Number of Employment Tribunal Claims Drop - Is this forever?

Yesterday the Department of Justice published its statistics showing the number of Employment Tribunal claims made for the period October to December 2013. These were the first set of statistics since Claimants were required pay fees in order to make a claim in the Employment Tribunal. Unsurprisingly the number of claims made dropped by 79% compared to the previous period of July to September leading to employment lawyers wondering about their future career and tribunal judges twiddling their thumbs.

So will the number of claims remain permanently at this level? It is certainly the case that tribunal fees will act as a deterrent for many potential claimants. It is however likely that over time potential claimants will become aware of alternative ways to fund tribunal litigation. This would include using cover that may be provided by their household insurance or having their fees paid by a trade union.  It is also likely that many law firms will carry out claims on behalf of claimants under a conditional fee agreement (“no win, no fee”).

Claims for unpaid notice, holiday pay and unpaid wages are breach of contract claims and can be heard in the County Court. Potentially if the claim is for an amount less than £5000 it may potentially be cheaper to submit a claim to the Small Claims Court rather than the Employment Tribunal. As potential claimants become more aware of this potential course of action then it becomes more likely that claims will be made through this route.

It is clear that the days of claims being submitted as a “punt” in an effort to extract some form of settlement have largely passed; however, while the goalposts may have changed I am of the view that the number of claims made will increase again from their current low; however, not to the levels that existed prior to July 2013.

How do you deal with your own #KPgenius?

The current saga regarding Kevin Pietersen’s dropping from the England cricket team has created a lot of headlines with Pietersen being accused of being a disruptive force in the dressing room, making unreasonable demands as to his playing commitments, and of sending disparaging text messages to members of the opposing South African team about his captain Andrew Strauss. Pietersen himself has accused teammates of colluding with the originator of a parody twitter account of himself called #KPgenius.

The ECB has taken the brave step of dropping Pietersen for the final test against South Africa despite him scoring a match-saving 149 in the previous test. The situation that the England management have found themselves in mirrors the problem that many employers face when their star employee is difficult to manage but also brings in significant income or benefits to the business. What can be done to deal with such an employee?

It is the case that most businesses need different people with different skillsets for the business to function properly. I have worked at firms where different partners did not get on but they appreciated the need to rub along for the greater good of the firm. If all employees are the same then not only would they have the same strengths, they would also have the same weaknesses and a “clone” workforce is not necessarily beneficial. It is therefore often advisable for a business to give some latitude to the difficult star employee as to do so will benefit the business as a whole. This can mean that the employer has to perform a balancing act to ensure that the employee’s behaviour is not bullying or discriminatory as if this behaviour is allowed to continue then the employer could find themselves open to claims of constructive dismissal or discrimination from other employees in the business who have had enough.

Like the England dressing room, it is preferable for internal disputes to stay within the business with a united front being presented to both customers and competitors alike. Open signs of disunity within a business can be seen as unprofessional and also a sign of weakness. This means that when an employee, however talented, starts openly badmouthing their employers to competitors and/or customers it is normally the case that they will have to be disciplined.

So what action can be taken against an employee who is badmouthing their colleagues and employer? A lot depends on the nature of the remarks and the context within which they were made. The employer would have to consider whether the employee could carry on working for the business after making the remarks and also whether they can continue working with their colleagues and managers. Ultimately, if the comments were sufficiently derogatory and damaging, the employee could be seen as having breached the implied term of trust and confidence between employer and employee and could be dismissed for gross misconduct.

Pietersen made the remarks by text message. I have no idea how it was discovered that he had made the remarks by text no-one really seems to know what they said. It would be difficult for employers to check an employee’s texts particularly if they were made on a private phone or they had subsequently been deleted by both the sender and the recipient. Employers can potentially check employees work emails for such comments; however, there are privacy issues and employees should be informed that their emails may be monitored (usually in their contract of employment or staff handbook). Checking an employee’s emails is not a step that should be taken without careful consideration and where necessary legal advice should be taken.  Comments made on social media sites such as Facebook and Twitter may also be used as evidence of trust and confidence being broken.

It can be very difficult for a business to sack their star employee. If they are a salesperson there is the risk that they may take clients with them; alternatively, they may have a set of skills that are hard to replace. It is a big step in such circumstances and businesses have to ensure that they are bigger than one individual. Hopefully the performance of England on day one of the test shows that such a step can be taken and others will flourish (I may have to amend this last paragraph if it all goes wrong in the next four days!).   

