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Employers ‘unaware’ tribunal verdicts will be made public in 2017

January 19, 2017 at 9:00 AM

Few businesses are ready for a major change in the reporting of employment tribunal verdicts when members of the public will be able to search online for tribunal judgments.

At present, judgments are only available by request or in person from HM Courts and Tribunals Service. It is anticipated only new verdicts will be published. The service will be free to users.

Computer Keyboard

The new regime will increase transparency and highlighting malpractice. The senior president of tribunals has said the online access is part of the principle of “open justice”.

However, employers should be wary of the risk of reputational damage from verdicts being made available. There are no real advantages to employers – as there is little public interest when they win.

Over time, online judgments might give potential claimants the confidence to start proceedings should they spot patterns of previous litigation. Some employers might be tempted to search the tribunal database as part of the recruitment process, raising fears of unofficial “blacklisting” of previous litigants.

Claimants might feel rewarded when they see their day in court publicised, and the risk of publicity may encourage some employers to settle where cases are finely balanced.

Generally, employers shouldn’t be at the tribunal if they think they are going to lose. Nearly all hearings are public - so dirty washing has always been visible to a degree. This just makes it easier for more people to find information if they have the time to trawl through.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Double Jeopardy – punished twice for the same misconduct

January 17, 2017 at 9:00 AM

Can an employer re-investigate the same allegations against the same employee?

Common sense probably tells you that there is something inherently wrong with this idea. However, in some circumstances, a re-investigation and a second sanction can be fair. This happened to two social workers involved in the Baby P.

Employment Appeal Tribunal

The case of Christou and anor v London Borough of Haringey [2013] EWCA Civ 178 was brought by the two social workers involved in the Baby P case. They were investigated following his death, resulting in a written warning each. A new director was appointed and after a report and further investigation of their roles, they were both dismissed. They brought claims for unfair dismissal with part of their claim being that they had already been investigated, and it was unfair that a second investigation into the same allegations was undertaken.

The Tribunal dismissed their claims. Their appeal to the EAT was also dismissed – the disciplinary procedure did not constitute an adjudication between the parties.

And then the Court of Appeal...

The two main grounds of appeal were res judicata (double jeopardy) – the matter had already been dealt with at a disciplinary hearing which should bar the second disciplinary process and that it was an abuse of process to subject the social workers to a second set of procedures.

The Court of Appeal dismissed the appeals: the first investigation had been an informal one, and not conducted under the full disciplinary procedure. Further, the first investigation had been inadequate and more allegations had been brought to light after its conclusion, such that the two investigations focused on different matters.

The court also noted that there was no legal barrier to investigating the same issue twice and doing so didn’t necessarily make a dismissal unfair. The decision to re-investigate simply had to be a fair decision in light of all the circumstances.

It comes down to the same familiar principles: was the decision to re-investigate a fair one? If it was, then an employer can indeed re-investigate an employee.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Top 10 - Excuses Used to Dodge The Minimum Wage

January 13, 2017 at 10:30 AM

Despite the National Minimum Wage being law since April 1999, some employers continue to flout the law. HMRC investigators have made public some of the reasons unscrupulous employers gave when quizzed on why they did not pay the legal minimum.

Pay Packet

HMRC's List of Employer Excuses

The list of excuses comes just months after the Government was criticised for the low number of prosecutions for not paying the wage. The maximum penalty is £20,000 per worker.

 •  The employee wasn’t a good worker so I didn’t think they deserved to be paid the National Minimum Wage.

 •  It’s part of UK culture not to pay young workers for the first three months as they have to prove their “worth” first.

 •  I thought it was OK to pay foreign workers below the National Minimum Wage as they aren’t British and therefore don’t have the right to be paid it.

 •  She doesn’t deserve the National Minimum Wage because she only makes the teas and sweeps the floors.

 •  I’ve got an agreement with my workers that I won’t pay them the National Minimum Wage; they understand and they even signed a contract to this effect.

 •  My accountant and I speak a different language – he doesn’t understand me and that’s why he doesn’t pay my workers the correct wages.

 •  My workers like to think of themselves as being self-employed and the National Minimum Wage doesn’t apply to people who work for themselves.

 •  My workers are often just on standby when there are no customers in the shop; I only pay them for when they’re actually serving someone.

 •  My employee is still learning so they aren’t entitled to the National Minimum Wage.

 •  The National Minimum Wage doesn’t apply to my business.

The current Minimum Wage rates are:

Age Range Minimum Wage (Current) Minimum Wage (Effective from 1st April 2017)
25 years old and over £7.20 per hour £7.50 per hour
21 - 24 years old £6.95 per hour £7.05 per hour
18 - 20 years old £5.55 per hour £5.60 per hour
16 - 17 years old £4.00 per hour £4.05 per hour
Apprentices under the age of 19 or 19 years old and in the first year of their apprenticeship £3.40 per hour £3.50 per hour


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Should UK employers consider giving workers a ‘right to disconnect’?

