Judges outlaw paying fees for employment cases

Employment Tribunal, fees

Trade unionists hail win against fees








Requiring women to pay a fee for taking a discrimination case to an employment tribunal breaches the Equality Act, the Supreme Court has ruled.

This was one reason the Supreme Court upheld an appeal by the union, Unison, against government policy that charged workers fees to lodge a claim at an employment tribunal.

The result of the case is that government has immediately dropped its charges but will further consider the issue at a later date.

Supreme Court judges in July 2017 heard that women were indirectly discriminated against because they were more likely than others to take a particular type of case that incurred higher fees.

The Court said:

“The Fees Order is indirectly discriminatory under the Equality Act 2010 because the higher fees for type B claims put women at a particular disadvantage because a higher proportion of women bring type B than bring type A claims.”

Pricing workers out of justice

The Court also ruled the government’s fees breached UK and EU law because they priced workers out of obtaining justice.

As the Supreme Court said:

“Fees must be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. Where households on low to middle incomes can only afford fees by forgoing an acceptable standard of living, the fees cannot be regarded as affordable.”

The Supreme Court also stated that all fees paid from 2013 will have to be refunded by the Lord Chancellor’s Department and the government has agreed to do this.

From 2013, the government introduced fees from £400 to £1,200 for people lodging legal claims in order to have their cases heard at an employment tribunal. There were other fees of up to £600 that might have to be paid depending on the case. To appeal an Employment Tribunal decision cost £1,600.

The Court heard that the number of claims fell by just under 70% because of the fees. Judges were also told that 86,130 cases were brought to a tribunal in 2015/16, and £11.6m was paid in tribunal fees in 2016/17.

The Supreme Court ruling reverses the outcome of the High Court case in August 2015 that Unison lost. The High Court concluded that the early conciliation process and fees could be responsible for the decrease in the number of cases.

For further advice about employment disputes please contact Sharma Solicitors 0345 430 0145. Sharmasolicitors@sharmasolicitors.com. www.sharmasolicitors.com

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Sex discrimination roles reversed

sex discrimination

Did a quip at work go too far?

A woman’s ‘blow job’ quip to a male employee was sexual discrimination, ruled an Employment Tribunal. This case is unusual in that the roles were reversed and it was a man who complained of the sex discrimination.

In Elworthy v Your-Move.Co.UK Ltd May 2017, the Employment Tribunal agreed that the remark by manager Ms Sarah Thompson made sales consultant, P Elworthy, feel uncomfortable. The Employment Tribunal upheld his direct discrimination claim but found that the remark did not meet the bar for harassment.

The Employment Tribunal heard that Sarah Thompson made the remark after a boozy works lunch in December 2013. She told Mr. Elworthy that if he achieved £180,000 in sales, she would give him a blow job. Another employee, Mr. Barrett, claimed that Ms Thompson said that he was excluded from this ‘benefit’ because he was married. Mr. Barrett claimed he took the remark as a joke.

The court also heard that four or five colleagues carried on drinking after the lunch. They were talking about sales targets and their effect on their bonuses. Sarah Thompson denied making the remark and said she regarded him as a friend. Mr. Elworthy said he did not complain at the time because he feared for his job.

Less favourable treatment

However, he did complain about the quip when he had a second disciplinary hearing in September 2016, after which he handed in his resignation letter. The tribunal accepted that Mr. Elworthy was a high performing mortgage adviser. He was a pleasant, articulate and intelligent man.

Led by Employment Judge Elliott, the tribunal stated:

“We have found above that Ms Thompson’s comment left the claimant feeling “a bit uncomfortable” and “not great”. It did not meet the bar for harassment but we find that the effect on him was nevertheless detrimental. It was a highly sexualised comment and we have no hesitation in finding that the comment was made because of the claimant’s gender. We find that Ms Thompson would not have made an equivalent comment to a woman. We therefore find that the comment was less favourable treatment because of sex and the claim for direct sex discrimination succeeds.”

Mr. Elworthy’s claim came under direct sex discrimination as defined in section 13 of the Equality Act 2010. The Employment Tribunal did not find in his favour in regard to constructive dismissal  and other employment law issues.

For further advice about the Equality Act and other employment issues please contact Sharma Solicitors 0345 430 0145, Sharmasolicitors@sharmasolicitors.com    www.sharmasolicitors.com



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Dad scores victory for equal paternity pay

Father paternity employment law equality

Dad wanted equality with mums

A father won his discrimination claim demanding equal pay for paternity leave with mothers who took maternity leave.