How Employers can avoid becoming sick of holiday rights

We are now well and truly into the holiday season. Workplaces up and down the country are emptier than usual, “out of office” becomes regular reply to your emails, and voicemails inform you that the person that you are trying to call will not be back for another two weeks.

Ever since the introduction of the Working Time Regulations in 1998 the issue of annual leave has become an increasingly difficult one for employers to deal with. Case law from both the EU and the UK has developed in relation to this issue particularly in relation to sick leave and annual leave and the following principles have been established:-

a)      Employees who are off sick can roll over their holiday entitlement into the next leave year.

b)      Employees can choose to take their holiday entitlement while they are on sick leave.

c)       Employees who become ill while on holiday can re-take their annual leave at another time.

d)      An employee who is off sick for the whole of an annual leave year does not have to specifically request that their annual leave entitlement is rolled over to the next leave year.

As well as the legal headaches that employers encounter there are also the practical problems. How do they ensure that the business is still able to operate properly while their employees are on leave? What is the fairest leave request system to have in place? What systems need to be in place to deal with the issues relating to sickness and holiday leave?

Despite bodies such as the CBI and Institute of Directors complaining about the difficulties that employers face when dealing with the issue of annual leave it is unlikely that anything is going to be done soon by the government to change this position due to the fact that the law relating to annual leave stems from either EU legislation or European case law. Employers therefore have to consider what they can do to try and minimise the effects of these cases. Here are a few suggestions on how to minimise these effects:-

1)      Have a clear Holiday Policy and Procedure – A clear holiday policy should state how much time off can be taken at one time. It should also state when requests should be made by and how they will be dealt with. The policy should also make it clear if there are any shutdown periods (e.g. Christmas) when leave should be taken.

2)      Plan for Holiday Absences – There are likely to be times of year such as during the school holidays when employees are more likely to want to take time off. Employers should consider what their business needs are and plan accordingly, for example; by setting limits on how many employees within a team or the business as a whole can take time off at any one time.

3)     Consider how to deal with multiple requests for time off during popular periods such as Christmas - Should it be on a “first come first served basis” or should there be some form of ballot? This does have to be  considered carefully, I remember when a firm that I worked at said that requests for time off at Christmas would be dealt with on a first come, first served basis and this resulted in a queue of employees outside the HR office on 2 January ready to hand in the leave requests for Christmas of that year almost 12 months in advance!

4)      Have a clear sickness/capability procedure – As stated above, employees who are off sick do continue to have rights in respect of annual leave. Dealing with sickness absence in a properly can prevent employees unnecessarily accruing holiday entitlement. It is also the case now that in light of recent case law employers should also consider what procedures they should have in place for employees who became ill while on holiday and who may want to retake their leave at a later time.

5)     If in doubt speak to a solicitor – Well I would say that wouldn’t I! The reality is that the earlier that you seek advice about any potential problems the more likely it is that you will avoid costly litigation in the future saving a lot of money in the long run. (We also have  a special offer to either update or draft yourholiday procedure for £75 plus VAT for details of this click here)

foxwhitfieldsouthampton.co.uk/latestnews

Choc-ice does not cool racial heat

When John Terry was found not guilty of racially abusing Anton Ferdinand on the football field last week many people thought that the media interest in the story would die down particularly once the FA had concluded its own disciplinary proceedings that had been put on hold pending the conclusion of the court case. However when Anton's brother Rio Ferdinand responded positively to a comment made on twitter by someone calling Ashley Cole a "choc-ice" for appearing as a witness in support of Terry, the media fires were stoked up again.

Ferdinand has denied that he was being racist in his response to the comment. He said that it was being used as a term used to describe someone as a fake. It is however from many people's point of view, my own included, a label that does have racial connotations. I must admit that I have never heard the words choc-ice used in that context before; however it is similar to the term "coconut" which has been used to describe black or asians as being disloyal to their race.

In the past there have been cases which have involved the term coconut being used as an insult. In June 2010 a Bristol City Councillor was convicted of racial harassment when she called a political opponent a coconut. An article by Dilnuci Onuzo in the Guardian describes a case in which a client of hers was convicted of the same offence that Terry was charged with because he called another black man a coconut.

The police have now confirmed that they are investigating the comment made on twitter about Cole and the person who made it could face prosecution. Whether or not you agree with Rio Ferdinand that the use of the term is not racist, it is clear is that if you make such comments you may find yourself in a lot of trouble. 

