Circular No: NCP/247/18
Our Ref: LA/21 /11 2018
21st November 2018
To: Branches, Regional Councils & Regional Offices
AUTUMN 2018 – LEGAL UPDATE
1. Another attack on workers’ rights – small claims
The Government is pressing ahead with its plans to attack the rights of workers who are injured at work through no fault of their own.
The Civil Liability Bill is expected to complete its passage through Parliament. The government say the Bill will tackle a whiplash ‘epidemic’ but it hides a £1.3bn annual gift to the insurers, a loss to government coffers of £46m a year and an assault on access to justice that will impact on hundreds of thousands of people whose claims have nothing whatsoever to do with whiplash.
The government plans to sneak through a doubling of the small claims limit, not by an act of parliament but by statutory instrument, which means that injured people who fall into the bracket will not get their legal fees paid. Up to 40% of those injured at work will lose their rights. Many thousands of workers will be left fighting insurers on their own and in their own time. Injured people whose claim has a value of up to £2,000 for pain and suffering – up to 350,000 people a year – will be expected to take on big insurers on their own. The Government has said that these measures will be implemented as a package in April 2019.
We say that the government’s proposed changes will give a green light to irresponsible employers to cut corners on safety in the workplace because they will know that injured workers will either not seek compensation, or struggle to do so on their own. Vulnerable workers like zero hour contract workers will face difficulty if they are forced to fight the insurer on their own. Put simply, they will not claim.
The government is using the furore around whiplash claims as a smokescreen to attack vulnerable claimants and further enrich their friends in the insurance industry (who have already saved £11 billion since 2013 due to earlier injury legal reforms).
We say that injured workers should be exempt from any increase and on behalf of those injured through no fault of their own we intend to oppose these proposals every step of the way.
Cases in the small claims court have no legal costs recovery and will have an impact on union members and on the funding and operation of union legal services.
The proposals for work related claims and other non-road traffic accident cases will be doubled to £2,000. As the £2,000 figure relates only to the pain and suffering component of a claim our calculation is that, on average, after including loss of earnings etc., cases worth up to £2,500 will be classified as small claims following this change. Increasing the small claims limit to £2,000 would mean that workers suffering injuries that include a collapsed lung, a fractured wrist or elbow and loss of front teeth, are denied access to justice. The Government will keep the small claims limit for all personal injury claims under review and will consider whether a further increase to £5,000 for all claims is required in the future.
A statutory tariff of compensation will apply to RTA whiplash claims, including most work-related RTA whiplash claims, where recovery from the injury takes two years or less. This tariff is much lower than the compensation currently payable in these cases. This means that someone injured in the course of their employment in a road accident would receive a different award than someone who has identical injuries but injured in the workplace.
To give an idea of the impact of these changes work related claims and other non-motor cases recovering under £2,000 for pain/suffering and RTA cases under £5,000 account for 40% of the Union’s total personal injury cases referred to Thompsons in England and Wales. All of these are currently funded by the costs recovered from employers and other defendants.
This is a very serious issue and we are working closely with the shadow frontbench team and other Unions to resist these proposals.
I have, along with other General Secretaries, written a letter to the Guardian advising that we shall not sit by and accept this. Our legal team are working closely with other Union legal officers and the Labour Shadow Cabinet on a campaign to stop this attack. We will continue to work with other Unions, the labour movement and with others in the campaign against these proposals and your continued support is required and appreciated.
It is important that we continue fighting this campaign and you will be kept informed of developments.
2. Consultation Paper: Reforming Employment Law Hearing Structures
The Law Commission has issued a consultation paper on reforming employment law hearing structures. The issues on which it seeks views are:-
• extending limitation periods in employment tribunals, mostly to six months;
• raising or removing the £25,000 limit for breach of contract claims, and allowing tribunals to hear breach of contract claims while the employee remains employed;
• whether tribunals should have power to allow multiple Respondents to seek contributions from each other;
• giving the EAT jurisdiction to hear appeals from the Central Arbitration Committee on issues of union recognition (currently these can only be challenged by way of judicial review);
• allowing employment judges to sit in the civil courts when hearing civil court discrimination claims, or creating an 'employment and equalities' list of specialist judges.
The Law Commission is an advisory body only; its recommendations will not necessarily be implemented.
The consultation closes on 11 January 2019.
3. RMT win case against LUL (Jugroop v London Underground Limited )
In September 2018, the East London Employment Tribunal decided that RMT member was unfairly dismissed by LUL.
Our member was employed as a Customer Services Supervisor and had 14 years’ service with a good attendance record. He was assaulted and racially abused at work by members of the public in February 2018, suffering facial injuries and stress, and was signed off work later that month. After several meetings with LUL, our member attended a meeting with his manager in June 2017 in which he asked for an extra fortnight or so off work to enable him to recover from the psychological effects of the assault. Despite the fact that their Attendance at Work Procedure states that an employee should not be dismissed until at least 39 weeks after being declared unable to carry out his duties for medical reasons, LUL then threatened our member with dismissal.