January 11, 2017 at 9:00 AM

Some have argued that limiting an employee's access to emails outside of work hours could boost both wellbeing and productivity.

This is exactly what has happened in France where legislation has been introduced which has given workers a legal right to ignore work-related emails outside of their normal working hours. The legislation only affects businesses with more than 50 employees with the aim of encouraging staff to take a proper break and escape the ‘always on’ culture.

Remote Working / Remote Access

Worker stress

Employers need to take the health and wellbeing of workers seriously. There has been a significant increase in the proportion of tribunal claims citing work-related stress as a contributory factor. Employers should be concerned over the impact excessive job pressure could have on someone’s productivity.

There are likely to be many causes: smartphones and remote access facilities have contributed to a culture where employers and customers assume that employees are available 24 hours a day.

A Harris Poll of 2,000 UK employees conducted for jobs review site Glassdoor found that over half of all participants, admitted to doing some work while on holiday. Of those employees who worked on holiday, one in ten said they were worried about getting behind with their work; a similar number said were hoping for a pay rise; whilst one in twenty were concerned they would lose their job.

Working Time Regulations 1998

The Working Time Regulations 1998 are intended to protect the health and safety of workers by making sure they take adequate rest. The equivalent French legislation specifies that the default working week should not extend beyond 35 hours (in the UK it is 48 hours with most employers taking advantage of being able to ask their staff to opt out and work longer).

Employers should ensure their workers aren’t over-using digital devices during their downtime or holidays. While they may not want to go as far as enforcing a blanket ban, business should do what they can to avoid issuing instructions that require an out-of-hours response. Similarly, they should be mindful not to send instructions to employees after the working day ends, or over the weekend.

Blanket ban

For many businesses, banning workers from accessing their inboxes or communicating with clients out of hours is simply not practical or realistic. However, employers could introduce procedures that encourage employees to take a proper break during their annual leave.

Even though legislation is unlikely to be introduced here, employers should not ignore the issues that can arise from out of hours use of digital devices and should take steps to encourage all employees to adopt a healthy lifestyle and promote work-life balance.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

Sexual Harassment in the workplace – what employers can do better

January 6, 2017 at 12:00 PM

Allegations of sexual harassment are often one of the most widely reported cases when they come before an Employment Tribunal – and can be one of the most damaging. What should businesses do to try and prevent such accusations in the first place and stop them hitting the headlines?

When an employee brings a claim against a colleague for harassment, they will usually add the employer to the claim on the grounds that the employer can be liable for the actions of their employees.

Office Board Room

However, an employer will have a defence if they can show that they have taken all reasonable steps to prevent the harassment.

Five things employers can often do better.

Have a clear policy

Employers need to make it clear that sexual harassment in the workplace will not be tolerated and if substantiated will lead to dismissal for gross misconduct.

While employees should not need this spelling out, having a policy – and making all employees aware of it makes your position crystal clear. It also means you can point to the policy should you face a claim and show the employee was aware the behaviour would not be tolerated and the consequences of misconduct.

Any policy should make clear that use of the word ‘banter’ to excuse sexual harassment in the workplace will not be tolerated.

Give training to all employees

It is not enough to simply have a handbook or a policy. Employers must have taken positive steps to prevent the harassment. Training needs to focus on how sexual harassment is unacceptable in the workplace. Make sure a record is kept of who attended the training.

Be honest

An employer should be prepared to admit they believe the victim’s allegation. Businesses will often be reluctant to thinking that it will get them into trouble. If there is clear evidence that sexual harassment has taken place then it is wise to admit it and deal with it. Otherwise, the employer is handing the victim an opportunity to argue the employer was behaving unreasonably, resign and bring a constructive dismissal claim. From experience, generally the victim is satisfied to be believed and that action is being taken without involving the employer in a Tribunal claim.

Act consistently – regardless of position

If action is not taken against a senior director found to have committed sexual harassment but a more junior employee is dismissed, then this could be an unfair dismissal.

Do not make assumptions based on the gender of the complainant

Men can be harassed by women, or harassment can be by someone of the same sex. All such allegations should be treated in exactly the same way.

Experience in Tribunal shows that an employer will be more inclined to believe a woman in any allegation of sexual harassment against a man. An employer must treat any allegation seriously and sensitively. Harassment commonly happens without an independent witness so it will often be one’s word against the other.

However, if a woman’s allegation is believed without supporting evidence then this may lead to a claim for sex discrimination by the man, who will say that the employer has made stereotypical assumptions that men will always be the harassers.


About the Author

Philip McCabe Photo

Philip McCabe is an experienced employment lawyer who has been advising businesses and individuals on a wide range of employment and HR issues since 2000.

He is a member of the Employment Lawyers Association, Industrial Law Society, and Law Society. He regularly writes for national publications on employment law issues and is a regular columnist in the Derbyshire Times.

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