Employers dread the vexatious litigant. Even the most spurious of tribunal claims takes up valuable management time and incurs legal fees to defend. The judgment of the EAT in Attorney General v Taheri will be a salve to those employers who have previously had their fingers burned by a serial complainer. The EAT can make an RPO – an order restricting an employee’s right to bring tribunal proceedings – if the employee has habitually and persistently, and without reasonable grounds, brought vexatious proceedings in the employment tribunal (or EAT) against one or more employers. In Taheri, the EAT has shown that there is a limit to what the employment tribunal system is prepared to accept from a vexatious litigant.
The Agency Workers Regulations 2010 (AWR) are derived from EU law. They aim to strike a balance between protecting agency workers and preserving the benefits of flexibility that using an agency provides to both businesses and workers. The AWR contain anti-discrimination provisions. Agency workers must be given the same basic terms and conditions of employment as direct recruits when they have worked for a hirer for 12 weeks. Regulation 13 gives agency workers the ‘day 1’ right to be told by the hirer about any relevant vacancies, with the aim of giving agency workers the same opportunity as direct recruits to find permanent employment within the business. The information can be given in a general announcement in a suitable place in the hirer’s business.
If an employee wins their claim for discrimination they will be entitled to compensation. That compensation may include a payment for injury to feelings. A case called Vento v Chief Constable of West Yorkshire Police set guidelines for how injury to feelings awards should be calculated.
Cases will fall into three bands: the lower band is for less serious cases of discrimination including one off or isolated acts; the middle band is for serious cases which don’t merit a top band award and the top band for the most serious cases of discrimination including lengthy campaigns.
Regulation 14 of the Working Time Regulations 1998 (WTR) sets out a worker’s right to a minimum of 4 weeks’ paid holiday per year which derives originally from the Working Time Directive (WTD). In a case called Bear Scotland v Fulton, the EAT said that a three-month gap between related deductions in a series will break the chain, meaning anything before the three-month gap cannot be claimed. The Court of Appeal has recently confirmed in Smith v Pimlico Plumbers that a worker’s right to paid annual leave is a single composite right – to leave and to pay for that leave – and strongly challenged the principle set out in the Bear Scotland case.
Victimisation is a word which is often used incorrectly. Victimisation is a particular kind of discrimination which occurs when an employer treats an employee badly (a detriment) because they have done a ‘protected act’ or the employer believes that they have done, or may do, a protected act. That protected act can include bringing a discrimination claim, raising allegations of discrimination, or being a witness in a discrimination claim. The EAT has looked at a case recently where the employment tribunal got things wrong in terms of what could constitute a ‘detriment’.
Case law has shown that an employee’s right to privacy is not reduced to zero at work. Article 8 of the European Convention on Human Rights provides that everyone has the right to respect for their private and family life and correspondence. Any breach of that right can result in a misuse of confidential information claim. In Barbulescu v Romania, the employee was dismissed for personal internet use which was banned at work. The employer accessed private emails which the employee had sent to his fiancé and brother as well as his private Yahoo messages from his work computer. The ECtHR said the employee’s right to privacy had been infringed. It is a balance though. In the recent case of Brake v Guy, the Court of Appeal decided that an employer did not breach any privacy rights when accessing an employee’s personal emails.
Notice is normally needed in order to lawfully end an employment contract. A failure to give notice – by either party – will usually be a breach of contract. Many employers include PILON – payment in lieu of notice – clauses in employment contracts to enable them to end employment early provided they pay the correct notice pay. If an employee resigns, there will be no dismissal. However, s95 Employment Rights Act 1996 says that an employee is dismissed if the employment contract is terminated by the employer, with or without notice. The EAT has looked at a case where the employee resigned but the employer ended the contract before the notice period had ended by making a payment in lieu of notice. The employee said he had been dismissed and was therefore entitled to bring an unfair dismissal claim.
The government has confirmed that it has accepted the views of the Low Pay Commission and apply the following increases in the National Living Wage and National Minimum Wage from 01 April 2022:
Even for seasoned employment law practitioners, the decision of P&O to sack its entire workforce with no notice and by pre-recorded video came as a shock. No warnings, no consultation, no in-person discussions. Such was the shock and speed of the dismissals that some employees were unable to gather all their belongings in time. P&O’s plan is to reduce costs by replacing the entire 800-strong workforce with much cheaper agency workers to whom they believe the UK’s national minimum wage rules will not apply.
Andy Wood is a tax adviser and Barrister with ETC Tax. His clients include entrepreneurs, high-net-worth individuals, sports persons and entertainers and private companies. He believes passionately that all clients should get clear and decisive advice that should be delivered in plain English.
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