In July, LUL obtained a medical report from one of their Occupational Health doctors who had not examined our member. Despite the fact that he felt able to return to work in July 2017, LUL dismissed him that month, on grounds of ill health.
He appealed against his dismissal with the Union’s support. Although he provided a letter from his GP confirming his fitness to return to work, his appeal was rejected.
In deciding that our member’s dismissal was unfair, the Tribunal mentioned his long service and good attendance record. The Tribunal Decision emphasised the fact that LUL had no good reason for failing to wait 39 weeks before dismissing him. The Tribunal Judge pointed out that he had only been examined once by an LUL doctor, who had not recommended dismissal. He expressed surprise at another LUL doctor advising about his future without meeting him, and criticised the manager who used this evidence as the basis for dismissal. LUL had argued that they were worried that anger issues might result in our member acting violently at work, thereby jeopardising colleagues and the public. The Tribunal concluded that there was no evidence of our member ever acting violently in the workplace. LUL were also criticised for failing to consider alternatives to dismissal.
The appeal process was also criticised as LUL failed to follow its own procedures. Our member should have been allowed to appeal against the medical evidence used to dismiss him; and then to appeal against the dismissal itself. In fact LUL only allowed one appeal against dismissal. The appeal manager failed to consult with LUL’s Head of Occupational Health but instead relied upon another medical report written by a doctor who had not seen him. The appeal manager was found to have ignored our member’s evidence that he was fit to return to work. On the evidence available at the time, the appeal manager should have either referred him to an independent occupational health advisor or allowed him back to work. As he did neither, the Tribunal concluded that the appeal was ‘…substantially and procedurally unfair.’
This case exposes an employer who did everything wrong in taking the decision to dismiss. The Tribunal Decision explains how LUL could have dealt, fairly, with our member’s case. Our members deserve better treatment. This decision can be used to enable us to ensure that members attacked and injured at work are treated fairly in future.
4. TUPE & variation of contract - (Tabberer and ors v Mears Ltd and ors,)
Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), employers cannot vary a contract if the reason for the variation is the transfer. The Employment Appeal Tribunal (EAT) held in this case that employers can, however, vary a contract if the relevant contractual term is outdated and unfair.
The claimants were electricians who had originally been employed on a contract with Birmingham City Council. Following a number of TUPE transfers, their employment transferred to Mears Ltd in April 2008. As Council employees, they had received a payment known as the Electricians Travel Time Allowance (ETTA) to compensate them for the loss of an historic productivity bonus caused by the need to travel to different depots. Mears argued that as the rationale for paying the allowance no longer applied (there was no longer any productivity bonus and only one depot) and was unfair to the rest of the workforce who did not receive it, the electricians had lost their contractual entitlement to it. Some of the electricians brought claims which were upheld by both the tribunal and the EAT, the “Salt” litigation.
Mears then gave notice that it intended to unilaterally vary the electricians’ contracts by stopping payment of the allowance from 1 September 2012. The claimants objected, arguing that the reason for the variation to their contracts was a relevant transfer for TUPE purposes and therefore void under regulation 4(4) of TUPE.
Regulation 4(4) TUPE states that any “purported variation” of a contract is void if the “sole or principal reason” for the variation is the transfer itself.
The tribunal agreed with the company that, as the decision to stop making the payments was because they were outdated, the “operative reason” for the variation of contract was not the transfer itself or a reason connected with the transfer. As such, the decision to vary the contract was different from the earlier litigation and was taken for different reasons.
The claimants appealed on the basis that the tribunal’s judgment ignored the fact that the entire subject matter in Salt was the 2008 TUPE transfer to Mears. It was therefore perverse for the tribunal to find that the company’s reason for the unilateral variation was not connected to it.
The EAT held that the first thing that the tribunal had to do was to ascertain, as a question of fact, what caused the employer to do what they did. In answering this question, the tribunal had found that the Salt litigation was not inextricably linked with the transfer, but rather that it had formed the context for the company’s decision to get rid of a contractual entitlement to an outmoded payment. It was not therefore an attempt on the part of Mears to harmonise terms and conditions, post transfer, but instead was motivated by the need for fairness across different job groups, regardless of the transfer.
The tribunal had clearly found that the reason, or principal reason, for the company’s decision to ensure that contractual entitlement to ETTA was brought to an end was because it believed that it was outdated. This did not therefore create a connection to the transfer and was a conclusion that the tribunal was entitled to reach.
This case is a reminder that a post-transfer variation to terms and conditions will only be void under TUPE if the sole or principal reason for the variation was the transfer.
5. Disability Discrimination – (Mutombo-Mpania v Angard Staffing Solutions Ltd)
In order to prove disability discrimination under the Equality Act, workers have to show that the impairment has an “adverse effect on their ability to carry out normal day-to-day activities”. In this case, the EAT held that this involves providing evidence listing the specific activities that the worker could not undertake because of the alleged disability.
