Stunning victory for Employment Claimants as Britain’s top court declares tribunal fees illegal

As an experienced Employment lawyer I have learnt that the world of workplace disputes is like a pendulum. At times the odds seem stacked in favour of the employer and then the world changes and the employee appears on top.

There has been no question that over the last few years the employer was on top. The Government – it is usually the Government of the day – imposed a series of obstacle and restrictions that made it more difficult for employees to bring l claims.

The most significant obstacle for claimants was the decision of the Government in 2013 to force claimants to pay fees to file employment tribunal claims. Claimants were forced to pay charges ranging from £390 to £1,200 depending on the complexity of the case.

The impact was dramatic and immediate. In 2012-13 191,541 claims were issued. In 2016-17 that number had fallen to 88,476.

Well, that has now changed. Today the world has turned the pendulum has swung decisively towards the claimant.

Following a claim by Unison Britain’s top court the Supreme Court has declared the decision to impose fees on claimants as unlawful and what is more has ordered that all claimants who were forced to pay fees should get their money back! The estimated pay back is £27 million.

The Supreme Court ruled the fees order prevented access to justice and was discriminatory in that it hit protected groups such as women harder who found themselves the possible victims of discrimination but without the resources to do anything about it. It is such am a major game changing decision I attach the Judgment. uksc-2015-0233-judgment

The justification for the fee imposition was to protect businesses from bad claims but the Supreme Court has held that the impact went far further – preventing potentially good claimants from getting access to justice.

Will we see a return to the level of claims we had before the fees were imposed? Let’s see!

Tim Healy

Tim Healy – Employment Lawyer – Slade Legal 01235 521920

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Can my boss sack me for what I say on Social Media?

A man is silhouetted against a video screen with an Facebook logo as he poses with an Dell laptop in this photo illustration taken in the central Bosnian town of Zenica

The short answer is yes. In certain circumstances you can be legally sacked for what you say on Facebook, Twitter or other social media. Even if you are at home and just speaking to friends.

When can you be legally sacked? It depends on whether it was reasonable to do so following certain guiding principles. However it is not straight forward. There are cases where the law has supported the employer and apparently similar cases where the law has supported the employee. It is often hard to spot the difference. Ultimately it depends on the facts of the case and one small facet of the case can make all the difference. Some real cases;

Case one – Mr Smith worked for the British Waterways Board. He was sacked for gross misconduct for derogatory comments he made about his managers on Facebook, and boasts that he had been drinking alcohol whilst on duty. The comments included: “that’s why I hate my work for those reasons it’s not the work it’s the people who ruin it nasty horrible human beings”; “why are gaffers such p*****. His dismissal was held to be fair. British Waterways Board v Smith UKEAT/0004/15

Case two – Mr Trasler worked for B&Q. He was sacked for his Facebook comments. He posted that his “place of work is beyond a f****** joke” and that he would soon be “doing some busting”. His dismissal was held to be unfair. Trasler v B&Q ET/1200504/12

So what gives?

The law says an employer can dismiss an employee for conduct outside of work including social media activities provided it can demonstrate that the employee’s conduct undermined their employment relationship, or affected their ability to do their job, or in some way damaged their reputation or interests.

There are now a fair few social media unfair dismissal cases with the decisions split evenly between Employer and Employee. The determining factor is the application of these guiding principles to the particular facts of the case. As a rule of thumb a tribunal will ask these questions.

Did the Employer have a clear policy on social media usage? If the employer can show that they did have a clear policy and the employee simply ignored it then the law may lean towards the employer.

What exactly did the Employee say? Was the Employee merely letting off steam or were their comments discriminatory or bullying? How bad were the comments?

Who got to read the comments? Was it accessible to everyone or only a select few? The more who saw the comments the more serious it is likely to be construed – especially if the targets of any comments got to hear of them.

What is the role or status of the employee? The more senior or responsible the employee the less latitude will be given. What a warehouse or shop worker says may be treated less seriously than what a teacher or social worker says.

Did the comments actually cause damage or distress? It is not enough to claim the comments were wrong they need also to show damage was actually caused. How has it undermined the relationship? How has it damaged the reputation of the employer? Who suffered a detriment?

