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EMPLOYERS UPDATE: DEVELOPMENTS IN EMPLOYMENT LAW - October 2016

EMPLOYERS UPDATE: DEVELOPMENTS IN EMPLOYMENT LAW

OCTOBER 2016

 

 

 

Some years ago the Government announced that, since employment law was changing so frequently, in order to assist advisers and employers, legislative changes would be introduced only twice a year, in October and April.

 

Employment law seems not to matter quite so much now to HMG and about the only legislative change of relevance occurring this month is the increase in the limits under the National Minimum Wage Act.  I deal with this below and then reflect on some topical cases.

 

National Minimum Wage

 

There are now five categories, each of them attracting a different rate.  The one that is of most relevance is perhaps the National Living Wage which applies to everyone over the age of 25.  That has just risen to £7.20 an hour.

 

The Standard Adult Rate covers individuals aged between 21 and 24 (£6.95) and the Development Rate those between 18 and 20 (£5.55).  Young Workers, aged 16 or 17, will be entitled to at least £4.00 an hour and Apprentices at least £3.40.

 

Something that is not widely known is the extent to which accommodation is taken into account.  Having regard to the high level of rents in the South East, it would be easy to assume that the provision of accommodation, perhaps with a market value of hundreds of pounds a week, would make a significant impact on the amount that the employer has to pay by way of wages.  Not so.  With effect from the beginning of this month, accommodation is valued at a maximum of £6.00 a day (£42.00 a week; £180.00-odd a month).

 

How EU Law Works

 

In the U.K., in Courts and Tribunals what generally happens is that the two warring parties present their evidence, make their submissions and then the Judge(s) decide the outcome.

 

The European Court of Justice, which adjudicates on matters of European Union law, does not quite work in that way.  There is an intermediate stage.

 

In order to assist the Judges (mostly three of them, sometimes more) the Court has the benefit of the Advocate General, another lawyer, whose job it is to offer the Judges his opinion before they finally decide.

 

Some continental countries have a similar arrangement in their Domestic Courts.  We do not and it therefore seems a little odd.  Surely it delays the whole process?

 

Statistically, it is unusual for the Court to disagree with the Opinion put forward by the Advocate General.  Employment lawyers are therefore looking forward to what happens when the Court Judgments are published in two cases heard recently: Achbita -v- G4S Secure Solutions NV (from a Belgian Court) and Bougnaoui -v- Micropole Univers (from France).  Put simply, those two cases concerned the legality of an employer’s ban on religious and political symbols at work.  Put very simply, the AG in the first case said that the law was there to protect the holding of a belief and not its manifestation.  In the second case, a different AG thought that belief and the outward expression of that belief cannot be separated and therefore are both protected.

 

Needless to say, things are rather more complicated than that and the cases also go into whether banning religious dress or symbols amounts to direct or indirect discrimination and if direct, whether the approach could be justified.

 

Interestingly, the two cases were heard on the same day: 15th March 2016.  We are still awaiting the Court’s Judgments.  The outcomes will determine how English Courts and Tribunals will interpret our own Equality Act.  Let us hope that, whatever they say, they are consistent.

 

Injury to Feelings

 

I read two reports of the Employment Appeal Tribunal (EAT) case of AA Solicitors Limited -v- Majeed.

 

Leaving aside the prurient interest that is always attached when lawyers themselves get sued, a couple of interesting points arise from this case.

 

From a professional point of view, the EAT’s Judgment confirms that, when fixing injuries to feelings awards in discrimination cases, Employment Tribunals can take account of the effect of inflation on the guidelines which the EAT gave some years ago in the Vento case.  So far, so dull.

 

In the Majeed case, the solicitor had appealed the Tribunal’s Decision to award the claimant £14,000 by way of injury to feelings.  It was decided that the case fell in the middle of three bands established in the Vento case.  Put simply, the Tribunal updated the figures that applied then and also added another 10% following a Court of Appeal Decision in a personal injury matter.

 

From the Practical Law summary, it would seem that the claimant was an aspiring lawyer, employed by AA Solicitors Limited while undergoing training.  “She was subjected to numerous acts of sexual harassment by the firm’s sole solicitor, Mr A.  These included asking her to go out to the cinema, commenting on her figure, talking about installing a bed in one of the rooms at the office, attempting to hug her, touching her arms, squeezing and rubbing her hands when shaking hands and similar acts which made her uncomfortable”.  Her rejection of these advances led to the loss of her job.

 

The Tribunal awarded her £14,000 for injury to feelings and then another £4,000 for aggravated damages.  On appeal, the solicitor argued that the award was too high and should have been no more than £10,000.  As noted above, he lost.

 

In many ways, the report in The Law Society’s Gazette was more interesting.  It focussed more on the arguments put forward by the solicitor’s Counsel in the appeal case.  According to the report, Counsel heard herself saying on his behalf that the award of £14,000 was “manifestly excessive for conduct which was no more than modestly obnoxious”.

 

Rather like the defence that is sometimes run “It was only a bit of banter”, when Counsel relies on this particular argument, the signs are not good for a favourable outcome.  So it proved.

 

Quality Conveyancing Advice

 

Some of those reading this note will be thinking about moving house.  Others will know friends or associates in that position.

 

On Saturday 29th October, this firm’s Sutton offices will be open and one of our specialists will be delivering a short presentation explaining what is involved in the process of buying a house.  We will also have conveyancing solicitors available for one‑off advice at no charge.  There is attached to this email confirmation of the arrangements.  It would be a good idea to telephone ahead to book a slot with one of our solicitors.

 

As always, these newsletters are only a guide to some changes in Employment Law.  They are by no means exhaustive nor an alternative to getting proper advice about your particular problem.  Please call me for more help on any employment matter.

 

With best wishes.

 

Yours sincerely


MALCOLM LAWRENCE

e-mail : mjl@copleyclark.co.uk

 

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