The pitfalls of employers relying on variation by conduct
11 May, 2018

In a recent ruling, the Court of Appeal has provided guidance in determining whether an employee, who works on without protest to an unlawful contract variation by an employer, has agreed to the new terms.

The case concerned a decision by Nottingham City Council to impose a two year freeze on incremental pay progression, shortly after it had transferred staff to a ‘single status’ pay scheme which provided for such annual pay increases. Several hundred employees brought proceedings in the Employment Tribunal for unlawful deduction from wages, arguing they had a contractual entitlement to such increases.

The Court first established that the employees had a contractual entitlement to the incremental pay increase and that the pay freeze therefore amounted to a breach of contract. The next issue considered was whether the employees had affirmed the variation of the contract by their conduct; they had remained silent and no industrial action was taken.

The Court ruled in agreement with the Employment Tribunal’s decision that despite their silence, no agreement to the contract variation could be inferred. The decision was based on the following three principles:

  1. There must be a clear unequivocal act from which one can infer that the claimant had accepted new terms.
  2. Protest at a collective level can potentially offset any inference that may otherwise be drawn from an employee working on without protest.
  3. The amount of time that has passed from when the employer implemented the variation may be a factor in the Court’s decision.

These principles will act as a useful tool for determining whether an employee who works on without protest is agreeing to new terms imposed by an employer. Employers must therefore be careful when implementing contractual variations, particularly when the change is unfavourable to the employee and no express agreement has been obtained. A simple passage of time and apparent lack of protest may not be sufficient for the variation to be effective.

For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw

Constructive Dismissal and the ‘final straw’
8 May, 2018

This week the Court of Appeal provided clarity on the law regarding the affirmation of a breach of contract in ‘final straw’ constructive dismissal cases.  In the case of Kaur v Leeds Teaching Hospitals NHS Trust, the Claimant claimed constructive dismissal when her appeal against a final written warning was rejected, the ‘last straw’.  The Court of Appeal found that the Employment Judge was entitled to strike out the claim as it had no reasonable prospects of success. 

Previously there have been conflicting approaches as to whether an employee could rely upon previous affirmed breaches of contract and therefore the Court of Appeal considered this question and provided clarification.

A series of acts, may not individually amount to breaches of contract, but when taken together, may amount to a breach of the implied term of trust and confidence.  In such cases the ‘final straw’ may be minor, but must contribute to the overall breach of contract.  If the employee does not act on the employer’s behaviour but continues working, then they will have affirmed the contract and accepted the breach.  This results in the employee having lost the right to resign and claim constructive dismissal in response to the breach.

The Court of Appeal have however confirmed that in a case where their have been a series of breaches, further contributory acts will in effect ‘revive’ the employee’s right to rely upon the entire series of acts, despite the earlier affirmation.  This then allows the employee to resign and claim constructive dismissal, so long as the resignation is in response to an act which is capable of contributing to the cumulative breach. 

The Court formulated an approach to ‘last straw’ cases, referring to the implied term of trust and confidence as ‘the Malik term’: “In the normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:

(1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2) Has he or she affirmed the contract since that act?

(3) If not, was that act (or omission) by itself a repudiatory breach of contract?

(4) If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation.)

(5) Did the employee resign in response (or partly in response) to that breach?”

Therefore, even though Employers may have dealt with and even forgotten previous complaints, employees may seek to rely upon those historical issues as contributing to a cumulative breach of trust and confidence. 

For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw

The future direction of shared parental leave and shared parental pay
19 April, 2018

The Government has promised to carry out an evaluation of shared parental leave (SPL) this year, including statistics on its take-up and the barriers that fathers face when considering or requesting shared parental leave.  These barriers start with the “maternal transfer” design of the SPL scheme, by which all SPL which the father takes acts to reduce the mother’s leave entitlement, and which arguably reinforces the traditional view of caring as the mother’s role and responsibility.  The practical obstacles to SPL also include the complexity and bureaucracy of the statutory scheme.

For many families, the main barrier they face when considering SPL is financial, and the option of SPL is seen as unaffordable.  This is a clear effect of the gender pay gap between mothers and fathers.  In households in which both parents are in paid work, two-thirds of fathers are paid more than mothers – and so there is a clear financial disincentive against their taking SPL.  But the greater involvement of fathers in caring responsibilities is seen as vital to changing workplace culture and societal norms, and in tackling the “parenthood penalty” which is one of the major causes of gender pay disparity in the first place.

