Jill Evans, Law Content Analyst, looks at employment law changes and case law in November and December.
The unexpected keeps happening. The new Job Support Scheme was replaced at the 11th hour by a reintroduced Coronavirus Job Retention Scheme , and lockdowns and trading restrictions change on an almost weekly basis across the UK’s four nations. But the more predictable aspects of employment law – like statutory pay increases – are still occurring too.
Rather surprisingly in such an unstable business environment, the UK government announced increases to the National Living Wage (NLW) in November. The increases don’t take effect until April 2021 and the NLW will only go up by 2.2% to £8.91 an hour instead of the previously announced 6.2%, but the threshold age for the new minimums will drop from 25 to 23 years as promised.
The government announced in December that statutory maternity, paternity, adoption, shared parental and parental bereavement pay will rise by 1.29% in April 2021, from £151.20 to £151.97 a week, from April 2021, and statutory sick pay to £96.35. The lower earnings threshold for these pay rates is still to be announced.
Tribunal claims rise
Organisations’ usual responsibilities towards their workforce continue even during a pandemic and shrinking revenues can mean job losses. If that’s mishandled, grievances and unfair dismissal claims may follow. The most recent employment tribunal statistics for England and Wales show that between April and June this year, individual claims rose by 18% compared to 2019 and were mostly for unfair dismissal (last year they were mainly for unlawful wage deductions). Tribunals’ caseload rose by a third in the same period, which has the knock-on effect of employer respondents having to keep pending cases open.
Evidence increasingly points to older workers being more vulnerable during the pandemic and young workers are likely to be disproportionally affected by its economic fallout. Organisations need to avoid age discrimination in their practices and help line managers ensure anti-bullying policies work.
Recent tribunal cases show how discrimination can happen. In Ryan v South West Ambulance NHS Trust, a 66-year old training officer successfully claimed indirect discrimination when she was barred from promotion by not being in the organisation’s ‘talent pool’ which disproportionately favoured staff under 55 years.
The case Heskett v Secretary of State for Justice showed defences to claims are possible in particular circumstances. A probation officer showed that a public sector pay freeze was disproportionately affecting younger workers including himself. Case law has established that cost alone cannot justify discriminatory policies, but here the Court of Appeal decided that a state pay freeze was a legitimate aim and the employer’s pay policy a legitimate means of achieving it.
Bullying and harassment – marked in November with Anti-bullying Week - is increasingly being called out and case law reflects this. In Crompton v Eden Private Staff, a 57-year-old probationer brought grievances over office ‘banter’. Her manager referred to her having ‘senior moments’ and Alzheimer’s. When she was dismissed at the end of her probation period, she claimed harassment and age discrimination and was awarded £1,000 compensation.
In Shah v Total Security, a female security guard repeatedly addressed as ‘Mr’ by her employer raised the issue with the HR department. The company consistently failed to correct the mistake. She was able to show the tribunal that the misgendering – caused by an admin error during her onboarding – violated her dignity and amounted to harassment, causing her anxiety and stress. She was awarded £2,000.
In another recent case, Vaughan v Talbot Underwriting Service, an accounts assistant subjected to sustained harassment by a senior manager, raised a grievance and was subjected to a capability procedure. He resigned and claimed constructive unfair dismissal. He won and the tribunal judge noted that his employer took no steps to check his wellbeing after ‘significant incidents of bullying towards him’. Financial compensation is yet to be decided.
Explore our resources on these subjects:
Age discrimination Q&As and Case Law
Bullying and harassment at work
Line manager support
Discipline and grievance procedures Q&As
The Blawg 2020
Veganism: the new religion?
Through COVID-19, UK employment law rumbled on
Redundancy, pay related court rulings and contracts
Employment law updates: preserving jobs through JSS and tribunal rulings on fair treatment
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