In the employment tribunal, in the case of Mr Ali v Capita Customer Management Limited 2017, the judge ruled the father was entitled to the same rate of enhanced paternity pay as mothers on enhanced maternity pay.

Mr Ali alleged direct sex discrimination because his employer treated him less favourably than female employees. Capita gave mothers enhanced pay for 14 weeks of maternity leave but fathers received only statutory pay. Mr Ali wanted to take care of his new born baby, when his wife became unwell.

Since 2003, under section 80A-E, now incorporated into the Employment Rights Act 1996, fathers of new born babies are entitled to take paternity leave of two weeks. Evidence suggests there has been a mixed take up of this benefit, perhaps because the statutory entitlement to pay is only statutory paternity pay – equal to statutory maternity pay.

Additional benefits, additional costs

This case centred on the additional benefit provided to women after child birth, namely, enhanced company maternity pay after the two weeks. Here the employer also offered leave to the partner of the woman who had given birth but only paid statutory paternity pay and not enhanced company pay. Mr Ali claimed this was discrimination, as he needed to care for his ill wife and new baby.

He argued that there was an unfair assumption that a man caring for his baby was not entitled to the same pay as a woman. He said this took away choice that he and his wife could make about who looked after the baby.

Paying for paternity

The tribunal said that the employer’s policies meant that men and women who took leave to care for their new born babies were not treated equally in relation to pay. But, the tribunal also held that less favourable treatment did not apply to the first two weeks of maternity leave that was compulsory for mothers. Indeed, Mr Ali received his full pay during the first two weeks of his paternity leave. His complaint was about the rest of the paternity leave.

The lesson for employers is that they should review their maternity and paternity leave policies so that employees receive the same benefits.

For further information about maternity and paternity leave please contact Sharma Solicitors 0345 430 0145. Sharmasolicitors@sharmasolicitors.com. www.sharmasolicitors.com

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Supreme court rules it’s discrimination even if you don’t know why

Law, discrimination, tribunal

Indirect discrimination in some work-based tests

A ground-breaking court case ruled that employers will be guilty of discrimination even if they do not know why their procedures are at fault.

The case was Essop -V- Home Office, and the court looked at ‘indirect discrimination’, where an unnecessary criterion negatively affects certain groups specified in equality law compared to others. The procedure was a ‘Core Skill Assessment’ that Home Office employees had to pass before they could gain promotion.

Yet, evidence presented to the court showed that black, ethnic minority candidates, and those over 35, had a proportionately lower pass rate than white and younger candidates. Fifty-two Home Offices employees brought race and age indirect discrimination cases.

The Home Office defended itself by arguing that the employee should not use the courts to benefit from a ‘statistical fluke’. They argued that each employee had to establish why they failed before the court could judge that they had been victims of race or age discrimination. A higher court eventually ruled otherwise.

Discriminatory tests

The case went to the nation’s top court, the Supreme Court. Giving the judgment, Lady Hale said that employees did not have to explain to a court why indirect discrimination puts one group at a disadvantage. If there is a link between the criterion or practice and the disadvantage suffered, that is sufficient. So, if you are a black candidate and fail the Core Skill Assessment but can provide evidence to show more black candidates than white fail, this is enough to establish a case of indirect discrimination.

Indirect discrimination

The Equality Act 2010 says that unlawful direct discrimination is where A treats B less favourably because of B’s race, sex, religion or other ‘protected characteristic’. Then there is also indirect discrimination.

Indirect discrimination occurs when A applies to B a provision, criteria or practice which is discriminatory to B’s race, sex, religion, etc. An example would be if a police force said they would only recruit men. Whilst this policy may not be directed at a particular individual, it clearly discriminates against women in general and a woman applicant would be discriminated against.

Defence to indirect discrimination

Section 19(2) of the Equality Act 2010 provides an employer with a defence to a claim of indirect discrimination. The employer will have a defence to a claim of indirect discrimination, if he can show that the provision, criteria or practice is a proportionate means of achieving a legitimate aim. The aim must be legitimate and the means of achieving it must be proportionate. The Equality and Human Rights Commission’s Employment Code provides an example of a legitimate aim – health checks on older workers to ensure health and safety. This would be a proportionate means of achieving the legitimate aim of preserving the health and safety of older workers.

If employers or employees need advice on the Equality Act and on indirect discrimination they can contact Sharma Solicitors on 0345 430 0145.

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Employers given green light to ban religious headscarves

Employmetn law, religion, tribunal court

European judges say no to whimsical headscarf bans

After complicated rulings by European judges on wearing religious symbols at work, employers need policies that do not discriminate.

