Major Changes in Employment Law

Employment lawyer William Addis explains how new rules regarding employment disputes are designed to cut red tape and reduce costs.

Between now and April 2014, the government is introducing major changes to the procedures and costs of bringing and defending employment claims in the UK.

Employment lawyer William Addis explains how the changes follow the coalition government’s promise to cut red tape and reduce the cost of employing and having disputes with employees in the UK.  The changes follow the recommendations of private equity pioneer Adrian Beecroft and Mr Justice Underhill in their respective reports commissioned by the government.

The changes, which will have a significant effect on both businesses and employees involved in employment disputes, are as follows:

http://www.keystonelaw.co.uk/other/keynotes/2013/06/major-changes-in-employment-law

 

SEX (ism) in the City

It would appear that the City of London can still be a tough place for a woman, particularly a bright and highly successful one, as two recently reported tribunal claims show:-

http://www.standard.co.uk/news/london/city-broker-delighted-to-win-sexism-case-against-bunga-bunga-bank-8929266.html

http://www.standard.co.uk/news/london/trader-called-crazy-miss-cokehead-by-colleagues–is-vindicated-by-tribunal-8922128.html

Although the two cases were distinct, there are some interesting similarities in both cases.

  • Both were young women – 32 and 42 years old
  • Both were working for top City establishments  – Troika Group and Oppenheimer Europe
  • Both were high earners on six figures salaries
  • Both were clever and driven and highly successful, one a trader the other a broker
  • Both successfully sued for sex discrimination (including victimisation) and unfair dismissal
  • Both were subjected to insidious and casual sexism and derogatory personal comments including being called “miss cokehead” and “Bitch” in communications with clients and senior staff and references to the firm as “Bunga Bunga Securities”.
  • Both were treated less favourably than their male counterparts at work because of their sex
  • Both succeeded in their claims and are likely to receive substantial unlimited compensation
  • Both hired Lawyers to represent and advise them

Comment

Despite The Equality Act 2010 and the work of the Equality and Human Rights Commission, it appears Sex(ism) in the City still exists, although to what extent may always remain unclear given that the majority of tribunal claims settle before a hearing.

Employers

There are many steps employers can take to limit claims of Sex discrimination by employees:-

  1. Have an Equal Opportunities (EO) Policy which is actively followed and enforced by the company
  2. Provide regular  EO training for managers and staff
  3. Carry out workplace diversity monitoring
  4. Comply with the EOC Code of Practice on Sex Discrimination
  5. Deal with grievances on grounds of sex in accordance with the ACAS Code of Practice and fully investigate any allegations and consider suspension measures if applicable
  6. Respond promptly and sensitively to any submitted questions by an employee under the Equality Act 2010
  7. Take legal advice to protect and limit the legal and reputation risks to your company as soon as you can.

Employees

If you are an employee suffering discrimination because of your Sex, you should take the following steps:-

  1. Raise the issues with your line manager or Human Resources and seek to resolve matters informally with your employer if at all possible
  2. If this does not work consider the formal grievance route or consider submitting questions to the employer to help determine whether you have a claim under the Equality Act 2010 (previously known as the Questionnaire Procedure).
  3. Always keep a paper trail/ diary of events and keep copies of any relevant documents/emails/correspondence
  4. Consider issuing an Employment Tribunal Claim if you are unable to resolve your concerns with your employer first.
  5. Take legal advice from a solicitor specialising in employment law

Employee who prevented a definitive diagnosis of his alleged condition was not disabled

In Cox v Essex County Fire and Rescue Service UKEAT/0162/13 the EAT considered whether an employer had not known and could not have been expected to know that an employee was disabled.

The decision

The EAT has upheld a tribunal’s decision that, despite an employee advising that he was suffering from bipolar disorder, the absence of a definitive diagnosis meant that the employer did not know, and could not have reasonably been expected to know, that the employee was disabled.

