Category Archives: Claims

Settlement Agreements – A Perfect Ending!

160519 Settlement AgreementSUMMARY: Learn more about settlement agreements with the answers to some of the most frequently asked questions.  

Q: When can we use a settlement agreement?

A:   Settlement agreements are often used to resolve workplace disputes, and to give the employer the certainty that once the agreement is signed there will be no subsequent employment tribunal claim from a disgruntled employee.  More often than not, the employment relationship will have broken down. The focus then is usually on avoiding unfair dismissal and discrimination claims. A whole raft of statutory employment rights and breach of contract claims can also be compromised.

There does not necessarily need to be a dispute as settlement agreements can be used in a variety of other circumstances where the employment will end.  For example, where there are performance or ill health issues, a voluntary exit or a restructure.

Settlement agreements are not however always about the employment relationship ending, as they can be used at any time during the employment relationship to resolve workplace disputes. For example, if there has been a complaint about how holiday pay has been calculated.

We would recommend that where a settlement agreement is being contemplated, legal advice is taken before any discussions take place with the employee so that any legal risks are identified and then can be properly managed.

Q: What are the benefits of using a settlement agreement?

A:  A settlement agreement allows an employer to manage legal, commercial and reputational risks all in one go in the knowledge that there will be no tribunal claim.  Significant management time, stress and expense can be saved.

Terms can also be agreed on issues that a tribunal would be unable to address. For example, the offer of a positive reference; or the introduction of post termination restrictions, where the existing contract is silent on the employee’s activities once they have left.

Settlement can also keep a dispute out of the public eye and be subject to strict confidentiality provisions.

These benefits need to be balanced with the fact the employee will want something in return, no matter how at fault they may be. Money is usually the main consideration but the circumstances may dictate an entirely different exit package.  There are also restrictions on an employer’s ability to compromise personal injury and accrued pension rights claims.

Q: Are there any essential requirements which need to be complied with to make the deal binding?

A: The following are essential to ensure that the employee is not able to bring an employment tribunal claim:

  • The settlement agreement must:
    – be in writing;
    – identify the complaints to be compromised; and
    – state that it satisfies certain legal requirements.
  • The employee must also have received independent legal advice.

A poorly drafted agreement or one which has been incorrectly signed may leave the door open for an employee to bring a tribunal claim, even if they have already been paid a sum of money.

Q: How long should we give an employee to consider a settlement agreement?

A: An employee should generally have at least 10 days to consider the settlement agreement and obtain legal advice. A shorter period could lead to allegations of undue pressure, permitting reference to the settlement offer in a subsequent tribunal claim, if settlement is not reached.

If there is a commercial imperative requiring a shorter period, legal advice should be taken.

Q: Do we have to pay for the employee’s legal advice?

A: An employer is not obliged to pay the employee’s legal costs.  To get the job done, an employer will often choose to make a contribution.  A good starting point is £250 plus VAT. The following factors may demand a higher contribution: locality, seniority of the employee and the complexity of the case.

Q: Can we recycle a settlement agreement used in the past for a different employee?

A: We would caution against recycling for two reasons:

  • Each employee’s circumstances are different; and these circumstances need to be taken into account in the agreement. A one size fits all approach will not provide the employer with the best possible protection; and may give no protection at all.
  • Any changes to the law may require amendments being made to the agreement.

Contact Details

If you would like to explore whether a settlement agreement may be the best option for your business where you have a workplace problem – please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Dress Codes – Avoiding Discrimination Claims

Dress Codes - Avoiding Discrimination ClaimsSUMMARY: In Begum v Pedagogy Auras UK Ltd, it was held that a nursery had not discriminated against a Muslim woman who wanted to wear a jilbab to work, when it required staff not to wear garments that might constitute a tripping hazard to themselves or the children in their care.

Background to case

A trainee nursery assistant (Ms B) was an observant Muslim whose religious belief required her to wear a garment that reached from her neck to her ankles (a jilbab).  After a half-day trial, Ms B was invited to interview.  She wore a jilbab on both the trial day and the interview day.  At the time of the interview, the nursery asked her whether she might wear a shorter jilbab to work.  The nursery indicated to Ms B that whatever garment she wore, it could not constitute a tripping hazard for children or staff.

Ms B subsequently refused to take the job and reported that she had been insulted by the nursery’s approach to uniform, which went against her religious beliefs.

Ms B brought a claim in the employment tribunal for discrimination on grounds of religion or belief.

Decision

The Employment Appeal Tribunal upheld the decision of the employment tribunal which was that Ms B’s discrimination claim was unsuccessful.

