The amount of the maximum compensatory award for unfair dismissal is to be increased from 1 February 2012 from £68,400 to £72,300. The maximum basic award will also be increased from £12,000 to £12,900. This means the total maximum award that can be awarded by the Employment Tribunals for unfair dismissal is £85,200.

On the same date there will also be an increase in the maximum amount of a “week’s pay” from £400 to £430. This is used for the purposes of calculating a basic or additional award of compensation for unfair dismissal and also statutory redundancy payments.

The new limits are applicable where the event that gives rise to the award or payment occurs on or after 1 February 2012.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk)

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

In the case, the Employment Appeal Tribunal (“EAT”) reversed the decision of an Employment Tribunal. The Tribunal had found in favour of Mrs Hogg, who successfully argued she was unfairly dismissed from her role at Camelot Group. The EAT substituted the decision of the Employment Tribunal that Mrs Hogg had been dismissed fairly.

Camelot Group had embarked on a significant reorganisation exercise and made 58 redundancies overall following an extensive consultation process. All employees at risk of redundancy were invited to apply for new roles that were created as a result of the reorganisation. Mrs Hogg was interviewed and assessed for a new role but was unsuccessful and ultimately made redundant.

The case focused in particular on the employee’s request for her redundancy interview notes, which was satisfied by the employer (although these were provided prior to being told her post was redundant, but after the decision to dismiss had been taken. However the Employment Tribunal commented that “it was incumbent on the Respondent (Camelot Group) to give her that information prior to taking the decision to dismiss which the Respondent did not do, and the dismissal is accordingly unfair”.

The EAT disagreed; there is no general rule that an employer must provide such notes to a broad unspecific request for them without reasoned justification for such a request. The Employment Tribunal were wrong to suggest that whenever an employee who is at risk of redundancy asks for information, a dismissal will be unfair if that request has not complied with. In this particular case, Mrs Hogg requested the notes but did not raise any challenge to them in her appeal or subsequently in her claim for unfair dismissal submitted to the Employment Tribunal. It became apparent in the course of proceedings that she did wish to challenge the notes and her scores at the interview, but this was not allowed. As such, the EAT commented that the request for the notes was a ‘fishing exercise’ by Mrs Hogg. Had she raised very specific queries and challenged the notes then, of course it would be expected that the employer would respond to those and provide sufficient information in this regard. This was not the case here.

In many cases it will be in employers’ interests to provide information in response to an employee’s request, partly because it might reduce the risk of an employee pursuing a claim, but also because there may be a substantive issue to deal with. If you are in doubt as to whether you need to provide information, it is always best to take advice.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk)

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Dr Michalak was an obstetrician who was subject to harassment and intimidation by senior employees before and during her maternity leave. She was placed on an unreasonably long period of suspension in 2006 before disciplinary proceedings began in 2007, and eventually she was dismissed in July 2008. The Employment Tribunal considered the events leading to her dismissal as a concerted campaign to terminate her employment. As a result, Dr Michalak suffered post-traumatic stress disorder, depression and anxiety leading to a personality change, and her husband had to quit his own job to care for her and their children.

The Tribunal therefore had to consider the compensation that Dr Michalak should receive. While in unfair dismissal claims the bulk of the compensation is loss-based and a statutory cap applies (currently £68,400 but increasing on 1 February – see here), the position is very different in discrimination claims. Firstly, there is no limit on the amount of compensation that can be awarded. Secondly, although lost earnings form part of the compensation (Dr Michalak was awarded £1.1 million for loss of past and future earnings and £660,000 for loss of pension) there are other elements too which applied to Dr Michalak’s claim.

In particular, Dr Michalak received £56,000 for psychiatric injury caused by her employer’s behaviour. Many people are unaware that it is possible to claim for personal injury within a discrimination case. The benefit to a Claimant in raising personal injury in the Tribunal rather than the courts is that there is no requirement to prove that the injury was reasonably foreseeable.

Dr Michalak was also awarded £30,000 for injury to feelings. Injury to feelings awards are not the same as personal injury awards, in that there is no requirement for a medical injury (either mental or physical). The Tribunals have to be careful to ensure there is no overlap with any personal injury award. Employment Tribunals consider injury to feelings awards in bands following the case of Vento (the bands were updated for inflation in the case of Da’ Bell). The bands are as follows:

• Top band (the most serious cases): £18,000 - £30,000
• Middle band (cases which do not merit the top band): £6,000 – £18,000
• Lower band (the least serious cases, such as one-off acts): £600 – £6,000

The Tribunal have a wide discretion when it comes to the level of injury to feelings awards. The size and resources of the employer are irrelevant – it is all about the effect on the Claimant. Here, the Tribunal obviously considered Dr Michalak’s case merited the maximum award for injury to feelings.

