Last month the Employment Appeal Tribunal confirmed that an employee’s covert recordings of her employer could be admissible as evidence in employment tribunal proceedings. In support of a discrimination claim, Ms Vaughan sought an employment tribunal’s permission to adduce in evidence 39 hours’ worth of covert recordings. Initially the employment tribunal held that this evidence could not be relied upon given the clandestine nature in which Ms Vaughan had obtained these recordings. The tribunal suggested that there was a real risk that these recordings could have been tampered with and were therefore unreliable. However, when the EAT considered the matter, it thought differently and held that it was not “implausible” that parts of this evidence would potentially be relevant and therefore admissible to the determination of Ms Vaughan’s claim. Whilst the EAT considered the practice of covert recordings to be “very distasteful”, this did not mean that all covert recordings should be inadmissible. In my view, employers and HR professionals can learn the following from this recent decision:
1 Employers should prepare their own minutes of such meetings and provide these to employees as soon as possible after the meeting has concluded.
2. Employers should ask employees to switch off their mobile phones or similar devices at the start of any formal hearing and have this request recorded in their own minutes.
3 Employers may also want to amend the terms of their handbooks so as to ban employees from making covert recordings.
Having said all of the above, it is also advisable for employers to exercise a degree of common sense when dealing with this type of issue. Clearly employers should be wary of employees who turn up to formal meetings wearing over-sized trench coats and/or unusually-shaped head gear!
Partner – Employment Law
The Court of Session has recently decided that Glasgow City Council could not rely upon outsourcing arrangements to avoid liability for equal pay claims. In Glasgow City Council (“GCC”) v Unison various services were outsourced by GCC to Limited Liability Partnerships (“LLPs”). A number of female employees whose employment transferred to the LLPs in accordance with TUPE insisted on comparing themselves to male employees who were still directly employed by GCC for the purposes of equal pay claims. GCC argued that the outsourced female employees could not compare themselves with male employees who remained employed by GCC directly.
The court rejected GCC’s argument and decided that the LLPs amounted to ‘associated employers’ for the purposes of the Equal Pay legislation. It was also held that GCC was the “single source” responsible for pay inequality. The employees’ equal pay claims will now proceed.
This is a significant decision for all concerned with equal pay. It is great news for the claimants concerned in their pursuit for equality. For employers who do engage in taking on outsourced business from local authorities, it serves as a reminder of the need to be fully aware of the risk of assuming liability for equal pay claims.
Solicitor – Employment Law
With the recent news that Employment Tribunal claims are down by a huge 79% since the Government introduced Tribunal fees, it is clear that the fees are posing a deterrent to many employees who would have otherwise intimated a claim. It may come as bad news to certain employees that from 6 April 2014, tribunal fees for certain types of claim will rise. The new Courts and Tribunals Fees (Miscellaneous Amendments) Order 2014 SI 2014/590 makes amendments to the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 SI 2013/1893 and applies the higher ‘Type B’ fees to certain types of claim which currently attract the lower ‘Type A’ fees. The Government is making this change because in the 2013 Fees Order, certain types of claim were wrongly inserted as Type A claims instead of Type B.
These changes will affect the applicable types of claim if they are presented on or after 6 April 2014 but will not affect claims presented before that date. Where a claim is made by a single claimant and it is a Type A claim, the Issue Fee is £160 and the Hearing Fee is £230, but for a Type B claim the Issue Fee is £250 and the Hearing Fee is £950.
The new Order applies the higher issue and hearing fee to:
- a complaint in relation to a breach of a sex equality clause under section 66 of the Equality Act 2010
- a complaint in relation to a breach of, or application in relation to the effect of, a sex equality rule in an occupational pension scheme under section 67 of the Equality Act 2010,
- a complaint in relation to failure of an employer to inform or consult under regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246),
- a complaint that an employer has refused to allow compensation, payment or compensatory rest under regulations 24, 24A, 27 and 27A of the Working Time Regulations 1998 (SI 1998/1833), and
- a complaint that an employer has failed to allow time off for studies or training or if a refusal is based on incorrect facts under sections 63D to 63I of the Employment Rights Act 1996 (c.18).
It is also worth noting that the new Order also substitutes a new table of Type A claims in Schedule 2.
Employers will be required to pay new national minimum wage rates from 1 October 2014.