The European Court of Justice (ECJ) heard arguments in the case, Achbita and anor v G4S Secure Solutions NV (Case C-157/15). Judges said that a company ban on employees wearing visible signs of political, philosophical or religious belief was not necessarily discriminatory.

Nonetheless, they advised that if the policy was poorly implemented it could give rise to indirect discrimination – where an unnecessary rule unfairly hinders a particular group. Whatever the policy, employers must implement it across the board and apply it to all staff of all religions. So, if headscarves are banned, so too must be Christian crosses that are on open display.

Customer complaints are not policy

In a separate case, Bougnaoui and anor v Micropole SA (Case C-188/15), judges said it was discrimination if a company with no policy disciplined a worker in response to a customer complaint about a headscarf.

The ECJ said such treatment could not be defended on the basis of a ‘genuine and determining occupational requirement’ under Article 4 of the EU Equal Treatment Framework Directive (No.2000/78). But it did in general defend an employer’s desire to project an image of neutrality.

Guidance to national courts

The European rulings give guidance to national courts. The cases involved Muslim women workers who were sacked after ignoring instructions not to wear headscarves. G4S had a clothes policy and Micropole did not.

At G4S in Belgium, a Muslim receptionist wore a headscarf to work was later dismissed on 12 June 2006. She brought a wrongful dismissal and/or discrimination case but it was dismissed by a Labour Court. Her appeal was eventually referred to the ECJ.

In the other case, a Muslim design engineer for Micropole in France wore a headscarf even though she was told not to. She brought a case of religious discrimination after she was sacked.

Under the UK’s Equality Act 2010, it is unlawful to treat a worker unfavourably because they had various ‘protected characteristics’ such as race, religious beliefs, gender, sexuality, and disability.

If employers or employees need advice on employees wearing clothing with religious and other beliefs, or policies on clothes, they can contact Sharma Solicitors on 0345 430 0145.

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Damages awarded must equal damage inflicted

Employment, damages, confidential information, trade secrets

Employer missed the jackpot – High Court Judge

An investment firm won their £15m legal claim for stolen data by two former employees but was only awarded £2. In Marathon Asset Management LLP & Ors v Seddon & Ors 2017, the Honourable Mr Justice Leggatt, last week (28 February 2017), awarded the employer only £1 in damages for each cheating employee.

Marathon wanted the defendants, ex-employees, Luke Bridgeman and James Seddon to pay for the value of the data files they took and also the company’s risk of loss. Mr Bridgeman copied over 40,000 files and Mr Seddon 33 files.

However, neither defendant was able to damage Marathon or profit through their wrong doing.

Victory and pyrrhic victory

The case shows that the first question any employment solicitor should ask his employer client is what is the cost of the wrong done to you. In other words, you must ask: ‘how much money have you lost’? That, in effect, is what you can sue for.

Justice Leggatt put it best when he said: “It is axiomatic that the general object of an award for damages for a civil wrong is to compensate the claimant for injury caused by the defendant’s wrongful act.”

He went on to say: “In circumstances where the misuse of confidential information by the defendants has neither caused Marathon to suffer any financial loss nor resulted in the defendants making any financial gain, it is hard to see how Marathon could be entitled to any remedy other than an award of nominal damages.”

Trade secrets and confidential information

Implied clauses in modern contracts of employment protect employers’ trade secrets and confidential information. They prevent employees from using them for their own benefit, both during and sometimes after the end of employment.

An example of a trade secret is information concerning a secret manufacturing process or chemical formula. It will be protected after employment has ended, whether or not the contract of employment contained specific clauses prohibiting its use by the departing employee.

Other information such as sales information or distribution routes do not have the character of sufficient confidentiality to render that information as a trade secret. Therefore, after the end of employment, ordinary confidential information is only protected if the contract of employment contains express post termination restrictions on its use.

Advice for employers

Ensure your contracts of employment all contain confidentiality clauses, listing the information you regard as confidential, during and after employment ends. If there is a breach, usually, threats of litigation are enough to bring the errant ex-employee to heal. If you have to sue, make sure it is worth it.

Advice for employees

The advice for employees is to think ahead before signing the contract of employment, at the start of employment. If you think you may be taking confidential information with you after departure, seek to minimise the confidentiality clauses, perhaps arguing that this information or these clients belong to you and you are bringing them to the company. Act before you sign, as afterwards you will be locked in.

Sharma Solicitors on 0345 430 0145.

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Leeds United 0 Nigel Gibbs 1

Employers tried to turn an assistant manger into a cleaner

Employers tried to turn an assistant manger into a cleaner

Employers cannot treat employees badly, even if they don’t respect their competence. Leeds United discovered this after their assistant manager, Nigel Gibbs, won a breach of contract case brought at the High Court.

