Employment bulletin November 2013
We share some tips on making your Christmas party fun without waking up to a legal hangover. Our case round up looks at discrimination, human rights and redundancy.
Time for fun and team bonding but don’t forget the employment law traps – read more
The facts of this case occurred in Greece but it eventually found its way to the European Court of Human Rights on the question of whether his dismissal had breached his Convention right to private life (under Article 8) and rights against discrimination (under Article 14).
From a UK perspective the case is interesting as it is a reminder that the test under the European Convention on Human Rights is a balancing exercise between the interests of the employer and the interests of the employee. On the facts the colleagues had totally unfounded fears about the possible effect on their health and had demanded that the employee be sacked to maintain the workplace’s “harmonious atmosphere”. The employer had breached both his right to private life and rights against discrimination by dismissing him.
If a similar situation arose in the UK the employee would also have claims for disability discrimination and unfair dismissal.
The Government has made two announcements which may benefit employees who bring successful tribunal claims.
First, Jo Swinson Minister for Business Relations has said that the Government plans to empower tribunals in April 2014 to impose financial penalties on employers where they breach a worker’s rights and the tribunal is of the opinion that the employer’s breach has one or more “aggravating features”. The amount of the penalty will be 50% of any compensation award, with a cap of £5,000, which is halved if paid within 21 days. ‘Aggravating features’ will depend on the particular circumstances of the case. However, it is likely that tribunals will take into account how long the breach lasted, the employer’s size and whether the employer acted in a deliberate manner. An extra reason, therefore, to ensure that correct disciplinary and grievance procedures are followed.
Secondly, the Government are looking at ways of clamping down on employers who don’t pay tribunal awards following BIS-sponsored research which found that over half of all successful claimants do not receive their full award. Unsurprisingly the most common reason for non-payment was that the employer had gone into insolvency, but almost a third of successful claimants said that the employer simply refused to pay. Proposals which the Government is considering include fixed penalty notices for late payment; naming and shaming defaulting employers, deposits from employers, greater publicity about enforcement options which currently exist but are not well known.
In a recent case, the EAT held that an employer had failed to make reasonable adjustments by not arranging for the employee to see a clinical psychologist for 6 psychiatric sessions and paying for this treatment. The treatment had been recommended by the consultant psychiatrist to whom the employer had referred the employee who was off work with work-related depression.
The treatment was considered job-related as it was a specific form of support to enable the employee to return to work and cope with the difficulties she had been experiencing at work. It is interesting that the EAT found payment for such treatment to be a reasonable adjustment even though the consultant only gave it a 50% chance of success. The reason for this is that although the sessions might not be completely successful he was confident that they would result in a significant improvement in the Claimant’s depression.
This is a good example of the extensive nature of what comes within the concept of “reasonable adjustments”.
In a recent case, the employee, as a 26-year-old leaver with almost eight years’ service, was entitled to a redundancy payment of nearly £11,000. However, had she been over 35 with the identical amount of service she would have received over £28,500. She claimed this was direct age discrimination – ie less favourable treatment because of her age.
Most forms of direct discrimination are unlawful and such claims focus on whether there has been less favourable treatment and if so whether that treatment was for a prohibited reason. However, direct age discrimination is different as the employer has the opportunity to justify the different treatment. In this case the tribunal was persuaded that the employer’s reasoning – to produce an appropriate financial cushion until alternative employment could be found or to act as a bridge to retirement and receipt of a pension – could justify the difference in treatment. Statistical evidence showed that employees in their 20s generally had fewer financial and family obligations and could generally be expected to react more easily to redundancy and would have greater flexibility when looking for their next role.
Redundancy processes can be a minefield at the best of times. A recent case highlights the need to stand back and review the process where further organisational changes are required once a redundancy process has already started.
The employee applied for a new post created in the course of a reorganisation which would reduce head count. The employer’s finances worsened and the re-organisation was expanded to include other management. The employer therefore changed the job description of the new role to include other duties. One of the other managers applied for the new role. The employer did not tell the original candidate that the job description had changed or that another colleague had applied for the role which put her at a competitive disadvantage in the interview. Her dismissal was therefore unfair.