UK: Employment Law Bulletin - May 2011

Last Updated: 21 July 2011


Recent surveys demonstrate widespread support from employers for introducing fees to lodge tribunal claims, a proposal recently floated by the government. Similarly, a proposal to introduce a 'formal offer' system seems to be welcomed by employers.

If introduced, it would mean that compensation awarded by an employment tribunal could be increased or decreased if the other party had turned down a reasonable offer of settlement before the hearing. It would also clarify circumstances in which an unreasonable refusal to accept an offer might result in the losing party paying the other side's costs. We will let you know as soon as the government announces the results of its consultation.

Equality Act 2010 guidance on the definition of disability

Guidance which helps to define those who fall within the definition of a disabled person under the Equality Act 2010 came into force on 1 May 2011. You can see the guidance here.

The Equality Act 2010 replaced the Disability Discrimination Act 1995 and slightly simplified the definition of disability. The Guidance goes through the elements of the definition, and provides examples to help in cases where there is dispute about whether a person is disabled or not.

Negligent misstatement

The High Court has handed down judgment in McKie v Swindon College. The employee in that case brought a case against a former employer, Swindon College. An email was sent from the College to his then employer, six years after he had stopped working for Swindon College. The email suggested (wrongly) that there had been serious concerns about his behaviour as an employee. The employee was dismissed as a result of the email. Whilst he had been employed by Swindon College, he had been promoted and had received bonus awards. When he had left, he had received a glowing reference.

The court found that Swindon College had been negligent towards the employee. It had owed the employee a duty of care because it was foreseeable that the employee could lose his job as a result of the damaging email, that there was sufficient closeness between the College and the employee, that it was fair just and reasonable to impose a duty of care and that there was a link between the sending of the email and the damage that the employee suffered. The court was dealing with liability (i.e. whether Swindon College had to pay compensation), and will assess the amount of compensation on a future date if the parties cannot agree a figure.

This case reminds employers of the need for care when communicating about current or former employees, whether they are writing formal references or not. Whilst this will not work for all companies, some employers make it a disciplinary offence to provide references or make statements about ex-employees without first running the reference past HR.

An intern or a worker?

The Government's new social mobility strategy and views on internships have made headlines in recent weeks. The Deputy Prime Minister, Nick Clegg has pledged to introduce a national scheme for interns which would entitle them to be paid the national minimum wage.

A recent survey suggests that as many as one in five companies have used interns to help them to survive the recession. In some cases, interns do more than might be expected from arrangements which were traditionally a form of work experience. The Low Pay Commission reported last year that unpaid interns were being systematically abused.

Employers should be aware that interns who are shouldering their own workloads, dealing with clients and managing responsibilities could potentially fall within the definition of a worker. This would entitle them to be paid the National Minimum Wage and a complaint could be made to the Employment Tribunal.

What happens if an employer fails to consult under TUPE?

Employers often struggle to work out what their obligations are under the Transfer of Undertaking Regulations 2006 ('TUPE') when they are about to sell off part or all of their business ('a transfer').

The Court of Appeal's decision in the case of Marcroft v Heartland (Midlands) Ltd sheds some light on the issue. The employee had not been consulted about a transfer, although he was aware it was going to take place. He argued that because he was not consulted, the transfer had to be invalid.

The Court of Appeal decided that whilst TUPE says that a company must provide the representatives of workers who will be affected by a transfer with certain information before a transfer; this does not provide the workers with the right to object. Failing to provide workers with the required information does not mean that the transfer itself is invalid - instead it entitles them to claim compensation in the Employment Tribunal. The employee was unable to persuade the Court that there was an implied term in his contract that the transfer would be invalid if he was not personally provided with information about the transfer.

The importance of deadlines in the Employment Appeal Tribunal

The Employment Appeal Tribunal ('EAT') has restated the importance of its 42 day deadline for submitting an appeal to the EAT.

In Leira v Ministry of Justice, the appellant sent off his appeal papers to the EAT within the 42 day time limit, but did not pay enough postage. This meant that his envelope was returned to him undelivered. He claimed that there were delays within the postal system so that by the time he actually received the envelope, some considerable time had passed. By the time he eventually submitted all the necessary paperwork for an appeal, he was 98 days out of time.

The EAT refused to extend time on the basis that it is an Appellant's responsibility to ensure that sufficient postage has been paid and that envelopes are properly addressed. It said that there had been enough time for the Appellant to check by phone, fax or email that his papers had arrived and therefore there was no good reason for the time limit to be extended.

If you are putting in an appeal remember to leave plenty of time before the deadline, ideally about two weeks, so that you have time to hand in missing paperwork or resend documents if necessary.

Annual increase in national minimum wage

The national minimum wage will rise from 1 October 2011.

  • The adult rate will rise to £6.08 per hour
  • The rate for 18-20 year olds will rise to £4.98 per hour
  • The rate for 16-17 year olds will rise to £3.68 per hour
  • The rate for apprentices will rise to £2.60 per hour

The accommodation offset (the maximum amount which can be counted towards daily pay if an employer provides an employee with accommodation) will rise to £4.73 per day.

A public gross misconduct hearing?

There are unconfirmed reports that the police officer who was found by an inquest jury to have unlawfully killed newspaper seller Ian Tomlinson during the G20 protests in London could face a gross misconduct hearing in public.

This would be a unique situation, and in many situations would be a breach of the implied term of trust and confidence (although in this case, the police authority has considerable room to argue that the need for openness and transparency outweighs the officer's expectation of privacy).

The contents of this brochure are intended as guidelines for clients and other readers. It is not a substitute for considered advice on specific issues. Consequently, we cannot accept any responsibility for this information or for any errors or omissions.

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