Employment Briefing - April 2014
Published byMartin Stephen
- Time Barred Cases: Tribunals don’t have to “Tell All”
- Can a Limited Liability Partnership be a Company?
- Update on Statutory Sick Pay
- Medical Evidence in Employment Tribunals – who pays?
- Consistent Practice and Uncapped Redundancy Payments
- Employment Event in Edinburgh - The Disciplinary Hearing 15th May 2014
- Sign up to Employment Briefing
Time Barred Cases: Tribunals don’t have to “Tell All”
The case of Hall v ADP Dealer Services set an important legal point in the Employment Tribunals on time-barred cases. The result of this case means it is not necessary for an Employment Tribunal (ET) to set out all the reasons for its decision to decide that a claim was time-barred. Generally, claims to the Tribunal must be bought within a three month period from date of dismissal otherwise they are regarded as time-barred.
Hall v ADP Dealer Services concerned an age discrimination claim brought by Ms Hall. She was employed by ADP as a Compensation Manager until 10 February 2012. Her age discrimination claim was received by the Tribunal on 30 November 2012. She acknowledged her claim was out of time but maintained that the reason for this was ADP requiring her to follow their grievance procedure first.
The ET held that her claim was time-barred, saying it was not just and equitable to extend the time because the claimant possessed the knowledge, expertise and ability to bring a claim within the time required.
Ms Hall appealed, arguing that the ET had failed to take relevant factors into account and that they had failed to provide adequate reasons for its decision.
The Employment Appeal Tribunal (EAT) rejected these arguments; it agreed that the claim was time-barred and that there was no error of law in the ET’s reasoning.
In coming to its decision, the EAT held that there was no need for the ET to follow a formulaic approach when considering which factors may be relevant in a claim. The ET had not failed to take account of relevant factors placed before it and had not taken account of any irrelevant factors. The Tribunal judge was not required to direct herself expressly to the variety of factors which could be taken into account.
For employers, this decision means that former employees have to make claims within the three month limit rather than prolonging what can already be a fraught and long-drawn out process. It is very difficult to persuade the ET to accept a late claim. If you are faced with a similar case, WJM’s HR Assist service can help you manage matters correctly from the start.
Can a Limited Liability Partnership be a Company?
It seems in that employment matters, it can.
The Limited Liability Partnership (LLP) is a popular business structure: professional firms (accountants, surveyors, lawyers, etc.) are the best examples but many others use the structure to meet their business needs.
Glasgow City Council v Unison set the precedent in an equal pay claim.
Under the Equal Pay Act 1970 (repealed in October 2010 and replaced by provisions in the Equality Act 2010), men and women employed by “the same or an associated employer” were entitled to equal pay for the same work.
The case examined if an LLP qualified as an “associated employer” for the purposes of identifying a comparator employed by a different organisation.
The original definition of “associated employer” referred only to companies under common control, and not to other structures such as LLPs. However, in this case, the Judge looked at the situation where Glasgow City Council was outsourcing services for parking enforcement and direct care services to various LLPs. The women employed by these LLPs wanted to rely on male comparators employed by Glasgow City Council in their equal pay claim.
The Judge decided that LLPs constituted companies within the wider meaning of the word, rather than the restricted sense found in the Companies Act 2006. As such, the LLP could be considered an associated employer.
The upshot of this case is that employers who use outsourcing models for work have to ensure that they are not leaving themselves open to delayed equal pay claims as a result of their employment structure. WJM can advise if you have queries or concerns about the structure of your business.
Update on Statutory Sick Pay
After 6th April 2014, Statutory Sick Pay could no longer be reclaimed from the Government.
Prior to that date, an employer could reclaim any amount of SSP which exceeded 13% of its National Insurance contributions in the month.
The Government intends to put the money towards a new new “Health and Work Service”, which is designed to help employers and employees put together “return to work” plans for sick employees. This program is due to start in 2015.
If you would like to pre-empt the new service and put your own Health and Work Service together before 2015, our HR Assist service can help you create a sickness management service which helps your sick employees back into the workplace. Contact us for more information.
Medical Evidence in Employment Tribunals – who pays?
The Employment Appeal tribunal (EAT) has ruled that an Employment Tribunal (ET) cannot insist that a claimant obtains further evidence of a disability and require the respondent to pay for it.
City Facilities Management v Ling concerned a supermarket janitor who was dismissed on capability grounds due to depression and anxiety. A Department of Work and Pensions (DWP) assessment had concluded that Ms Ling was not disabled.
