourself or the next thing you knowmight be that your charming thankless SocialMedia witterings are included in some law firm’semployment law update.
Unhappy with your Christmas gift?
Mr Atherton was employed by a small company that gave its employees a Christmas gift. Over the years the gifthad grown from a bottle of drink to a gift to the value of £50 per employee; however, due to the company’sfinancial position in 2017, the value of the Christmas present was then reduced back to a bottle of alcohol or avoucher of comparable value.
Even employers reasonably comfortable with thedefinition of disability - a mental or physicalimpairment which has a long-term (12 months ormore), substantial (more than minor) adverse effecton the ability to carry out normal day-to-dayactivities with such assessment being carried out as ifthe employee was not taking medication or beingtreated - struggle with assessing when they aredeemed to have had knowledge of that disability.The date is important as, without such knowledge,the obligations an employer owes to a disabledemployee (such as making reasonableadjustments) are not engaged.
In this case Ms Lamb was a teacher at GarrardAcademy. In February 2012, she was signed offsick due to ‘reactive depression and allegedbullying in the workplace’.
The following month she raised a grievancecomplaining about two incidents involving thedeputy head. The grievance was heard and initiallyupheld, however the academy’s Chief Executive,without reading the supporting evidence, set asidethe report as inadequate.
In the July, Ms Lamb told the Chief Exec that shehad post-traumatic stress disorder (PTSD)stemming from childhood experiences and thecondition could be triggered by any difficultsituation. An occupational health assessment tookplace in November 2012. The resulting report didnot mention PTSD, but stated that Ms Lamb’sreactive depression may have begun inSeptember 2011 and it was likely that she wouldrecover fully once her grievance was resolved.
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Lamb v The Garrard Academy - A lesson in the knowledge of disability
The vexed issue of when an employer is deemed to have knowledge of an employee’s disability is revisited inLamb v The Garrard Academy UKEAT/0042/18.
finding that the employer could not reasonablyhave known she was disabled until the OH reportin November. The EAT said the employer oughtreasonably have known by July 2012 that Ms Lambwas disabled (most probably from the time hersecond fit note arrived in March) and had actualknowledge when Ms Lamb disclosed her PTSD inJuly, as that disclosure included the fact that thecondition had started in childhood - and so thelong-term element of the definition of disabilitywas clearly satisfied. The academy therefore hadthe knowledge, so the requirement to makereasonable adjustments was engaged in July.
Our ViewKnowledge of disability does not just lie in fit notesor OH reports. Although OH reports are useful –provided obtained in good time – the employermust remain alive to what it actually knows orshould know if it draws together the informationavailable to it. Not having a medical statement oropinion is no defence, particularly when thetiming of obtaining an OH report lies in the handsof the employer.
Meanwhile a new grievance investigation wasinstigated in September 2012 and an outcomedelivered in January 2013.
Ms Lamb complained to the Employment Tribunalof disability discrimination claiming that theacademy failed to make reasonable adjustmentsfor her disability by
● not taking reasonable care in reading thefirst grievance report;
● not taking action by the end of July 2012,and
● not disclosing the initial report to her.
The academy conceded that Ms Lamb wasdisabled due to PTSD and the tribunal decidedthat the academy’s duty to make reasonableadjustments was engaged only from the date ofthe OH report. Its reasoning was that, althoughthe academy had actual knowledge of her PTSDfrom mid-July, it did not know until late Novemberthat the impairment was sufficiently long-term toqualify as a disability. The ET upheld her claim forfailure to make reasonable adjustments fromNovember only.Ms Lamb appealed and the Employment AppealTribunal agreed that the academy had actualknowledge of the fact she suffered from PTSD inmid-July when she informed the Chief Exec. Butthe EAT considered that was irreconcilable with a
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Employment Team
Tel: 01752 827081Web: www.nash.co.uk/business/employment
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Interesting cases and legislation on the horizonawaiting judgment from the Supreme Court
Did a failure to expressly carve out a minor shareholding in a competing business make a post-termination restriction too wide andthus unenforceable?
awaiting judgment from the Court of AppealWhether the High Court was correct to hold that suspension was not a neutral act and in this case a suspension of a teacheramounted to a breach of the implied term of trust and confidence as a knee-jerk default response to an allegation of unreasonableforce against a disruptive child.
due to be heard by Court of Appeal in February 2019Whether an employer’s breach of the implied sex equality clause giving rise to successful equal pay and constructive dismissalclaims could also found a separate claim of sex discrimination?
due to be heard at the Court of Appeal in April 2019Is the Equality Act worded wide enough to encompass perceived disability discrimination?
due to be heard at the Court of Appeal in April 2019Is a term-by-term approach required or is a package approach permissible when comparing agency worker basic working
due to be heard by Court of Appeal in May 2019When calculating holiday pay for part-time term-time workers should you use the average number of hours worked in the preceding12 weeks under the Working Time Regulations 1996?