Gibbs had a fixed-term contract with the club in 2013 when the manager, Brian Mc Dermott, was hired. But he decided to stay on when new owners paid Mr. McDermott to leave.

Problems began when the new owners did not put Gibbs in charge of the first team. Instead, they offered him the under-18 team.

Gibbs felt this was below his new status and refused. Things got worse when the owner then said he should clean the grounds. He resigned and went to court to force them to pay off the balance of his contract. Given that this was football and presumably even cleaners earn a fortune, Gibbs lodged his claim in the High Court rather than the Employment Tribunal.

What is constructive dismissal?

An employee who has worked continuously for a period of two years acquires the right not to be unfairly dismissed under S94 Employment Rights Act 1996 (ERA). Most Employment Tribunal cases concern actual dismissal, where the employer dismisses the employee.

A constructive dismissal occurs when the employee resigns, claiming that the employer’s bad behaviour drove him out. He then invites the Employment Tribunal, to treat his resignation as a dismissal, under S95(1)(c) ERA, by arguing that he had no choice but to resign because of the bad behaviour of the employer. Hence constructive dismissal.

Trust and confidence

A term implied by law into every contract of employment is that both employer and employee will behave in such a way as to enable the employment relationship to work effectively- the implied term of mutual trust and confidence.

To win, Gibbs had to show that Leeds broke the contract and damaged the working relationship. In legal terms, Leeds had committed a ‘repudiatory breach of contract’ thereby breaking the implied term of trust and confidence. For Gibbs, this was easy to prove as cleaning duties did not comprise his job description.

The next step to succeed was that Gibbs had to prove he resigned because of the employer’s breach and not for any other reason, such as another job. Gibbs succeeded here too. Gibbs was awarded £331,426.

We advise both sides, employers and employees (clubs and/players). It’s constructive to talk to us, before repudiation, on 0345 430 0145.

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Season of Santa and settlement agreements

‘Tis in the season of goodwill that employers choose to fire employees. So legally, Christmas becomes the busiest time of year for employment lawyers.

Law and Christmas job cuts. Copyright: Richard Croft

Law and Christmas job cuts. Copyright: Richard Croft

Employers tend to be the first to make resolutions on what they want to do in the new year. Top of the list is the new compliment of staff. In the experience of this firm, more downsizing, restructuring, reorganising and downright dismissals occur in December than in any other time of year. Most of them are dressed up as redundancies, you know, “Happy Christmas, your fired”. Many are executed with ‘settlement agreements’.

What is a settlement agreement?
A settlement agreement is a full and final contract settling up claims that an employee may have against his employer. An employee will have a number of employment rights or claims against his employer. Some of these rights come with the contract of employment but, very importantly, a number come from statute.

Most people are well aware of their statutory rights such as the right NOT to be unfairly dismissed, the right not to suffer discrimination or the right not to suffer deductions from wages.

Fair procedure
To lawfully dismiss an employee, the employer must be fair and choose from the five statutorily prescribed reasons. The most common chosen reasons are misconduct, incapability and redundancy. The employer is then required to follow a ‘fair procedure’.

The fair procedure is where the danger lies for most employers. It’s difficult to get it right and easy to make errors. But errors lead to Employment Tribunal claims. Enter settlement agreements to simply buy off all claims. However, the settlement agreement must be drafted in a particular way and,very importantly, the employee must get advice from a solicitor, unconnected to the employer. Otherwise the agreement will fail.

How much should the employer pay and how much should the employee accept?
The employer should pay a sum that is below the value of the potential claim he is buying out. So, if the claim is unfair dismissal, an employer should aim for a third to half of what the employee could recover at the Employment Tribunal, if he succeeds.

The employee should aim for at least half to two thirds of what he could recover, if he succeeds.

Compromise agreements save time and money

Compromise agreements save time and money

A deal saves both employer and employee time and money. That’s why, sensibly, so many settlement agreements bolster the Christmas bonus.

We advise both sides, employers and employees, whether you are seeking to get it right, get more or pay less, talk to us on our new number, 0345 430 0145.

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Christmas overtime refusal leads to dismissal

employment law, ovetime, employers, employee

Tribunal rules on overtime working. Credit: Ben Harris

If you want to force your workers to do overtime over Christmas, the Employment Tribunal supports you… 

A tribunal in November 2016 ruled that an employer fairly dismissed a worker when her refusal to do overtime over the Christmas period could have sparked a staff rebellion.

