in-depth

Technical update - April 2018

Andrew Macmillan

Extension of time limits clarified

Issue

The mandatory pre-claim ACAS Early Conciliation process was introduced in order to allow an opportunity to reach a settlement rather than having to resort to proceedings in the Employment Tribunal. The process also extended the relatively short time limits for lodging claims in two different ways. However in practice deciding which of the extension of time provisions applied had caused some confusion until the recent decision in the case of Luton Borough Council v Haque.

Facts

Mr Haque was summarily dismissed on 20 June. The normal time limit for bringing a claim would be 19 September. He contacted ACAS on 22 July which tried to reach a settlement until it issued an Early Conciliation certificate on 22 August. He presented his claim form on 18 October. The employer contested that the claim was in time on the grounds that the time limit should be extended only by one month from when he received the Early Conciliation certificate from ACAS. 

Decision

The statutory provisions for extending the normal time limit provide that the period of time from contacting ACAS to when the certificate is issued is not to be counted. Secondly that if the time limit would otherwise expire within one month from when the certificate is received, the time limit should be extended to one month after this date. It was held that these provisions were to be applied sequentially. It was not optional which should apply. The claim was in time as the period spent conciliating was to be added to the time limit.

Action

The decision clarifies that the time limit will be extended in every case by the period of time between which ACAS is contacted and the certificate is received. The following provision extending time by one month from the date that the certificate is received will only apply where the claimant would have less than a month to present their claim. There were not two potential time limits. The period of risk when a claim may be received will be clearer following this decision and it will be important to ensure that sufficient records are retained during this period to help defend any claim.

 

 

When to make adjustments

Issue

A duty to make reasonable adjustments may apply where an employee is disabled. If the employer refuses to comply it could lead to a claim in the Employment Tribunal. That claim would generally need to be presented within a period of three months following the refusal. In the case of Abertawe Bro Morgannwg University Local Health Board v Morgan the question was when that time limit would begin to run if there had been no express refusal but the adjustments had not been made.

Facts

Ms Morgan, a psychiatric nurse therapist, suffered from a depressive illness which led to her being on long-term sick leave. She claimed that the employer should have redeployed her into another role at some point in order to enable her to return to work. However the point in time when the employer should have taken that step was not clear and it was argued that any claim she may have had for failing to make an adjustment was out of time.

Decision

The duty to make reasonable adjustments applied as soon as the employer was able to take steps which it would be reasonable to take to avoid the relevant disadvantage to the employee. However in order not to unfairly prejudice the ability of the employee to bring a claim, the three-month time limit ran only from the date by which an employer might reasonably have been expected to comply with the duty – as determined in the light of the facts as they would reasonably have appeared to the claimant.

Action

The decision helps to clarify the period of highest risk when a claim may be received by the employer. However it should also be taken into account that the Employment Tribunal has power to extend time to bring a claim of discrimination where it considers it just and equitable. This gives the Employment Tribunal the widest possible discretion even in circumstances where the employee has shown no good reason for the delay.

 

 

Varying contract terms

Issue

Changing the terms of the employment contract will generally require that there is some agreement between employer and employee. However where the employer makes changes and the employee continues to work without objection it may be that agreement can be implied. In Abrahall and others v Nottingham City Council and another the issue was whether implied agreement to a variation could be relied upon after two years of working against a backdrop of union protest.

Facts

When faced with budget cuts the Council decided to impose a two-year pay freeze, meaning that the annual incremental pay progression was suspended. When this was announced it was strongly opposed by the trade unions and industrial action was threatened although it was never acted upon. The union continued to voice its opposition to the pay freeze at meetings but raised no formal dispute and no employee raised a grievance. However two years later when the Council decided to extend the pay freeze, several hundred affected employees brought claims for unlawful deductions from wages.

Decision

The contractual provisions made reference to pay grade points that would increase annually. These increments would be due unless it could be shown that the employee had agreed a variation. Continuing to work without protest may amount to deemed acceptance in some cases but in the circumstances here it could be explained by other reasons rather than amounting to an unequivocal consent to a variation. It was also relevant that during this period the union had continued to voice its opposition to the pay freeze. There had been no implied acceptance of a variation of contract.

Action

This highlights the risks of relying on an employee continuing to attend work as evidence of acceptance of a change in terms, even where the impact is immediate. It is particularly relevant where the change is wholly disadvantageous to the employee, because where the changes include providing further benefits it may be easier to establish acceptance. However it will be dependent on the particular facts and a union’s strenuous protest may in any event indicate there is no agreement. Consideration in such circumstances will need to be given to the option of notice and re-engagement on the new terms.

 

 

Shared parental not same as maternity

Issue

If an employer provides that employees on maternity leave are entitled to retain entitlement to full pay, whilst employees who take shared parental leave would only receive statutory minimum payments, would there be grounds for a claim of sex discrimination? That was the question in Capita Customer Management Ltd v Ali and another which involved a claim of less favourable treatment between a man on shared parental leave and a woman on maternity leave.

Facts

Mr Ali had been entitled to two weeks’ paid paternity leave. When he asked about extending this he was told that he was eligible for shared parental leave but would only be paid statutory minimum. He knew that other female employees were entitled to maternity pay comprising 14 weeks’ full pay. He brought a claim that after the two-week compulsory maternity leave period, it was discriminatory for the mother to be paid more than the father in respect of the remaining leave.

Decision

The initial Employment Tribunal decision that his claim succeeded was overturned on appeal. The correct comparator for Mr Ali would be a woman on shared parental leave, who would have been treated the same. Even if that had been wrong, any more favourable treatment of a woman at that point in her maternity leave would have been properly disregarded as special treatment that was justified in order to provide protection to a woman in connection with pregnancy or childbirth.

Action

Whilst different levels of payment for employees on maternity and shared parental leave should not be regarded as clear evidence of discrimination, it has to be taken into account that there will be greater risk the longer it applies after childbirth. In this decision it was suggested that after 26 weeks of leave it may be possible at that point to draw a valid comparison between a father on shared parental leave and a mother on maternity leave.

 

 

When does dismissal take effect?

Issue

Whilst an employer may issue notice of dismissal, giving the contractually required notice when that starts to run may be difficult to establish in some cases. The Supreme Court in Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood was asked to decide whether it should be taken from the date the notice was received at the employee’s address, or the date that the employee actually reads it, or has reasonable opportunity to read it.

Facts

On 20 April a recoded delivery letter was posted to Mrs Haywood giving her 12 weeks’ notice of redundancy. Mrs Haywood was abroad on holiday and the letter was not collected from the local sorting office until her father-in-law went there on 26 April. He took it to her house that day ready for her return from holiday the following day. On 27 April Mrs Haywood read the letter. Her entitlement to an enhanced early retirement pension depended on the notice being effective only from this last date.

Decision

It was held that notice took effect only when it had actually been received by the employee and the employee had either read or had a reasonable opportunity of reading it. It was considered important for both employer and employee, even in dismissal on notice cases, to know whether and when the employment had come to an end and the same rule as applied in summary dismissal cases should be used. There was no implied term in employment contracts that notice was effective when delivered.

Action

This is an important decision in relation to contractual benefit entitlements. It means that in practice employers should include an express provision in their contract of employment stating when notice will be effective. In the absence of such a provision and where a deadline is approaching it should be regarded as a priority that the notice is communicated directly to the employee, by either telephone or in person.
 

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Andrew Macmillan

Andrew Macmillan

Partner

Andrew is a specialist employment lawyer, with a particular focus on contentious work such as reorganisations, redundancies, employment aspects of insolvency, executive severance, employment relations issues and employment tribunal litigation.