HR Two Minute Monthly - March 2014


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Summary: This month’s summary of employment law developments includes cases on the extent to which an employer can rely on the summary dismissal terms in its contracts of employment, whether a dismissal is fair where an employer ignores the decision of an independent appeal panel, and whether a chain of email correspondence sent to different people can be a qualifying disclosure for whistleblowing purposes.

Summary dismissal requires serious and deliberate wrongdoing by employee

The EAT has held in Robert Bates Wrekin Landscapes Ltd v Knightthat an employer cannot rely on a contractual summary termination provision where the employee’s breach of contract is not serious enough to justify his immediate dismissal.

Mr Knight was a gardener employed by RBWL. A bag of bolts from a site he had been working on was found in his van. Mr Knight said that he had found it and put it in his van intending to hand it in, but forgot to. Following an investigation, Mr Knight was summarily dismissed without notice for theft and removing property from a site contrary to procedure. RBWL relied on the termination provisions in Mr Knight’s contract. These allowed for summary dismissal for theft, or breach of RBWL’s or a customer’s security rules.

Mr Knight brought a claim for his notice pay arguing that his actions were not serious enough to justify summary dismissal. The Tribunal accepted Mr Knight’s explanation for why the bolts were in his van. It said that he was not guilty of theft but that he had failed to comply with site security procedures. However this failure was unintentional, which meant that Mr Knight was not in repudiatory breach of contract and RBWL had no grounds to dismiss him without notice. The EAT agreed with the Tribunal and held that the summary termination provisions in Mr Knight’s contract did not apply where the breach was minor or inadvertent, as here.

The case is a useful reminder that notwithstanding any contractual termination provisions, summary dismissal can be justified only where there is serious and deliberate wrongdoing by the employee of the kind that would justify dismissal without notice.

Gross misconduct dismissal was fair even though employer did not follow independent appeal panel’s decision

In Kisoka v Ratnpinyotip (t/a Rydevale Day Nursery) the EAT held that an employee’s dismissal for gross misconduct was fair even though her employer did not follow the decision of an independent appeal panel.

Miss Kisoka was dismissed from her job as a Nursery worker because the Nursery believed that she had started a fire at the Nursery. Miss Kisoka appealed that decision. The Nursery engaged an independent panel to hear the appeal because, as a small employer, it did not have a manager who was not involved in the matter to hear the appeal. The panel said that there was insufficient evidence against Miss Kisoka and overturned the decision to dismiss her. The Nursery did not implement the panel’s decision. Miss Kisoka claimed unfair dismissal.

The Tribunal found that the Nursery had reasonable grounds for believing that Miss Kisoka had started the fire and that its investigation into the matter was reasonable. It noted that there was nothing in the arrangement between the panel and the Nursery that said the panel would be the final decision maker. On appeal, the EAT held that the dismissal was fair and said that the correct approach was for a Tribunal to consider, in all the circumstances, whether the overall procedure was fair and the decision to dismiss was a reasonable one.

The case helpfully confirms that an employer that outsources an appeal process may not always have to implement the appeal decision. However, each case will depend on all the circumstances. In this case, the employer had carried out a thorough investigation before dismissing Miss Kisoka and had also investigated further information that had come out of the appeal. Any deviation by an employer from an appeal decision in similar circumstances would need careful justification.

Race under the Equality Act 2010 can include caste

The Employment Tribunal has allowed a claim of caste discrimination, notwithstanding that the Government has not yet provided for caste to be covered expressly as an aspect of race by the Equality Act (as it is required to do by the Enterprise and Regulatory Reform Act 2013) (Tirkey v Chandok and another).

Ms Tirkey, who is of the Adviasi (servant) caste, was employed as a live-in domestic servant by the Chandoks. She claimed that she was forced to work 18 hours per day, seven days a week, was not given holiday, and was paid only £3,140 in four years of employment. She said that the reason for this treatment was her caste, which is of lower status than the Chandoks.

The Tribunal held that the definition of ethnic origin, which is part of the definition of race, is wide enough to include caste. Case is set at birth and cannot be changed later in life. Therefore Ms Tirkey’s claim was allowed to proceed. In this case, the Tribunal construed the concepts of ethnic origin and race widely. This decision means that there are now conflicting Tribunal cases on this issue. In the earlier case of Naveed v Aslam and others,the Tribunal rejected a claim for caste discrimination. In the meantime we await the changes to the Equality Act to include caste, which are expected in 2015.

Whistleblowing: a chain of email correspondence taken together can be a qualifying disclosure even if the emails are sent to different people

In Norbrook Laboratories (GB) Ltd v Shaw, the EAT has clarified that concerns raised with different people may, when viewed together, amount to a ‘qualifying disclosure’ and attract whistleblowing protection. This is the case even if, taken separately, none of the disclosures are themselves a qualifying disclosure. Employers should therefore consider the totality of comments made by an employee and not just look at each comment in isolation.

