An employer should follow the Acas Code of Practice on disciplinary and grievance procedures when dealing with grievances or dismissing an employee for disciplinary reasons such as misconduct or poor performance. The Code does not apply to redundancy dismissals. If the employer unreasonably fails to follow the Acas Code, the employment tribunal can increase compensation by up to 25 per cent if it is ‘just and equitable’ to do so. In Rentplus v Coulson, the EAT looked at whether an uplift of 25 per cent could apply to a discriminatory dismissal that the employer had said was a redundancy dismissal.
Section 230(3)(b) ERA says that an individual will be a ‘worker’ if they work under a contract with the company and have agreed to personally perform some work. However, they won’t be a worker if they are running their own business and the company is a client or customer of that business. In Sejpal v Rodericks Dental, the EAT has looked at the worker status test and how it applies to a working relationship that is defined in the contractual paperwork as one of self-employment.
‘Without prejudice’ correspondence or conversations, which take place in a genuine attempt to settle a dispute, cannot then be used as evidence in subsequent legal proceedings. There are a few exceptions, including that the without prejudice rules should not be allowed to hide any clear cases of ‘unambiguous impropriety’, such as blackmail or perjury (lying under oath). Unambiguity is the key – the situation must be clear cut. As such, the without prejudice label will only be lifted very rarely.
The B word – banter – is a word employers should dread. Good teams will thrive on a joke or two between workplace friends. However, offensive and potentially discriminatory comments can be masked as ‘banter’, indicating to the recipient that taking offence is unreasonable. A culture where banter is acceptable is likely to affect productivity and staff retention. It will also expose the employer to the risk of tribunal claims, especially harassment. Harassment is unwanted conduct related to a protected characteristic which has the purpose or effect of violating the employee’s dignity or creating an intimidating, hostile or offensive environment for the employee.
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.
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