Founded in 2002, PJH Law is a Stamford based Employment Solicitors that represents employees and employers both locally and nationally. We advise on a variety of issues including Employment Tribunals, disciplinary procedures, unfair and constructive dismissals, discrimination issues, settlement agreements, whistle-blowing, redundancy and shareholder agreements.
This week we are looking at failure to give written terms and conditions. Section 1 of the Employment Rights Act 1996 states that employees should be given terms of employment within two months of their employment commencing.
If an employer fails to provide terms, then the employee can bring a claim under Section 38 Employment Act 2002. This claim will only succeed if the employee is successful in another claim, such as unfair dismissal, and, the contract had not been issued before the claim was commenced.
The award for such claims is either two or four weeks pay, depending on the severity of the failure to provide terms. If the contract was subsequently issued after the claim was submitted, the award will be capped at two weeks.
Therefore, the question this week is:
Can a claim for failure to provide terms of employment succeed if the terms were provided before the claim was issued?
The judgment contains little by way of factual background so no juicy details this week I’m afraid. Mr Denton, the Claimant, commenced employment with Govdata Ltd, the Respondent, in December 2015. The Claimant was not given terms of employment until June 2016, by which time he had been employed for six months.
The Respondent dismissed the Claimant for gross misconduct in August 2016. The Claimant brought claims for unpaid wages and holiday pay. He also brought a claim under Section 38 Employment Act 2002 for failure to provide terms of employment.
The ET allowed both claims. Despite the Claimant receiving terms of employment before issuing the claim (and before dismissal) the ET granted two weeks pay under Section 38 Employment Act 2002. This award equated to £938.00.
The Respondent appealed, highlighting that the ET had erred in law as the Respondent had provided written terms of employment, albeit four months later than it should have. The EAT allowed the appeal, the Claimant was not entitled to two weeks’ pay as the Respondent had issued terms of employment before the claim commenced.
The takeaway point:
Unsurprisingly, a claim for failure to provide terms will not succeed if the terms were provided before the claim was issued. This judgement serves as a reminder to all that issuing a statement of terms and conditions or contract late can still give rise to a claim, even if the failure to issue terms is remedied. On paper this claim should never have succeeded but does show that even judges can make mistakes in law.
Secondly, this case highlights proportionality of costs. The Respondent here lodged an appeal and instructed legal representatives to challenge an award of £938.00. Whilst there was perhaps slight reputational damage, we would not consider it wise to fight such a trivial award.
Before signing off, everyone at PJH Law would like to wish all readers an enjoyable Easter! See you next week in the post-Easter chocolate comedown.
This week we are looking at Director’s personal liability. This is an issue we covered previously in the case of Timis & Sage v Osipov. That case found Directors could be liable for whistleblowing awards.
In this case, the question is:
Can Directors be liable for breaches of an employee’s contract of employment?
Mr Antuzis was one of several Claimants employed as a chicken catcher by DJ Houghton Catching Services Ltd, the Defendant (this is a County Court claim, not Employment Tribunal). The Claimants were from Eastern European states, mainly Lithuania, and became employed by the Defendant after replying to a local newspaper advertisement.
Upon arrival in the UK, the Claimants were transported to houses owned by the Defendant’s Directors and associates, including Jacqueline Judge and Darrell Houghton. The Claimants lived and worked in dreadful conditions, including:
Sharing small accommodation with at least ten other employees
Being charged for accommodation and employment fees
Being paid below the National Minimum Wage
Having their wages withheld or delayed for arbitrary reasons
Being prevented from taking rest breaks, including having to urinate in bottles
Working hours that exceeded 48 hours per week
Being prevented from taking annual leave
Being prevented from attending funerals or visiting ill relatives
Being threatened and intimidated when attempting to query the conditions
The Defendant was raided by the police and the Claimants brought claims for breach of contract in the County Court. Normally, Directors of the Defendant would not be personally liable for such litigation. However, the County Court held that as the breach of contract was statutory – not paying the NMW, complying with Working Time Regs etc. – then they had not upheld their duties as Directors and were thus personally liable.
The Takeaway Point:
Yes, Directors can be liable for breach of contract claim, providing the breach of contract was also a failure of the Director to perform their duties to the Company in this case the statutory obligations to pay NMW and comply with the law under WTR. This case sets out a risk posed to Directors if they run companies in contravention with the law. In future cases it might be argued by the owners/shareholders of a business that the Directors are ultimately liable for any award made by the Court.
Can an adverse disciplinary procedure and delayed dismissal appeal amount to constructive dismissal and sexual orientation discrimination?
If a dismissing officer allows another party to make a decision for them by proxy, are they liable for any discrimination that arises from that decision?
Mr Aplin, the Claimant, was a Head Teacher at Tywyn Primary School, the Respondent. The Claimant was a 42-year-old, gay male and the Respondent was aware of this. The Claimant met two young males on Grindr – a gay dating site that requires users to be over 18 – and subsequently had a threesome with them.
Despite believing that both of the men were over 18, it subsequently transpired they were 17. A police investigation followed and the matter was also referred to the Respondent’s social services department and a professional abuse investigation meeting was held at the Council.
The police investigation did not result in any charge and the professional abuse investigation found no offence had been committed and no child protection issue had arisen. However, it did recommend the Respondent consider taking disciplinary action against the Claimant.
The Respondent investigated the matter and, despite the police and professional abuse reports finding to the contrary, the investigating officer determined that the Claimant posed a safeguarding risk. A disciplinary hearing was held and the Claimant was dismissed for gross misconduct.
