Be Aware - November 2017
Employment Tribunal Fees
By now, most employers will be aware that the Supreme Court allowed an appeal by the Trade Union, UNISON, holding that Employment Tribunal fees are unlawful and they have now been quashed.
In Parliament, at the beginning of September, the Minister of State for Courts and Justice, Dominic Raab, answered various questions on Employment Tribunal fees. His general tone was apologetic towards those who had been prevented from bringing claims (due to fees being in place) and, most importantly, indicated that there was no suggestion that the Government was planning to bring in a new fees regime in the foreseeable future.
It had previously been anticipated that a new fees regime may have been introduced but that now seems unlikely. As this is an ever changing feast, however, it will be very much a case of watch this space for future developments.
Sale by Auction
“I have recently sold a car at auction but didn’t realise that it had been modified. The new owner is now having a problem as he was a business and it doesn’t have a manufacturer’s warranty. Now he wants to cancel the contract.”
At an auction sale the responsibility for a business is to accurately describe the vehicle. Your liability will depend on how detailed the description was. The first step therefore is always to obtain a copy of the auction catalogue along with any photos. This will be the rule book and the vehicle must meet this description. Our advice is always keep any advertisements or auction descriptions, including the photos for at least 6 months and where possible 6 years.
Once you have a copy of the catalogue you should request that the purchaser puts their complaint in writing and details precisely how they believe you are in breach. This is important as it will ensure you get as accurate a picture as possible at the earliest opportunity. More importantly you will have fixed the complaint at the earliest opportunity and it will be much more difficult for the seller to change his story or his recollection as the case develops.
You can now review the complaint against the description provided. Do not forget photos are just as important if not more so, particularly where they establish blemishes or in this case non-standard parts.
Once you have reviewed the situation draft a response in writing. This helps you to organise your arguments mentally and logically. It is also a very good aide memoire for the case going forward and helps you keep your story straight… so to speak.
Once you have drafted this, give the purchaser a call and discuss the situation and follow up the conversation with a written response. If you cannot resolve the matter, remember any dispute can be referred to the RMI’s National Conciliation Service, whose details can be found on the RMI’s website.
Monitoring workers’ emails
In the case of Barbulescu v Romania the European Court of Justice (ECHR) decided that a Romanian employer acted lawfully when it monitored an employee’s Yahoo Messenger account.
That decision was made in 2016 but since then there has been an appeal from the Chamber of the ECHR and the Grand Chamber has come down in favour of the right to privacy and reversed the decision.
The Judgment is a very complicated one but the main point is that workers do have a right to respect for privacy in the workplace and if an employer is going to monitor their emails and messages, the employer should (except in exceptional circumstances) tell the worker their communications might be monitored. Here, although the employee knew it was forbidden to use work computers for personal purposes, he hadn’t been told that the employer was actually monitoring his communications.
In future, therefore, in order to avoid claims for compensation, it will be very important for employers to review their policies and procedures to ensure that workers are aware that their communications may be monitored.
Changing An Employees Hours
“We have had a member of staff come back from maternity leave in June. Following a request from her to reduce her hours, her role in the company also changed. Where do we legally stand if the hours she now works do not suit the needs of the business? She works Wednesday, Thursday and Friday mornings but our busiest times are Monday and Friday afternoons. Her hours therefore could cause us issues going forward.”
A change in hours following a flexible working request is a permanent change and can be daunting. However, provided the change can reasonably be justified and you handle the matter correctly you will be able to make the changes.
If you need to change her hours you will ultimately need treat it as a variation of terms and conditions. The first stage is to have an initial consultation meeting with the employee concerned to discuss the issue and to see whether she is amenable to the change, and if not, what obstacles are present. You can reach any agreement you are both happy to agree to. Any agreement should be evidenced in writing and will form the basis of the new contract between you.
If the employee refuses to accept the change and the business cannot continue this status quo (which could be exploring whether you can find alternative employees to carry out the busy periods) then there are two options;
1. enforce the change as unilateral change, or
2. dismiss and seek to re-engage on the new terms.
Both carry risks as with the first it would risk a breach of contract if consent is not given. If the employee has more than two years’ service she could resign and claim constructive dismissal. With the second option, clearly as there is a dismissal then she could not accept the re-engagement and claim unfair dismissal.
Due to the risk therefore, it is best to try to seek the employee’s consent, explaining the problems caused to the business in relation to her working hours against the needs of the business and see if you can obtain consent.
This advice is general in nature and it will need to be tailored to any one particular situation. As an RMI member you have access to the RMI legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us on 0845 305 4230 at any stage for advice and assistance as appropriate.