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June 2018 - Tribunal Claims over 100% up on last year

Posted on Friday 29th Jun 2018

EMPLOYMENT TRIBUNAL STATISTICS 

As one might have predicted the latest employment tribunal quarterly statistics published by the Ministry of Justice, for the period January to March 2018 show a continuing increase in the volume of single employment claims, following the abolition of employment tribunal fees last year.

However, a 118% rise in the numbers of single claims compared with the same quarter of 2017, when fees were still in place, is quite an increase. Of the claims that proceeded to employment tribunal just 10% ultimately succeeding at a hearing.

Over the same period, 4,700 fee refund applications were received, with 4,400 settled with refunds paid costing the taxpayer nearly £4m. Is your company entitled to a fee refund? If so, contact us.

Coincidentally, the Solicitor’s Regulation Authority has confirmed that law firms will be required to publish information on prices for dealing with employment tribunals for members of the public and small businesses, in connection with claims for unfair or wrongful dismissal.

The Reforms (termed Better Information: More Choice) will be submitted to the Legal Services Board for formal approval over the coming months, but are expected to take effect from December 2018. It will make interesting reading.

AS THE SUMMER HOLIDAYS APPROACH OUR THOUGHTS TURN TO OVERTIME

Many employees will be taking their main holiday in the next couple of months and just in time ACAS has published new guidance on how payments for overtime should be treated when calculating holiday pay. Frankly it is neither beach reading nor of much help to employers. It takes us no further forward. 

The problem lies with the definition of “sufficient regularity” in relation to overtime working. The wording, taken from the employment tribunal case of Willetts –v- Dudley MBC and not contradicted by the EAT is not used in the ACAS guidance which states: 

All overtime worked should be included when calculating a worker’s statutory holiday pay entitlement”, whether voluntary or contractual, except where it is worked on a “genuinely occasional and infrequent basis”.

That is not helpful. The EAT had a go at saying at paragraph 54 of its judgment at saying what “sufficient regularity” might mean in practice. “I see no difficulty in principle in concluding that a payment is normally made if paid over a sufficient period of time on a regular basis, say for one week each month or one week in every five weeks, even if it is not paid more frequently or even each week.” 

So, would overtime worked, say, less than 20 to 25% of the time, be insufficiently regular to be taken into account when calculating holiday pay. If so, how much less would it need to be to count as “genuinely occasional or infrequent”? The question is hard to answer. As ACAS sayall Court decisions are case-specific”. It is probably better to concentrate on what we do know.

As the Guidance says, payment for overtime in all its varieties – compulsory, non-compulsory and wholly voluntary – needs to be taken into the reckoning when calculating holiday pay. Please contact us to discuss any specific case. 

Importantly only the first 4 weeks of holiday in the holiday year would be affected by these court rulings. UK law provides for 5.6 working weeks. It is the European element, The Working Time Directive holiday entitlement that has been the subject of court rulings although the ACAS Guidance says that many employers choose to apply the holiday pay decisions to the full UK 5.6 weeks’ leave. News to us! 

WORKING IN THE SUN

This very rare, very welcome summer weather continues but too much sunlight – ultraviolet (UV) rays in sunlight – can cause skin damage. Skin damage includes a sun tan (essentially damage skin) sunburn, blistering and skin ageing. Over a long working life spent outdoors exposure can lead to an increased risk of skin cancer. Skin cancer is one of the most common forms of cancer in the UK with over 50,000 new cases every year in the UK.

If you have employees who work outside, then there is a requirement to assess the risk caused by the hazard of exposure to the sun’s rays.

Who is at risk?

All workers are affected but some are more susceptible to skin damage than others.

  • Fair or freckled skin that doesn’t tan, or goes red or burns before it tans.

  • Red or fair hair and light coloured eyes.

  • Workers with a large number of moles.

  • Black and dark skinned workers are less at risk.

What can you do to protect your workers?

The HSE has published advice entitled Sun Protection Advice for Employers of Outdoor Workers. It is available free for distribution to your workers. It lists these advisory points as follows:

  • Include sun protection advice in routine health and safety training. Inform workers that a tan is not healthy – it is a sign that skin has already been damaged by the sun.

  • Encourage workers to keep covered up during the summer months – especially at lunch time when the sun is at its hottest. They can cover up with a long sleeved shirt, and a hat with a brim or flap that protects the ears and the neck.

  • Encourage workers to use sunscreen of at least SPF (Sun Protection Factor) 15 on any part of the body they can’t cover up and to apply it as directed on the product. 

  • Encourage workers to take their breaks in the shade, if possible, rather than staying out in the sun.

  • Consider scheduling work to minimise exposure.

  • Site water points and rest areas in the shade.

  • Encourage workers to drink plenty of water to avoid dehydration.

  • Keep your workers informed about the dangers of sun exposure – make use of the Health and Safety (HSE) leaflet Keep your top on

  • Encourage workers to check their skin regularly for unusual spots or moles that change size, shape or colour and to seek medical advice promptly if they find anything that causes them concern.

One can see that the guidance it is all about encouragement and advice but is that really enough? If a fair skinned worker with freckles does not heed the advice to keep his top on develops skin cancer in 10 years’ time could he look to his employer for compensation? Could he argue that the employer’s risk assessment ought to have specified as a rule that tops be worn? Many of the bigger construction companies do not allow worker to be uncovered. Should the employer go beyond encouraging the use of sun cream and actually provide it? How different is the provision of barrier cream from the provision of sun cream? Difficult to see where the difference lies.

We do have left a few IOSH campaign documents left No Time To Lose Working Together to Beat Occupational Cancer. Please contact the office if you would like one.

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