The Tribunal also awarded £4,000 as exemplary damages – awards of exemplary damages are rare, and are designed to punish an employer in limited circumstances including where there has been “oppressive, arbitrary or unconstitutional action by servants of the government”. Here, as Dr Michalak was employed by the NHS, and because the behaviour of the Trust had been so extreme, the Tribunal were able to make this award.

The total compensation awarded to Dr Michalak was uplifted by 15% to take account of the Respondent’s failure to comply with the statutory grievance procedure which applied at the time (now replaced by the ACAS Code of Practice, which permits an uplift of up to 25%). The Tribunal said that they felt that they would have gone for a 50% uplift, were it not for the size of the award already.

The total award was also ‘grossed up’ to take account of the tax that Dr Michalak would have to pay on the award.

This case represents the very highest end of the scale. To put this in context, the average awards for discrimination reported in 2010/2011 were between £8,515 (for religious discrimination) and £14,137 (for disability discrimination). However, this does not include the average award for age discrimination which was much higher than any other type of discrimination at £30,289.

While this case may be an extreme example, it is a reminder to employers about the importance of avoiding discrimination in your workplace. Is your equal opportunities policy up to date? Have your staff had recent equal opportunities training? If not, then we can help – why not give us a call!

Please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk)

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

A breach of contract claim can involve a breach of either an implied term or of a written term in the employment contract. In 2001, a principle was established by the House of Lords in the case of Johnson v Unisys Ltd. The principle established was that an employee cannot bring a claim for breach of the implied term of trust and confidence for the manner in which they are dismissed. The reasoning was that to allow this would duplicate the statutory right to claim compensation for being unfairly dismissed under the Employment Rights Act 1996.

This has subsequently been referred to as the ‘Johnson exclusion area’. Claims that fall out of the Johnson exclusion area can occur where the events leading up to the dismissal are entirely independent of the dismissal itself, whether that dismissal is unfair or not. Examples of successful claims include psychiatric injury caused by events leading up to dismissal (Eastwood v Magnox Electric plc) and unfair suspensions (Gogay v Herfordshire County Council). However, such cases are rare exceptions and depend very much on their own facts.

Two recent cases were considered in the Supreme Court – Edwards v Chesterfield Royal Hospital NHS Foundation Trust and Botham v Ministry of Defence. The primary consideration in both cases was whether the claims fell in or out of the Johnson exclusion area.

Mr Edwards had been dismissed for gross professional and personal misconduct. Mr Edwards alleged that there were a number of procedural flaws as against his employer’s disciplinary procedure, such as the fact that the disciplinary panel did not have the correct persons present. He alleged that had such procedural flaws not been present, the panel would not have made incorrect findings and he would not have been dismissed and suffered damage to his reputation. Mr Edwards brought a claim for breach of contract.

Mr Botham was a youth community worker and was dismissed for gross misconduct following a finding that he behaved inappropriately in relation to two teenage girls. Mr Botham was placed on a register stating he was unsuitable to work with children. He brought a claim for breach of contract as a result of breaches in the contractual disciplinary procedure and claimed for loss of reputation and future loss of earnings.

Both cases were appealed to the Supreme Court by the NHS Trust and the Ministry of Defence respectively.

The Supreme Court by a majority held that both employees were claiming damages for what was part and parcel of the dismissal process and therefore both fell within the Johnson exclusion zone. The Supreme Court reiterated that to allow such claims would be contrary to the intention of Parliament that claims of unfair dismissal should be decided in the Employment Tribunals. It was said that Parliament had placed limitations on compensatory awards to balance the interests of both employees and employers in cases of unfair dismissal. Compensation for events leading up to dismissal is not included in compensatory awards, however there can be an uplift of up to 25% in certain Tribunal claims where an employer fails to follow the ACAS Code on disciplinary and grievance procedures.

Therefore, employers will be relieved to hear that successful claims for breach of contract in this area are likely to very rare. They will involve careful consideration by the Courts of events leading to the dismissal, whether the breach is sufficiently independent from the dismissal itself and whether any loss flows from that. The risk of these types of claims can be reduced (albeit not eliminated) by expressly providing that any disciplinary procedure is non-contractual.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk)

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

As covered in our recent articles (which can be viewed here), the Government have recently announced major changes to employment law – some of which are definitely coming into force, while others are under consultation. 2012 looks set to be another year of significant upheaval in employment law, so employers need to be prepared!

In our seminar we will explain the reforms and what they mean for you in your workplace. In particular, we will cover:

- the increase in the qualifying period for unfair dismissal (from one year to two) in April 2012 – what does this mean in practice?

