This month's bulletin looks at some recent case law and news that will be of interest to employers and HR professionals.
News 📰
Increase in Tribunal Limits
These come into effect from 6 April 2023. The main increases are:
- The maximum compensatory award will increase to £105,707 (previously £93,878).
- A ‘week’s pay’ (for basic award and redundancy payments) will increase to £643 (previously £571). This will mean that the maximum statutory redundancy pay entitlement will increase from £17,130 to £19,290*
(*for people who have worked 20 years or more aged over 41, calculated as [20 x 1.5 x £643])
NLW/NMW increases
There is also set to be the largest increase of National Living Wage and national minimum wage rates. The increases in April 2023 are (per hour):
- 23 year-olds and over from £9.50 to £10.42
- 21 and 22 year-olds from £9.18 to £10.18
- 18 to 20 year-olds from £6.83 to £7.49
- 16 and 17 year-olds and apprentices from £4.81 to £5.28
Family related pay will increase to £172.48 per week. This includes statutory maternity, paternity, adoption and shared parental leave.
Statutory sick pay will increase from £99.35 to £109.40 per week.
Gender pay gap
Employers with 250 or more employees on the *snapshot date must report their gender pay gap data.
The deadline for most public sector employers is 30 March 2023, and for private sector employers, the deadline is 4 April 2023.
Employers must publish their gender pay gap information on their own website and must retain the information online for three years
Government guidance has been published with the intention of making reporting simpler and clearer. It can be found here.
(*The snapshot date is 31 March 2022 or 5 April 2022 respectively)
Employment Bill
Whilst the Employment Bill looks less and less likely to form part of the 2023 employment law changes, the original proposals may still be subject to separate legislation by way of private members’ bills.
Below is a non-exhaustive list of the subject matter of bills currently at their second reading or reporting stage in the House of Lords:
- Zero-hour contracts and variable hours workers will have the right to request a more predictable working pattern.
- Introducing one week’s unpaid leave for carers.
- Employers to pass on 100% of qualifying tips, gratuities and service charges to their staff.
- Change in the regime for requesting flexible working in the employee’s favour.
- Placing a duty on employers to protect employees from sexual harassment by third parties, and to make employers liable for such harassment.
Menopause
The government has confirmed that it does not intend to amend the Equality Act 2020 to add the menopause as a ‘protected characteristic’. Employers are nonetheless encouraged to be aware of the impact of menopause symptoms on staff, and on their ability to perform as usual in the workplace. Employers are encouraged (but not obliged) to introduce workplace menopause policies, intended to avoid or reduce menopause-related performance or absence issues. Employment tribunal caselaw has confirmed that adverse treatment of staff experiencing the menopause may give rise to claims of sex discrimination.
Spring Budget 2023 🏦
In the Budget earlier this month, the government announced the introduction of ‘Returnerships’ – a new programme to encourage upskilling and retraining of people aged over-50 who are not working, to try to get them back into the workplace after a career break often linked to childcare or other caring responsibilities, or health, relocation or other reasons.
The programme gives suggestions for adapting recruitment practices, including enhancing and promoting flexible working policies, avoiding unnecessary requirements that might discourage returners, and expressly advertising vacancies as being suitable for returners.
The government’s returner toolkit, with tips for returning employees, can be accessed here.
Case Law Update 📢
Minnoch and Others v Interservefm Ltd and Others 2023 (Unless Order)
Mr Minnoch was one of 37 claimants who brought claims that the employer had withheld pay for days on which they were on strike in June and July 2019, and the employer had failed to identify those deductions in their payslips. During the proceedings, the claimants failed to disclose all relevant documents or provide a complete schedule of loss. Their efforts were described as “inadequate and appeared to have been cobbled together at the last minute”. These actions resulted in an unless order being made against them that unless certain conditions were met, their claims would be struck out without further order. The claimants failed to comply, and their claims were indeed struck out.
The claimants appealed to the EAT on three grounds: First, that the employment judge had failed to consider whether there had been material non-compliance. Second, there had been a failure to adopt a qualitative test with a facilitative approach. Third, irrelevant factors had been taken into account.
The EAT allowed the appeal, finding that the employment judge failed to apply the relevant law or consider whether the material was non-compliant. Within the particular claim circumstances, the need to have highly polished schedules and documentation was unnecessary. The employment judge’s criticisms of the documents and spreadsheets were misplaced due to that judge taking a punitive approach rather than a facilitative one.
Miss Palihakkara v The English Sport Council 2023 (Appeal/Extension of Time)
Miss Palihakkara filed a claim in the employment tribunal for direct race discrimination and victimisation on 7 April 2018. On 26 February 2019, she applied for an extension of time to comply with an unless order. The extension of time was refused on 1 April 2019; the judgment was sent to the parties on 8 April 2019.
The time to appeal such a refusal should have been lodged within 42 days from the date that the employment tribunal written decision was sent out i.e., by 20 May 2019. The claimant lodged her appeal on 25 March 2021, some 675 days late! The EAT was invited to exercise its discretion to extend time.
The EAT considered the factual reason for the default, being that the claimant was suffering mental health difficulties. The EAT was not satisfied that this explained or excused the failure to instigate her appeal in time. Prior to the appeal hearing, the claimant had made multiple other applications. She continued to correspond extensively with the employment tribunal. The claimant had been able to file an appeal in time on another procedural matter, and the main proceedings had already progressed to trial. Even if an extension were granted, it would have no effect on the decision already reached. The appeal was refused.
HOT OFF THE PRESS! 🎇
Vento band updates
The Vento guidelines have been updated as follows for claims presented at the Tribunal on or after 6 April 2023:
- lower band is increased to £11,200 for less serious cases;
- middle band is increased to between £11,200 and £33,700, and
- upper band is increased to between £33,700 to £56,200 for the most serious cases.
An award exceeding £56,200 may be made in the most exceptional cases.
This means that ‘the middle of the middle band’ will now be £22450.
Thank you to our contributors Phil Cookson, Desley Sherwin, Laura Hill and George Miller.