HPC Law: Employment Law update for April 2019
Employment Law Update
No win, no fee
Following the abolition of fees in Employment Tribunal cases, the Tribunals are now seeing more cases coming through. However, having looked at several recent cases which were decided by the Employment Tribunal, there seems to be a ‘trend’ in lower value claims such as owed wages, lack of notice pay etc.
Such claims can be made under Civil Law as they are claims for breach of contract, but equally they can be brought in the Employment Tribunal. One wonders whether this is because with a County Court claim, the Claimant would be obliged to pay a Court issue fee (unless they are granted fee remission) and Claimants are now using the ET to hear claims of a relatively low value and thus are saving the Court issue fee.
Another ‘trend’ seems to be that cases are being presented to the ET but then subsequently withdrawn by Claimants. The ET decisions do not give a full background to the case, so we do not know whether the case was withdrawn on the advice of their lawyers, or whether the Claimants in the individual cases adopted the ‘belt and braces’ or ‘throw everything in including the kitchen sink’ approach so as to stand the best chance of succeeding.
Employers can often fall down when dealing with disciplinaries against employees. It is difficult to avoid ‘pre-judging’ the situation and ensuring that the disciplinary is dealt with in a fair manner. The ACAS Code of Practice provides guidance on how to conduct disciplinary investigations and highlights the need for “fairness and transparency”.
The case of Aplin -v- The Governing Body of Tywyn Primary School highlights the need to be transparent and to avoid either conscious or unconscious bias. The case concerned a Head Teacher who had met up with two 17-year olds through a gay dating App. Following a local authority investigation (Professional Abuse Strategy Meeting (PASM)) it concluded that no criminal offence had been committed and there were no child protection issues, but the school decided to bring disciplinary proceedings against Mr Aplin.
The Tribunal heavily criticised the process on the basis that evidence obtained through the PASM had not been presented to the Claimant. The school was also criticised based on how the presenting officer had dealt with the disciplinary in that it the person who undertook the investigation also undertook the disciplinary hearing in a way which the tribunal felt was ‘far from objective’. The ET found that Mr Aplin had been unfairly constructively dismissed.
The school appealed the Tribunal’s decision but failed.
This decision highlights the need to follow a fair process when disciplining staff. Although the ACAS Code of Practice is a guide, Tribunals have been known to place significant weight on it and employers can fall foul if they do not follow its ‘guidance’.
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