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Employment Law News

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Imminent changes designed to streamline the conduct of employment disputes

With the coronavirus pandemic likely to intensify the backlog of employment tribunal claims, the Government has announced a raft of the changes designed to streamline the conduct of disputes and improve capacity within the tribunal system.  Save for the change to the Acas early conciliation period, all the changes are due to come into force on 8 October 2020.

The changes are as follows:

• Allowing more time to settle disputes before a tribunal claim is started: currently, the standard Acas early conciliation period is four weeks, with an extension of two weeks available in certain circumstances. From 1 December 2020, the standard period will be increased to six weeks in all cases and there will no ability to extend this period further.  Parties will still be able to end the conciliation period before the expiry of the standard period if they wish.

• Taking pressure of employment judges: First tier Tribunal and Upper Tribunal Judges, High Court and Deputy High Court Judges and Circuit Judges may be called upon to sit as employment judges in order to widen the judicial pool and provide greater capacity to hear cases. In addition, pressure will be eased from employment judges by diverting some of their administrative tasks to new “legal officers”. These tasks include the determination of the following: whether a claim form is defective; granting extensions of time to respond to a claim or comply with a case management order; and granting postponements in uncontroversial cases.  Parties will be able to apply for a legal officer’s decision to be reconsidered by an employment judge.
• More flexibility for multiple claimants and respondents to use same claim and response forms: this will be permitted where the claims give rise to common or related issues of fact or law or if it is otherwise reasonable to do so.  This will help ease the administrative burden on the tribunal system.
• Common sense approach to taken in respect of errors on the claim form: if the Acas early conciliation number on the claim form does not match the number on the Acas early conciliation certificate, the claim will not be rejected if the employment judge considers this was a mistake and that it would not be in the interests of justice to reject the claim.
• Streamlining the listing of hearings: cases may be listed before the deadline for response has passed provided that the date of the hearing is not sooner than 14 days after the response deadline.
• More flexibility over the conduct of virtual hearings: the inspection of witness statements by the public will not necessarily have to be during the hearing itself and the public will only hear what the tribunal hears and see witnesses “as far as practicable”. It is hoped that these changes will allow more virtual hearings to take place.
• Encouraging settlement by avoiding the dispute ending up in the public domain: cases which are dismissed upon withdrawal will no longer be included on the searchable online public register. This may well encourage parties to settle disputes.
• Other minor changes:
  • Default judgments: where a response has not been filed and the employment judge considers it necessary to hold a preliminary hearing, a default judgment may be issued after that preliminary hearing without the need for a further hearing.
  • Reconsideration of a judgment: judgments will be able to be reconsidered by any employment judge and not just the original employment judge.
  • Witness orders: where a witness order is made the other parties will be notified of the order and the name of the person/s required to attend.

Comment

These changes are sensible and should help ease the burden on employment tribunals and speed up the progression of disputes through the system to some degree.  However, with a reported backlog of 45,000 claims, and a further spike in claims expected after the closure of the Coronavirus Job Retention Scheme on 31 October 2020, it remains to be seen whether these reforms will be enough to preserve meaningful access to justice.

If your business needs advice on responding to an employment tribunal claim please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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Employment Law News

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NO BREACH OF PRIVACY WHEN EMPLOYEE DISMISSED USING MATERIAL FOUND ON HIS MOBILE PHONE 

The Claimant, Mr Garamukanwa, was employed by Solent NHS Trust as a clinical manager. He was involved in a personal relationship with a female colleague which ended. Shortly afterwards, he emailed another colleague, expressing concern that she had formed a personal relationship with a junior female staff member. They both complained to a manager who spoke to Mr Garamukanwa about his behaviour. A campaign of harassment and stalking against the two women then took place for around 10 months. This included a number of anonymous, malicious emails and messages that were sent to employees of the Trust and to the women personally, making various allegations against them. Property belonging to both of them was also damaged.

