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The Presidents of the Employment Tribunals (England & Wales) and (Scotland) have issued a joint Second Addendum to the Presidential Guidance originally Issued on 5 September 2017.
It contains the (now) annual update to the Vento guidelines, setting out the bands of awards for injury to feelings, adjusted for inflation.
The new bands are:-
... ‚ÄĘ lower band (less serious cases): ¬£900 to ¬£8,800 ‚ÄĘ middle band: ¬£8,800 to ¬£26,300 ‚ÄĘ upper band (the most serious cases): ¬£26,300 to ¬£44,000
These updated figures apply to cases presented on or after 6 April 2019.
This update has been reproduced with kind permission from Daniel Barnett - Barrister @ Outer Temple Chambers.
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Employment disputes can be stressful and expensive. Actions taken at an early stage can ultimately impact on whether they are successfully resolved.

Whilst this will undoubtedly will be appealed and taken to the Supreme Court, Employers should be very careful about access to data and who has it.
This case is the authority for the paradoxical proposition that an employer can be vicariously liable even for data protection breaches that are an act of vengeance against itself.

The MOJ has published the tribunal statistics for April to June 2018. Here are the key figures:
‚ÄĘ number of single claims lodged increased by 165% compared with the same quarter last year. Tribunal fees were abolished in July 2017, so this is a reliable figure as April to June 2017 was the last full quarter when fees were in force.
‚ÄĘ the number of single claims outstanding rose by 130% compared with the same quarter last year. HM Courts & Tribunal Service is in the process of... recruiting more employment judges, which will help reduce the backlog in the medium to longer term.
‚ÄĘ there have been 12,400 fee refund payments made since the fee refund scheme was introduced, totalling just over ¬£10m.
‚ÄĘ disability discrimination cases had the largest average award (¬£30,700). Religious discrimination claims had the lowest average award (¬£5,100). The average award for unfair dismissal awards was ¬£15,007.
Thanks to Daniel Barnett - Barrister at Outer Court Chambers for his kind permission to reproduce this update.
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Can a worker engaged on a zero hour contract by classed as an Agency Worker? The EAT held that this is possible in the case of Matei v Brooknight Guarding Limited.
The Respondent security company had employed the Claimant as a security guard on a ‚Äėzero- hours‚Äô contract for some 21 months. His contract had included a flexibility clause enabling the Respondent to assign him to different sites as required, although the Claimant was generally (although not exclusively) supplied b...y the Respondent to Mitie Security Ltd, providing security services at the Citi Group site in London.
The ET found the Claimant was being used as a ‚Äúcover security guard‚ÄĚ and concluded that he was an agency worker for the purposes of the Agency Workers Regulations 2010. The Respondent appealed, contending that the ET had failed to apply the correct test and had wrongly treated the ‚Äėzero-hours‚Äô contract and the Claimant‚Äôs relatively short period of service as determinative.
In determining whether the Claimant was an agency worker for the purposes of the Agency Workers Regulations 2010, the question for the ET was whether he had been supplied by the Respondent to work temporarily for Mitie, i.e. that he was working on a temporary and not a permanent basis (Moran & Others v Ideal Cleaning Services Ltd & Another [2014] IRLR 172 EAT applied). In answering that question, the ET had to have regard to the work carried out by the Claimant as a matter of practice.
The employer lost the appeal as the Tribunal had applied the correct test to what appears to be undisputed evidence.
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Report on Sexual Harassment in the Workplace
The Women and Equalities Commission (a parliamentary committee) has produced its report on Sexual Harassment in the Workplace.
Its recommendations are:
... ‚ÄĘ a mandatory duty on employers to protect employees from sexual harassment in the workplace, enforceable by the EHRC and punishable by fines
‚ÄĘ a duty for public sector employers to conduct risk assessment for sexual harassment, and take steps to mitigate any risks
‚ÄĘ reintroducing third party harassment, so that employers are liable if they have failed to take reasonable steps to prevent others harassing their staff
‚ÄĘ extending sexual harassment protection interns and volunteers
‚ÄĘ extension of the time limit for bringing a claim to six months, with the clock paused while any internal grievance process is going on
‚ÄĘ enabling tribunals to award punitive damages in sexual harassment cases creating a presumption of costs, so that employers will ordinarily have to pay the employee‚Äôs legal costs if it loses a sexual harassment case
‚ÄĘ limiting the ability to use confidentiality clauses in settlement agreements to ‚Äėgovernment approved‚Äô standard clauses
‚ÄĘ making it a professional disciplinary offence for lawyers (and, in certain circumstances, also a criminal offence for the employer and the lawyer) to propose the use of a non-approved confidentiality clause
https://publications.parliament.uk/‚Ķ/‚Ä ¶/cmwomeq/725/72502.htm
Thanks to Daniel Barnett -Barrister at Outer Temple Chambers
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Legal Update - Caste Discrimination
The Government has decided not to add 'caste' as a protected characteristic within the Equality Act 2010.
The main reason is difficulty drafting a precise legal definition of 'caste', which includes the difficulty in differentiating 'caste' from 'social class' (and hence introducing 'social class' as a protected characteristic). At first blush, this sounds a bit like a rationalisation to justify a predetermined decision. But reading the co...nsultation response actually shows these are both very real problems.
Instead, the government will rely on emerging caselaw such as Chandhok v Tirkey in the expectation the courts can provide some measure of protection against discrimination on grounds of caste through the 'ethnic origin' route.
This update was reproduced with kind permission from Daniel Barnett - Barrister at Outer Temple Chambers
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Great UK focussed article

