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October Employment Update

This month’s Employment Update covers:

1.The tribunal fees refund scheme

2..Positive mental health

3.Parental bereavment leave

4. Gig economy employment status 

5.Unfair dismisal claims.

Employment update

Have you lost a tribunal case brought by an employee? Were you ordered to pay the Claimant’s tribunal fees? If so, these fees may now be claimed back from the government.

Following the Supreme Court’s decision in R (on the application of Unison) (Appellant) v Lord Chancellor earlier this year, tribunal fees have been quashed. As a result, on Friday 20 October the government announced the first phase of the scheme under which fees will be refunded.

Details of the first phase can be found here

In essence the position is as follows:

1. Up to 1,000 people who are eligible for a refund will be contacted in order to complete the relevant application. These are those parties who contacted the tribunal service following the Supreme Court’s decision, and they will be provided with the opportunity to apply for a refund before the full scheme opens up in November.
2. Those who are not being contacted directly in this first phase are able to pre-register their interest in applying when the full scheme opens up by emailing: ethelpwithfees@hmcts.gsi.gov.uk.
3. Interest of 0.5% will be refunded in addition to the fee.
4. If the employer was ordered to pay the fee and is able to show it paid it, then the employer will be able to seek to recover the fee and not the Claimant. If the fee was reimbursed to the Claimant by the employer under a private settlement then it is the Claimant that will be able to recover the fee.

Further details are expected once the full scheme opens in November. Watch out for our November employment update.

Employment update

Tuesday 10 October was World Mental Health Day, and this year’s theme was centred on mental health in the workplace.

In recognising the importance of mental health, ACAS published a new guidance booklet “Promoting Positive Mental Health in the Workplace” setting out changes employers can make in order to build positive mental health in their work environments.

The booklet can found here

ACAS also published two shorter online guides for employers:
You can read them here:
Dealing with Stress in the Workplace
– Managing Staff Experiencing Mental Ill Health

Employment update

If not, following the Parental Bereavement (Pay and Leave) Bill published this month, all employees will be entitled to this, irrespective of their length of service.

Essentially, parents who unfortunately lose a child below the age of 18 will be entitled to 2 weeks paid leave. Additionally, employees with 26 weeks of continuous service will have the benefit of statutory parental bereavement pay, and employers will be able to recover the cost of this from the government.

When announcing the publication of the new bill, Margot James, Business Minister, commented: “We want parents to feel properly supported by their employer when they go through the deeply distressing ordeal of losing a child. That’s why government is backing this bill which goes significantly further than most other countries in providing this kind of workplace right for employees.”

It is expected that the bill will become law in 2020, creating a legal obligation on employers to provide paid leave to grieving parents for the first time.

Employment update

Do you engage self-employed contractors? If so you must ensure you are engaging them on written terms evidencing that relationship and in accordance with that status day to day.

The recent decision of the Central London Employment Tribunal regarding Addison Lee and three drivers has created a significant impact on the gig economy. The Tribunal ruled that the drivers were not self-employed but workers, and therefore entitled to national minimum wage and holiday pay which is to be back-dated.

The factors considered by the Tribunal included the following:

1. The drivers were obliged to personally accept jobs after logging into the company’s booking system.
2. The drivers had to comply with a dress code and a code of conduct.
3. The drivers were unable to refuse jobs without consent.
4. The vehicles used by the drivers displayed the company’s branding which the drivers were unable to remove.

Judge David Pearl therefore concluded that the drivers were in a “subordinate positon” given the control Addison Lee had over them, and their status was much more akin to the nature of a worker than that of a self-employed contractor.

A further hearing is due to take place in order to assess the full amount owed to the drivers, but it is estimated that the holiday pay alone will amount to £4,000 for each driver.

The decision raises concerns for employers operating in the gig economy, and highlights the need to ensure contractual arrangements are clear given the risk of claims being brought in the employment tribunal.

Earlier this year a similar judgement was made in respect of two Uber drivers, who were also found to be workers. Uber are currently in the process of appealing the decision arguing that the drivers were self-employed, and the outcome is awaited.

Employment update

According to the decision of the Court of Appeal in Royal Mail Group Ltd v Jhuti, no.

During the course of her employment, Ms Jhuti became concerned that her manager was not following protocol, and as a result not meeting Ofcom standards. She made a disclosure to her manager but was told to retract this by the same manager, and fearing for her role, Ms Jhuti did so by email.

Following this Ms Jhuti was heavily performance managed by her manager who also contacted HR to state that Ms Jhuti was not meeting expectations. Ms Jhuti also contacted HR regarding her manager’s treatment of her. A second manager was then appointed to review her position but was misled by the first, and was told that Ms Jhuti had misunderstood the situation and retracted her concerns, and only showed Ms Jhuti’s later email retracting her disclosure.

Ms Jhuti was then dismissed on the grounds of poor performance by the second manager, and she subsequently brought a claim for automatic unfair dismissal given the protected disclosure she had made.

The matter went up to the Court of Appeal who confirmed:

1. It is the mind of the decision maker that is relevant when determining the reason for dismissal, and as the second manager held it was on grounds of poor performance this was the reason, irrespective of first manager’s actions; and
2. Unfair dismissal cases focus on the actions of the employer and not the conduct of particular managers or colleagues. The conduct of the first manager could not be considered to be the conduct of the employer. However it was noted that the judgement may have been different if the second manager had been misled by the CEO of the Royal Mail Group.

As a result Ms Jhuti was only able to bring a claim for unfair dismissal (not automatic unfair dismissal).

Importantly however Ms Juhti may potentially bring a claim under the whistleblowing legislation given she potentially suffered “unlawful detriment” by the first manager following the disclosure she made.

Tom Evans Associate

If you would like further information on our October employment update or advice on how they apply to your business then please contact Tom Evans, Associate, Employment and HR Team on Tom.Evans@dtmlegal.com or 0151 230 1217.

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