Wednesday, February 26, 2014

Employment Tribunal Awards to Go Up

The annual increase in the limits on certain Employment Tribunal Awards has been announced. These will come into effect on 6th April 2014 - the change used to take place on 1st February each year so this time round employment lawyers have been kept in suspense.

The maximum for "a week's pay" for the purposes of calculation of the unfair dismissal Basic Award, Statutory Redundancy Payments and various other things will go up from the user friendly £450 to the much more difficult to multiply without a calculator £464. This means that the maximum possible Basic Award/SRP will be £13920.

The maximum Compensatory Award for Unfair Dismissal increases from £74200 to £76574 (once again hardly a figure that will stick in the mind!) This is subject to there being no limit on the compensation in a discrimination claim and also to the new provision introduced last year limited the Compensatory Award to 52 weeks' pay even if that figure is lower than the maximum.

The daily rate of Guarantee Payments in the event of lay-off (payable for such a short period as to be little more than a token right) increases from £24.20 to £25.00.    

Friday, February 07, 2014

Driving at your Opponent - Not a good Litigation Tactic

The Employment Appeal Tribunal has held that an Employment Tribunal was correct to strike out the Response of a Company two of whose representatives had intimidated one of the Claimants.

The strike out meant that the hearing proceeded in the absence of the Respondent, who was found liable to both Claimants and ordered to pay compensation to them.

The allegation was that a car had been driven deliberately close to one of the Claimants on a pedestrian crossing and also that it had been driven the wrong way round the one way system at the Tribunal towards her in an effort at intimidation.

The Tribunal decided that a fair trial was no longer possible because one of the Claimants (who was also a witness for the other Claimant) was terrified about giving evidence and struck the Response out.

The Respondent appealed. They said that the decision did not sufficiently explain why the Response had to be struck out in respect of both Claimants rather than just the one who was intimidated and that the Tribunal should have considered lesser measures such as barring one of the individuals involved from giving evidence.

The EAT gave this pretty short shrift. The Tribunal had given adequate and logical reasons as to why both Claims were affected and why debarring the Respondent's witness would not be an appropriate response. As they pointed out, if the Respondent was in difficulty as a result of the strike out it was entirely their own fault.

Tribunals will usually be reluctant to strike out a Claim or Response on the basis of bad behaviour. The test is in effect whether a fair trial is still possible or not. However as the above case and some previous ones have shown, where witness intimidation is involved the ultimate sanction will sometimes be deployed.

Thursday, February 06, 2014

Love In The Office - Not Good For Your Continued Employment

The Employment Appeal Tribunal has reversed an Employment Tribunal decision that an employee who was dismissed after being caught having sexual relations ( (c) William Jefferson Clinton) with a colleague in the office after hours was unfairly dismissed.

Mr Haslem (who understandably tried to get a Restricted Reporting Order made to protect his anonymity - sadly for him the EAT held that the public interest in open justice outweighed his right to privacy) was caught indulging in a sexual act with a colleague in the office after hours. To compound his misery he managed to inadvertently create a recording of him and his inamorata making derogatory comments about the boss.

An external firm of employment consultants was called in to investigate and deal with the disciplinary process. They made a recommendation to the boss that Mr Haslem be dismissed (as an external body they had no authority to dismiss) and this was followed.

The Employment Tribunal found (and this must, with respect,be correct) that the procedure was fair. Although the belief in guilt was in the mind of the external consultant, this was a small company and it was a reasonable procedure to follow. Otherwise the complainant might have had to investigate and make the decision himself given the high level of those involved in the organisation.

However they then went on to find the dismissal unfair (albeit with a 30% reduction for contributory fault based on the sexual behaviour and 20% based on the comments) as they said that dismissal for gross misconduct was not "within the range of reasonable responses" open to the employer. The EAT disagreed and said that the Tribunal had impermissibly substituted their own judgement for that of the employer. They did not think it could be said that no reasonable employer would dismiss in these circumstances.

Whilst a policy of banning romance in the office might well be unlawful, when things go further than that this case is likely make it difficult for any employee who in future is found in flagrante delicto to argue that their dismissal was unfair. 

Is that obviously right? On the one hand they were overstepping the boundaries. On the other hand, it was outside of work time and they did not know that they were being observed. On that basis some might feel this decision was perhaps a little harsh.

Ordinarily the advice to employers would be that if particular conduct will lead to dismissal it is best to specify this explicitly in the company's Disciplinary Procedure. On this occasion, perhaps not...