Tuesday, 18 November 2014

Less than 25% of discrimination cases successful

Less than a quarter of discrimination cases are successful at employment tribunals, new research
The findings from GQ Employment Law found that 710 of 3,210 (22%) of discrimination cases heard at an employment tribunal were successful.
For Non-discrimination case, 18,847 our 30,498 (62%) were successful.
Jon Gilligan, Partner at GQ Employment Law said: “Employers are very anxious about defending discrimination claims in the employment tribunal. Many believe that the employees are at an advantage and consistently win the majority of cases. When you look at the most expensive class of cases this appears to be untrue.”
“There is always a bit of a risk for employers in defending a discrimination case at the employment tribunal, but these figures show that employers normally win.”
“This might encourage risk-averse employers who would normally settle a case to avoid a employment tribunal hearing to take stronger line against weak claims.”

My Comment:   well this is encouraging,   although it does rather suggest that a large number if cases are ill-conceived in the first place,   so who is advising these applicants to "have a go" ?

our thanks to HR grapevine for this piece  see them at :

Wednesday, 5 November 2014

Holiday pay to include overtime payments

Holiday pay to include overtime payments

The Employment Tribunal Appeal has this morning handed down judgment in AMEC Group Ltd v
Law and related appeals: the holiday pay test cases which Government, the private sector and employment lawyers have been so closely watching. The EAT’s key conclusions are as follows:
  1.  Article 7 of the Working Time Directive requires workers to be paid “normal remuneration” during the holiday to which they are entitled under EU law, i.e., broadly speaking, their typical average pay, not only the basic hours’ pay which has long been understood to be the entitlement of workers with normal hours of work under the UK’s Working Time Regulations.
  2. It is possible to “read down” the domestic Working Time Regulations under the Marleasing principle to achieve compliance with the requirements of Article 7 — potentially giving a very large number of UK workers who have been paid holiday pay representing only their basic hours’  work claims for unlawful deductions from wages. On this and the Article 7 issue, the employers’ appeals failed.
  3. However, the employers’ appeals succeeded on a key issue of limitation: the meaning of a “series of deductions” from wages. If there is a gap of more than three months in any alleged series of deductions, the Employment Tribunal loses jurisdiction to hear claims for the earlier deductions. Further, workers are not entitled retrospectively to designate which holiday was “EU” holiday under regulation 13 of the WTR and which was additional domestic leave under regulation 13A so as to create an unbroken “series”. The EAT’s conclusions may thus severely restrict the ability of workers to bring valuable, retrospective claims for underpaid holiday pay.
My Comment : Firstly remember this is not a change in the law per se it's the judgement from a senior court,  (EAT)which will affect decisions on other courts (Tribunals) but, there may yet be an appeal, which could overturn this decision.  So we haven't heard the last of this.   Secondly,  it's a relief to hear that the impact is not going to be as bad as was first thought,  in terms of back claims amounting to tens of thousands of pounds.  The judgement has been worded to indicate where there is a break of three months since the deduction was made, there will be no valid claim, which pretty much means only holiday just taken this year will count at best.    The industry commentators are all working hard to try to clarify this judgement and Vince Cable has promised a "working party"  to examine the impact on industry.    So,  watch the press and HR blogs for more info  as it emerges .

Monday, 3 November 2014

Paul Murray HR Newsletter November Issue

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  << Test First Name >> ,
  Crumbs!  November 2014 already.    Big story this month is the information available on the introduction in April 2015 of the shared parental leave for parents. I've provided a link to the ACAS site for this most helpful guide .  A serial litigant was finally caught up with this year. This guy had made some 30 applications to tribunals to bring cases against employers he'd never actually worked for!    It was all to do with him claiming discrimination because his job applications were unsuccessful!    People had wondered why I was such an advocate of the introduction of fees for tribunal applications.  The idea is that upfront fees will prevent at least some of the vexatious and hopeless cases being brought, for no other merit than just because they can.            Read on for details, and, as always, call me or mail me if you have any concerns about this edition's content.