When filling in his application form for Angard Staffing, a recruitment agency which provided casual staff for Royal Mail, Mr Mutombo-Mpania did not indicate that he had a disability, although he had been diagnosed as suffering from essential hypertension in 2011.
From November 2015 to November 2016 he worked for Royal Mail on a late shift which finished at 10pm. In the run up to Christmas 2016 he accepted a night shift booking covering the period from 21 November until 13 January 2017. However, prior to starting the booking he emailed Angard explaining that he could not work night shifts because of his “health condition”.
After failing to attend work on four occasions between 21 November and 15 December 2016, the agency told Mr Mutombo-Mpania that the Glasgow mail centre no longer wished him to work for them. He replied saying this was unfair as he had told the agency about his health condition and that, in any event, he had never asked to be transferred from days to nights in the first place.
He brought a number of tribunal claims, including one for disability discrimination. Dismissing his claim, the tribunal found that Mr Mutombo-Mpania had failed to demonstrate how his health condition had a “substantial adverse effect on his ability to carry out normal day to day activities”, not least because he had not provided any evidence of any activities that had been impacted nor in what way. In effect, he had given “no insight into any limitations on his day to day activities caused by the physical impairment of essential hypertension”.
Even if he had established that he was a disabled person under the Equality Act, the tribunal held that his employer could not have reasonably been expected to know as he had not mentioned it when he joined. Nor could his employer have had constructive knowledge of his disability as he had previously worked night shifts and voluntarily accepted the block booking. Although the agency should have made further inquiries once it became aware of his health condition, the tribunal held that this was not enough to infer constructive knowledge of disability.
The EAT agreed with the tribunal holding that it was not enough for Mr Mutombo-Mpania to refer to headaches, tiredness and so on without linking those symptoms to his inability to carry out the activity he had been undertaking for the agency or his alleged inability to carry out regular night shifts. In particular, he had not listed the specific activities that he could not do or could only do with difficulty because of the impact of his hypertension. The burden of proof was on him and he had failed to discharge it.
As for the tribunal finding that the agency should have made further inquiries, it agreed with the employer that this was simply to ascertain information about the “health condition” that Mr Mutombo-Mpania had informed them about. This was not the same thing as a disability and did not therefore represent a finding that the employer had failed to take reasonable steps to ascertain whether he had a disability or not.
6. Disability Discrimination - Reasonable Adjustment – (Archibald v Fife)
The duty to make reasonable adjustments is triggered where an employee becomes so disabled that he or she can no longer meet the requirements of his or her job description.
Once triggered, the scope of the duty is determined by what is reasonable in all the circumstances of the case. In some circumstances, the duty could require an employer to transfer a disabled employee to a vacant post at a slightly higher grade, if the employee is qualified and suitable for the job, without requiring him or her to undergo a competitive interview.
The House of Lords' decision is a significant one in that it confirms that the duty applies not only to the arrangements that an employer makes in regard to matters such as access to employment and promotion, but also to the situation of an employee who becomes unable through disability to perform his or her current job.
The decision confirms that an employer should consider transferring such an employee where appropriate and that the statutory duty may even require an employer to override its usual redeployment policy in order to accommodate the disabled employee.
The case is still good law and is useful to consider and argue when applying for a reasonable adjustment, not surprisingly the employers will often overlook it.
In most cases the question will not be as simple as whether or not a transfer to an existing vacancy itself is reasonable. The terms of the transfer, such as how the employee is required to apply for the new role, the pay in the new job, the hours of work etc. will all play a part in the reasonableness.
In Archibald the Court emphasised that the duty to consider a reasonable adjustment is not simply to create a level playing field, in many cases the duty to make reasonable adjustments requires the employer to treat the disabled person more favourably in order to remove the disadvantage which is attributable to their disability. This necessarily entails positive discrimination. It is important to bear this in mind since many employers do not give priority consideration for disabled employees.
In Archibald once the claimant became incapable of doing her road sweeping job, the respondent required her to undertake competitive interviews for the jobs which she applied for because they were at a higher grade, it would have been reasonable simply to transfer the claimant to one of the existing vacancies rather than requiring her to undertake competitive interviews. Further training can be provided if necessary.
The case does not mean that an employer must always redeploy rather than dismiss employees who become disabled. And it certainly does not mean that such employees should be given favourable treatment in the sense of promoting them to jobs beyond their qualifications or experience.
Everything will depend on the circumstances and the question of reasonableness.
7. Employment Tribunal Statistics
The Tribunals and Gender Recognition Certificates quarterly statistics for the period April to June 2018 published on 13 September 2018 reveals that the number of single employment tribunal claims lodged at the employment tribunals has more than doubled (165%). For the first time this quarter they are higher than the level in July to September 2013 (the last quarter before fees had an effect). However the success rates of employment tribunal claims for discrimination continue to be low.
Cases successful at tribunal;
Religion & Belief 1%
Sexual Orientation 2%
The median compensatory awards are as follows:
Religion & Belief £5,696
Sexual Orientation £12,550
Please draw these matters to the attention of our members and activists.