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The Practice Direction (Employment Appeal Tribunal – Procedure) 2013 came into force on Monday, 29 July 2013. Changes include:
- The introduction of fees (see our previous blog);
- Judges hearing appeals alone; and
- Amendments made to the Employment Appeal Tribunal Rules.
The overriding principle is that all cases in the Employment Tribunals must be dealt with justly, which includes safeguarding the resources of the Employment Tribunals so that each case gets a fair share of available time. The new principles will mean that each case will be “sifted” at an early stage and, if it is approved, then it will be dealt with as quickly as possible whilst preserving the Tribunal’s resources as best as possible.
Further, new legislation introduced means that “Compromise Agreements” will now be referred to as “Settlement Agreements”. The principles of these Agreements will remain the same and will achieve exactly the same outcome.
There is also a new rule that provides unsuccessful pre-termination negotiations, (i.e. a proposed compromise (settlement) agreement), will be prevented from being referred to in evidence in unfair dismissal cases. However, it is crucial that you take advice before entering into pre-termination negotiations because there are still circumstances when this evidence can be referred to in Tribunal proceedings. The new rule is not as straightforward as it has been advertised in the media and employers should not assume that all pre-termination negotiations will be omitted from Tribunal proceedings.
Zero House Contracts
There has been a lot of coverage in the news recently about “zero-hour contracts”, which means that an employee has no guarantee of being given any working hours from one week to the next. The Office of National Statistics had estimated that there are at least 200,000 staff employed under zero-hours contracts, but research suggests that there could be about one million employees on zero-hours contract. Recent research identified that:
- 19% of employers employed at least one person on a zero hours contract;
- Employers in the voluntary sector and the public sector were more likely to use zero hours contracts than private sector employers;
- 25% of organisations with 250 or more employees used zero hours contracts, compared to 11% of smaller organisations with fewer than 250 employees.
Business Secretary, Vince Cable, has suggested that zero-hours contracts may be subject to legislation but ruled out a complete ban.
The problem for many employers will be that existing individuals on zero hours contracts will be held to be “employees” and they will no longer be able to rely on zero hours contracts as they have done to date.
In Stuart v London City Airport Ltd  EWCA Civ 973, the Court of Appeal restored the decision of an employment tribunal that an employee had been dismissed fairly for theft, even though the employee in question had been found not guilty in a criminal trial. This is a reminder that the Tribunal is not concerned about whether the employee is guilty or not, but rather whether the employer had reasonable grounds to believe that the employee carried out an act of misconduct, having carried out a fair and unbiased investigation. This case is a useful guide about what level of investigation an employer may be expected to carry out where there is alleged theft or dishonesty involved. It is important for the employer to make fair enquiries and investigate the employee’s version of events before reaching a conclusion.
In Carmelli Bakeries Ltd v Benali  UKEAT/0616/12 the Employment Appeal Tribunal and Tribunal agreed that the employee, who had been dismissed for using non-kosher jam in a kosher bakery, was unfairly dismissal and victimised. By way of background, the employee had previously asked for adjustments to his duties due to sciatica and had then brought a tribunal claim for disability discrimination, which had hardened the employer’s attitude towards him. Even though the employee’s use of non-kosher jam was an act of gross misconduct, which entitled the employer to dismiss him, the tribunal found that the real reason for the dismissal in this case was that he was regarded as a “problem employee” due to his earlier and ongoing requests for adjustments. The main message from this case is that even an admission of gross misconduct from an employee is no guarantee that a dismissal will be fair. The employer must carry out an unbiased investigation and show that the main reason for dismissal is genuine.
If you require any further clarification in relation to the above developments, or if you need any further assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304.