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October FE ByteSize Employment Law

Here’s what’s inside this edition of Further Education ByteSize Employment:

Please click on the links above to view the articles, or download a PDF copy here.


Extension of time granted following ‘unlawful’ ET Fees order 

The Supreme Court delivered a landmark judgment in July 2017 declaring Employment Tribunal Fees to be unlawful because it prevented access to justice. Following on from this, the Southampton Employment Tribunal have given a judgment granting an extension of time, thought to be the first of its kind, allowing a Claimant to file their claim again outside the original deadline.

The Claimant’s original ‘in time’ claim was rejected at an earlier date following a failure to pay the issue fee after their application for help with the fees was unsuccessful. The Claimant successfully argued that because Fees had been deemed unlawful, any decisions made under it including the rejection of their original claim for non-payment of fees,  were similarly unlawful. The Tribunal accepted this, and in conjunction with other situational factors, deemed that an extension of time was just and equitable in all the circumstances.

Worth being aware of if any of your employees filed a claim but didn’t pay a fee.

Case referred to: Dhami v Tesco Stores Limited

EU withdrawal bill 

Many laws surrounding workers’ rights including the right to paid holiday, certain health and safety protections and equal treatment rights for part-time, fixed-term and agency workers are amongst the laws being transferred from EU law into UK law under the EU withdrawal bill, which won the first Commons vote on 11 September.

The government have pledged to protect all the rights workers’ currently enjoy under EU law. However,  some have raised concern that the bill as it is currently drafted does not afford adequate protection for this.

With many proposed amendments still outstanding as the bill passes into the committee stage, this is definitely one to watch!

Mental health in the workplace

This year we’ve seen an increased awareness of mental health, from a national mental health awareness week, to the ‘heads together’ campaign.

Recent research shows that 82% of employers believe they could do more to address mental health at work (CIC, September 2017)  and as many as 1 in 3 UK employees are working with anxiety, depression or stress (PWC,  July 2017).

Poor mental health affects both employee and employer,  but there are a few steps that can be taken to ensure that issues are managed well:

• Staff training, teach managers how to recognise the signs of a potential mental health problem and best support colleagues. 
• Regular reviews, giving employees the opportunity to raise any concerns they have. 
• Encourage staff to take breaks and consider flexible working where appropriate. 
• Take advice on what adjustments may be necessary for staff. 

Fall in numbers of zero-hours contracts

The latest official figures show a 2.2% drop in the number of people on zero-hours contracts, following this reaching record levels last year. These contracts, credited with contributing to the UK achieving record levels of employment, have been at the heart of much controversy  and many legal challenges in recent months.

Earlier this month McDonalds staff went on strike for the first time in the UK over issues including the use of zero-hours contracts. McDonalds are now offering workers the choice to remain on zero-hours or to move to fixed-hours contracts. Reports suggest that 80% of staff opted to remain on zero hours contracts perhaps supporting the view that for some the flexibility of such contracts is welcome.

Uber stripped of London licence ahead of EAT decision 

Transport for London (TFL) have confirmed that Uber will not be issued a new private hire licence in London, citing concerns over public safety and security.

Uber has previously encountered difficulty in other major European cities including Paris, Brussels and Madrid.

This decision came a week before their Employment Appeal Tribunal appeal hearing following the Tribunal ruling earlier this year that drivers must be treated as workers  (rather than self-employed) affording them basic employment rights.

It is expected that Uber will appeal TFL’s  decision regarding the licence.

The bills keep coming … 

The Data Protection Bill is set to replace the Data Protection Act 1998 had its first reading in the House of Lords earlier this month.

The Bill will sit alongside the EU’s General Data Protection Regulation (GDPR) and ensures that UK and EU data protection regimes are compatible.It is intended that this will allow for a smoother transition and easier data flow between the UK and EU organisations post Brexit.

This is another one to follow as the Bill develops into its final form. 

Watch your language 

A Tribunal has ruled that a comment made during a performance review meeting suggesting that the employee would be “better suited to a traditional estate agency” amounted to age discrimination after the Claimant successfully argued that this had been taken to be a reference to her age.

The Tribunal agreed with this, stating that the dictionary definition of “traditional” was long standing and such comment was therefore unlikely to be made to a younger employee.

This case reminds employers that there are risks connected with the use of certain words and phrases which have the potential to be associated with a protected characteristic and may give rise to claim.

Case referred to: Gomes v 1. Hemworth Limited and 2. Graham Gold

Suspension, bridge to a claim? 

The High Court have held that the suspension of a teacher was a ‘knee-jerk’ reaction with no alternative options being considered. They held this to be a breach of contract, which entitled the Claimant to claim constructive unfair dismissal.

This acts as a reminder to all employers that suspension should not be used as the default position and where appropriate an alternative to suspension should be considered.

There will inevitably be circumstances where alternatives are not appropriate or where suspension is the only way of achieving a fair investigation and the High Court have stressed here that this decision is not intended to imply that suspension will always give rise to a breach of contract claim.

However, where suspension is being used remember to keep it proportionate, review regularly and keep in touch.

Case referred to: Agoreyo v London Borough of Lambeth 

If you would like to discuss these issues further please contact a member of our employment team on 0115 9 100 200 or click here to send an email.

Posted on October 19, 2017

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