Increasing paternity leave and paternity pay

There is pressure on the Government to move towards creating more substantial paternity leave entitlements for fathers, both in duration and in rates of pay.  Sweden and Iceland are cited as examples of countries having effective models of dedicated “daddy leave” which attract very high take-up rates.  Last month’s report by the Women and Equalities Committee suggested introducing a new policy of 12 weeks’ standalone paternity leave in the child’s first year, to replace SPL, paid at 90% of salary for the first 4 weeks (capped for higher earners) and at statutory levels for the remaining 8 weeks.

This recommendation reflected the Government’s evidence to the Committee that the SPL scheme for most fathers is not meeting its objective of encouraging fathers to take a more active and engaged role in bringing up their children.  A key conclusion by the Committee was that current policies do not support fathers who want to take a more equal share of childcare and are not keeping up with social change.

Enhancing shared parental leave pay

Some companies are now taking the lead in supporting working parents, ahead of legislative change, through their provision of enhanced shared parental pay.  For example the insurance company Aviva now offers all UK employees 26 weeks’ full basic pay following the arrival of a new child, regardless of gender, sexual orientation or how they became a parent.  Aviva has expressed this policy as forming part of their strategy to create a diverse and inclusive working culture in which barriers to career progression are removed.

Discrimination claims based on enhanced maternity pay

If an employer offers enhanced maternity pay, is it duty bound to enhance shared parental pay? This is the question addressed by the Employment Appeal Tribunal last week in the case of Capita Customer Management Ltd v Ali.  Mr Ali brought a claim of direct sex discrimination for not being entitled to pay at the same rate as Capita paid to a woman for the first 14 weeks of maternity leave.  The EAT decided that he could not validly compare his circumstances to a women taking maternity leave, in particular since the primary purpose of maternity leave (according to the European directive) is to support the mother’s health and well-being.  The EAT also based its decision on the provision in the Equality Act that on a sex discrimination claim brought by a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.

The EAT said that it may be possible to draw a valid comparison where a discrimination claim is based on the additional maternity leave period, when it may well be that the primary purpose of maternity leave becomes care for the child, rather than recovery from childbirth and the special bonding period between mother and child.

Judgment is awaited from the EAT in another case heard in January, Hextall v Chief Constable of Leicestershire Police.  At the Employment Tribunal Mr Hextall failed in his direct discrimination and indirect discrimination claims challenging the police force’s practice of paying 18 weeks’ enhanced maternity pay but not enhancing shared parental pay beyond statutory rates.  It is possible that the EAT will reach different conclusions in this case although the likelihood is that it will follow the Capita decision.

In both cases, the correct comparator to a direct sex discrimination claim was identified as a female employee taking shared parental leave.  Employers will clearly be exposed to discrimination claims if they enhance shared parental pay for women but not for men, or vice versa.

If you have any questions concerning shared parental leave or related issues, please contact Patrick Glencross at patrick.glencross@cripps.co.uk or on 01892 765419.

For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw

Turning the tables: Ending sexual harassment at work
6 April, 2018

The Equality and Human Rights Commission (EHRC) have published a new report on sexual harassment in the work place.  EHRC have found that whilst employers have a duty to protect their employees from sexual harassment in the workplace this often isn’t happening.  The EHRC consider that “too many people are being silenced by toxic workplace cultures and very real fears of victimisation”.

The EHRC are therefore calling on the UK Government to show “clear leadership and implement their recommendations to eliminate sexual harassment in every British workplace through transforming workplace cultures, promoting transparency and strengthening legal protections.”

The EHRC found that the most common perpetrator of harassment was a senior colleague and just under a quarter reported being harassed by customers, clients or service users. 

Whilst the EHRC found that many employers had in place policies that dealt with sexual harassment it was often covered in a wide policy which made a minimal reference to sexual harassment.  Around two thirds of employers responded that they trained line managers on harassment but this fell to about half in relation to their wider workforce.  It was also found that very few employers provided information for customers or service users on appropriate behaviours towards their staff.