Kind regards,     Paul 

First The News:   ACAS produce a helpful guide on the introduction of shared parental leave in APRIL 2015

 ACAS has published a detailed guidance note on the new shared parental leave rules, together with supporting material including standard letters and a policy document. These documents are available for download .    read more    

My Comment:  This issue could prove to be very complex to manage,   as the employer may have to liaise with another employer they don't even know, both  it's your employee who is the mum, or if your employee is the father.  It affects adoptive parents too.    
      read full details

Newsflash:   Serial litigant who brought 30 employment cases in 4 years is banned from tribunal claims

In DLA Piper’s latest case report, the Employment Appeal Tribunal (EAT) granted a restriction of proceedings order preventing the submission of any further claims for an indefinite period against a claimant who brought repeated claims in employment tribunals, most of which were hopeless or vexatious. Her Majesty’s Attorney General v Iteshi EAT/0435/13
Section 33 of the Employment Tribunals Act 1996 enables the Attorney General or Lord Advocate to apply to the EAT for a restriction of proceedings order against a serial vexatious litigant, to prevent him or her making further claims.
   My Comment:   This case is a stark warning for serial litigants and should provide comfort for employers and recruitment businesses alike.    our thanks to "Personnel Today" for this piece.    read more 


Tribunal fees judicial review to be heard this month  

The new judicial review of the lawfulness of the Government’s introduction of employment tribunal fees will be heard later this month at the High Court.
The Lord Chancellor gave Unison the go-ahead last month to launch fresh proceedin in
the light of consistent statistics from the Ministry of Justice that the number of employment tribunal claims has fallen dramatically since the introduction of upfront fees for claimants.
My Comment:   I really do think this would be a backward step if they undid this legislation, and would again open the flood gates to spurious claims.   read more
Judge accepts sacked PCSO's claim she had amnesia when she forgot to tell Scotland Yard of a previous theft conviction.
Rachida Sobhi, 43, took the Metropolitan Police to court after she was denied a role as a police constable in December 2009, claiming she was discriminated against because of a disability.
ie she'd forgotten she had amnesia!   the case continues


TUPE transfers: different ways of working and new client types not substantial changes to working conditions
This employment tribunal held that a heating engineer whose new employer had different types of client and required him to do more of his own administration work did not suffer substantial changes to his working conditions to his material detriment after a TUPE transfer.

And finally tonight ! 

Paedophile awarded £30,000 after suing his former employers from his prison cell.
After reading of his sentence his employers suspended his holiday pay and cancelled a redundancy package, arguing he had 'frustrated' his contract by not being available to work.
        However, Ian Van Maanen, from the Citizens' Advice Bureau, successfully argued that as Wills was on agreed leave at the time and was not expected back at work before his job came to an end, he was not in breach of his contract.
            My comment : I report this because, one of my clients recently had an employee jailed for two years, and I had still advised we went through a proper procedure because this is what can happen, even from behind bars! 


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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.
CASE 321   Scouts not allowed to have an allotment
The enquirer has been advised by the chair of their local allotment community gardens site that a group of scouts under the supervision of a leader can not have a plot, for "health and safety reasons !. The scouts are keen to grow their own veg, and an allotment would be ideal for a small group to get started with.            committees eh !

CASE 317   School told that "Pin the tail on the donkey" game, a Health & Safety Risk

 This ranks alongside the well known "conkers ruling" that safety goggles should be warn when playing conkers !   (Denied by the HSE by the way!)
CASE 298   Supermarket staff not allowed to water dying plants
 Following a visit to a local supermarket store the enquirer complained about the state of plants that were on sale. They had dried out and were dying, due to lack of water. The staff told them that they had been instructed not to water the plants due to health and safety. !   
  CASE 178   Fish to be filleted at fish counter  told it was too slippery
The enquirer wanted to purchase filleted trout in her local supermarket. None was available pre-packed so they asked the assistant on the fresh fish counter if he could fillet some from a whole fish. He agreed but then his supervisor intervened saying that this wasn't possible on the grounds of health and safety because the fish are too slippery. The enquirer noted that on the supermarket website, it states "just ask if you'd like your fish skinned or filleted".

 The information contained in these pages is an HR overview and not intended to be comprehensive legal advice, always seek specific qualified advice before taking any action that could lead to litigation.   Equally, were we have provided links to external web pages, we are not responsible for the content of other sites.

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