The tribunal, as the arbiter of facts, had been entitled to find that the employer had asked the right questions and was justified in concluding that the employee was not disabled.

The tribunal took particular note of the fact that the employee had withdrawn consent for his GP and specialist to provide information to the employer’s occupational health service. The case is a reminder to employees of the potential consequences of failing to co-operate with their employer’s attempts to obtain medical advice on their position.

Comment

While it involved provisions of the DDA 1995, the EAT’s decision is relevant for claims proceedings under the EqA 2010 and the question of how much, or what, an employer needs to (actually or constructively) know in order for it to know that a person is disabled.

The EAT in both this case and in Wilcox stressed the fact-specific nature of the tribunals’ decisions. In each case the employee had failed to fully co-operate with the employer’s attempts to obtain medical advice on their condition.

In this case, the tribunal considered that the employee wished to establish a causal link between his workplace accident and bipolar disorder, presumably to maximise his claim for personal injury compensation, and that this appeared to have resulted in him withdrawing consent for the disclosure of relevant medical information.

However, the definition of a disabled person is one who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A mental impairment no longer needs to be clinically well-recognised to render the sufferer disabled, as was originally the case under the DDA 1995.

Summary

Therefore, while an employee’s failure to co-operate in establishing a “definitive diagnosis” may mean that an employer lacks the requisite knowledge of disability, does it necessarily mean that it will do so?

The passages of the tribunal’s decision set out by the EAT suggest that it did not consider whether, despite the absence of a definitive diagnosis, there was nevertheless sufficient evidence before the employer at the relevant time from which it ought reasonably to have known that the employee met the statutory definition of being disabled by reason of a mental impairment.

Source: Cox v Essex County Fire and Rescue Service UKEAT/0162/13 courtesy of The Practical Law Company October 31 2013

Sony settles unpaid intern case

Sony settles unpaid intern case

An intern, Chris Jarvis, has reached a £4,600 settlement with Sony after bringing a claim for unpaid wages. Mr Jarvis had expected to shadow a Sony employee during his internship but claimed that he actually worked as a tester for Sony’s games’ 3D artwork. After “politely” informing Sony that he was entitled to the national minimum wage due to his role, Sony argued that Mr Jarvis was a volunteer and therefore did not have to be paid. Mr Jarvis reported Sony to the HMRC and submitted a claim for unpaid wages. The case was settled weeks before a tribunal hearing was due to commence.

Source: Unpaid intern who sued Sony awarded £4,600, Independent, 2 September 2013.

UK launches legal challenge against new rules on bankers’ bonus cap

UK launches legal challenge against new rules on bankers’ bonus cap

On 25 September 2013, the UK launched a legal challenge with the European Court of Justice on the new EU rules capping bank bonuses. The new rules, which must be implemented by 1 January 2014, would limit bankers’ bonuses to the equivalent of their salary. The government believes that the bonus cap provisions will “undermine responsibility in the banking system”. It argues that the new rules will “lead to an increase in fixed salaries” which would result in instability in the sector. Despite lodging a legal challenge, Britain will still implement the remuneration provisions.

Consultation on zero-hours contracts to be launched this year

Consultation on zero-hours contracts to be launched this year

During the Liberal Democrat Autumn Conference 2013, Business Secretary, Vince Cable, announced his decision to launch a consultation on zero-hours contracts later this year. He stated that the consultation will “explore how to tackle any abuses, particularly around exclusivity”. This follows a review by BIS officials on the growth of the use of the contracts which highlighted four key areas of concern:

Exclusivity. Employees are not guaranteed a minimum number of hours and are prevented from working for other employers.

Transparency. There is no legal definition for zero-hours contracts and no clarity that it may cover a number of working arrangements.

 Uncertainty of earnings.

 Balance of power in employment relationship. Many employers felt that they would  be penalised if they do not accept the hours offered by the employer.

Further details and the official launch date of the consultation will be confirmed later this year.

 

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