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Our Monthly Employment Law Updates provide a summary of some of the most important cases, helping our clients and contacts to stay up-to-date on recent case law developments.

1. Corbyn’s Employment Law Plans
2. Injury to Feelings Awards
3. Detriment/ automatic unfair dismissal cases based on asserting a statutory right
4. Apprenticeship Levy

At the Labour Trade Union Congress on 10 September 2019, Jeremy Corbyn announced plans to create a ‘Ministry for Employment Rights’ (and ‘Workers’ Protection Agency’ to enforce the employment rights) which has been described by many as the biggest extension of rights for workers that England and Wales has ever seen.

The proposals for individual employment rights include:

• giving all workers the right to seek flexible working, and placing a duty on employers to accommodate the request
• creating a single status of ‘worker’ for everyone apart from those genuinely self-employed to end the confusion over the current 3 tier statuses of self-employed, worker, employed
• ending the “Swedish derogation” which permits employers to pay agency workers less than regular staff for the same work
• the introduction of a civil enforcement system to ensure compliance with gender pay auditing
• a statutory Real Living Wage of £10 per hour by 2020 for all workers aged 16 or over
• banning zero hours contracts by requiring employers to give all workers a contract that accurately reflects their fixed and regular hours
• banning unpaid internships
• making it easier for workers to have their say at work, including allowing electronic and workplace ballots
• giving trade unions the right of entry to workplaces to organise members and to meet and represent their members
• banning anti-union practice and the strengthening of protection of trade union representatives against unfair dismissal
• repealing the Trade Union Act 2016 in its entirety

Note for employers: There’s nothing employers can do currently as Labour of course have to be elected and form a government before any of these proposals can be brought into law but with a general election potentially on the horizon who knows!

When assessing an injury to feelings award what matters most, the severity of the Respondent’s actions or the impact those actions have on the Claimant?
The latter it was held by the Employment Appeal Tribunal (EAT) in Komeng v Creative Support.

The Claimant successfully brought a claim in an Employment Tribunal of unlawful direct race discrimination arising from the Respondent’s failure to take steps to enrol him on a course that would develop him professionally, and the fact that the Respondent required him to work every weekend. The Employment Tribunal awarded compensation for injury to feelings in the lower band of Vento.

The Claimant appealed on the grounds of (1) the Employment Tribunal’s failure to award interest on the compensation, and (2) the placing of the compensation award in the lower, rather than the middle, of the three bands in the Vento guidelines.

The EAT held that the ET had erred in law in failing to award interest to the Claimant, since it was required to consider interest whether or not an application had been made by a party; however, there was no error of law in the Employment Tribunal’s decision to place the compensation award at the top of the lower Vento band, as it had correctly focused on the actual injury suffered by the Claimant and not the gravity of the acts of the Respondent.

Note for employers: Alongside financial loss caused by discrimination, a Claimant who is successful with a discrimination claim can also pursue non-financial losses which includes a claim for injury to feelings. Tribunals calculate injury to feelings based on Vento band as follows:

• The lower band: £900 – £8,800: “appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence”;
• The middle band: £8,800 – £26,300 “serious cases, which do not merit an award in the highest band”;
• The top band: £26,300 – £44,000 for “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race”. Only in “the most exceptional case” should an award for injury to feelings exceed the top of this band.

The EAT has now made it clear that awards for injury to feelings should not focus on the severity of the discriminatory behaviour by employers, rather the impact that discrimination has on the individual as this may vary depending on the individual.
In any event, avoiding discrimination claims is a good idea for employers as there is no cap on compensation as with the likes of unfair dismissal claims!

Detriment/ automatic unfair dismissal cases based on asserting a statutory right
In order to succeed in a claim for detriment or automatic unfair dismissal, does an employee need to explicitly refuse to comply with a requirement imposed in breach of the Working Time Regulations?

Yes, held the Employment Appeal Tribunal in Pazur v Lexington Catering Services Limited.

The Claimant, a kitchen porter, refused to attend the site of a particular client because, on a previous occasion, he had been unpleasantly treated and had not been allowed a rest break. When he was dismissed – having been told that, if he did not go to that client, he would not have a job – he brought various claims in an Employment Tribunal including complaints of detriment and automatic unfair dismissal under sections 45A and 101A Employment Rights Act 1996 which prohibit an employee being subject to detriment or dismissal for reasons connected with rights under the Working Time Regulations 1998.

In order for such claims to succeed, an Employment Tribunal must be satisfied that:

(a) the employer imposed or proposed to impose a requirement on the Claimant;
(b) requirement was in contravention of the Working Time Regulations;
(c) the Claimant refused to comply with that requirement;
(d) refusal was the reason for the detriment and/or dismissal.

The Employment Tribunal considered that there was insufficient evidence from the Claimant about why he was refusing to go to the particular client, and so it dismissed his claims of working time detriment and dismissal. The Claimant appealed to the Employment Appeal Tribunal (EAT).

The EAT held that the Employment Tribunal had correctly considered whether the Claimant had explicitly refused (or proposed to refuse) to accept the requirement. They noted that if simple non-compliance (such as not turning up) was enough, Parliament would not have used the word “refuse” in the legislation. Consequently, there needed to be an explicit communication of the Claimant’s refusal. Despite this, on the facts of the case, the EAT allowed the appeal as they concluded that the tribunal had made a finding elsewhere that the Claimant had in fact explicitly refused to return to the client because he had been refused his break.

Note for employers: Always ensure compliance with the rest breaks (and other rights) contained in the Working Time Regulations 1998 as failure to do so can lead to expensive detriment/ automatic unfair dismissal claims from employees without 2 years continuous service. However the above case highlights that in order to be successful with such claims, an employee must be able to show he/ she refused to comply with a requirement which contravenes the Working Time Regulations 1998 and the refusal was the reason for the dismissal and/or detriment.

The Apprenticeship Levy is a UK tax on employers which was introduced in April 2017 to fund apprenticeship training.
Businesses with a payroll of £3m or more are obliged to make monthly deposits of 0.5 per cent of their annual pay bill into the apprenticeship levy pot, and are then given a rolling 24-month deadline to spend it. If employers do not reclaim their levy payments within the two years, they lose access to the money.
As the levy scheme was introduced in April 2017, the first month that funds could have expired was May 2019. These unused funds are then available to SMEs that do not pay the levy to train apprentices.

The government has revealed that employers have so far lost access to £133m of apprenticeship levy funds as the rolling deadline for spending the money passed, but experts have warned there is still not enough left over to support non-levy paying SMEs.
Mark Dawe, chief executive of the Association of Employment and Learning Providers (AELP), said the figures did not tell us anything we “didn’t already know”, and that the levy system as it is currently designed cannot fund demand for apprenticeships from both large levy-paying employers and non-levy paying SMEs.

“Many SMEs that want to offer places on the programme can’t do so because not enough unused levy money is being returned to reallocate to smaller businesses,” said Dawe.
“Unless the situation is addressed the position will get worse, which is why the government urgently needs to bring back the separate £1.5bn annual apprenticeship budget for non-levy employers that it took away when the levy was introduced.”

Tom Evans Associate at DTM Legal Christmas HR blog

For more information, please contact Tom Evans: tom.evans@dtmlegal.com/ 0151 230 1217

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