due to be heard by Supreme Court in June 2019Is a dismissal automatically unfair if the dismissing officer was unaware of the protected disclosure because he was misled by theclaimant’s line manager (to whom the protected disclosure was made)?
due to be heard by Court of Appeal by June 2019Whether the High Court erred in finding that the Trust’s refusal to adjourn its disciplinary processes, pending a decision by the CPSwhether to press criminal charges, has breached the implied term of mutual trust and confidence in the Claimant’s contract ofemployment and the Trust was not entitled to stop paying the Claimant’s salary in circumstances where it, and the General MedicalCouncil, had suspended him.
due to be heard by Court ofAppeal in October 2019.Is offering enhanced contractual maternity pay, but only statutory shared parental pay indirectly discriminatory?
due to be heard by the Court of Appeal in October 2019Whether the EAT was correct to hold that voluntary overtime which extends over a sufficient period of time on a regular and/orrecurring basis should be construed as ‘normal’ pay and included when calculating statutory holiday pay under the WTD and cannotbe distinguished as not being contractually ‘required’.
due to be heard by the Court of Appeal in October 2019Does a belief in the moral right to own your own copyright amount to a philosophical belief for religious discrimination purposes?
due to be heard by the Court of Appeal in October 2019.Does legal advice in respect of “cloaking” a discriminatory act under the guise of a legitimate business re-organisation lose legaladvice privilege due to iniquity?
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Important legislation changes ahead
Itemised pay statements will be required to contain information regarding the number of hours worked by an employee for whichthey are being paid where the employee’s pay varies as a consequence of the time worked.
Employer National Insurance Contributions will be payable on termination payments above £30,000.00.
According to proposals, in April 2019: (1) the rates for Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay andStatutory Shared Parental Pay will all increase from £145.18 to £148.68 per week; (2) the rate for Maternity Allowance will increasefrom £145.18 to £148.68 per week; and, (3) the rate for Statutory Sick Pay will increase from £92.05 to £94.25 per week.
If passed, will entitle those on work experience of more than 4 weeks to receive the minimum wage for their age.
New legislation is to be drafted to ensure that all tips left to workers for example in bars and restaurants will be paid to the workersin full.
The Government is consulting on whether salary sacrifice arrangements should reduce wages for the purposes of NationalMinimum Wage legislation and the outcome of this should be sometime this year.
Statement of terms: introduction of written statement of terms for workers and for all workers and employees to receive astatement on their first day of work.
Parental Bereavement Leave and Pay The Parental Bereavement (Leave and Pay) Bill would give qualifying bereaved parents ofchildren the right to two weeks’ paid leave (see our article in October’s edition).
The so called Swedish Derogation under the Agency Worker Regulations is likely to be removed in April 2020.
The right to shared parental leave and pay is potentially to be extended to working grandparents, which could be interesting …
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National Minimum WageWorkers aged 25 or over (theNational Living Wage): £7.83per hourWorkers aged 21 to 25: £7.38per hourWorkers aged 18 to 21:£5.90per hourWorkers under 18: £4.20 perhour
1 3 Sick PayStatutory Sick Pay: £92.05per week
CURRENT RATES AND LIMITS (As at 1st January 2019)
Family RightsStatutory Maternity Pay,Statutory Paternity Pay,Statutory Adoption Pay,Statutory Shared ParentalPay, & Maternity Allowance:£145.18 per week.
2Taxation: Scotland
5In Scotland, for the tax year 2018/19:
of 19% applies on
annual earnings above the PAYE threshold
and up to
of 20% applies on
annual earnings from
of 21% on
earnings from
of 41% on annual
earnings from
of 46% on annual
earnings above
Taxation: UK (Excl Scotland)
4In the UK (excluding Scotland), for
the tax year 2018/19:
of 20% applies on
annual earnings above the PAYE
tax threshold and up to
of 40% applies on
annual from
of 45% applies
on annual earnings above
Limits
6Maximum amount of a week's pay
(used for calculating a redundancy
payment or for various awards
including the unfair dismissal
basic award):
Limit on amount of unfair
dismissal compensatory award:
Maximum guaranteed payment
per day:
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National Insurance
7The lower earnings limit:
The upper earning limit:
Auto Enrolment
8The minimum contribution rates
for defined contribution schemes,
expressed as a percentage of a
jobholder’s qualifying earnings, is
Vento Bands
9Injury to feeling and psychiatric
injury:
Lower Band of
Middle Band of
Upper Band of
CURRENT RATES AND LIMITS (As at 28th October 2018)
Statutory Minimum Notice
10Length ofEmployment
Notice RequiredFrom Employer
Under 1 month No statutory noticerequirement
1 month to 2 years 1 week
2 years to 12 years 1 week for eachcompleted year ofservice
12 years or more 12 weeks
Statutory or Contractual Notice
There are two types of notice period: statutory and contractual.
Statutory notice is the minimum legal notice that can be given.
Ian Grimshaw Karen Bussell
Rachel Collins Mark Northey Jess Varley
MEET THE CONTRIBUTORS TO NASH KNOWLEDGE
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Jon Loney
