In this Spring Employment Newsletter, Tom Evans discusses the recent changes in Employment Law and recent cases.
National Minimum Wage, SMP and SSP Rates 2023
On 1 April 2023, the new National Minimum Wage rates for the 2023/24 financial year will be introduced.
The rates are as follows:
• Workers aged 23 and over: £10.42 an hour (National Living Wage).
• Workers aged 21-22: £10.18 an hour.
• Development rate for workers aged 18-20: £7.49 an hour.
• Young workers rate for workers aged 16-17: £5.28 an hour.
• Apprentice rate: £5.28 an hour.
The accommodation offset will be £9.10 per day (previously £8.70).
On 3 April 2023, the rate for statutory maternity, paternity, adoption, shared parental and parental bereavement pay increased to £172.48 per week (previously £156.66).
On 6 April 2023, the rate for statutory sick pay increased to £109.40 per week (previously £99.35).
Employers who have employees who are impacted by the above changes are advised to undertake a review of all staff and ensure compliance with the new rates.
Tribunal Limits 2023
The tribunal compensation limits are increased in April each year and the latest increase will come into force on 6 April 2023. This increases the potential value of tribunal claims and therefore the risk for employers of litigation.
• The limit for the compensatory award for unfair dismissal increases to £105,707 (previously £93,878).
• The limit on the compensation for a statutory redundancy payment or as a basic award for unfair dismissal increases to £19,290 (previously £17,130).
• The limit on a ‘week’s pay’ (for the purposes of redundancy pay and calculating the basic award at tribunal) increases to £643 (previously £571).
Vento Band Update 2023
The Vento bands provide for the injury to feelings award in discrimination claims and are updated annually. The 2023 Vento band guidelines will apply to cases brought after 6 April 2023. Again, this increases the potential value of discrimination claims and the potential risk to employers.
• The upper band, for the most serious cases, ranges from £33,700. to £56,200. (For the most exceptional cases, compensation can exceed £56,200.)
• The middle band ranges from £11,200 to £33,700.
• The lower band, for less serious cases, ranges from £1,100 to £11,200.
EAT held that Claimant’s aggressive conduct was not linked to his disabilities
In McQueen v General Optical Council, the Employment Appeal Tribunal held that the Claimant’s aggressive conduct was not a consequence of his disabilities and accordingly his detriment claims were dismissed. In reaching her decision, the appeal judge suggested that the following four questions should be considered when hearing a s15 Equality Act 2010 claim:
1. What disabilities does the Claimant have?
2. What are the effects of those disabilities?
3. What unfavourable treatment is the Claimant claiming to have been subjected to?
4. Was the unfavourable treatment ‘because of’ the effect or effects of the Claimant’s disabilities?
The Claimant, who was employed by General Optical Council from 2014 to 2019, is dyslexic, has neurodiversity and hearing loss. The Claimant was examined by an occupation health professional on two occasions during the course of his employment with the Respondent and had also undergone examinations at the request of previous employers. The reports stated that the Claimant would speak with a raised voice, use inappropriate language and adopt aggressive mannerisms in situations of stress, anxiety or conflict.
During the course of his employment, the Claimant faced disciplinary action on two occasions following incidents of aggressive behaviour. Before leaving his employment, the Claimant brought claims based upon numerous allegations of discrimination on various grounds, including race, sex and disability. The Claimant also pursued detriment claims pursuant to s15 Equality Act 2010.
S15 Equality Act 2010 states:
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
Employment Tribunal decision
The tribunal considered whether the Claimant’s conduct, for which he was disciplined, arose from his disability. The judge found that the Claimant’s aggressive behaviour was not a consequence of his disabilities and instead that he had a short temper and resented being told what to do.
Employment Appeal Tribunal decision
The Claimant appealed the decision on the basis that the tribunal should have considered whether his disabilities has contributed to his conduct and therefore the disciplinary action he faced. The appeal suggested that the tribunal ought to have taken a two-factor approach when looking at causation; firstly considering whether the disabilities played a part in the Claimant’s conduct and secondly whether the disciplinary action he faced was a result of something arising from those disabilities.
The appeal was rejected. The EAT upheld the decision of first instance after applying the four-stage test above and found that the Claimant’s disabilities did not contribute to his aggressive conduct. Accordingly, it was not necessary to consider whether the disabilities played a part in the disciplinary action he faced.
