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Redundancy pay

adrian_fryerIn a redundancy situation, an employee might be entitled to both statutory and contractual redundancy payments. Statutory redundancy payments are calculated using age, length of service and weekly pay (currently capped at £525). Contractual payments can be more generous. What happens when a contractual sum isn’t paid, and the employee brings a breach of contract claim to recover it? Does the statutory redundancy element form part of the £25,000 cap for a breach of contract claim in the employment tribunal?

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Working time

adrian_fryerUnder section 45A of the Employment Rights Act 1996, workers have the right not to be treated badly by their employer for refusing to work in breach of the Working Time Regulations 1998 (WTR). If such a refusal is the reason (or main reason) for an employee’s dismissal, their dismissal will be automatically unfair. The case of Paxur v Lexington Catering Services examines how explicit that refusal needs to be.

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Unfair dismissal and extensions of time

adrian_fryerMost employment claims should be brought within a three-month time limit. If it is not ‘reasonably practicable’ for an employee to present his claim within the three-month time limit, an employment tribunal has the discretion to extend the time limit. There are two questions the tribunal must ask: was it reasonably practicable to lodge the claim within the time limit? If not, was it then lodged within a reasonable period? The ACAS early conciliation process provides a potential one-month extension of time following the conclusion of early conciliation. However, this only applies if ACAS were contacted within the initial three-month time limit. The EAT has looked at this issue in Pearce v Bank of America Merrill Lynch.

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Commute times

adrian_fryerAnalysis by the Office for National Statistics has shown that women who commute for an hour are nearly 30 per cent more likely to leave their jobs than if they have a ten-minute commute. The ONS believes this is due to childcare commitments. In comparison, men are more likely to look at money as the reason for leaving their job. They are prepared to travel for longer to get higher pay. The ONS believes this contributes to men doing the higher paid work which fuels the gender pay gap.

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Are your job adverts accidentally putting off potential applicants?

adrian_fryerAre your job adverts accidentally putting off potential applicants? A new LinkedIn report has looked at the language used in job adverts and found that certain things can deter a potential applicant from applying. The survey of more than 1000 employees and 250 recruitment managers found that more than half of women would be put off by an advert describing the workplace as ‘aggressive’, compared with only a third of men. Surprisingly, there are more than 50,000 jobs on LinkedIn which include the word ‘aggressive’ in their description. More women than men were put off by the term ‘born leader’ too. The approaches to annual leave and flexible working also differed between the genders, with more women than men giving these issues top priority.

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Disability discrimination

adrian_fryerA person is disabled if she has a physical or mental impairment which has a substantial and long-term adverse effect on her ability to do day to day activities. To be ‘long-term’ an impairment must have lasted, or be likely to last, at least 12 months. An impairment can be treated as continuing when it has stopped if it is likely to recur. Likely means it is more probable than not.

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Vegetarianism and Philosophical belief

adrian_fryerA philosophical belief might be a protected characteristic if it:

• Is genuinely held and isn’t just a viewpoint or an opinion;
• Relates to a weighty and substantial aspect of human life and behaviour;
• Attains a certain level of cogency, seriousness, cohesion and importance and be worthy of respect in a democratic society;
• Is compatible with human dignity and not conflict with other people’s fundamental rights.

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Gig economy

adrian_fryerWorker status is the holy grail in the gig economy, including the fields of taxi rides, food delivery and courier services. Workers are entitled to certain employment rights such as the national minimum wage and paid holiday, whereas the genuinely self-employed are not. Section 230(3) of the Employment Rights Act 1996 defines a worker as someone who works under a contract of employment or another contract ‘where the individual undertakes to do or perform personally any work…for another party who…is not…a client or customer of…the individual’. Case law has expanded on this definition and looked at issues such as mutuality of obligation, control, integration into the business and personal service.

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Injury to feelings

adrian_fryerIf an employee wins a discrimination claim, the employment tribunal will award compensation for injury to feelings. There are three bands: top band for the most serious cases (currently £26,300 – £44,000); middle band for serious cases not worthy of a top band award (£8,800 – £26,300) and bottom (£900 – £8,800) for less serious cases including one off incidents. The award is based on the effect of the discrimination on the employee, rather than the gravity of the discrimination. The EAT highlighted this important distinction in Komeng v Creative Support.

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Discrimination at work?

adrian_fryerAmy harasses Bill if she does something in relation to a protected characteristic (race, sex, disability etc) which has the purpose or effect of violating Bill’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. If Amy harasses Bill ‘during the course of employment’ then the employer will be vicariously liable for her conduct unless they can show that they took all reasonable steps to prevent it.

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