Insights Worked Up, your monthly employment law lowdown – April 2023

Welcome to the April edition of Worked Up – your one-stop-shop for all things employment and immigration law.

Although warmer weather is never certain at this time of year, we can always guarantee that April will come with plenty of employment law updates, including the annual statutory rate and tribunal award increases – don’t worry, we’ve covered these increases in more detail below. On top of rate increases, several bills have also been progressing through parliament, including the Employment Relations (Flexible Working) Bill 2022-23 (covered in our January update) which has now had its first reading in the House of Lords. The Workers (Predictable Terms and Conditions) Bill has also passed its first reading in the House of Lords and, if passed, will provide workers and agency workers the right to request more predictable terms and conditions of work.

Finally, the Government Equalities Office has released new statutory guidance for employers on gender pay gap reporting, which may be useful for those currently going through the reporting process. While there have been no changes to the factual content of the guidance, it has been made clearer and more user-friendly.

In this month’s edition of Worked Up, we examine a case where the claimant’s aggressive behaviour was found to be in no way linked to his disabilities, consider what circumstances will lead to a Tribunal striking out a claim and cover the latest updates to the Vento bands and statutory rates for tribunal limits.

If you would like to discuss any of the below updates, please do get in touch. Alternatively, if you would like to receive these updates directly to your inbox, please subscribe here.

McQueen v The General Optical Council [2023] EAT 36

This case involved an appeal against an employment tribunal decision regarding disability-related discrimination. The claimant, Mr McQueen, had dyslexia, symptoms of Asperger’s Syndrome, and left-sided hearing loss. He claimed that he had suffered unfavourable treatment because of something arising as a consequence of his disabilities under section 15 of the Equality Act 2010.

During his employment, Mr McQueen had been given numerous warnings about his conduct as he often came into conflict with his co-workers due to his behaviour. Mr McQueen had been referred to occupational health, who advised on some changes to his working practices that were implemented by the Respondent before Mr McQueen’s employment was eventually terminated. In first instance, the Tribunal found that the conduct that led to Mr McQueen’s dismissal was a result of his short temper and resentment towards being given orders rather than something arising because of his disabilities.

At appeal, Mr McQueen argued that the Tribunal misapplied the test of causation required for section 15 claims. However, the Employment Appeal Tribunal found that the Tribunal’s decision contained no error of law or principle and concurred that the behavioural issues that led to Mr McQueen’s dismissal were not connected with his disabilities.

While employers should exercise some caution when dismissing employees who have a known disability, if the dismissal is unrelated to the disability, the employer will likely be able to defend against a potential claim without the need to rely on the objective justification defence. Although the Respondent did not need to rely on the objective justification defence in this case, the Respondent had obtained medical evidence about Mr McQueen’s disabilities and implemented several strategies to help manage Mr McQueen’s behavioural issues. Seeking medical evidence and making reasonable adjustments is helpful when making out an objective justification defence and it can often be useful for employers to take such steps prior to dismissing an employee with a disability in order to help mitigate risk if the matter later reaches tribunal.

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Kaul v Ministry of Justice and Ors [2023] EAT 41

In this case, the Employment Appeal Tribunal upheld the decision to strike out various claims on the grounds that they had no reasonable prospect of success.

The Claimant, Circuit Judge Kalyany Kaul KC, raised two grievances concerning the actions of other judges and members of staff employed by HM Courts and Tribunals Service. The Claimant considered that the judges had failed to properly support her throughout a trial and acted so as to victimise her by reason of previous complaints she had made against court staff, and that the actions of court staff had in various ways amounted to bullying, harassment and victimisation.

Both grievances were unsuccessful. It was found that a significant number of the complaints against the judges were “totally without foundation” and that the grievance against court staff was “out of time under the policies”. The Claimant commenced proceedings for indirect discrimination, victimisation, failure to make reasonable adjustments, harassment and discrimination arising from disability. Her complaints concerned the handling of the grievances as opposed to their substantive outcomes.

The EAT dismissed the appeal, finding that the Employment Tribunal was entitled to strike out the claims on the grounds that they had no reasonable prospect of success under Rule 37(1)(a) of the Employment Tribunal Rules. The EAT considered that it was “not at all surprising” that the Employment Tribunal considered the Claimant’s claims to be weak, particularly as the claims rested on undisputed events (such as periods of delay and requests for information) during the grievance process which, at face value, were entirely ordinary. The pleaded case had failed to particularise why or how these acts were said to amount to the various claims being brought.

In reaching its decision, the EAT highlighted the need for caution when considering strike out applications, and that deciding a case on its facts “should be more rare than common”. However, this approach does not prohibit a realistic assessment where the circumstances of the case permit. Applying the ruling of the Court of Appeal in Ahir v British Airways [2017] EWCA Civ 1392, where there is “an ostensibly innocent sequence of events leading to the act complained of”, there must be some burden on the Claimant to explain why such events should not be taken at face value. In the absence of such explanation, it is permissible for tribunals to strike out claims on the grounds that they have no reasonable prospect of success.

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Regular readers may recall that we reported on the increase in national minimum wage rates and other statutory payments in our January 2023 edition. Since then, further increases have been announced for 2023/24:

Vento bands

 “Vento bands” are the guidelines used by Employment Tribunals in assessing awards for injury to feelings in discrimination cases. For claims presented on or after 6 April 2023, the new Vento bands will be:

  • a lower band of £1,100 to £11,200 for less serious cases (previously £990 to £9,900);
  • a middle band of £11,200 to £33,700 for cases that do not merit an award in the upper band (previously £9,900 to £29,600); and
  • an upper band of £33,700 to £56,200 for the most serious cases (previously £29,600 to £49,300) with the most exceptional cases capable of exceeding £56,200 (previously £49,300).

Tribunal Limits

The Employment Rights (Increase of Limits) Order 2023 has now been published; this legislation sets out the annual increases for certain awards of employment tribunals and other sums payable under employment legislation. For dismissals taking place on or after 6 April 2023, the key increases to be aware of are:

  • the maximum compensatory award for unfair dismissal shall be £105,707 (previously £93,878); and
  • a ‘week’s pay’ (which is used to calculate statutory redundancy pay and the basic award for unfair dismissal cases) shall be £643 (previously £571).

These are clearly sizeable increases which are likely a reflection of the rise of inflation we’ve seen over the past two years alongside the growing cost of living in the UK. The jump up in a ‘week’s pay’ will be particularly relevant for employers carrying out redundancies (particularly large-scale redundancies) over the course of this year.

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