Cases:

(1) Settlement Negotiations:

Under s111A of the Employment Rights Act 1996, evidence of pre-termination negotiations is inadmissible at Tribunal in claims of unfair dismissal. In Basra v BJSS a dispute arose as to whether or not the Claimant had resigned or was subsequently dismissed at a later date – which would have then required the ET to determine whether said dismissal was fair. The original Tribunal stated it would ignore any conversations which came under s111A ERA. That resulted in it finding that the Claimant had resigned on the earlier date and as such fairness of dismissal was not adjudicated upon. On appeal, however, the EAT found that there was a clear dispute about the termination date, and the ET was wrong to disregard the without prejudice correspondence before it decided what the termination date was. If it had established that the termination date was the later date, then an email from the Claimant that the ET used to find he had resigned earlier may also be included within s111A. The EAT found that the ET should have accepted submissions from the parties on s111A and as such the appeal was successful and was remitted to the same ET.

(2) Rest Breaks:

The EAT in Crawford v Network Rail Infrastructure Ltd found that an employer was not entitled to meet the 20 minute rest break requirement for workers under the Working Time Regulations by aggregating breaks of a shorter duration. Regulation 12 of the Working Time Regulations 1998 provides for a rest break of not less than 20 minutes if a worker’s daily working time is more than 6 hours. As part of his job Mr Crawford, whilst not always busy, was required continuously to monitor and to be on call to do things when trains were going through. He could in practice, if he wished, take short 5 minute breaks from his workstation which would amount together to well in excess of 20 minutes over the shift as a whole, but on day shifts it was not possible to have a continuous 20 minute break. The employer argued it could aggregate these shorter periods in order to meet the 20 minute break requirement. Indeed, it argued, this was more beneficial, from a health and safety point of view. The EAT disagreed confirming there should be a proper uninterrupted break from work during a rest period and, so far as possible, that break should last at least 20 minutes. Otherwise it would not be an equivalent period of compensatory rest.

(3) Effective Date of Termination:

In the case of Cosmeceuticals Ltd v Parkin the EAT held that the Effective Date of Termination (EDT) was a matter for the ET and not something that could simply be agreed between the parties. The ET had found that the Claimant’s EDT was 23 October 2015 – a date which was agreed upon by the parties. In addition, however, the ET also found that the Respondent had informed the Claimant that her contract was at an end earlier, on 1 September 2015 when she returned from a sabbatical. The Respondent appealed the ET’s finding in relation to the EDT as the earlier date would make the claim for unfair dismissal out of time. In allowing the appeal the EAT confirmed that the EDT is a “statutory concept”, and the parties cannot simply agree an EDT. The ET found that the employee had been told her contract of employment was ended on 1 September 2015, which resulted in summary dismissal and as such the ET had erred in holding that the dismissal was not effective until 23 October 2015.

(4) Discrimination – continuing acts:

The EAT in Hale v Brighton & Sussex University Hospitals HNS Trust held that starting a disciplinary can be the start of conduct extending over a period in accordance with section 123 of the Equality Act 2010. Under section 123, where the conduct in question extends over a period, a Claimant’s time limit to submit proceedings does not start until the end of said period. In this case, the Claimant was a surgeon. Four juniors raised grievances around racially offensive remarks and harassment. The Trust commenced disciplinary proceedings which culminated in dismissal. The Claimant brought claims including race discrimination. The ET sought to distinguish a continuing act from a one-off act with continuing consequences, and held that a claim dating from instigation of the disciplinary was a one-off act and was out of time. The EAT disagreed, finding that the ET had applied an overly technical approach. The Respondent had created a state of affairs which commenced with instigation of the disciplinary process and continued until the disciplinary process concluded. The EAT found that it would impose an unnecessary burden on claimants if they had to lodge a claim at every stage of a process when they can rely on the conduct extending over a period provision.

Other news:

Pensions:

In the Regulator’s first criminal prosecution of an employer for failing to comply with the auto-enrolment regulations, a bus company, Stotts Tours (Oldham), and its MD, Mr. Alan Stott, have recently been fined more than £60,000 after they admitted trying to avoid providing their employees with a workplace pension. The company deliberately failed to put 36 staff members who met the eligibility criteria into a pension scheme and to pay minimum employer pension contributions, and pleaded guilty to a total of 16 offences in November 2017.

Tribunal Compensation:

The Employment Rights (increase of Limits) Order 2018 comes into force on 6 April 2018, and contains the normal annual increases to maximum and minimum tribunal awards.

The key increases are:-

(i) maximum week’s pay (for redundancy payments and the unfair dismissal basic award): £508 (currently

£489); and

(ii) maximum compensatory award for unfair dismissal: £83,682 (currently £80,541).

National Minimum Wage (“NMW”):

The National Minimum Wage (Amendment) Regulations 2018 provides for the annual increase to the minimum wage and national living wage with effect from 1 April 2018 as follows:-

25+              £7.83             (previously £7.50)

21-24           £7.38             (previously £7.05)

18-20           £5.90             (previously £5.60)

<18              £4.20              (previously £4.05)

The accommodation offset will be £7.00 per day (previously £6.40).