A complaint was made to the police who informed the Trust that they were investigating the claims and there were serious concerns regarding the conduct of the Claimant. The Claimant was suspended and during the course of the police’s investigations, the police found photographs of one of the women’s home addresses on the Claimant’s phone and a sheet of paper containing details of the email accounts from which anonymous messages had been sent. The police passed this information onto the Trust, which was carrying out its own internal investigation. The person carrying out the investigation concluded that there was sufficient evidence to link the Claimant to at least some of the anonymous emails. At the subsequent disciplinary hearing, the Claimant voluntarily provided the panel with further evidence on his behalf, including personal emails and WhatsApp correspondence between himself and the complainant. Taking the personal iPhone material into account, the Trust dismissed the Claimant for gross misconduct.

The Claimant brought unfair dismissal proceedings in which he alleged that the Human Rights Act and the European Convention on Human Rights were breached by the Trust as matters relating to his private life were examined and used to justify his dismissal. The Claimant contended that he had a reasonable expectation that this material would remain private. The Claimant took his case to the European Court of Human Rights.

The Court dismissed the appeal. It held that the fact that an email touched upon both professional and private matters, or was sent from a workplace email address did not automatically mean that it would fall outside the scope of “private life” for the purposes of the right to privacy. However, given the facts, the Claimant did not have a reasonable expectation of privacy in respect of the iPhone material and private communications relied upon by the Trust. The Claimant had been placed on notice for almost a year that concerns had been raised about his behaviour by the Trust. This was enough notice that allegations of harassment had been made against him and he could not have reasonably expected that, after this date, any materials or communications which were linked to the allegations would remain private.

It was also held relevant that the Claimant had not challenged the use of the material obtained from his iPhone or any of the private communications during the course of the disciplinary hearing and that he had voluntarily provided the disciplinary panel with further private communications of an intimate nature between him and the complainant. Hence, there was no reasonable expectation of privacy over any of the material or communications before the panel.

This case is a reminder of the importancefor employers of putting employees on notice about allegations of misconduct against them at an early stage.

Garamukanwa v United Kingdom (79573/17) [2019] 6 WLUK 109

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The Employment Appeal Tribunal has held that an employee who was dismissed for failing to provide evidence of his right to work in the UK after his original right to work came to an end should have been given the right to appeal against his dismissal.

The facts of the case concerned Mr Afzal, who had been employed by Domino’s Pizza since 2009. Mr Afzal’s time-limited right to work in the UK was due to expire and he was required to make an application for a right to permanent residence before 12th August 2016. Mr Afzal made his application in time and sent his employer an email attaching evidence of his right to work. However, Domino’s was unable to open the attachment. Concerned about the risk of continuing to employ Mr Afzal, Domino’s dismissed him on 12th August 2016 without any right of appeal.

When Mr Afzal was able to provide evidence of his right to work in the UK, he was given the opportunity to be re-engaged as a new starter (although on inferior terms). He therefore claimed unfair dismissal.

The Employment Tribunal held that refusing Mr Afzal the right to appeal did not make his dismissal unfair, as Domino’s had reasonable grounds to believe that the Claimant had failed to make a valid application. The ET therefore held that Mr Afzal had “nothing to appeal against.”

Mr Afzal appealed to the Employment Appeal Tribunal, who disagreed with the ET’s decision. Mr Afzal had made his application in time. An appeal would have enabled the employer to carry out checks to satisfy themselves that the application had been made in time, and therefore avoid an unnecessary dismissal.

This case therefore highlights the invaluable nature of appeals processes in circumstances such as these and the importance of employers implementing fair procedures when the need to dismiss employees does arise.

Afzal v East London Pizza Ltd t/a Dominos Pizza UKEAT/0265/17

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The level of certain awards which can be awarded by Employment Tribunals will increase from 6 April 2018.

Each April, compensation limits for Employment Tribunal cases increase in line with the Retail Price Index.

The maximum limit on a week’s pay (which is important for the calculation of redundancy pay, unfair dismissal basic awards, and holiday pay, among other things) will increase from £489 to £508.

The maximum basic award for unfair dismissals will rise from £14,670 to £15,240, whilst the statutory cap on the unfair dismissal compensatory award will increase from £80,541 to £83,682.

Employment Rights (Increase of Limits) Order 2018 (SI 2018/194)

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