Employment Law

The rise in the number of employment tribunal claims is continuing since the abolition of tribunal fees almost 2 years ago.

The Ministry of Justice has published its most recent quarterly statistics for the period from 01 January 2019 to 31 March 2019.

The data for those 3 months shows, for example, that new claims by single applicants (as opposed to multi-party claims) were up by 6% compared to the same period in 2018.

There was also an increase in the number of multiple claims (by 13%). (Multiple claims – in the sense of cases where the claimant has a number of different complaints against the employer – are very common. They are probably more the rule  than the exception).

Employment tribunal fees were introduced in July 2013 and abolished in July 2017.

This week is Living Wage Week 2018 and as an accredited Living Wage employer, Grigor & Young LLP are proud to support and celebrate this initiative along with other accredited businesses. We are one of 1305 employers paying the Living Wage in Scotland – and we are one of only 18 in the legal sector.

The Living Wage campaign is an independent movement of businesses, organisations and people who believe a hard day’s work deserves a fair day’s pay.

It is a voluntary agreement by an employer to pay above the statutory minimum wage as it is independently calculated based on living costs of employees and their families. It applies to all workers over 18 – in recognition that young people have the same living costs as everyone else.

Carrie Fisher was a much-loved actor.

Her sudden death, at the age of 60, robbed us of someone who had a wide-range of other talents beyond acting:

• as an ambassador for mental health;
• as a script-doctor in Hollywood; and
• as a writer of books.

But it’s for her performance as Princess Leia in Star Wars – aged only 19 – that she will be best remembered.

She also said this:

Stay afraid, but do it anyway. What’s important is the action. You don’t have to wait to be confident. Just do it and eventually the confidence will follow.

Advice about how to perform at your best – a necessary ingredient being bravery. Performance is important in the workplace and, in this article, we’ll look at one particular factor that can affect your level of functioning at work.

Edition 646 of the HBR Ideacast (podcast) featured American writer, Marc Effron. It focused on his book 8 Steps to High Performance: Focus on what you can change (Ignore the rest) – in particular, on how sleep affects your performance at work.

According to Effron’s definition, a high performer is someone who performs – in terms of behaviours and results compared to their peers – at or above the 75th percentile, year-in, year-out. In other words, you achieve performance at a level which means you are “better” than 3 out of 4 of your peers, over time.

Performance is always relative. The example of two workers faced by a marauding tiger springs to mind.

One worker is seen changing into running shoes and the other says: “But you’ll never outrun a tiger”. The reply: “Maybe not, but I only need to outrun you!”

One of the factors Effron considers is the science behind sleep and high performance.

There is plenty of research on the effects of exercise and nutrition on performance at work but none of it conclusive.

On the other hand, sleep – or lack of it – clearly affects performance. You have to look at it in terms of both quality and quantity of sleep.

Mental health continues to be misunderstood and stigmatised. 

We aim here to correct some misconceptions by busting myths about mental health and employment.

Myth – A disabled person is someone in a wheelchair.

Fact – The definition of disability in The Equality Act 2010 covers physical and mental impairments.

This of course includes people in wheelchairs but also other physical disabilities such as blindness, deafness and loss of a limb. Also covered are ‘invisible’ mental health conditions.

The Equality Act defines a disability as “a physical or mental impairment, and the impairment has a substantial and long term adverse effect on their ability to carry out normal day to day activities.”

This legal definition clearly covers a wide spectrum of physical and mental conditions, provided they meet the relevant criteria.

Mental Health is one of the major health challenges in Scotland and in the workplace.

There are a lot of myths and misconceptions about mental health.

According to findings by the Scottish Government, it is estimated that 1 in 3 people are affected by a mental health problem each year.

The Scottish Government has promised that improving mental health is a priority, publishing a ten year Mental Health strategy in 2017, which can be accessed here.

In employment law terms, some categories of mental health will meet the legal definition of a disability and so sufferers will be entitled to legal protections.

Background

Should workers receive payment for sleep-in shifts?

You may have read our previous article on this subject which was written around the Summer of 2017.

The full article can be accessed by clicking here.

Since writing this article, the case of Royal Mencap Society v Tomlinson-Blake has been taken to the Court of Appeal.

In brief, the background of this case is as follows:

• Ms Tomlinson-Blake was a highly trained carer employed by Mencap to look after two men who required around the clock care.
• She required to stay over some nights and be available to assist the men if required, failing which she was allowed to sleep.
• She received a flat rate fee of £29.05 for a 9 hour night shift which was less than her hourly rate which she received through the day and less than the national minimum wage. She received more pay if she was required to provide more than one hour’s care during her shift.
• She brought a claim for back pay, arguing that the night shift in its entirety was working time and therefore she should have been paid her normal hourly rate.
• The Employment Tribunal agreed with Ms Tomlinson-Blake and awarded her the back pay she claimed.
• The decision was appealed to the Employment Appeal Tribunal, who rejected the appeal and upheld the Tribunal’s decision.

Court of Appeal

Mencap appealed this case again, this time to the Court of Appeal. Their decision was issued last Friday (13^th July 2018).

Introduction

If an employee has been in continuous employment in the UK for over two years and they believe they have been unfairly dismissed, they have the right to pursue a claim for unfair dismissal at an employment tribunal. Employers are required to follow a fair disciplinary procedure, usually involving stages of warnings, before they consider dismissal.  The exception to this is summary dismissal.  In this circumstance, whilst the employer still requires to follow a disciplinary procedure, the employer is entitled following a disciplinary meeting to dismiss the employee without warnings or notice if the situation is serious enough to warrant this.

Summary dismissal is usually reserved for situations where the employee’s conduct is of such a serious nature that it is deemed to constitute gross misconduct.

The recent case of Mbubaegbu v Homerton University Hospital NHS Foundation Trust is demonstration of the fact that one single act of gross misconduct does not always have to be found to warrant summary dismissal.

With the introduction of GDPR, there has been a large focus upon personal data recently. A huge area of risk is with email. The majority of people now use emails on a daily basis, both personally and professionally and they become so second nature that we can forget the risks that may be associated with them. This article is aimed at being a reminder of those risks and how to avoid them.

With the FIFA World Cup upon us, we felt it necessary to illustrate some challenges from an employment law perspective. Our goal with this article is to provide some advice to employers so they know the score when it comes to World Cup issues. (We promise to keep the football puns to a minimum!).