The Government has passed the Employment Rights (Miscellaneous Amendments) Regulations 2019, which introduce several proposals of the Good Work Plan, which I considered in the December 2018 update.
This legislation includes:
- An increase in the maximum level of penalty for an aggravated breach of employment law by an employer from £5,000 to £20,000. A breach by an employer is more likely to be aggravated if the breach was deliberate or committed with malice and/or the employer is an organisation with a dedicated human resources team and/or the employer had/has repeatedly breached the employment right concerned. The minimum fine remains £100. This comes into force in relation to breaches taking place after 6 April 2019.
- From 6 April 2020, all workers, and not just employees, will have the right to a written statement of particulars of employment and to bring a claim if the employer fails to provide this. This is expected also to be a right from day 1 of the appointment.
- The percentage of employees required to make a valid request for an agreement under the Information and Consultation Regulations will from 6 April 2020 be reduced from 10% to 2%, subject still to the existing requirement of a minimum of 15 employees.
The Employment Tribunals in England and Wales and Scotland have announced an increase to the “Vento” bands for injury to feelings awards in discrimination and whistleblowing claims.
In respect of claims presented on or after 6 April 2019, the Vento bands which are the guidance for such awards will increase as follows:
- Lower band: £900 – £8,800
- Middle band: £8,800 – £26,300
- Upper band: £26,300 – £44,000
Shelbourne v Cancer Research UK
In a High Court case, the court agreed with the County Court, that an employer was not negligent in relation to an injury caused to an employee at a work Christmas party and was not vicariously liable for the actions of the person who caused the injury. A fellow partygoer had attempted to lift the claimant on the dancefloor, and dropped her, resulting in a serious back injury to the claimant. The court considered the nature of the occasion and the preparations of the employer, which included a risk assessment, and found they had complied with their duty of care. It seemed significant too that the employer did not have a history of troublesome social occasions. Also, the employer was not liable for the actions of the claimant’s colleague because his work for the employer, as a researcher, was not sufficiently connected to what happened at the party.
Radia v Jefferies International Limited
The Employment Appeals Tribunal (EAT) has held that a firm regulated by the Financial Conduct Authority (FCA) was entitled to dismiss an equity research analyst for not being a “fit and proper person” under the approved persons regime following criticism from an employment tribunal that he lacked credibility as a witness. This is one of very few EAT judgments which considers the meaning of “fit and proper person” in a financial services context. The approved persons regime under solo-regulated firms will be phased out in December 2019 when these firms become subject to the Senior Managers and Certification regime, but the same rules in relation to “fit and property persons” remains intact under this regime.
Mayor and Burgesses of the London Borough of Lambeth v Agoreyo
The Court of Appeal has found that an employer had reasonable and proper cause to suspend a teacher, which was to allow an investigation to be conducted fairly. The court found the suspension did not constitute a repudiatory breach of contract. The court also suggested that considering whether suspension was a “neutral act” is not a helpful or relevant question. The crucial question is whether the suspension amounts to a breach of the implied term of trust and confidence. This is not a question of law but is a highly fact-specific question which involves considering if there is proper cause for suspension. Employers are likely to be conscious of the fact that, even where they stress (as provided by the Acas Code) that suspension is not a disciplinary action, it may not feel like that to the employee being suspended. As a result, employers may consider suspension as a last resort and ensure that the purpose of suspension is made clear to their workforce.
Grange v Abellio London Limited
The EAT has found that personal injury compensation can be awarded in cases where an employer has failed to provide rest breaks, of 20 minutes per 6 hours of working time, in accordance with the Working Time Regulations 1998. This is because the regulations state that the amount of compensation that can be awarded in such cases is such as the tribunal considers just and equitable in all the circumstances having regard to the employer’s default in refusing to permit the worker to exercise the right and any loss sustained by the worker which is attributable to the matters complained of. The EAT confirmed that tribunals should be empowered to deal with low value cases on a common-sense basis, without the need for medical evidence. In this case, Mr Grange had given evidence about the effect on his health of the absence of rest breaks. The EAT held there was therefore no basis to interfere with the award made by the Tribunal of £750.
Braine and others v The National Gallery
An employment tribunal has held that art experts who worked as educators for the National Gallery were workers when undertaking individual assignments. Between assignments they were neither employees nor workers. The Gallery’s argument that they were independent contractors in business on their account was dismissed as implausible by the Tribunal. As workers, the experts have certain rights, including that they would accrue paid holiday during assignments. The educators were however not employees as:
1) There was no penalty for declining work and the educators made themselves available for work that suited their expertise and personal commitments.
2) The Gallery did not acknowledge any obligation to provide work and did not go beyond assurances that it would offer as much work as it could and that it would seek to distribute assignments equitably.
3) The educators and the Gallery could cancel assignments at any stage and for any reason (although this rarely happened).
The government has published draft regulations which resurrect plans to introduce a £95,000 cap on exit payments, along with relevant draft guidance. These documents are subject to consultation, which closes on 3 July 2019.