Thanks to the intervention next month of the General Data Protection Regulation (“GDPR”), this is the last of my Newsletters that you will receive until you have specifically “opted in” to the mailing list.
I have more to say about the GDPR later but propose also to share some pieces of news that might be of interest. Oddly, this quarter some of them are interconnected.
For those aged 25 and over, the National Minimum Wage increased on 1st April from £7.50 an hour to £7.83 an hour.
A few days later, the limits on statutory redundancy pay and unfair dismissal awards also rose.
The maximum weekly wage that can be taken into account in calculating statutory redundancy pay or a basic award for unfair dismissal goes up from £489 to £508. At the same time, the maximum compensatory award rises from £80,541 to £83,682. I should say that the compensatory award is, however, limited to no more than 52 weeks’ pay, if this is less than the figures given.
On the same day, the Rules changed slightly with regard to the taxation of termination payments. Until now, the Rule whereby the first £30,000 of any termination payment received was applied to a payment in lieu of notice where there was no contractual provision for it will end. Put another way, if an employee does not receive his full notice entitlement but gets a termination payment instead, then (generally speaking) that part of the termination payment which reflects pay for the notice he has not received will be subject to Tax and National Insurance.
Inevitably, things are not quite that simple. The legislation contains a rather complicated formula, the effect of which is that, if the employee has any element of salary sacrifice, the sum in respect of which the employer must deduct Tax and National Insurance will actually be more than he receives.
ACAS has recently published its statistics for the last 9 months of 2017. Interestingly, this period includes that date when Tribunal fees were abolished.
Put very simply, while fees were in place, ACAS was receiving 1,700 notifications a week. Afterwards, the figure rose to 2,200 a week.
Early Conciliation brought about a settlement in 17% of these cases. In 58% of those cases, the Claimant gave up but took his/her case to Tribunal in the remaining 26%.
According to the statistics, of those that went to Tribunal, 21% were settled, 5% withdraw, 7% went to a hearing but the remaining 67% remain outstanding.
More recently, it has been reported that ACAS employees have voted to take strike action because of their mounting workloads and lack of resources.
Perhaps someone ought to conciliate or arbitrate a settlement.
Injury to Feelings
In certain cases (see below) the legislation empowers an Employment Tribunal to make an award to a successful Claimant to reflect his/her injury to feelings.
A number of years ago, in a case called Vento -v- Chief Constable of West Yorkshire Police, the Court of Appeal set guidelines for the amount of compensation to be paid for injury to feelings. They fell into three categories.
The lower band was “appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence”.
The middle band reflected “serious cases, which do not merit an award in the highest band”.
The top band was reserved for “the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race”.
It was, however, identified that it was possible for there to be an exceptional case which might exceed the top band.
The President of the Employment Tribunal has issued Guidance now which is not binding on Tribunals but they have to have regard to it.
The President states that awards for the lower band should fall in the range of £900-£8,600, in the middle band from £8,600-£25,700 and in the top band from £25,700-£42,900.
New tax rules man that awards for injury to feelings are subject to the general £30,000 exemption for compensation only if the employee has suffered a psychiatric injury or from some other recognised medical condition.
Working Time Regulations (“WTR”)
As indicated above, an award for injury to feelings is not available in every case. The Equality Act makes it clear that a Tribunal can make such an award for unlawful discrimination.
As it happens, there is nothing in the WTR indicates that a successful claimant would be entitled to an injury to feelings award.
So it proved for the claimant in the Court of Appeal case of Gomez -v- Higher Level Care Limited.
The Tribunal found that her employer had not allowed her the rest breaks required by the Regulations. She claimed that her feelings had been injured.
The Court of Appeal held that the Tribunal had no jurisdiction to make such an award since it was not contained in the Regulations.
On the other hand, an injury to feelings award was made in the case of South Yorkshire Fire & Rescue -v- Mansell. There, the claimants alleged that they had suffered a detriment when they asserted their rights under the WTR and refused to work under a new shift system which provided inadequate rest breaks.
The detriment claim is one that is brought under the Employment Rights Act 1996, rather than the WTR. Relying on earlier authorities, the EAT determined that although the Employment Rights Act does not actually mention an award for injury to feelings in as many words, nevertheless it was implied.
An employee’s dismissal will be automatically unfair if the reason, or principal reason, for the dismissal is connected to her pregnancy, regardless of her length of service.
It follows that the pregnancy can be the reason for the dismissal only if the employer is aware of it.
In Really Easy Car Credit Limited -v- Thompson, on 3rd August 2016 the company decided to dismiss Miss Thompson for work-related reasons, although no-one then told her. The next day she told them that she was pregnant.
On 5th August 2016 the company handed her a dismissal letter dated 3rd August.
The Tribunal found on the facts that the decision to dismiss had been taken on 3rd August, in ignorance of her pregnancy but adjudged the dismissal unfair.
The company appealed and won, albeit to a limited extent.
The case was remitted to another Employment Tribunal which has to determine what exactly the reason was for the dismissal, as at 5th August.
As everyone reading this will know, the brave new world of the General Data Protection Regulation awaits us. To ensure that we fall on the right side of this new legislation, we invite you to consent to receive these Newsletters by returning the attached form, duly completed, or by ticking the voting button on the accompany email.
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. Expressions of opinion are to be taken as my own and do not necessarily represent the view of the firm. Please call me for more help on any employment matter.
With best wishes,
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