- what happens to those who have between one and two years’ service when the change comes in?

- will there be fewer claims after April 2012?

- proposed changes to the Tribunal system, such as getting rid of lay members

- the proposal to charge fees in Tribunal claims – but also to fine employers if they lose

- Cameron and Clegg’s proposal for “protected conversations” and how these might (or might not!) work.

Don’t miss this opportunity to learn more in an interactive setting with our experienced team of solicitors.

The seminar is free, and is aimed at those who have responsibility for HR, but we’d be delighted to welcome you whatever your background. Please feel free to pass the details on to others who may be interested.

In order to book your place, please complete the form below, or alternatively email events@pureemploymentlaw.co.uk. Places are available on a first come, first served basis.

Location & Times

The seminar will be held at Chichester Golf Club, Hunston Village, Chichester, West Sussex PO20 1AX (please click here for directions) in the Cathedral Suite located in the Clubhouse.

The site has ample free parking, however please do ensure you follow the signs to the Clubhouse to locate the correct building and car park.

Arrival & registration is between 08:00am – 08:20am. Refreshments and pastries will be available upon arrival. The seminar will end around 10:15am.

As employment law changes so rapidly, the precise topics to be covered will be decided nearer the time. Nicola and Peter always take a practical, plain English approach, giving clear guidance on how the law affects your business. They are always happy to take questions.

Details of how to find the Goodwood Hotel can be found here: http://www.goodwood.co.uk/the-goodwood-hotel/getting-here/getting-here-google.aspx

All bookings for this event must be made via the Chamber of Commerce who can be contacted by telephone on 01243 531765 or email office@chichestercci.org.uk. For details of the event on the Chamber’s website please click here:  http://www.chichestercci.org.uk/BookingRetrieve.aspx?ID=51000. We regret that we are unable to take bookings for this event ourselves.

Well, if you are lucky enough to have a Christmas party this year, we expect you are probably already aware of what you need to bear in mind (if by any chance you’re not, click here!).

So instead, we thought we’d look forward to 2012 and suggest some work-related resolutions for you.

1)    Put in place an adverse weather policy (if you haven’t already)

 The weather experts are predicting another tough winter, so we are all likely to experience difficult travel conditions. Last year we had lots of enquiries from employers about closing due to the weather and how much of an attempt employees should make to get to work – our FAQ article can be seen here. Having a policy and circulating it to staff is an important part of planning for an emergency, but it also helps to clarify an employer’s position. If you’d like our help with a policy, please do get in touch.

2)    Prepare for the Olympics

The Olympics are likely to have a significant impact in 2012, both inside and outside London. Tickets have of course already been allocated, but have your staff booked their leave yet? Who will want time off to watch particular events? Transport in and around London is likely to be stretched, so will some staff be permitted to work from home? To avoid resourcing problems it is a good idea to encourage teams to discuss arrangements as soon as possible.

3)    Network with others in HR

There’s no substitute for sharing experiences with those in the same boat, and that’s why we set up HR-Connect Networking. Whether you’re looking for advice on best practice or just want to talk to someone about a tricky problem, why not join us for friendly, informal discussion?

You can join HR-Connect on LinkedIn or Facebook, or if you are in West Sussex/East Hampshire you are very welcome to come along to our next meeting. To receive details of our meetings by email, contact Nicola Brown.

4)    Become social media savvy

Social media is becoming a growing force in recruitment advertising and we expect this to continue in 2012. Increasingly, employers are starting to embrace social media to encourage employee collaboration and engagement.  

However, it’s not all positive, and we have seen several cases on employee misuse of social media come through the Tribunal system in 2011, (see our previous article here) but as yet, none are legally binding as they haven’t reached the appeal stage.

This is an area which is changing fast, and we expect to see interesting developments in 2012. In the meantime, employers would be well advised to have a social media policy in place, setting out their expectations. And if you already have a policy, it needs regular review, as it could date quickly!

5)    Get up to date with all the employment law changes

2012 looks to be another year of massive change in the world of employment law. We already know that the qualifying period for unfair dismissal is increasing to two years in April – but as yet, the Goverment haven’t confirmed how the change will apply to people who have between one and two years’ service who currently have statutory protection.

The Government are also consulting about introducing fees for Tribunal claims, and on their new idea of “protected conversations.”

For all the details as well as our take on what they will mean in practice, come along to our seminar on 26 January 2012. There will be lots of opportunity to ask questions of our team.

6)    Use Pure Employment Law for advice (if you aren’t already!)

Need we say more? In all seriousness, we are always delighted to hear from new or prospective clients, so please do feel free to give us a call. And we would like to wish all of you a very happy and prosperous New Year!