The Government has accepted the Low Pay Commission’s recommendations to increase the National Minimum wage and it will now be £6.50 per hour for the adult rate. According to the Government, this will mean that more than one million people will see their pay rise by as much as £355 per year. This will be welcome news for those employees who will benefit.
From 1 October 2014 the changes will be:
- A 3% increase in the adult rate (from £6.31 to £6.50 per hour)
- A 2% increase in the rate for 18-20 year olds (from £5.03 to £5.13 per hour)
- A 2% increase in the rate for 16-17 year old (from £3.72 to £3.79 per hour)
- A 2% increase in the rate for apprentices (from £2.68 to £2.73 per hour)
This is the first real-terms increase since 2008. The Low Pay Commission considers that 2014 will mark the start of a ‘new phase’ of ‘bigger increases than in recent years’. If economic conditions continue to improve there may be plans for bigger increase in the future.
Employers should begin to prepare for these wage increases and consider how the budget will cope with this change.
Statutory discrimination questionnaires are being abolished with effect from 6 April 2014.
What are discrimination questionnaires?
The Equality Act permitted a person who thought that he or she had suffered unlawful discrimination to obtain information from his or her employer by means of a specific questionnaire procedure. These questionnaires were frequently lengthy and required a significant degree of work on the part of the employer in their completion. An employer required to respond to this questionnaire within a period of eight weeks and an employer’s failure to answer this form of questionnaire allowed an employment tribunal to draw an adverse inference from this at any future hearing.
What is the future for these questionnaires?
On 6 April 2014, section 138 of the Equality Act (which contained provision for these discrimination questionnaires) is being abolished. It should however be noted that these old discrimination questionnaires will still be available for proceedings that relate to acts of discrimination which took place before 6 April 2014.
Are they being replaced with an alternative procedure?
ACAS has issued guidance explaining how “informal” questions may still be asked of employers once the statutory discrimination questionnaires have been abolished. The ACAS guidance is clear that, whilst employers will continue to be under no legal obligation to answer these questions, a tribunal will be able to look at whether (and how) questions have been answered as a contributory factor in making its overall decision in a discrimination claim.
Is this good news for employers?
At first glance, this does appear to be good news for employers. In my experience, an employer responding to a discrimination questionnaire took a significant amount of time to do so and ultimately the employer’s formal response added little to the future determination of discrimination claims at tribunal hearing. However it remains to be seen the extent to which the ACAS guidance is utilised in the future and the effect which any employer’s response will have to the determination of discrimination claims.
Employers who are faced with either a discrimination questionnaire or the ACAS-suggested “informal” questions should take legal advice as soon as possible so as to limit the potential liability for a successful claim.
Partner – Employment Law
Victimisation is unlawful under the Equality Act 2010. Victimisation arises where an employer subjects an employee to a detriment because the employee has done a protected act. A protected act can include, for example, making an allegation of, or bringing a claim for, discrimination under the Equality Act. In victimisation claims, usually the person will be complaining about a detriment suffered when they were still employed. However, what about where the detriment to which the employee is subjected arises after the termination of employment?
Well, section 108 of the Equality Act provides for certain types of discrimination which will be unlawful if they take place after the employment relationship has ended. However, subsection 7 provides that it is not a contravention of section 108 in so far as it also amounts to victimisation. So, on the wording of the Equality Act, victimisation which took place after the termination of employment would not be unlawful. For example, an employer providing a false or inaccurate reference to spite an employee who had made discrimination allegations.
This is exactly what happened in the case of Jessemey v Rowstock & Davis Ltd. Mr Jessemey had been dismissed by his employer at age 65. He brought an employment tribunal claim for unfair dismissal and age discrimination (remember that the default retirement age has been abolished). In response to these claims, his former employer provided a bad reference when he applied for another job. Mr Jessemey accordingly lodged another tribunal claim, this time for victimisation. Although the employment tribunal upheld his unfair dismissal and age discrimination claims, they rejected his victimisation claim on the basis that section 108(7) did not protect post-employment victimisation.
The Court of Appeal has recently handed down its decision in this case where Lord Justice Underhill concluded that post-employment victimisation was not excluded by the Equality Act. Mr Jessemey’s case was accordingly sent back to an employment tribunal to decide the victimisation claim.
Accordingly, employers should avoid subjecting employees to any detriments (such as negative references) after the termination of employment if the detriment is for victimisation reasons. The decision of the Court of Appeal makes it clear that employers can be liable for victimisation even after employment has ended.
Solicitor – Employment Law