The EHRC set out several recommendations in their report including:

  • a mandatory duty on employers to take reasonable steps to protect workers from harassment and victimisation with a breach of that duty constituting an unlawful act for the purposes of the Equality Act 2006, enforceable by the Commission;
  • introduction of a statutory code of conduct, with tribunal discretion to increase compensation by up to 25% where the code is not followed;
  • an extension of the limitation period for bringing a sexual harassment claim to 6 months;
  • legislation to render void contractual clauses prohibiting disclosure of future acts of discrimination, harassment or victimisation;
  • restrictions on use of confidentiality clauses to prevent disclosure of past acts of harassment and reinstatement of protection from third party harassment; and
  • the reintroduction of a statutory questionnaire.

We have seen an increase in claims and grievances being raised regarding sexual harassment in the workplace with the media coverage giving employees more confidence to come forward.  It is important to take a look at your work place culture and consider whether you should be taking any steps to improve it.  Is it time to train your line managers and wider workforce? 

Promote transparency with clear policies and processes in place so that individuals know that they can report such incidents and that they will be taken seriously and not swept under the carpet.

You can read the full report here.  For updates from us and the latest Employment news follow us on Twitter @CrippsEmpLaw

Top 10 tips for defending Employment Tribunal claims
22 March, 2018

Recently released quarterly statistics for the period October to December 2017 reveal that employment tribunal claims have rocketed by 90% since the abolition of fees in July last year. Here are some top tips for handling a tribunal claim if you are unfortunate enough to become involved in one:

  1. Prevention is better than cure – Putting in the time and effort to do things properly when faced with a grievance or handling a dismissal can pay dividends in the long run. Ensure you have proper policies and procedures in place and that managers know how to follow them. Do not pre-judge, make sure you undertake a full investigation and document your decision making process.
  2. Make the most of ACAS early conciliation – Before lodging a claim, most cases first have to go to ACAS for a mandatory early conciliation process. Try and use this period wisely. Generally speaking the earlier the parties start talking, the more likely they are to resolve claims because the longer cases last the more entrenched the parties can become in their positions. Stay open minded and consider whether it is worth attempting to settle the potential claim at this stage in order to avoid the time, cost and stress of going to tribunal.
  3. Submit your defence on time –Responses must be filed within 28 days of notification of the claim by the tribunal. If you miss this deadline you may be prevented from proceeding with your response. Don’t lose this opportunity. If you receive a claim form don’t sit on it – deal with it promptly.
  4. Diarise key dates and comply with orders – In the majority of cases the tribunal will issue standard directions to both the claimant and the respondent. These directions will give deadlines for various steps such as the exchange of documents and witness statements. Take these orders seriously because if you don’t carry out an order without a very good reason, you may have to pay costs or your defence may even by struck out.
  5. Retain evidence – A crucial part of the litigation process is collecting and preserving documentary evidence relevant to the complaint. Having all relevant documents to hand at an early stage will be crucial to assessing the merits of your case. Missing documents can be embarrassing and detrimental to the presentation of your case.
  6. Consider strategy from the outset – The strength of a claim should be assessed at an early stage so that you can decide how vigorously to pursue settlement. It is worth remembering that the normal rule in tribunals is that each party pays their own costs, however, a tribunal is at liberty to order a party to pay the other party’s costs if they consider that a claim or a defence has no reasonable prospect of success.
  7. Know your documents inside out – When preparing witness statements and giving evidence at tribunal don’t be caught out by contradictory documents or documents that you did not know even existed. Familiarise yourself with the trial bundle in advance so that the other side cannot trip you up or catch you off guard.
  8. Prepare your witnesses – Make sure your witnesses are ready and willing to attend the hearing and are given some tips in advance about giving evidence. Witnesses should try to be courteous and treat the tribunal panel, and the person who is cross examining them, with respect. The most important thing is to give clear and consistent evidence.
  9. Learn from the experience – Whether you win or lose at tribunal, make sure you take some learning points away with you and consider what practical steps you can take to ensure that you do not end up in the same position again.
  10. Obtain expert legal advice at an early stage – Taking legal advice at an early stage can help you understand the likelihood of succeeding with your claim or defence and therefore determine your overall strategy. Specialist lawyers can help you put your best possible case forward and navigate the complex tribunal process on your behalf. A great deal of stress and management time can be saved if you choose to instruct experienced and reliable solicitors.

The employment team at Cripps has an excellent track record in dealing with the whole range of employment tribunal claims including unfair dismissal, breach of contract, discrimination and whistleblowing. Let us guide you through the process as smoothly and as cost effectively as possible.

For more information, please contact Camilla Beamish.

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