Mrs Dunn was employed by the Institute to establish a Northern office for them. Her husband also worked for the Institute and the relationship between Mr Dunn and the Chief Executive was reportedly strained.  Mrs Dunn raised a grievance about changes to her contract and this was rejected. She then went off sick and alleged that this was because she was married to Mr Dunn, and subsequently resigned.

Mrs Dunn then brought claims in the Employment Tribunal alleging that her treatment was because of her marital status which was protected under the Sex Discrimination Act (now a protected characteristic under the Equality Act 2010). The Tribunal found that her treatment was not on the grounds of her marital status, but rather because of the individual she was married to. She appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal allowed the appeal, holding that a person who is married (or in a civil partnership) is protected from discrimination on the grounds of that relationship.

Employers who adopt policies that, for example, married people may not work in the same department as their spouses, could well now fall foul of the law.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk)

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Non payment of a bonus to an employee can lead to claims by employees for:

• unlawful deduction from wages in the Employment Tribunal; or
• breach of contract in the Employment Tribunal; or
• breach of contract in the civil courts.

If the claim is for breach of contract there are advantages and disadvantages to bringing the claim in the Employment Tribunal. For example, the maximum the Employment Tribunal can award for breach of contract is £25,000, whereas there is no limit in the civil courts. There are also different costs rules in the courts, whereas it is still relatively rare for costs to be awarded in the Employment Tribunal. The time limit is also a consideration – for the Tribunal it is usually 3 months from the date of termination of employment, whereas in the courts it is usually 6 years from the date of the breach.

Most employers wish to make sure bonuses are discretionary so that there is no obligation to pay a bonus if, for example, the company has not made enough profit over the financial year. The question can arise as to whether a bonus payment is genuinely discretionary, or whether it is in fact a contractual entitlement which must be paid and could be considered part of an employee’s wages. This could entitle an employee to make a claim for unlawful deduction from wages in the Employment Tribunal.

The starting point to determine this, as with many employment benefits, is to look at what the documents say. There may be a clause within a contract of employment related to a bonus payment, or there may be a policy in a staff handbook or an entirely separate bonus scheme document.

The appearance of a clause in a contract of employment may indicate that the bonus is a contractual entitlement. However, quite often this is based on discretionary elements, such as particular performance criteria being met by the employee. This can mean that a bonus payment must be paid; but the amount that is paid may vary and could in reality be nothing if the employee has not met the specified criteria for a bonus.

It is of course fundamental that employees are assessed in relation to any bonus criteria in a fair and reasonable manner, as treating some less favourably than others could potentially be discriminatory or a breach of the duty of trust and confidence. The criteria used must also be reasonable and objective. It is important to make the criteria clear and transparent to all employees to avoid issues. If an employee fails to achieve a bonus then it is best to make it clear to them why they have not achieved the criteria and how they could improve their performance for the next round of bonus payments.

The conclusion that a bonus payment is discretionary may be much easier to come to when bonus schemes are specified in a policy or separate document rather than a contract of employment. However, this is not the only factor to consider and an entitlement to a bonus can be construed by virtue of custom and practice, such as where the same bonus has been paid year on year to all employees and they have an expectation that they will be paid a bonus.

The other consideration is bonus payments upon termination of employment. This issue has produced a wealth of case law over the years. A particular case of note in the Employment Appeal Tribunal involved an employee who resigned a few days before he would have been entitled to a bonus payment. The bonus scheme was not set out in writing as such, but there were some provisions in the contract of employment which purportedly said that in order for an employee to be eligible for a bonus, the employee must remain in employment and also not be under notice at the payment date. The Tribunal held that in fact these provisions were imprecise and not clear to the departing employee; had he been aware than it was reasoned that he would not have resigned until after that date (Noble Enterprises v Lieberum, UKEAT 67/98). Using another example, where an employee has been summarily dismissed for gross misconduct but has a contractual entitlement to receive a bonus they may be able to claim this payment. To avoid the issue, most bonus schemes specify that employees dismissed for gross misconduct are not entitled to any bonus.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk)

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

The key points to note are as follows:

-       The first proposal is that the fee would depend on the type of claim being brought, so for example it would cost less to claim unpaid wages than it would to claim unfair dismissal, and a higher fee would apply for discrimination and whistleblowing cases.

-       The likely fee range would be £150 – £250 to file a claim, and a further £250 – £1,250 would be required from the Claimant in order to go ahead to a hearing.

-       The second proposal is that there would be fees only for filing a claim, and the range there is £200 – £1,750.

Consultation closes on 6 March 2012 so we will work our way through the document in the coming months and will submit our response. If you would like us to add your comments to our own, then please do feel free to contact us.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk)

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.