In Edwards v Bramble Foods Ltd ET/2602015, the Employment Tribunal heard that employee, Mrs. Edwards, refused Saturday work when the rest of the workforce agreed. The small food company, the court’s respondent, has a busy period producing Christmas hampers between September and November.

Informal chats did not work

The tribunal claimant, Mrs. Edwards, insisted she wanted her Saturday mornings with her husband despite a clause in her employment contract requiring extra hours when necessary. ‘Informal chats’ with her by her managers, where they pleaded with her that her refusal would load additional work on others, failed to convince her.

Not content with rejecting reasonable arguments from management, Mrs. Edwards sought to bolster her case by mocking colleagues, who had agreed to work the overtime. She remarked to colleagues that she would lying in on Saturdays.

Yet, her employers feared that she could affect their ability to fulfil their orders. The tribunal agreed with the employers that other workers could withdraw their overtime agreement if Mrs. Edwards was excused.

Dismissal in range of reasonable responses

The ruling of the Employment Judge was: “The consequences for the respondent had the claimant not been dismissed might have been disastrous. The respondent had been extraordinarily patient…Dismissal was unarguably within the range of reasonable responses to a very difficult situation.”

That is the key – range of reasonable responses. After a reasonable investigation and a fair disciplinary hearing, the employer’s response to a finding of misconduct, must be within the range of reasonable responses. This means some employers may choose not to dismiss, where they could do so lawfully, but some employers go ahead and dismiss. Both decisions are lawful, if they in the range of reasonable responses.

The consequences of Christmas can lead to problems for employer and employee. So be wise men and women and get seasonal advice from Sharma Solicitors on 0345 430 0145 (note new number).

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Uber end of road for consultants

Has Uber unwittingly crashed the car for all consultants…

Consultants and employers who use them – don’t panic. The Uber decision, in the case of Aslam & others -V- Uber BV Central London Employment Tribunal 2016, has not driven a coach and horses through the law separating employees from workers and consultants. The decision is ‘fact sensitive’ – based on the particular facts of the case.

Uber - not driven a coach and horses through laws on consultants

Uber – not driven a coach and horses through laws on consultants

Who is an employee, worker or consultant

First, it is important to understand the differences between an employee, worker and consultant. Each of these categories of persons enjoy different levels of benefit from employment legislation.

An employee has the greatest protection from employment legislation, a worker has less protection and a consultant less still. It’s all downhill starting from the employee. Hence why many workers seek to climb the hill to employee status.

An employee will work under a contract of employment and will benefit from the right not to be unfairly dismissed, under S94(1) Employment Rights Act 1996 (ERA), after continuous service of two years.

A worker will never acquire the right not to be unfairly dismissed, but will nonetheless enjoy some of the rights enjoyed by employees such as the right to paid holidays and the right not to suffer unlawful deductions from wages (S13 ERA).

Number of tests

So what type of person performing work falls into the category of employee, worker or consultant? The law has been grappling with this question since the days of the coach and horses. To answer this question, case law has devised a number of tests which they apply to the working relationship to determine whether the person performing the work is an employee, worker or consultant.

Control test

The court asks whether the employer has sufficient control over the person performing work to order how the work is done, what work is done, where it is done and when it is done. If this degree of control exists, the person performing the work is likely to be an employee. If a lesser degree of control exists, the person performing the work may still be a worker like in the Uber case.

Are consultants obliged to do work for the bosses?

Are consultants obliged to do work for the bosses?


Mutuality of obligation

Under this test the employer must be obligated to provide the person performing the work with the work and the person performing the work must be under an obligation to accept and perform the work. If there is mutuality of obligation, the person performing the work is likely to be an employee.

Personal performance

One of the hallmarks of an employer/employee relationship is that the person performing the work must do so personally. The employee should not have a right of substitution, whereby they can send another person to perform their work.

Form over substance

Whilst the written contract between the parties is important, it is not determinative of whether the person performing the work is an employee, worker or consultant. The Employment Tribunals will look to the substance of the relationship rather than form.

So what is all the fuss about? A consultant would be considered to be in business in his own right and would not enjoy any of the employment benefits of employees or workers. An example of a consultant or contractor would be the plumber who fixes the boiler. A benefit of being a consultant would be that he can set his expenses of going to work against the money he receives for the work. Of course, employees cannot recover the cost of going to and from work against income tax.

Whilst many people would prefer to be consultants, and their employers would also prefer this arrangement for it saves on the employer’s national insurance contributions, HMRC likes to see the reverse. Add to this that, the courts and now Employment Tribunals have been raining on this parade since the horse and carriage. It’s vital employers and employees/workers/consultants get it right.

To guide you through this maze contact Sharma Solicitors.


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