Employment Bulletin – March 2018

Employer's attempt to 'soften the blow of dismissal' backfires

Employers should be careful not to mislead an employee they wish to dismiss, even if it's to soften the blow for the person losing their job.

Concealing information can lead to a claim for compensation, as seen in recent case before the Employment Tribunal.

It involved a company that decided to dismiss an employee after becoming dissatisfied with his performance. However, rather than setting out the performance issues, it told the employee that his duties were to be outsourced.

This was intended to "soften the blow" and ensure that he worked his full notice period of three months.

The misinformation led the employee to believe that he should transfer to the new provider under TUPE arrangements and that the company had failed to comply with its duties to inform and consult him. He resigned when the company refused to provide him with details of the 'new provider' who didn't, in fact, exist.

When the truth eventually emerged, the employee took legal action to recover the three months' notice pay that he had lost by resigning.

The case went all the way to the Employment Appeal Tribunal, which found in his favour. It held that it was true that on the facts of this particular case the employer had no duty to tell the employee of the reason for his dismissal. However, if it elected to give a reason, the implied term of trust and confidence required that it should not mislead the employee.

The employee's claim for damages should therefore succeed.

Increase in claims after employment tribunal fees ruled unlawful

There has been a sharp rise in the number of employment tribunal cases since the Supreme Court ruled in July that the fees charged to bring claims were unlawful.

Figures released by the Courts and Tribunal Service show that claims rose by 64% between July and September. The National User Group of Employment Tribunals say the number of claims has doubled in some areas.

Meanwhile, a survey by the CBI found that 90% of businesses think the removal of fees will lead to a rise in vexatious claims that have no merit.

The fees were introduced in 2013, with employees having to pay up to £1,200 to bring a claim. Following a challenge by the union Unison, the Supreme Court ruled that the fees were discriminatory, unlawful and unconstitutional.

The Ministry of Justice (MoJ) accepted the ruling and has started refunding fees paid by claimants over the last four years. However, it noted that the court had not challenged the right to charge fees, only the amount that was being charged.

In a statement on the ruling, the MoJ said: "The Supreme Court judgment noted that 'fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice'. The court ruled, however, that we hadn't set the fee at the right level to deliver that outcome."

The Lord Chancellor, David Lidington, said recently that the government would still like to charge a fee but had to be careful to ensure that tribunals remained accessible and affordable.

This suggests that any new fee structure would have to be low enough to ensure employees were not discouraged from bringing genuine claims.

Firms may wish to check that their employment policies are up to date to reduce the risk of facing costly and time-consuming claims from employees.

Top businesses must show how they stop sexual harassment

The recent sexual assault scandals involving MPs and Hollywood actors has prompted the Equality and Human Rights Commission to write to leading companies telling them they'll face legal action if they fail to deal with sexual harassment.

The letter to the chairs of FTSE 100 companies and other leading employers reminds them of their legal responsibility for the safety and dignity of their employees in ordinary workplaces across the country.

It says: "As you will have seen, recent high-profile testimonies demonstrate pervasive sexual harassment in contexts as diverse as Hollywood and Westminster, and the lack of redress for those women and men who experience it. The Equality and Human Rights Commission is gathering evidence on the most effective means to prevent and respond to this issue."

The Commission asks them to supply evidence of what safeguards they have in place to prevent sexual harassment, what steps they have taken to ensure that all employees are able to report instances of harassment without fear of retribution, and how they plan to prevent harassment in the future.

The letter explains that where the Commission discovers evidence of systemic failings, it will consider exercising its enforcement powers. This could include undertaking investigations into organisations which it suspects may be failing to take reasonable steps to protect employees.

The Commission's Chief Executive, Rebecca Hilsenrath, said: "Sexual harassment is rife across all of our industries. We accept it far too easily, in terms of the culture we live in. Accountability lies with leadership. It is not enough to report a nil return. We need to take responsibility to ensure that no woman will ever be intimidated from reporting, be challenged by the difficulty of doing so or frightened of the implications for her career.

"We want to find out what is working and what the barriers are and identify the leaders who are making a difference."

Although the letter has so far only been sent to the largest companies and organisations, it shows how seriously the issue of sexual harassment is being taken. Employers may wish to review their current policies to ensure they protect their staff from unwanted attention, and their businesses from costly harassment claims.