EAT upholds strike-out of scandalous, unreasonable and vexatious claim
In Smith v Tesco Stores Ltd, the EAT upheld the judge of first-instance’s decision to strike out the Claimant’s claims on the basis that his conduct was scandalous, unreasonable or vexatious. The EAT did however make it clear that strike-out should always be a last resort and the tribunals are open to so-called ‘difficult’ Claimants.
In considering whether to strike-out a claim, tribunals will ask the following questions:
1. Was the Claimant’s conduct scandalous, unreasonable or vexatious?
2. Is it still possible to conduct a fair trial?
3. Would a lesser sanction be proportionate?
The rules on strike-out are contained in Rule 37 Employment Tribunals Rules of Procedure 2013. Tribunals may also strike out a claim if it has no reasonable prospects of success, it is not being actively pursued by the Claimant and for non-compliance of Rules or orders of the Tribunal.
The Claimant presented claims of unfair dismissal and discrimination against Tesco following an after-hours fight with his line manager. Throughout the lifetime of the claim, the Claimant continued to add claims and failed to assist the tribunal in narrowing the issues before it at a number of preliminary hearings.
Employment Tribunal and Employment Appeal Tribunal decisions
The tribunal struck-out the Claimant’s claims on the basis that a fair trial was no longer possible as the Claimant had acted in a way which was scandalous, unreasonable or vexatious. The appeal judge upheld the decision but distinguished the facts, notably the Claimant’s repeated failure to assist the tribunal nor cooperate with the Respondent. The judge also warned that the decision should not be regarded as a green light for claims to routinely be struck out because they are difficult to manage.
EAT held that ‘without prejudice’ letter incorrectly referring to mutual termination was a valid dismissal letter
In Meaker v Cyxtera Technology UK Ltd, the EAT upheld the tribunals decision that a letter marked ‘without prejudice’ that erroneously stated that the Claimant’s employment was terminated by mutual agreement was an effective dismissal letter and accordingly, the Claimant’s claim for unfair dismissal was out of time.
Notwithstanding this decision, employers should be careful to ensure that termination letters do not contain errors that may render them invalid and open them up to a potentially costly unfair dismissal claim.
The Claimant was employed by the Respondent in a position that involved heavy lifting. The Claimant suffered injuries that led to an extended period of absence and ultimately left him unable to carry out such work indefinitely. The parties had engaged in conversations surrounding the possible termination of the Claimant’s employment and preparation of a settlement agreement. The Respondent sent a letter to the Claimant marked ‘without prejudice’ on 5 February (received by the Claimant on 7 February) which stated that the parties has mutually agreed that the Claimant’s employment would terminate on 7 February and included a settlement offer. The Claimant subsequently brought a claim for unfair dismissal on 19 June.
Employment Tribunal and Employment Appeals Tribunal decisions
At a preliminary hearing, the tribunal decided that the letter clearly communicated a date of termination and amounted to an effective dismissal letter. As a result, the Claimant’s unfair dismissal claim, which was brought over 3 months after the termination date in the letter, was held to be out of time.
The Claimant appealed the decision arguing that the letter was not sufficiently clear and unambiguous and did not amount to an effective letter of dismissal. The EAT upheld the tribunal’s decision, finding that the letter, when read in context, clearly communicated the Respondent’s intention to terminate the Claimant’s employment on a specific date, notwithstanding the erroneous reference to mutual agreement. The EAT found that the letter essentially consisted of two parts; the first part communicating the termination date and the second part making a settlement offer. In order to avoid situations like this arising, it is good practice to make open and without prejudice communications under separate cover.
House of Lords reads bill reintroducing liability for employers for harassment of employees by third parties
After receiving Royal Assent, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will replace the now repealed provisions of the Equality Act 2010 that made employers liable for failing to protect employees from harassment by third parties. The Act will also impose a positive duty on employers to prevent the sexual harassment of employees and a failure to exercise this duty may lead to a 25% percent uplift of compensation for the employee.
The Act will also create a statutory code of practice for employers to prevent harassment (including sexual harassment) of employees in the workplace, incorporating guidance published by the Equality and Human Rights Commission in 2020.