The ET decided to hold a pre-hearing review to assess the prospects of success of Ms Ling’s claim. It decided expert medical evidence was required, and that the employer should bear the cost of providing the expert evidence.
City Facilities Management appealed.
The EAT held that Ms Ling could give her own evidence on her impairment, stating “The [approach the] Employment Judge might have been expected to adopt would have been to hear from the Claimant as to the impact of the impairment from which she said she suffered on her normal day-to-day activities. That is not a matter that should normally require expert evidence, albeit that an expert may comment on such issues in her report and that may be of assistance to the ET. In most cases, however, this will generally be something that the Claimant is best qualified to attest to.”
Follow up from this case will be interesting to watch, having shifted the burden of costs of providing expert reports away from the employer in a particular set of circumstances. If you are facing a similar situation, please get in touch.
Consistent Practice and Uncapped Redundancy Payments
Employers who consistently calculate redundancy payments without statutory caps are in danger of creating a contractual right to uncapped payments for future redundancy payments.
Redundancy pay is subject to a statutory minimum worked out by multiplying a week’s or a week and a half’s pay by the number of full years of service. It is subject, by statute, to two caps – one as to the number of years of service which may count in the calculation, and the other as to the amount of weekly pay.
In Peacock Stores v Peregrine & Others, the EAT held that redundancy payments made without a cap as to the years of service or the amount of a week’s pay could become contractual without a specific provision to that effect.
Peacock Stores’ custom and practice had been to make redundancy payments based on statutory terms but without a cap on either the years of service or the amount of weekly pay.
However, the claimants bringing this case did not have an express provision for any payments other than statutory redundancy pay in their contracts. To succeed in the Tribunal, the claimants had to show that an agreement, which allowed for redundancy payments higher than the statutory minimum, was in place.
The Judge examined Peacock Stores’ redundancy payment procedure and accepted evidence from the former head of HR, that higher redundancy payments were “most definitely custom and practice.”
The Judge concluded that there was a “consistently applied and well understood policy of enhanced redundancy payments”.
This decision turned on the particular fact of this case, but employers should note that, once a position whereby higher redundancy payments are considered custom and practice is reached, employees could be entitled to these higher redundancy payments.
Employment Event in Edinburgh - The Disciplinary Hearing 15th May 2014
In the latest addition to WJM’s roster of entertaining and informative Employment Law seminars is “The Disciplinary Hearing”.
What is a company to do when their most important client has googled the person who is dealing with their work and found, and subsequently complained bitterly about, a very inappropriate social media posting?
This nightmare scenario forms the basis for “The Disciplinary Hearing”.
You will be the onlooker as the company use its employment policies and procedures to hold a disciplinary hearing. You’ll see how the disciplinary hearing process works and where companies can get it right . . . and wrong.
You’ll hear from the HR Manager, line management and the person at the centre of all the fuss – the online poster whose social media posting caused all the trouble in the first place.
In feedback from previous employment events, respondents asked if we could develop seminars around disciplinary hearings and reputational management on social media. We took your comments on board and developed “The Disciplinary Hearing”.
Many employers have never conducted a disciplinary hearing and may have even shied away from conducting them. This session will de-mystify the process and give practical hints and tips for employers facing similar situations. There will be opportunities for any questions you have to be answered.
This event is free but pre-booking is essential.
Book now for this FREE event through events@wjm.co.uk.
The details:
Date: 15th May 2014
Venue: WJM’ s Edinburgh Office, The Capital Building, 12/13 St Andrew Square, Edinburgh
Time: 5.00pm – 7.00pm, includes drinks & canapés
Cost: Free, but pre-booking is essential
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For further information on these or any other employment issues, please contact:
- Martin Stephen mss@wjm.co.uk
- Andrew Wilson ajpw@wjm.co.uk
- Liam Entwistle lae@wjm.co.uk.
Read more about our Employment Services.
For information on our HR Assist Service please contact:
- Julia MacDonald jmc@wjm.co.uk
The information contained in this newsletter is for general guidance only and represents our understanding of relevant law and practice as at April 2014. Wright, Johnston & Mackenzie LLP cannot be held responsible for any action taken or not taken in reliance upon the contents. Specific advice should be taken on any individual matter. Transmissions to or from our email system and calls to or from our offices may be monitored and/or recorded for regulatory purposes. Authorised and regulated by the Financial Conduct Authority. Registered office: 319 St Vincent Street, Glasgow, G2 5RZ. A limited liability partnership registered in Scotland, number SO 300336.