Holiday ruling shows that red tape is hard to cut

The European Court of Justice ruled yesterday that employees who fall ill while on annual leave can retake their leave at a later date. This ruling has been expected by employment lawyers for some time and the government is to make changes to the Working Time Regulations to both comply with the ruling and also deal with the difficult issue of how annual leave can be carried over by employees who are unable to take their entitlement due to sickness. The consequences of this ruling are however potentially extremely costly for employers and in particular small businesses.

A few years ago I went on a holiday to Egypt. We had a wonderful time enjoying the hot weather, spending time relaxing on the beach or by the pool, seeing the sights and going diving. The only slight downside to this trip away was that, to put it delicately, I had some tummy troubles for the first few days. I was still able to enjoy myself but I had to ensure that I was not too far away from the nearest WC.

Arguably the above scenario is not uncommon for many holidaymakers; however, these symptoms potentially could be classed as sickness and that if this happened again I could claim that I should be entitled to retake my annual leave at another time.

You could probably argue that my upset stomach was partially self inflicted in that I went to Egypt where the heat combined with the change in food/water meant that it was much more likely that I would pick up some form of bug. So in the future could employers decide that under their contracts of employment employees should be required to avoid certain destinations or types of holiday e.g. skiing, snowboarding or diving?

It also raises the question as to what happens if the employer only pays SSP and the employee declares that they they were off sick and want to re-take their annual leave at another time. Can the employer recoup the holiday monies that may have already been paid to the employee? Also how much time can elapse between the employee being ill while on leave before they tell their employer. Should they tell the employer on the day that they are sick as they are often required to do so under their contract of employment or can they wait until their return from leave? 

What is probably not in question is that this ruling means that a further burden will be placed on employers. The costs of complying with this obligation will probably outweigh the savings for employers that may have been made by the increasing of the length of service required to make a claim of unfair dismissal and the proposed changes contained within the Enterprise and Regulatory Reform Bill.

I am not aware of any ministers criticising the ruling and the resulting consequences for employers. There have been no promises to try and change the law at European level, probably because in the EU it is easier for laws to be created than for them to be repealed. What this ruling shows is that the government’s promise to reduce red tape for employers is perhaps one that they will struggle to keep.

Employers should take note of the handling of Nalbandian

The defaulting of David Nalbandian in the  final of  the Aegon Championships at the Queens Club was one of the big sporting headlines of the weekend. Having watched the footage of Nalbandian kicking the advertising hoarding into the shin of the line judge I think that they had little alternative but to default him and award the match to Marin Cilic. The rules are clear with our very own Tim Henman was defaulted for similar reasons early in his career when he hit a ball girl with a tennis ball while smashing it away in a fit of pique and Serena Williams being defaulted in the 2009 US Open semi-final due to her abusing a line judge.

The purpose of this rule is to act as a deterrent against players abusing umpires and line judges. Employers also have a similar obligation to protect their employees in that they owe them a duty of care, including to provide them with a tolerable working environment. The case of Horkulak v Cantor Fitzgerald made it clear that an employee could successfully claim constructive dismissal if their working environment had become intolerable. In the Horkulak case the claimant resigned due to the behaviour of his line manager who constantly used foul and abusive language but the principles of the Horkulak case could similarily apply if a third party, such as a customer, was behaving in an intimidatory or offensive way towards the employee and the employer took no steps to prevent it.

There is also specific legislation within the Equality Act to protect employees from 3^rd party harassment if it is on the grounds of one of the “protected characteristics” (e.g. race, sex, disability etc.) If a third party harasses an employees in such a way (e.g. racially abuses them) and the employer is aware of this harassment but fails to take steps to prevent further harassment then if there are a further two instances of harassment then the employee can make a claim against the employer.

Employers should therefore follow the example of the ATP and ensure that their employees are protected from the unacceptable actions of third parties as if they do not do so they could leave themselves open to claims of constructive dismissal or harassment - particularly if a rather irate tennis player comes onto the premises.  

Some happier tennis players!

Time off for Euro 2012 is not an issue

Euro 2012 starts on Friday. Two years ago, before the last world cup, articles were being written about whether employers should allow employees time off to watch the games (legally there is no obligation to do this). England's first match is against France and is scheduled to kick off at 1700 hours BST on Monday 11 June. This means that the working day may be eaten into by employees who want to slope off early to watch the match. So why no articles on this topic? I would suggest that it is probably due to one of the following reasons:-

1) The England v France match is the only game that England will play that will take place during normal working hours so it is not worth worrying about.

2) 1700 hours is normally at the end of the working day so it is probably not that much of an issue.

3) Nobody seems to expect England to do very well in this tournament so there are potentially very few people who care.

Alternatively it may be the case that these types of articles are being used for the Olympics!