HR briefing - May
In the courts
Working time and sleep-in shifts
The National Minimum Wage legislation has some particularly difficult rules governing what counts as working time. This has been a highly contested area, particularly in the care home sector where workers are routinely rostered on sleep-in shifts, where they can go to sleep (usually on their employer’s premises), but may occasionally be woken for work. The Supreme Court has given its final decision in one long-running claim, concluding that sleep-in workers are not “working” for the purposes of the minimum wage legislation unless they are actually awake and working. The time spent sleeping (even though on-call and available at any point) is not counted.
Discrimination claims can produce large, headline-grabbing, awards. Compensation is loss-based, so claimants who were employed on substantial salaries and/or are likely to face significant periods out of work because of the discrimination they have endured can sometimes receive very large sums. What is believed to be the second-largest award was made last month, where the London South Employment Tribunal awarded around £2.5m where an employee was dismissed shortly after disclosing that he had cancer. Press coverage of the claim is available online here.
An employee will be automatically unfairly dismissed if the reason or principal reason was that they blew the whistle – or made a “protected disclosure” to use the correct statutory language. It can be difficult be disentangle the various contributory factors to an employer’s reaction to an unwelcome disclosure, with each case turning very much on its own facts. In a recent Employment Appeal Tribunal decision, the court was satisfied that the decision to dismiss – although taken after a number of worrying disclosures about the firm’s finances and record-keeping had been made – could rightly be separated from those disclosures, as it had been the employee’s desire to resign without trying to help stabilise the business that had been the primary reason operating in the employer’s mind at the time. Since these types of cases can be very finely balanced, employers should ensure cogent records are maintained evidencing each step in their thinking. In some cases, as here, this may need employers to disclose their conversations with their lawyers – partially waiving legal professional privilege. That should, of course, only be done where absolutely necessary, and after taking advice.
In the news
Injury to feelings awards
Readers will know that damages in discrimination and whistleblowing claims differ from unfair dismissal as they (i) are uncapped and (ii) can include compensation for injury to feelings. The presidents of the Employment Tribunal regularly review the bands into which injury to feelings awards fall – the so-called “Vento bands”. The bands have recently been revised, and are now as follows.
- Lower: £900 to £9,100
- Middle: £9,100 to £27,400
- Upper: £27,400 to £45,600
The review document is available online, for any readers who want to explore the detail.
Videoconferencing and trials
The Covid-19 pandemic has produced a fundamental shift in the way many hearings and trials have been conducted across the civil and criminal justice system, including the Employment Tribunals. Almost all preliminary hearings, and the majority of full hearings, have been held via videoconferencing, and the presidents of the Employment Tribunal have recently announced that this is likely to remain the case for some time. The ability to use videoconferencing – typically using the Tribunal’s Cloud Video Platform or CVP – will, hopefully, allow the Tribunal system to catch up with its significant backlog in cases. The backlog is particularly acute in London and the South East, where the “CVP by default” model will remain for at least the next financial year. Other areas will gradually return to in-person hearings, with the parties being able to express a preference for remote hearings if they wish.
Deadline approaches to apply to the EU Settlement Scheme
The deadline for EEA and Swiss nationals to apply to the EU Settlement Scheme is 30 June 2021.
The EU Settlement Scheme was introduced by the UK Government in light of Brexit and the end of freedom of movement between the EU and the UK. It enables EEA/Swiss nationals who were living in the UK before 31 December 2020 to register for free to remain longer term. Successful applicants to the Scheme are granted full work rights. Eligible EEA/Swiss nationals who do not apply to the Scheme in time put their right to live and work in the UK at risk. So, employers are encouraged to check that their EEA/Swiss national employees have taken any necessary action. See our article for full details about the Scheme and how to apply.