Employees will reasonably consider that their employer has no business telling them what they can do out of work. The law indeed recognises an employee’s right to privacy. But beware. If you chose to make statements on social media that the public can see you will have given up that right. Further if you say things that your employer does not like it could get you the sack.

So watch what you say.  Use common sense.  If you want to slag off your boss don’t do it in writing and don’t do it on social media!

For advice on any aspect of Employment Law talk to Slade Legal today.

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Attorneys Who Denied Father Access to His Money Removed

The Court of Protection has come to the rescue of an elderly man who wished to have access to his own funds.

The man, now aged 87, appointed his son and daughter to be his attorneys under an Enduring Power of Attorney (EPA) executed a few months after his wife died in 2007.

He remarried in 2010 and a few months before that he gave his prospective future stepson £100,000. He later gave him an additional £5,000. When his son and daughter became concerned about some of his expenditure, they applied to register the EPA with the man’s approval and that of his wife. Under the law relating to EPAs (which are no longer available, having been replaced by Lasting Powers of Attorney), they can only be registered when the attorneys believe the creator of the EPA has lost mental capacity.

This took place in May 2013. In August that year, they sought to limit his access to his income and his capital.

Unsurprisingly, his relationship with his children deteriorated and in 2014 he applied to the Court of Protection to have the EPA revoked on the ground that the denial of access to his own money by his attorneys was ‘financial abuse’.

Crucially, when the application was made, he had had his signature witnessed by his doctor, who supported his application, despite the man having ‘mild vascular dementia’.

The doctor’s statement specifically addressed the questions the Court must ask, stating that he believed that the man had the capacity to sign a revocation of the EPA and that he was:

  • able to understand who the attorneys were, what authority they had and why it was necessary or expedient to revoke the power;
  • able to retain information relating to issues regarding revocation of the EPA;
  • able to weigh relevant information such as the benefits and risks of revoking the EPA; and
  • able to comprehend information relevant to the decision, retain that information, weigh it ‘in the balance’ so as to make a considered choice and communicate that decision.

The judge rejected the attorneys’ submissions that the EPA should remain in force and, in a severe judgment, ordered that both parties’ costs should be paid by the attorneys.

Great care should be taken when choosing who will look after your affairs should you no longer be able to do so yourself. We can assist you by providing a professional attorney or co-attorney to supervise the administration if required.
Great care should be taken when choosing who will look after your affairs should you no longer be able to do so yourself. We can assist you by providing a professional attorney or co-attorney to supervise the administration if required.  Talk to Lisa McQueen at Slade Legal today for expert advice.  Telephone 01235 521920 or alternatively email lisa.mcqueen@slade-legal.co.uk
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Teacher Forced to Resign

A teacher was forced to resign when videos of her beach holiday activities went viral and upset parents of the posh school she worked at. www.mirror.co.uk/news/world-news/twerking-primary-school-teacher-sacked-7726815

This can happen here. In certain cases the law will allow an employer to dismiss an employee for what that they may have said and done in their private life.

This is clearly a controversial area. An Employee will reasonably say that what they do outside work is none of the employers’ business and is an infringement of their private life. However the Employer will claim that in some cases what their staff does outside office hours is their business – especially if it affects their reputation or business or undermines the ability of the employee to their job.

The question is this – where do you draw the line?

If you have any questions relating to Employment Law contact Tim Healy at Slade Legal on 01235 521920 or alternatively email tim.healy@slade-legal.co.uk

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Employment Law Changes Come into Effect in April 2016

1 April 2016

  • National Living Wage. The National Minimum Wage (Amendment) Regulations 2016 (SI 2016/68) will come into force on 1 April 2016. The new National Living Wage will apply to workers aged 25 and over at a rate of £7.20 an hour.

