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Employment Appeal Tribunal clarifies rules on ‘bumping’ staff

14 May 2018 by Lydia Newman

Employment Appeal Tribunal clarifies rules on ‘bumping’ staff - Read more

Employment round-up looks at Vento bands, discussions during proceedings breaks, and full particulars for Employment Tribunal claims

In the case of Mirab v Mentor Graphics (UK) Ltd, the Employment Appeal Tribunal found that consideration of ‘bumping’ is not compulsory for an employer, but is subject to the range of reasonable responses.

Bumping is a potential alternative to redundancy, where a potentially redundant employee (employee A) moves into the role of another employee (employee B) who was not in a redundancy situation. Employee A will then fulfil employee B’s role and employee B will be dismissed on the grounds of redundancy.

Although this outcome may be good for employee A and the employer, employee B may bring a claim for unfair dismissal.

Conversely, in this case the respondent did not consider bumping and the claimant argued this was unfair. The question was whether the respondent needed to consider bumping as part of the redundancy process.

It was initially decided by the Employment Tribunal that the claimant had been fairly dismissed on the grounds of redundancy. The respondent had considered alternatives and, as the claimant had not raised the issue of bumping, it had not been required to consider that instead of dismissal on the ground of redundancy.

“Bumping does not have to be raised by the claimant for it to be considered by the respondent”

Yet on appeal the Employment Appeal Tribunal found that bumping does not have to be raised by the claimant for it to be considered by the respondent. However it does not, as a rule, always have to be considered. It should be decided on the facts of the case whether the decision of an employer to consider bumping was among the reasonable responses.

It is therefore important in any redundancy situation to consider whether bumping could be an option and to record the decision and reasons for this decision, with a view to producing this evidence should an issue arise in respect of any dismissal.

Change to Vento bands

One form of compensation that can be awarded in unlawful discrimination cases is an award for injury to feelings.

This is discretionary compensation for non-economic loss, such as for hurt and upset caused to the claimant. The level of the award made is based upon the seriousness of the impact of the discrimination on the claimant, under what are known as the Vento bands.

On 6 April, the presidents of the Employment Tribunals in England, Wales and Scotland announced a raise in the Vento bands, which are slightly amended from those announced in November. The new bands, which apply from 6 April 2018, are:

  • For less serious cases: £900 to £8,600
  • For middling cases: £8,600 to £25,700
  • For severe cases: £25,700 to £42,900
  • For exceptional cases higher awards may be made.

As is apparent from the wording of the guidelines, any such awards are entirely at the discretion of the presiding judge. Thus in cases that might involve unlawful discrimination more care should be taken.

In the related recent case of Gomes v Higher Level Care Limited, in which the claimant brought a successful claim for breach of the Working Time Regulations 1998, it was held by the Employment Tribunal, Employment Appeal Tribunal and subsequently the Court of Appeal that an award could not be made for injury to feelings for a claim relating to the regulations

This follows a decision by the House of Lords in Dunnachie v Kingston upon Hull City Council, in which it was ruled that no award could be made for injury to feelings in unfair dismissal cases. These cases have upheld the position that injury to feelings awards are generally only applicable to discrimination and potentially whistleblowing cases.

Strike out for discussing case

In the recent case of Chidzoy v BBC, the Employment Tribunal found that it was unreasonable for the claimant to discuss her case with a journalist during a break in proceedings while she was under oath. This decision was subsequently upheld by the Employment Appeal Tribunal.

The facts were that the claimant was giving evidence on the third day of an 11-day hearing for her claims of sex discrimination and whistleblowing. The hearing was adjourned for a comfort break and the claimant warned that she was under oath and should not speak to anyone about the case during the adjournment. However, she was seen speaking to someone later identified as a journalist.

The respondent later applied for the claimant’s claim to be struck out on the basis of her unreasonable conduct. The Employment Tribunal, following further evidence, did so.

The appeals body agreed that this was a decision the tribunal was entitled to make because the claimant’s conduct was unreasonable and that because of the breakdown in trust a fair trial could not be heard.

This case reminds us of the importance of complying with tribunal rules and procedures, especially during proceedings, as well as the opportunities that can arise because of another party’s breach. The claimant here paid the ultimate price and lost the right to continue with the claim.

A particular claim

Under the Employment Tribunal rules a respondent can apply for a claim to be struck out without a hearing if it ‘cannot be sensibly responded to’. However, this is not to say it is likely that such a claim will be successful.

There is increasing authority from the tribunals to suggest employers should be able to infer what the case against them is from an ET1 form – used to make a claim against an employer, potential employer or trade union – and therefore the claim can be sensibly responded to.

In the case of SoS BEIS v Parry and the Trustees of the William Jones School Foundation the claimant was dismissed and on the next day rehired in a different role. An ET1 was lodged on her behalf by solicitors, indicating her claims were for unfair dismissal and arrears of pay.

“Employers may be subject to an onerous requirement to respond to claims for which they do not have the full particulars”

It stated that the particulars were attached, but the solicitors attached the wrong particulars of claim. The tribunal staff referred the ET1 to a judge to be rejected on the basis that it could not sensibly be responded to, but the judge accepted the claim.

On receipt, the respondent applied for the claim to be rejected on the same grounds, but another judge held that a second application could not be made.

The Employment Appeal Tribunal held that the first judge had acted perversely, but that although the claim could not be responded to sensibly, it was beyond the scope of the Employment Tribunal to reject it and was ultra vires. As a result it could not be relied upon.

However, the Court of Appeal disagreed with the appeals body on both counts. It held that the ET1 could be sensibly responded to on the basis that the respondent was aware that the claimant had been dismissed. Further particulars could be provided and responded to at a later date.

In addition, it was confirmed that the rule was not ultra vires. It was noted by the Court of Appeal that an Employment Tribunal may reject a claim for discrimination that was not particularised on the basis that it could not be sensibly responded to.

Even so, it is the case that employers may be subject to an onerous requirement to respond to claims for which they do not have the full particulars. As a result, employers should ensure that claims are responded to within the required time limits.

However, tactically, applications for rejection or strike out could still be used as part of the response process. If these are unsuccessful the claimant could still be required to supply detailed particulars to which the respondent could then provide a revised, more substantial response.

Statutory pay for 2018–2019

Last month, rates in statutory payments had their annual increase. The new rates are:

National Living Wage

For employees aged 25 or over: £7.83 an hour.

National Minimum Wage
  • Employees aged 21–24 inclusive: £7.38 an hour
  • Employees aged 18–20 inclusive: £5.90 an hour
  • Employees under 18, but above compulsory school leaving age: £4.20 an hour
  • Apprentices under 19 or in the first year of apprenticeship: £3.70 an hour.
Other types of pay
  • Statutory maternity, adoption and shared parental leave: 90% average weekly earnings for six weeks, followed by £145.18 or 90% of employee’s average weekly wage
  • Paternity leave: £145.18 a week or 90% of employee’s average weekly wage
  • Employers can reclaim 92% of such payments from HMRC if total Class 1 National Insurance contributions are above £45,000 for the previous tax year or 103% of payments if such payments are below this amount
  • Statutory sick pay: £92.05 a week.

Lydia Newman is an employment solicitor

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