Employment Bulletin – October 2018

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Huge rise in homophobia claims to employment tribunals

There has been a surge in homophobia claims to Employment Tribunals over the last 12 months.

The number of claims involving discrimination on the grounds of sexual orientation rose from 203 in 2016/17 to 377 in 2017/18 – a rise of 85%.

The chief executive of the Equality and Human Rights Commission, Rebecca Hilsenrath, said: “There is no room in today’s Britain for prejudice and harassment of the LGBT community and sadly these figures show it’s still very much a feature of the landscape. This really needs to stop, and quickly.

“Everyone has the right to a working environment that helps them achieve their full potential.”

She said the figures showed that the introduction of tribunal fees five years ago had discouraged people from bringing claims, but now they were ready to proceed again because the government had abolished fees following a Supreme Court ruling that they were unlawful.

Legal experts say while the abolition of tribunal fees was partly responsible for the increased number of claims, it was also likely that changing attitudes played a major part.

Victims of homophobic discrimination have become more assertive and aware of their rights. They are less likely to suffer in silence as they may have done in the past, and more likely to take legal action to protect themselves.

The rise in claims relating to homophobia reflects an overall rise in tribunal claims since the abolition of fees.

Figures released by the Advisory, Conciliation and Arbitration Service (ACAS) show that notifications to bring a claim increased in the year to July 2018 by 17,000 (19%). The number of cases that went on to appear before a tribunal rose by 7,000 (39%).

The ACAS helpline received 783,000 calls in the year to July. The top three categories were discipline, dismissal and grievances; contracts; wages and the national minimum wage.

Businesses may wish to check that their employment policies are up to date to reduce the risk of costly and time-consuming claims from employees.

Removal of travel allowance ‘did not contravene TUPE’

A decision to remove an “outdated and unjustified’ travel allowance did not contravene an employer’s obligations under TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006).

That was the decision of the Employment Appeal Tribunal (EAT) in a case involving a team of electricians.

The EAT was told that the electricians had worked for the Council before being transferred to a company.

While at the council they could claim the Electricians Travel Time Allowance, which had been operating since 1958.

The company wanted to update working practices and so gave notice that the allowance would be scrapped as it was outdated and unjustified.

The electricians claimed this contravened TUPE as the allowance had been available before the transfer.

The Employment Tribunal found in favour of the employer, ruling that the reason for ending the allowance was not because of the transfer but simply because it was outdated.

The EAT has upheld that decision.

Prison inspector loses disability case, but court criticises employer

A prison inspector has lost his claim of disability discrimination, but the case led to the Court of Appeal criticising the approach taken by his employer, the Ministry of Justice.

The inspector started working as a prison inspector in 2010. He began suffering from depression in 2012, which led to him taking time off work in the spring of 2014.

His illness persisted, and he applied for early ill-health retirement in November 2014.

His application led to a long, drawn out process lasting 13 months. The inspector blamed the delay on unnecessary bureaucracy within the prison service. His line manager also expressed concerns about the lack of progress.

When his ill-health retirement assessment was eventually issued, it contained several errors, which took further time to correct. The final decision to allow his retirement wasn’t made until December 2015.

The inspector retired the following February and brought numerous complaints of disability discrimination and harassment.

The Employment Tribunal dismissed the majority of the complaints but allowed three. He was awarded £100,000 compensation. That decision was overturned by the Employment Appeal Tribunal (EAT).

The case went all the way to the Court of Appeal, which also ruled against the inspector. It held that although the MoJ’s processes were slow and unwieldy, they were not so deficient that they amounted to discrimination.

However, Lord Justice Underhill, was critical of the MoJ. He said: “…it is no credit whatever to the MoJ that its ill-health retirement processes, which by definition are applied to people who are to a greater or lesser extent vulnerable, are so…arcane and unwieldy; and I would endorse the EAT’s recommendation that they be reconsidered.”

This is a case that was brought because of the inadequacies of the MoJ’s processes for dealing with a straightforward request for ill-health retirement. Employers may wish to check their own policies for such matters to reduce the risk of claims that can be both costly and time-consuming.