Employment and pensions

Tribunal erred by entering default judgment where employer’s claim was undefended (EAT)

The EAT has allowed an appeal against an employment tribunal’s decision to dismiss an employee’s claim and enter default judgment on the employer’s contract claim, to which the employee had not responded within the 28-day time limit.

Where a claim (including an employer’s claim) is undefended, rule 21 of the Employment Tribunals Rules of Procedure 2013 requires an employment judge to decide whether, on the available material, a determination of the claim can properly be made without a hearing, and to the extent that it can, issue a judgment accordingly. Otherwise a hearing must be fixed. The rule does not require or permit the judge to enter judgment simply because the claim was undefended, without giving any further consideration to the matter.

Applying the Presidential Guidance on rule 21 and the Court of Appeal’s judgment in Office Equipment Systems Ltd v Hughes [2018] EWCA Civ 1842, the EAT noted that a tribunal should give close and careful consideration to the balance of prejudice and the practical implications of allowing a party to participate in a hearing in these circumstances. However, it should not be assumed that the respondent to an undefended claim who simply turns up to a liability hearing will be able to persuade the judge to allow it to participate, even in a limited way.

In this case involving substantially overlapping claims, it had been wrong for the employment judge not to give any consideration to whether there was a proper basis to grant judgment on the employer’s claim. The employee had been entitled to participate in relation to her own claim and clearly wished to participate in relation to the employer’s claim. Whether she should have been permitted to do so to any extent should at least have been actively considered by the judge. (Limoine v Sharma UKEAT/0094/19, 9 July 2019.)

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Employee entitled to statutory redundancy payment as well as NHS contractual redundancy payment (EAT)

Mrs Ugradar brought proceedings in the employment tribunal seeking a redundancy payment. She claimed both breach of contract and a statutory redundancy payment. Her contractual claim was worth £43,949.04, pursuant to NHS standard terms and conditions of employment (Agenda for Change (AfC)). Paragraph 16.1 of AfC states that “NHS contractual redundancy is an enhancement to an employee’s statutory redundancy entitlement; the statutory payment being offset against any contractual payment.” Her statutory entitlement was £5,868.

The tribunal found that Mrs Ugradar was entitled to a redundancy payment and awarded her £25,000, this being the maximum amount the tribunal can award in a contract claim (see Practice note, Employment tribunals (12): contract claims: Limit on awards). It held that her statutory entitlement was subsumed into the contractual entitlement and that the full entitlement was curtailed by the cap.

Mrs Ugradar successfully appealed to the EAT. It held that AfC provides only that the statutory payment is to be set off against any contractual payment. This meant that the contractual entitlement, after the offset, was £38,071.04. The cap reduced this to £25,000 but the cap did not affect the statutory claim and she remained entitled to the statutory payment.

The EAT also held that even if AfC had purported to restrict Mrs Ugradar’s rights to a statutory redundancy payment, the provision would have been void by virtue of section 203 of the Employment Rights Act 1996.

This is an important case for NHS lawyers, explaining the interplay between the contractual and statutory redundancy payment schemes. It will also be important to other sectors with similar contractual redundancy schemes.

Case: Ugradar v Lancashire Care NHS Foundation Trust UKEAT/0301/18 (16 September 2019)(HHJ Richardson, sitting with members).

Vegetarianism was not a belief for purposes of Equality Act 2010 (ET)

Mr Conisbee was employed for approximately five months before resigning. He alleged discrimination on the ground of religion or belief contrary to the Equality Act 2010 (EqA 2010), his belief being vegetarianism. At a preliminary hearing, an employment tribunal held that this belief did not qualify for protection under the EqA 2010, applying the established tests in Grainger Plc v Nicholson UKEAT/0219/09 (see Practice note, Religion or belief discrimination: Philosophical belief). Although Mr Connisbee’s vegetarian belief was genuinely held and was worthy of respect in a democratic society, it failed to meet the other legal hurdles for protection:

  • It did not concern a weighty and substantial aspect of human life and behaviour: vegetarianism is not about human life and behaviour, it is a lifestyle choice and in Mr Connisbee’s view believing that the world would be a better place if animals were not killed for food.
  • It did not attain a certain level of cogency, seriousness, cohesion and importance: the reason for being a vegetarian differs greatly. Vegetarians adopt the practice for many different reasons: lifestyle, health, diet, concern about the way animals are reared for food and personal taste. On this point, the tribunal contrasted veganism, stating, obiter, that the reasons for being a vegan appear to be largely the same and that there was therefore a clear cogency and cohesion in vegan belief.
  • It did not have a similar status or cogency to religious beliefs.

This decision is not binding on other tribunals but provides at least one example of how they are approaching religion or belief claims based on vegetarianism.

Case: Conisbee v Crossley Farms Ltd and others ET/3335357/2018 (10 September 2019) (EJ Postle, sitting with members).

Labour Party proposes new employment rights ministry and government agency in bid to strengthen workers’ rights

The Labour Party has announced radical plans to strengthen individual and collective workers’ rights, if elected. Speaking at the TUC Congress, Jeremy Corbyn pledged to create a new Ministry for Employment Rights and a Workers’ Protection Agency. In what would be an unprecedented extension of individual and collective employment rights, Corbyn stated that the plans would “put power in the hands of workers”.

The proposed workers’ protection agency would be created to enforce workers’ rights, working standards and protections. Its powers would include the inspection of workplaces and bringing prosecutions and civil proceedings on behalf of workers. Proposed enhancements to individual employment rights include:

  • Raising the national minimum wage for all over-16s to a “real living wage” of £10 per hour by 2020.
  • Merging the different categories of employment status into one single status labelled “worker” for everyone except the self-employed.
  • Introducing a civil enforcement system to uphold gender pay commitments.
  • Banning unpaid internships and zero-hours contracts.

Proposed changes to collective employment rights include introducing sectoral collective bargaining, granting a right of entry to unions into workplaces and repealing the Trade Union Act 2016 in its entirety.

Corbyn’s proposals follow a Labour-led study which recently established that a French-style cap on weekly working time to increase leisure time for workers would not work in the UK. The study found that imposing a four-day week would not be “realistic or even desirable”. However, the possibility of a sector-led approach for reducing working hours without reducing worker’s pay will now be considered.

Sources: Jeremy Corbyn pledges biggest ever extension of workers’ rights, theguardian.com, 10 September 2019Corbyn and Pidcock announce Ministry for Employment Rights and Workers’ Protection Agency, The Labour Party, 10 September 2019French-style cap on working week in Britain unrealistic, finds study, theguardian.com, 12 September 2019.

 

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