When an employee is dismissed but is reinstated under a contractual appeals procedure, does this restore the contract of employment? Yes, (even though the contract was silent on the subject), says the Court of Appeal in Patel v Folkestone Nursing Home Limited.

Important Landmark Court of Appeal Decision:
Should the National Minimum Wage be paid for sleep in shifts?
Only for time expected to be awake says the Court of Appeal in Mencap v Tomlinson-Blake thus reversing every recent authority to the contrary.
... Lord Justice Underhill held at para 86, ‚ÄėThe result is that the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working.‚Äô
I have yet to digest the 25 page judgement but will be writing a blog post about it given that the ramifications are considerable.
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Should a dismissal appeal process be followed even if it is clear that the employee has no right to work. Absolutely says the EAT in Afzal v East London Pizza Limited t/a Dominos Pizza.

The Gig Economy under further threat.

Hopefully this will help alleviate the lengthy delays we are experiencing up and down the country. They also need to bring in more administrative staff too.
https://www.ft.com/con…/9f2f799c-6b2f-1 1e8-8cf3-0c230fa67aec

Can you actually believe this?

Employment Law Update: The EAT has today handed down its decision in Addison Lee v Gascoigne - another nail in the coffin for the ‚ÄėGig Economy‚Äô.
Like all cases it turned on it’s facts but the Tribunal at first instance ruled that when cycle courier logged into the App there was an agreement / contract to offer work and for it to be accepted.
Both Tribunals agreed that the Claimant was a worker and thus entitled to holiday pay amongst other rights. He was thus not self employed.

How to get it grossly wrong
https://www.peoplemanagement.co.uk/…/tr ibunal-win-for-bus-d…

If an employee works without protest after a variation of contract is imposed, should acceptance be inferred?
Not necessarily, held the Court of Appeal in Abrahall v Nottingham City Council.
When Nottingham City Council sought to regularise a variety of pay systems, it implemented a single system with pay scales determined on a spinal column points basis. The Court of Appeal found the employees were contractually entitled to annual incremental pay progression.
... Soon after the new system was implemented, the council brought in a two-year pay freeze. Throughout that period, there was no industrial action (save for a consultative ballot) and no affected employee raised a grievance. When Nottingham proposed an extension of the freeze, the unions activated a collective grievance procedure and then brought these claims.
Apart from deciding whether there was a contractual right to incremental pay progression, the key issue before the Court of Appeal was whether the employees should be taken to have accepted a variation of their contracts by working for two years under the pay freeze.
The Court of Appeal held that they should not, setting out a number of helpful principles on whether acceptance should be inferred, including:
‚ÄĘ the question is to be determined objectively;
‚ÄĘ acceptance of a variation of contract should only be inferred from conduct where that conduct brooks no other reasonable explanation save for acceptance;
‚ÄĘ where the variation is wholly disadvantageous, acceptance is less likely to be inferred;
‚ÄĘ collective protest may suffice to negative any inference otherwise to be drawn even if the individual employees themselves say nothing;
‚ÄĘ an employer's reliance on inferred acceptance will be weakened where the employer represented that there was no variation of contract and thus that acceptance was unnecessary.
This update was reproduced and brought to you with kind permission from Daniel Barnett - Barrister at Outer Temple Chambers.
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