This months employment update covers:
1.Employment Tribunal quarterly statistics
2.Equality Act 2010
3.’Bumping’
4.Marcura Equities v Nisomar Ventures Ltd
5.GDPR
On 8 March 2018, the Ministry of Justice published the provisional Tribunal quarterly statistics for the period October to December 2017. During this quarter:
- The number of single claims and disposals received by employment tribunals (ETs) rose by 90% and 21% against the same period in 2016, resulting in a 66% increase in the outstanding caseload;
- The number of multiple claims received by ETs increased by 467%, with disposals decreasing by 55% compared to the same quarter in 2016. (This increase can be attributed to one large multiple claim against an airline issued in the last quarter of 2017.) The average time until disposal was 150 weeks for multiple claims, a decrease of 111 weeks when compared to the same quarter in 2016;
- ETs disposed of 7,775 claims during the quarter, down 30% on the same period in 2016. 31% of claims disposed of were settled via ACAS, 21% were withdrawn and 8% were successful at hearing. The most common complaint disposed of was for unauthorised deductions from wages;
- ETs received 4,800 applications under the employment tribunal fee refund scheme in the period October to December 2017 amounting to £2.76 million refunded.
You can view the full report via the following link
What do I need to take away from this?: ET claims are on the up since the July 2017 scrappage of ET fees. With no fee regime in place currently the cost barrier has, to a large extent (legal fees still required if legal advice is obtained on pursuing the claim), been removed from pursuing claims and employers now face an increased risk of facing ET claims. Our recommendation to employers is to seek legal advice early so as to understand options available and the risks associated in order to avoid the costs of proceedings as far as possible.
As we already know, cancer is a ‘deemed’ disability under Schedule 1, paragraph 6 Equality Act 2010 which states that “cancer, HIV infection and multiple sclerosis are each a disability”. This means that there is no need for a Claimant to meet the definition of disability under section 6(1) of the Equality Act 2010 by demonstrating an impairment with a substantial and long-term adverse effect on his/ her ability to carry out normal day-to-day activities.
In the case of Lofty v Harris before the Employment Appeal Tribunal (EAT), the Claimant suffered from a pre-cancerous lesion which could have resulted in skin cancer. She had successful surgical treatment to remove cancer cells before they had spread.
The Employment Tribunal (ET) had earlier found that because the Claimant was successfully treated for a ‘pre-cancerous condition’, she had never had cancer. The EAT determined that, in line with the Guidance, the relevant point of determination is the point of diagnosis and not a point after treatment and upheld the appeal.
The EAT held that “When determining whether a condition satisfies the deeming provision of paragraph 6, there is no justification for the introduction of distinctions between different cancers or for a tribunal to disregard cancerous conditions because they have not reached a particular stage.”
What do I need to take away from this?: Employers should be aware that any diagnosed pre- cancer conditions are deemed disabilities and automatically provide the sufferer with protection under the Equality Act 2010. To minimise the risk of possible disability discrimination claims employers should take expert medical and legal advice in relation to employees or workers suffering from these conditions in order to identify and make reasonable adjustments.
Bumping occurs where an employee at risk of redundancy is ‘bumped’ into another (usually more junior) role as a consequence of his/ her (usually more senior) role being made redundant, resulting in an employee who performs that other role being dismissed by reason of redundancy instead.
In the case of Mirab v Mentor Graphics (UK) Ltd, the Employment Tribunal (ET) found that the employer had given enough consideration to looking for redeployment and therefore had not been required to consider ‘bumping’ any other employees, especially as the Claimant had not raised the possibility of bumping as part of consultation.
The EAT held that an employer must consider whether bumping is suitable in the case in line with its obligations under ‘range of reasonable responses test’ which all employers must satisfy to show a fair redundancy dismissal. A Tribunal is to make this assessment based on the particular facts of a case. It held that an employer has this obligation irrespective of whether an employee raises a bumping argument or not.
What do I need to take away from this?: Bumping is often a forgotten aspect of carrying out a fair redundancy procedure and this case reminds us all that whilst not applicable in all redundancy cases, an employer should turn their mind to establishing if it is possible. On a practical level, clear documented evidence of the thought processes of the employer including consideration of the possibility of bumping should be made as evidence for any later ET proceedings.
According to the High Court in the case of Marcura Equities v Nisomar Ventures Ltd – Yes, in principle, they are!
The Claimants alleged that the Defendants procured and used private information from one of the Claimant’s former employees without consent. Consequently, the Claimant sought injunctive relief to protect its private information.
The Defendant admitted possession of only some of the information but gave undertakings pending trial. It made a written settlement offer to pay a quarter of the Claimant’s then £108,000 costs, which was rejected. The parties settled on terms including a full injunction and £35,000 damages but left the question of costs, which had risen to a whopping £450,000 for the High Court to decide upon.
The High Court considered the following when determining costs in the matter:
- Where it could ascertain which party had in effect succeeded and it was not disproportionate to do so, the Court could determine the issue of costs despite all other issues being settled;
- The Defendant’s offer to discharge a fraction of the Claimant’s costs, even if proposing the undertakings continue, was insufficient to deny the Claimant even part of its costs;
- The fact that the costs vastly exceeded damages obtained did not prevent an award being made given the “important delivery up and other injunctive relief that has been obtained”
In light of all of the above, the Court considered it proportionate that the Claimants recover the whole of their £450,000 costs (subject to assessment).
What do I need to take away from this?: Whilst costs do not “follow in the case” in Employment Tribunal proceedings, i.e. are not naturally awarded to a successful party, this case highlights that when dealing with restrictive covenant/ confidentiality breaches in the Civil Courts, a court can award costs even when they are significant in comparison with the monetary aspect of a settlement and particularly where damages are but one of multiple remedies required. Employers should be careful not to undertake or facilitate the breach of a new employee’s restrictions with a former employee otherwise they could find themselves subject to injunction proceedings to stop the breach and significant awards in damages and costs. Restrictions in candidates contracts of employment should therefore be carefully examined as part of the recruitment process.
To help your organisation prepare for the GDPR implementation date of 25 May 2018, download our GDPR Whitepaper here
If you would like further information on any of the above or advice on how they apply to your business then please contact Tom Evans, Associate, Employment & HR Team.
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