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February Employment update

This months employment update covers:

1. Good Work Plan
2. Equality Act 2010
3.Increased compensation limits and minimum awards
4. Tribunal fees refunds

Following the Taylor Review last year, on 7 February 2018 the government announced the Good Work Plan. The Taylor Review was an independent review into modern working practices which was commissioned by Theresa May. The Good Work Plan sets out the governments responses to each of the recommendations in the Taylor Review, most of which were accepted, and includes the following:

  • Various day one rights for workers, including sick pay, holiday pay and a right to a payslip.
  • A right for all workers to request a more stable contract in order to provide more financial security to those on flexible contracts.
  • Increasing the reference pay reference period from 12 weeks to 52 weeks to take into account seasonal variations in hours worked throughout the year.
  • Potential reforms to the relevant legislation in order to set out clearer tests for employment status, and an online tool that determines employment status in the majority of cases.
  • A reversal of the burden of proof in employment status claims so that it is for the employer to prove that the individual concerned is not entitled to the relevant employment rights.
  • Implementing harsher penalties and costs orders if an employer has previously lost an employment status case on broadly comparable facts.
  • Adopting a name and shame scheme for employers who do not pay tribunal awards within a reasonable time.

The government has also now launched the following four consultations:

  1. Enforcement of Taylor’s employment rights recommendations
  2. Agency workers recommendations
  3. Increasing transparency in the UK labour market
  4. Employment status

Whilst the timings for proposed changes are unclear at this stage, these consultations will be key in determining how the government intends to implement the Good Work Plan. It is hoped in particular that the result will be greater clarity with regards to employment status.

Following the Court of Appeals’ decision in Donelien v Liberata UK, no.

Under s15(2) Equality Act 2010 an employer has not discriminated against an individual if the employer did not know, or could not have reasonably known, that the individual was disabled.

Ms Donelien suffered with stress related illness due to a high workload and low resources. Following two periods of absence from work due to this, her GP suggested a phased return to work which Liberata then implemented. However, Ms Donelien was then absent for a further period and Liberata referred her to occupational health in order to obtain a report. The report from occupation health stated that Ms Donelien was not disabled given the lack of medical evidence. Ms Donelien’s condition then worsened and Liberata later dismissed her.

Ms Donelien subsequently brought a claim for disability discrimination at the employment tribunal and the matter was appealed up to the Court of Appeal. The Court of Appeal held that Liberata had not discriminated against Ms Donelien as they could not have reasonably known about her disability. The Court of Appeal commented that a tribunal is to “look for evidence that the employer has taken its own decision” on disability, and the views of occupation health doctors “should not be followed uncritically”.

Liberata had taken steps, other than the referral to occupational health, to determine whether Ms Donelien was disabled, such as return to work interviews and obtaining GP notes, and based on these they had concluded that she was not disabled. However, had they only relied on the occupational health report the decision may have been different.

Employers should be careful in instances where it is not clear-cut whether or not an employee is disabled. Proper investigations should be carried out to determine the position rather than solely relying one source of evidence.

As a result of the Employment Rights (Increase of Limits) Order 2018 compensation limits and minimum awards will increase from 6 April 2018.

  1. The limit for unfair dismissal compensatory awards will increase from £80,541 to £83,682.
  2. The limit on a week’s pay, in order to calculate for example statutory redundancy payments and the basic award for unfair dismissal, will increase from £489 to £508.
  3. Guarantee pay during lay off or short-time working will increase from £27 to £28 per day.
  4. The minimum basic award where a dismissal in unfair due to reasons surrounding health and safety, employee representative, trade union, or occupational pension trustee will increase from £5,970 to £6,203.

The above rates will apply where the appropriate date for the cause of action falls on or after 6 April 2018. For example if the date of termination is on or after 6 April 2018 in an unfair dismissal claim then the new rates will apply. However, if the date of termination is prior to 6 April 2018 then the previous rates will apply

Following the Supreme Court’s decision in R (on the application of Unison) (Appellant) v Lord Chancellor last year, tribunal fees have been quashed and are now refundable.

It was estimated that the government would have to refund up to £33 million, however the first analysis of the level of claims for refunds suggests that the uptake has been slow. This is possibly due to lack of awareness around the system.

By way of reminder the full scheme is now open, and applications for refunds can be made online here:

The following forms may also be completed and submitted by post or email:

  1. Form 1-C (if you brought the claim and paid the fees) –
  2. Form 3-S (if you brought the claim on someone else’s behalf and paid the fees) –
  3. Form 2-R (if someone else brought the claim against you and the tribunal ordered you to pay their fees) –

To help your organisation prepare for 25 May 2018, download our GDPR Whitepaper.

If you would like further information on any of the above or advice on how they apply to your business then please contact Tom Evans, Associate, Employment & HR Team.

Contact Tom Evans

Tom Evans Associate at DTM Legal Christmas HR blog


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