Wednesday, November 01, 2017

Bus Company Owner Drives Off Into the Sunset

The Daily Mail reports that the owner of a bus company in Somerset has unceremoniously dismissed the entire workforce through an internal message.

Sydney Hardy allegedly told the staff of Nippy Bus that he had had enough, he could not work with the employees a minute longer, and they should regard themselves as being dismissed with immediate effect.

Understandably the employees were rather miffed at this development.

Expect Tribunal Claims to follow! Whilst redundancy is a potentially fair reason for dismissal, an Employment Tribunal will usually expect to see evidence of proper consultation and warning to the employees that they are at risk of redundancy, a fair selection process being carried out and proper consideration being given to alternatives such as redeployment.

Where an employer contemplates making at least 20 employees within a 90 day period there is a requirement for a minimum of 30 days' consultation and where 100 or more are affected the minimum period is 45 days. In these circumstances there are also quite complicated rules about the involvement and/or selection of representatives from the workforce for the purposes of consultation.

Get this wrong and in addition to any individual claims for Unfair Dismissal then each affected employee is potentially entitled to a "protective award" of 1 week's pay for each week of the period for which consultation is required, with no cap on the amount of the week's pay for these purposes.

If the employer is a large one then any mistake could be an expensive one, especially as the starting point is for Tribunals to award the maximum protective award unless the employer can show a good reason otherwise.

Consultation is supposed to take place when proposals are at a formative stage. Barring a completely unexpected emergency therefore, employees should not normally find themselves being made redundant "out of the blue."

Employers are strongly advised to take proper advice if they consider that they may have to shut the doors. 

Thursday, July 27, 2017

Goodbye to Employment Tribunal Fees - For Now At Least

In a Judgment which has taken many people by surprise the Supreme Court has ruled that the Fees Order which introduced Employment Tribunal Fees in 2013 is unlawful.

A summary of the Supreme Court's decision is here but in essence the Fees were found to be unlawful because they were an unjustified interference in the right of access to justice, were in breach of EU law and were indirectly discriminatory against women.

The number of Employment Tribunal Claims has dropped by 79% since the introduction of fees. To bring a money claim to a full hearing involved potential Fees of £390 (even if the amount at stake was less than this) and to bring more substantial cases such as Unfair Dismissal or Discrimination involved fees of up to £1200.

As a result of the Judgment the Government will have to refund all of the Fees paid, some £32 million or so. This will not be straightforward, not least as winning Claimants will in many cases have recovered the Fees from their employers, who will no doubt now want that money back.

The Judgment is good news for Claimants but obviously is potentially less good news for Respondents. It removes a disincentive to claiming, which is likely to result in more Tribunal Claims being lodged, although whether there will now be a 79% increase must be somewhat doubtful.

Employers would do well therefore to ensure that they have proper advice as to their legal obligations and how to handle sticky situations with a view to avoiding ending up in the Tribunal in the first place.

Where Claims are brought as a "try on" by Claimants who think that without Fees they can have a "free hit" there are steps which can be taken to try and put the Respondent back on the front foot, such as applying for strike out, giving Costs Warnings and applying for Deposit Orders.

This may well not be the end of Tribunal Fees. The Government might try and reintroduce an amended scheme (presumably with lower fees) but given the complicated Parliamentary arithmetic following the General Election it remains to be seen whether fresh legislation would be passed.

Tuesday, January 03, 2017

Switching Off When Your Work Is Done

The dream of the 1960s was that technological advances would lead to a shorter working week and a new age of leisure for all.

In fact, modern methods of communication have in fact lead to a situation where there is often an expectation that employees will constantly be on call.

Many employees feel under pressure to keep in touch with work even when they are supposed to be on holiday. Research has shown that young people in particular are prone to checking work emails during non-work time - with many admitting that they had done so over the Christmas holidays.

Now the BBC reports that with effect from 1st January 2017 French workers have a "right to disconnect", meaning that the employer will be expected to agree a charter with employees as to when they are not required to deal with or send work-related emails.

France has a maximum 35 hour working week. In the UK, the maximum working week is 48 hours and even then employees have the right to waive this limitation.

Restrictions on working hours are regarded as a matter of EU law as being a health and safety issue and certainly a case can be made for there being a potentially detrimental effect on employee's health and productivity when there is no clear dividing line between work time and the employee's own time.

While there is no law equivalent to the French one in the UK, employers do need to remember that they can be liable for personal injury claims if employees suffer from work-related stress.
In addition if employees are expected to deal with emails outside of their normal hours then this may raise questions as to whether this counts as working time for the purposes of calculating their maximum working week (if they have not opted out), whether they are being paid the National Minimum Wage and whether they are being allowed to take their holiday entitlement - are you "on holiday" if you spend all day dealing with work emails?