The disciplinary hearing was riddled with errors, including:
The investigating officer not remaining impartial and purporting several value judgments on the Claimant’s character
The investigating officer making conclusions contrary to the police and professional abuse reports
The Claimant not being given copies of crucial material, including the police and professional abuse reports, before the disciplinary hearing
Delay in holding the disciplinary hearing
The Respondent having a barrister make legal representations and the Claimant not being informed of his right to bring a legal advisor until much later
The Respondent’s legal advisor retiring with the disciplinary panel and making the decision to dismiss for the panel (comprised of the school’s Governors)
The Claimant appealed his dismissal citing the unfair process being tainted by homophobic attitudes of the investigating officer. There was some discrepancy as to whether his contract could be terminated until after the appeal had ended, or, whether his appeal reactivated the contract. However, the Claimant resigned after appealing citing issues with the process.
The Claimant brought claims for constructive dismissal and sexual-orientation discrimination. He argued that the investigation and decision to dismiss were tainted by his sexual-orientation given the adverse findings in the disciplinary investigation compared to the police reports.
The ET allowed the constructive dismissal claim. It held the Claimant’s contract was still in force at the time of his appeal and the Respondent had breached that contract due to their handling of the disciplinary and appeal process.
The ET also allowed the discrimination claim. The Claimant’s treatment reversed the burden of proof for the Respondent to prove the treatment by the investigating officer was not discriminatory. This could not be satisfactorily explained.
The Respondent appealed the decision and the appeal was rejected by the EAT. The Claimant also appealed the discrimination claim, stating it should have extended to the Governors’ deferring their decision to the Respondent’s legal advisor.
The EAT allowed the Claimant’s appeal. As the Governors had read the investigation report and decided not to adjourn the disciplinary to allow the Claimant to access the police report, their failure to adjourn the hearing and allow the Respondent’s legal advisor to make the decision by proxy might have reversed the burden of proof for a discrimination claim. The case was remitted back to ET to determine this point.
The takeaway point:
To answer today’s questions, yes, a procedurally flawed disciplinary investigation can amount to both constructive dismissal and discrimination. Unusually in this case, the employee appealing the decision kept the contract active meaning he could resign after he was dismissed. This will not be the case for every case. A few employers re-instate the employee when an appeal is lodged, and then either confirm or reject the dismissal when the appeal is determined.
Additionally, deferring the decision to dismiss to someone else will not necessarily remove any liability from the dismissing officer. The case is yet to be heard on this point but unless the employer can provide a satisfactory explanation this, the claim may well succeed.
Finally, the employer in this case might have had a potentially fair reason to dismiss. Primary schools pride themselves on reputation, having a head teacher who engaged in threesome with two persons aged just below 18 may not be illegal, but is still sordid and may have caused gossip on the playground.
If the employer had focussed its investigation and dismissal on any damage to the school’s reputation instead of the clearly unfounded allegation of safeguarding, they might have been able to fairly dismiss the Claimant for some other substantial reason. As threesomes with 17 year olds of any sexual orientation will likely cause reputational damage, the decision would not have been tainted by discrimination. However in order to make such a dismissal stick there would have needed to be some evidence of wider public knowledge of the incident.
On 6th April, the amount of money a Tribunal can award will also increase. The new rates are as follows:
Week’s pay (for purposes of calculating redundancy pay and Tribunal basic awards) – £525.00
Maximum basic award for unfair dismissal and statutory redundancy payment – £15,750.00
Minimum basic award (for health & safety and trade union membership cases) – £6,408.00
Maximum compensatory award for unfair dismissal – £86,444.00
For most HR practitioners, the week’s pay for redundancy calculations will be most useful here. However, do bear in mind the other new rates as an indicator of maximum liability should any claims arise.
Hello and welcome to our March Employment Law Update, a round up of all things employment law this month. Those familiar with employment law and HR will be well aware April is the annual roll out of many changes in employment law. The first of these such changes is the annual amendment of the minimum wage rates. The rates are now indexed-linked to inflation and from the 1st April 2019, the rates will be:
1st April 2019 Rates
25+ (National Living Wage)
21 – 24
18 – 28
Apprentices (under 19 OR over 19 in first year of apprenticeship)
These rates come into force on 1st April (Monday) so any work done from this date will need to be calculated at the new rates. Every year the government publishes a list of – and fines – employers that don’t pay NMW and many of these employers fall into the trap of not paying the new rates quickly enough.
The next lot of rates to be updated are the family friendly pay rates for maternity pay, paternity pay, shared parental pay and adoption pay. As of 7th April (next Monday) rates will increase from £145.18 to £148.68 a week. On the same day, the minimum weekly earnings to qualify for parental pay will also increase from £116 to £118.
On 6th April 2019, the Statutory Sick Pay rate will increase from £92.05 to £94.25. The qualifying weekly earnings will be the same as parental pay.
Last year we reported that the (Itemised Pay Statement) (Amendment) Order 2018 will require employers to state how many hours the employee worked and at what rates of pay these hours were worked. Workers as well as employees will also need to be given payslips.
Our previous feature includes an example and also warned that employees are entitled to accurate payslips and could bring claims if employers fail to provide them. These claims could give rise to other claims for incorrect payment of the NMW.
The 4th April 2019 sees the second set of gender pay gap reports published. The reports will be based on the snapshot date of 5th April 2018 and must be uploaded on the employer’s website and the government portal. A worked example of the calculation can be found in the resources section of our website.
Last year, the Equality and Human Rights Commission took enforcement action against 1,456 employers punishments including unlawful act notices, fines and convictions. The Commission has also announced this month that it will be investigating the BBC following reports showing a significant pay gap between men and women at all levels.