It was noted that there was another member of staff at the nursery who wore a jilbab and 25% of the workforce were Muslim women.  It was clear that this was a workplace in which jilbabs were permitted, so long as they did not constitute a tripping hazard.  The Employment Tribunal had found that at no point was Ms B told she could not wear a jilbab while working at the nursery.

The nursery demonstrated a tolerance towards employees’ religious beliefs, but had to balance a potential employee’s right to manifest their religious belief with its health and safety obligations and did so successfully in this case; it was found that it had not discriminated against Ms B.  However, in other instances, the enforcement of a dress code can prove more problematic for employers given the protection that employees have under the Equality Act 2010.

Law

The Equality Act 2010 essentially gives employees the right not to be directly or indirectly discriminated against on grounds of a protected characteristic.  Protected characteristics include age, sex, race, religion or belief, sexual orientation, gender reassignment, marriage or civil partnership, pregnancy or maternity, race and disability.

Ms B alleged that she had been indirectly discriminated against on grounds of the protected characteristic of religion or belief.

Indirect discrimination on grounds of religion or belief occurs where:

  • An employer applies to an employee a provision, criterion or practice (PCP).
  • The employee has a particular religion or belief.
  • The employer applies (or would apply) that PCP to persons not of the same religion or belief as the employee.
  • The PCP puts or would put persons of the employee’s religion or belief at a particular disadvantage when compared to other persons.
  • The PCP puts or would put the employee at that disadvantage.
  • The employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

Although in this case, it was held that there was no discriminatory PCP (i.e. no indirect discrimination), if there had been a discriminatory PCP, the employer may well have been able to justify the discrimination by showing that that:

  • it had a legitimate aim (for example, compliance with health and safety obligations); and
  • the means chosen (the requirement to wear a garment which did not present a tripping hazard) for achieving that objective were proportionate.

What can employers require in terms of dress code?

The requirements an employer is permitted to include in its dress code are likely to depend on the nature of an employer’s business, the extent to which there are health and safety hazards in its work, the level of employees’ contact with customers and any requirement to wear a uniform.

An employer should keep potential issues of discrimination in mind when formulating a dress code. Regard should be had to possible religious sensitivities, and also to the principle that, while an employer may have different rules for men and women, the rules should not be more stringent for one group than another.

In this case, it was found that the employer did not ban ankle-length jilbabs but that Ms B had worn a flowing garment.  The employer’s concern was that this could constitute a tripping hazard and was acutely aware of its health and safety obligations.  If the employer had banned jilbabs completely, this is likely to have been indirectly discriminatory; the employer would then need to justify the indirect discrimination and such a ban may not have been a proportionate means of achieving a legitimate aim (see above in relation to “law” for justifying discrimination).

An employer may well succeed in justifying such indirect discrimination on the grounds of health and safety where an employee will, for example, be working with children.  However, there may be some work environments where there are no health and safety considerations which could justify such a ban.

It is likely to be more difficult for an employer to be able to justify not permitting an employee to wear a head scarf (hijab) than a full length garment (jilbab).  Although not UK law, Abercrombie & Fitch discovered this to its detriment when there was a recent American Supreme Court decision against it following its refusal to hire a Muslim woman because she wore a head scarf.  Abercrombie and Fitch said that the scarf clashed with its dress code, which called for a “classic East Coast collegiate style”.  We consider this argument would be unlikely to justify discrimination if it occurred in the UK.

We advise that all employers consider whether to have a written dress code policy.  The policy could, for example, include a provision that employees may wear appropriate religious and cultural dress unless it creates a health and safety risk to the employee or any other person.

Cases

Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) UKEAT/0309/13

Contact Details 

For more details about dress code and if you would like us to draft a policy for your business, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

Claimants can continue claims against other respondents even after signing COT3 with one respondent – holds the EAT.

SUMMARY: The Employment Appeal Tribunal has held that a claimant can continue claims against other respondents even when it has signed a COT3 with one respondent.

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Introduction of tribunal fees from 2013

Tribunal Fees from 2013

Summary – Fees to be charged for submitting a claim to the Employment Tribunal

The government’s commitment to improving employment law continues with the introduction of tribunal fees during the summer of 2013.  This is despite employee groups opposing the plans on the basis they will prevent access to justice and deter workers from bringing valid claims.  Business groups also considered that any fees system should explicitly seek to deter weak or vexatious claims.  The rationale however behind the introduction of the fees is not to prevent claims according to the government but to require tribunal system users to bear some of its costs. Continue reading