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Latest Brief - Week Ending 28 February 2014

New rates for Tribunal compensation

The new rates and limits on the value of Tribunal awards have been announced this week.

From 6th April 2014, the maximum compensatory award for unfair dismissal will increase to £76,574.  Don't forget though, that this is subject to the rules introduced in July 2013, limiting the maximum award to 12 months' salary.  So the value of most employees' possible claim should be well below the £76,574 cap.

The limit on a week's pay for calculating statutory redundancy pay and the unfair dismissal basic award will increase to £464 (currently £450).

The new rates will apply to dismissals where the termination date falls on or after 6th April 2014.

No smoke without fire - overruling an appeal panel's decision

In an interesting case last week, the Employment Appeal Tribunal has decided that the dismissal of an employee will not always be unfair, where the employer fails to follow the recommendation of its independent appeal panel.

The case of Kisoka v Ratnpinyotip (t/a Rydevale Day Nursery) involved a nursery employee who was dismissed for gross misconduct, following an allegation that she had started a fire in the children's nursery.

The employer carried out what the Tribunal considered to be a reasonable investigation into the allegations.   According to the CCTV footage, Miss Kisoka was the only person in the area at the time and she couldn't give a credible explanation for her movements.  As such, the employer's decision that Miss Kisoka must have started the fire was based on a reasonable belief.  

Miss Kioska appealed against her dismissal.  As the nursery was only a small business with just a few senior managers, it asked an independent panel to hear the employee's appeal.  The appeal panel overturned the employer's decision to dismiss Miss Kioska for gross misconduct, but the employer felt unable to follow that decision and so stuck to the original dismissal.  Miss Kioska challenged her dismissal as unfair in the Tribunal.

The EAT agreed with the Tribunal's decision that the employer wasn't bound to follow the independent appeal panel's decision. In deciding whether a dismissal is fair or not, the Tribunal was right to look at the overall procedure in the case.  Taking into account all of the circumstances, the employer's decision to maintain the dismissal here was not unreasonable.  One of the key factors in this case was that Rydale was a nursery, responsible for childrens' welfare and as the employer still had genuine concerns about Miss Kioska's involvement in the fire, it wasn't unreasonable for it to refuse to re-employ her.  There was also no legal obligation on the nursery to have outsourced the appeal process and also no formal terms on how the appeal panel's decision would be treated.

This case doesn't give an employer carte blanche to always ignore the decision of an external appeal panel.  That would make a mockery of the appeal process.  But it does at least give employers some flexibility to apply common sense where an appeal panel comes back with a conclusion that is simply unworkable in practice.   Particularly where the employer can show the original dismissal decision was reasonable and based on a thorough investigation, employees in those circumstances won't automatically be able to claim that their dismissal is unfair.  

 

Latest Brief -  Week Ending 21 February 2014

Illegal employee can still claim harassment compensation

If an employee is working illegally in the UK, you might expect that he or she would forfeit any rights to bring a claim in the Employment Tribunal.

That's not always the case.  In the case of Wijesundera v Heathrow 3PL Logistics Ltd, the Employment Appeal Tribunal decided that even where an employee is employed illegally, he or she might still be entitled to protection against harassment. 

In this case, Mrs W, a Sri Lankan national applied for work through an agency.  A few months later, she started working in the UK illegally - ie without a valid visa.   During the application process and also during her illegal employment, she was subjected to sexual harassment by one of her managers.  After she was then dismissed, she brought a claim for sexual harassment, relating to both the previous treatment and her subsequent dismissal.

The EAT decided that Mrs W couldn't claim that the dismissal itself was an act of harassment.  It said that the dismissal was so clearly linked to the illegal contract, that she should never have been employed in the first place, so her dismissal claim failed.

However, in terms of the general claim of harassment, the EAT decided that Mrs W could claim compensation for the sexual harassment she'd been subjected to. 

It had no difficulty deciding that for the period of her job applications, she had the right to bring a claim.  This is because the Equality Act applies not only to people in work, but also to job applicants.  So the fact that Mrs W didn't have a visa wouldn't prevent her claiming harassment for the treatment during the application process. 

The EAT then went on to decide that Mrs W could even bring her harassment claim for the period when she was working illegally.  The key question to ask is whether the harassment complained of was so completely bound up with the illegal employment, so as to prevent the illegal worker from bringing a claim.  In this case, whilst the employment gave the manager the opportunity to commit the harassment, it wasn't the key factor.  The treatment Mrs W suffered wasn't entirely dependent on there being an employment contract in place.  So on these facts, the EAT decided that Mrs W could still bring her harassment claim, even though her employment was illegal.

This case doesn't mean illegal workers suddenly have the same employment rights as legitimate employees.  But it does mean employers will need to exercise a bit more caution when terminating an illegal contract. 

Tribunal Fees Update

And after all of that head-scratching, on a lighter note...Unison's legal challenge to the introduction of fees in the Employment Tribunal was rejected earlier this month, by the High Court.  So, as predicted, fees look like they're here to stay... at least until Unison take their challenge to the Court of Appeal.