6 April 2016

  • Financial penalties for unpaid tribunal awards and settlements. The Small Business, Enterprise and Employment Act 2015 (Commencement No 4) Regulations 2016 (SI 2016/321) will come into force on 6 April 2016. The regulations bring section 150 of the Small Business, Enterprise and Employment Act 2015 into force. Section 150 inserts a new Part 2A into the Employment Tribunal Act 1996 to introduce a new scheme for penalising employers who fail to pay tribunal awards or settlement sums under a COT3. For more information on the scheme.
  • Tribunal postponement provisions of SBEEA. The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2016 (SI 2016/271) will apply to claims issued on or after 6 April 2016. These changes include limiting the number of postponements to two for each party in each case, introducing a deadline for postponements of seven days before the hearing and requiring a costs or preparation order to be considered where a successful application for a postponement is made less than seven days before the hearing. For more information on the changes.
  • Abolition of contracting-out on a salary related basis. On 6 April 2016, the government NICs rebates for contracting out of S2P will be removed and employers and employees will have to contribute in full. For more information.
  • Tribunal compensation limits. The Employment Rights (Increase of Limits) Order 2016 (SI 2016/268) will come into force on 6 April 2016. The maximum compensatory award for unfair dismissal will rise from £78,335 to £78,962. The maximum amount of a week’s pay, used to calculate statutory redundancy payments and various awards including the basic and additional awards for unfair dismissal, also rises from £475 to £479. For more information on key rates and limits.

If you have any questions relating to Employment Law, contact Tim Healy at Slade Legal on 01235 521920 or alternatively email tim.healy@slade-legal.co.uk

 

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New Inheritance Tax (IHT) Relief on Family Residences

From 6 April 2017, a new Inheritance Tax (IHT) relief is being introduced that will benefit homeowners in the UK. With house prices having risen rapidly over the years, the family home is a substantial asset for many families – and a potential IHT liability.

The relief will add an extra ‘tax-free’ band in addition to the current nil-rate band of IHT of £325,000. The relief will start at £100,000 and rise in stages to £175,000 by April 2020. It is important to note that the relief will only be able to be transferred between spouses and civil partners, not between couples who live together. It will apply in respect of the ‘family home’ only.

In order to obtain the relief, the family home will have to pass to a direct descendant of the deceased person. The relief will be restricted for those whose estates exceed £2 million.

The relief will also not apply to couples with no children, as they have no direct descendants. The term does, however, include the spouse or civil partner, or the surviving spouse or civil partner who has not remarried, of a direct descendant.

The change will be welcomed by many whose wealth is tied up in their home. The requirement that IHT is paid on account before probate is granted is an onerous one for many, and this new relief will provide a measure of mitigation.

For advice on all aspects of family wealth preservation and estate planning, contact us.
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Lisa McQueen
Head of Department
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The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
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Disabled Employee Pays Price for Refusal to Work

An employee who is mistreated by their employer has every right to complain. However, an employee who digs in their heels may pay a high price for their actions, as was illustrated by a case concerning a disabled man who simply downed tools and refused to work after he was demoted (Rochford v WNS Global Services (UK) Limited and Others).

Mr Rochford was a senior vice president working for WNS Global Services (UK) Limited, a business services company. He had a long-standing back problem, for which he required surgery, and had to take a year off work. The company asked him to return to work on limited duties but failed to tell him that the aim was for him to work up to his previous role.

He believed that he had been demoted and, after his return to the office, refused to carry out any work whatsoever, even that of which he was capable. Following a disciplinary process, he was summarily dismissed on the basis that his refusal to work amounted to a gross act of insubordination and a breach of his contract.

Mr Rochford brought claims of unfair and wrongful dismissal, contending that he had been discriminated against because of his disability.

An Employment Tribunal decided that his dismissal was procedurally unfair, that he had been demoted and that he had suffered disability discrimination. However, it went on to rule that he had suffered no substantive unfairness on the basis that his refusal to work amounted to misconduct and that his dismissal lay within the range of reasonable responses open to the company. His wrongful dismissal claim also failed.

In rejecting his appeal against that ruling, the Employment Appeal Tribunal noted that it was a case of a senior employee, in receipt of full pay, refusing to do any work. He had received a number of warnings as to the consequences of the stand he was taking and the course which he should have followed was either to resign and claim unfair constructive dismissal or to work under protest.

If you would like guidance on this topic, we can advise you according to the individual circumstances.

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Timothy Healy
Head of Department
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The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
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