Further information and insight on this case is available at BLP’s Expert Legal Insights.

Employer ordered to pay appeal fee incurred by successful employee

In Portnykh v Nomura International plc, the EAT ordered an employer to pay the fees incurred by a successful employee in bringing an appeal.

Since fees were introduced in July 2013, a party who appeals to the EAT has to pay an issue fee of £400 and a hearing fee of £1,200. Mr Portnykh issued an appeal in the EAT against a preliminary hearing decision of the Tribunal in his unfair dismissal claim against Nomura. Mr Portnykh succeeded in his appeal, and the EAT ordered Nomura to pay the fees that Mr Portnykh had incurred in respect of the appeal, subject to Mr Portnykh’s application for fee remission being unsuccessful. In making the order, the EAT took into account the fact that Nomura had substantially lost the appeal and also had the resources to pay. It did not take into account Mr Portnykh’s conduct, which it found to be unhelpful and uncooperative, but not dissimilar to other litigants in person.

This decision reaffirms the view that successful claimants are likely be able to recover fees where they are successful, whether in the Tribunal or the EAT.

Judicial review on the legality of Tribunal fees is unsuccessful

In R (Unison) v Lord Chancellor and another, the High Court has rejected Unison’s challenge to the legality of the Tribunal fee regime. This was principally because of the lack of evidence available, which was in part due to the claim being brought prematurely. Unison has already indicated its intention to appeal the High Court’s ruling. But whilst for the immediate future it looks as if Tribunal fees are here to stay, a future challenge cannot be ruled out, particularly if Tribunal statistics suggest that the fee system is having a deterrent effect on would-be claimants.

Acas publishes guidance on new TUPE Regulations

Acas has published new guidance on the changes made to TUPE, which came into force on 31 January 2014. As well as summarising the key changes, the guidance sets out a number of helpful practical examples illustrating how the changes will apply. The Acas guidance is in addition to the BIS guidance on the amended TUPE Regulations.

Extension of the right to request flexible working to be introduced on 30 June 2014

The extension of the right to request flexible working to all employees with 26 weeks’ service is due to come into effect on 30 June 2014. This new right was originally due to come into effect on 6 April 2014, but delays in Parliament to the Children and Families Bill held up its introduction.

Acas early conciliation operational from 6 April 2014 and compulsory from 6 May 2014

From 6 May 2014, Tribunal claimants must contact Acas and obtain an early conciliation certificate before submitting a claim in the Employment Tribunal. During the period between 6 April 2014 and 5 May 2014, claimants can, but do not have to, contact Acas.

The introduction of Early Conciliation is part of the Government’s plans to encourage the settlement of disputes before they reach the Tribunal. The requirement to contact Acas to obtain an early conciliation certificate will apply to most claims. Claimants must submit their details and those of the respondent to Acas before they can bring a claim in the Tribunal. Acas must then take steps to promote settlement between the parties and try to avoid proceedings being issued. See our BLP: Looking Ahead on Early Conciliation for more information and a flowchart setting out the new procedure.

Financial penalties for losing employers in force from 6 April 2014

For claims issued on or after 6 April 2014, Tribunals will have the power to order an employer found to be in breach of a worker’s rights to pay a financial penalty, where it considers the breach has 'one or more aggravating features’. The penalty is payable to the Government and is subject to a minimum of £100 and a maximum of £5,000. Where a financial award is made by the Tribunal to a successful claimant in relation to his/her claim, the penalty will be 50% of that award, subject to the minimum and maximum limits. A discount is given for early payment of the penalty – 50% where the penalty is paid within 21 days of the notice imposing the penalty.


To make it easier for you to keep abreast of the latest state of employment law changes and help you plan accordingly, we have updated our employment law timeline.

New employment tribunal award limits

The Government has just announced this year’s employment tribunal award limit increases for England, Wales and Scotland. Note that these new limits are lower than the increases for Northern Ireland.

For dismissals where the effective date of termination is on or after 6 April 2014, the maximum amount of a week’s pay, used to calculate unfair dismissal basic awards and statutory redundancy payments, will rise to £464 (from £450). This means that the new maximum statutory redundancy payment will be £13,920 (from £13,500).

The maximum compensatory award for ordinary unfair dismissal claims will increase to £76,574 (from £74,200) – subject also to the additional cap of 52 weeks’ pay, if lower.

Increase to SMP, SPP, SAP and SSP from 6 April 2014

With effect from 6 April 2014, the prescribed weekly rate for Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP) and Statutory Adoption Pay (SAP) will increase to £138.18 (from £136.78). SMP, SPP and SAP are available to those who satisfy the statutory criteria and who earn at least the lower earnings limit. This lower earnings limit will also increase to £111 per week (from £109) with effect from the start of the new tax year.  In addition, the weekly rate of Statutory Sick Pay (SSP) will also increase to £87.55 (from £86.70) with effect from 6 April 2014.

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