Roythornes Banner Image

Blogs

Services
People
News and Events
Other
Blogs

Employment Law Update - February 2024

View profile for Phil Cookson
  • Posted
  • Author

Breaking news 📰

  1. From 6 April 2024, the limit to a week’s pay for the purposes of calculating statutory redundancy payments will increase from £643 to £700.
  2. The maximum compensatory award for unfair dismissal claims will increase from £105,707 to £115,115.

Case Law Update 📢

Fasano v Reckitt Benckiser Group plc and anor

The employer in this case made a change to their Long-Term Incentive Plan (‘LTIP’) that was discriminatory on the basis of age, however the employer still avoided liability on what many would regard as a technicality.

The Claimant took part in the LTIP which ran from 2017-2019. Vesting was dependent on the entire Group’s performance between 2017 and 2019. The Claimant retired in June 2019 as a ‘good leaver’. This meant that he could get a pro rata amount of the LTIP award should it vest.

In 2019, it became clear to the company that the LTIP would not vest. The company made changes to the scheme to allow partial vesting for those who remained employed in September 2019 when the changes were made. The Claimant received nothing and claimed indirect age discrimination as retired (and therefore older) employees were more likely to be disadvantaged by the September 2019 cut-off.

The tribunal agreed that the requirement for employees to still be employed in September 2019 placed those over the age of 57 (and the Claimant) at a particular disadvantage, but they viewed the requirement as justified as it was implemented with the aim of retaining staff. On appeal however, the EAT disagreed and held that the arbitrary cut-off date was not justified for that reason, because the excluded employees had already left employment and could not be retained.

However, the claim still failed because the changes to the LTIP had not been made by the Claimant’s employer – they had been made by the employer’s parent company. Parent companies can only be liable for discriminatory acts where they are acting as an ‘agent’ for the employer and in this case, the EAT decided that had not happened.

Companies within a different corporate structure may not be able to rely on this defence. Age discrimination remains a complex area and employers will still need to take care in designing their benefit schemes to avoid rules or criteria that disadvantage certain age groups.

Moore v Sean Pong Tyres

Normally on a TUPE transfer, all existing liabilities towards the employees transfer to the new employer. This case looked at whether lability for a discrimination claim (in this case, race and age harassment) can transfer to the new employer in very specific circumstances – i.e. where the harasser transfers under TUPE, but the Claimant does not, as they were no longer employed at the point of the transfer.

The Claimant claimed harassment against his previous employer. That Respondent wanted to add the harasser’s new employer as a Second Respondent to the claim, arguing that TUPE had transferred liability for the harasser’s discriminatory acts onto them. The Tribunal declined to add the new employer as a Respondent, and the EAT agreed with this decision. Where an employee doesn't transfer under TUPE, any responsibilities towards them generally won’t transfer either. The fact that the harasser had transferred did not alter this position.

TUPE transfers can be extremely difficult to get right, so it is important to take advice early on.

Hargreaves v Evolve Housing & Support and another

The Claimant had brought Tribunal proceedings against his former employer. In correspondence, he openly stated that he intended to ‘weaponise’ the tribunal proceedings to try to cause as much damage to the Respondent as he could. The tribunal struck-out his claim on the basis that the Claimant had conducted the proceedings in a “scandalous, unreasonable or vexatious manner”, and as a result, there couldn’t be a fair trial. In making this decision, one of the reasons the Tribunal gave was that it would not be fair for the employer’s witnesses to give evidence knowing the Claimant’s motivation for bringing the claim, and that they would be intimidated by the process.

The Claimant appealed the strike-out and the EAT overturned the tribunal’s decision and re-instated the claim. The EAT found that the Tribunal had no basis for assuming the employer’s witnesses would be intimidated, as none of them had given evidence to say this – the Tribunal had simply made this assumption.

In our view this is a very surprising decision. The Claimant essentially admitted using the Tribunal claim as a tool to inflict as much damage on the Respondent as he could, so there was no doubt he was a vexatious litigant. The point about the Respondent’s witnesses being intimidated was only one of a number of reasons given by the Tribunal on why a fair trial was not possible and it is not clear why the EAT did not uphold those other reasons instead, or how the EAT thought a fair trial could be held of claims that were not being brought genuinely.

Elemide v Bauhaus Educational Services

A Claimant had been subject to an order by a tribunal known as an “Unless Order”, requiring him to serve his witness statement on both the Respondent and the Tribunal by a certain date or his claim would be struck out. The Claimant sent his witness statement to the tribunal but failed to send it to the Respondent (or their representatives).

The tribunal initially decided that the Claimant’s claim could continue, but the EAT decided there had been an error in law and the Claimant had failed to comply with the terms of the Unless Order and his claim would be dismissed.

Recent legal updates 🖊️

  1. The Labour party has part drafted a race equality bill which intends to extend equal pay rights to BAME and disabled workers. Currently, the right to equal pay only applies on the grounds of sex.On the face of it, this extends the rights of workers who claim they are being paid less than their counterparts on the basis of race or disability, but in reality, in most cases these individuals already have the right to recover any differences in pay due to race or disability under ordinary discrimination claims.Some commentators have argued that, rather than making the law simpler, it instead complicates it. Either way, claims may become more common as any new legislation will highlight the issue.
     
  2. As of 13 February 2024, fines payable by employers who employ illegal workers have increased. The fine for a first breach has increased from £15,000 to £45,000 per illegal worker. For any subsequent breach, the fine has increased to £60,000.
     
  3. By 31 March 2024, all leave that was carried over due to it being unreasonable to take the leave due to COVID must be taken, otherwise it will be lost.
     
  4. The government has launched a consultation into the proposed introduction of a £55 fee for employment tribunal claims and appeals to the EAT. The proposed tribunal fee is a flat rate so would remain the same regardless of how many claims the Claimant seeks to bring. There would be a fee remission scheme for those who could not afford the fee. Claimants had to pay fees between 2013 to 2017, before the Supreme Court held that charging fees was unlawful as it effectively prevented access to justice. The previous fee regime significantly reduced the number of claims being brought; the new proposed fee rate is much lower than the previous rates, but may still prevent access to justice for low paid employees who cannot afford to pay the fee. The consultation closes on 25 March 2024. If implemented, the fees may be payable from as early as November 2024.
     
  5. In response to public concern over the use of ‘fire and rehire’ practices, the Government announced that it would introduce a statutory Code of Practice. This draft code has been presented to Parliament for approval. The draft code requires employers to consult employees and explore alternative options, without raising the prospect of dismissal unreasonably early or using the threat of dismissal as a negotiating tactic to put undue pressure on employees in circumstances where the employer is not envisaging dismissal. It seeks to ensure that dismissal and re-engagement is used only as a last resort.If the draft Code is approved and implemented, unreasonable failure to follow the Code will have to be taken into account by the tribunal and the tribunal may increase any award it makes by up to 25% or reduce any award by up to 25% where it is the employee who has unreasonably failed to comply.

Thank you to our contributors: Phil Cookson, Desley Sherwin, Laura Hill and George Miller.

View the LinkedIn Newsletter here.