Employment Update 📰
Employment Tribunal Reform
The backlog in the Employment Tribunal system continues to cause headaches for parties and lawyers alike. In an attempt to reform the Employment Tribunal service to make the process simpler and easier, changes are being made to accommodate a digital system. This will remove the need for paper-based processes. The following changes are planned:
- Submission of ET1 claims and ET3 responses via online digital portals;
- Submissions of applications and correspondence online;
- Digitally stored documentation accessible to judges, representatives, litigants in person and Acas.
Judges will be able to manage digital case files, and review and consider applications online.
The new system is currently being tested in Bristol, Glasgow, Nottingham and Leeds tribunal regions, with a roll out to professional representatives shortly, and the service being phased across England and Wales from Autumn 2023.
Acas Mental Health Guidance
Acas have released new Mental Health Guidance for employers. The intention is to encourage employers to treat mental illness with the same seriousness as physical illness.
The new guidance is available to assist employers to put in place and implement reasonable adjustments for employees who require mental health support. The aim is that, by implementing appropriate support, employers will help employees to stay in work whilst recovering from or managing their mental health condition, as well as to help employees work safely and productively.
The advice covers the following areas:
- What reasonable adjustments for mental health are;
- Examples of reasonable adjustments for mental health;
- Requesting reasonable adjustments for mental health;
- Responding to reasonable adjustments for mental health requests;
- Managing employees with reasonable adjustments for mental health; and
- Reviewing policies with mental health in mind.
The guidance can be accessed here.
Ethnicity Pay Reporting
From October 2018 to January 2019, the government engaged in a consultation on proposals for mandatory ethnicity pay reporting to mirror gender pay gap reporting requirements. They have not introduced mandatory ethnicity pay reporting but have issued guidance for employers on a voluntary basis.
The guidance explains how to measure, report on and address any ethnicity pay differences within the workplace, in particular to:
- collect employees’ ethnicity data;
- gather the required payroll data for ethnicity pay calculations;
- make ethnicity pay calculations;
- analyse and understand the results of these calculations; and
- develop an action plan to address any identified disparities
Whilst the guidance is similar to that of the equal pay guidance, ethnicity has an extra layer of complexity as it is likely to involve more than 2 comparison groups, depending on how ethnically diverse the workforce is, and will force employers to scrutinise and explore the underlying causes for any pay disparities. The idea is to encourage employers to adopt a consistent approach to measuring pay differences.
The guidance can be read here.
Case Law Update 📢
Rolec (Electrical and Mechanical Services) Ltd v Georgiou EAT
The issue in this case involved the potential bias of the employment judge within the Tribunal proceedings. On appeal, it was concluded that the employment judge’s interventions during a hearing did result in apparent bias.
The apparent bias test is met when the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. It was found that the test for bias had been met on three occasions in this case:
- an uncalled for and pejorative remark about the Respondent’s solicitor’s experience;
- suggesting that a witness was in contempt of court when there was an issue over the disclosure of meeting notes; and
- suggesting that the Respondent’s position on mitigation was hopeless before it had given evidence.
Sainsbury’s Supermarkets Limited v Clark & Others
The Sainsbury’s equal pay claim case has been ongoing since 2015 and recently returned to the Court of Appeal for the fourth time. This time the question for determination was, once a tribunal has issued a claim form, is it open to a Respondent to argue that the claim form should have been rejected by the tribunal under Rule 12 of the Employment Tribunal Rules of Procedure?
Rule 12 requires the staff of the Employment Tribunal office to refer a claim form to an Employment Judge if they consider that the claim or part of it is one which the tribunal has no jurisdiction to hear or is in a form which cannot sensibly be responded to or is otherwise an abuse of process.
Sainsbury’s Appeal was that the Employment Tribunal should have rejected large numbers of multiple equal pay claims on the grounds that the Acas early conciliation reference number was missing from the ET1 claim form.
The Judges decided that “While a claim form must contain the name and address of each claimant and each respondent, it is sufficient for it to contain the number of an EC certificate on which the name of one of the prospective claimants appeared”.
Boydell v NZP Pharma Limited [2023] EWCA Civ 373
This case centred around post-termination covenants and their enforceability. Restrictive covenants for employees are contractual and limit an employee’s actions after termination. Generally, 12 month non-compete clauses will not be enforceable and are viewed unfavourably by the courts.
However, this case demonstrated that employers seeking an injunction against an ex-employee’s ability to work for a competing business may be successful. The employee in this case was a senior employee in a highly specialised industry. For these reasons, the judge granted an interim injunction enforcing the non-compete covenant. In do so, the judge also severed parts of the clause removing reference of group companies.
The Court of Appeal were invited to find that the relevant covenant was too widely drafted and incapable of severance. They disagreed. They were also invited to find that, even after removal of areas of the covenant that were “fantastical”, the covenant would be too widely drafted to be enforceable. They disagreed. The covenant could be severed and was enforceable.
B.L.I.S.S Residential Care Ltd v Fellows EAT
During the pandemic, the Claimant instructed a newly qualified solicitor to deal with her unfair dismissal claim. The solicitor was working from home, had limited supervision, and had not previously issued a tribunal claim
The solicitor initially submitted a claim by post and in good time, but to the wrong tribunal office. The solicitor was invited to resubmit the claim. Instead of reissuing the claim online, the solicitor proceeded to resubmit the claim by post, after expiry of the primary limitation period.
The EAT found there were fundamental errors on the part of the solicitor when dealing with the claim. The claim could have been resubmitted within the time limit. Any unreasonable ignorance or mistake on the part of the solicitor would be attributable to the employee: The claim was dismissed (and no doubt the solicitor’s insurers received a ‘loss of chance’ claim from the employee soon after).
Recent Employment Tribunal success!
We have recently had a fantastic win in the Employment Tribunal when a contractor who had been described as ‘self-employed’ was held to be an employee. As a result, our client will be receiving a significant compensation package. In next month’s Employment Update, we will be providing a round-up of employment status issues and recent caselaw to highlight this tricky and fluid area of employment law.
Thank you to our contributors: Phil Cookson, Desley Sherwin, Laura Hill and George Miller.