Briefing Notes w/e 2nd November 2018
by John Wood | November 2nd, 2018
This week has seen the announcement of the Chancellor’s Autumn Budget which covered a number of employment related measures. These included implementing the recommendations of the Low Pay Commission which will mean changes to the following rates of pay from April 2019:
- the National Living Wage (workers 25 & over) will increase from £7.83 to £8.21/hour;
- Apprentices will increase from £3.70 to £3.90/hour;
- 16-17 year olds will increase from £4.20 to £4.35/hour;
- 18-20 year olds will increase from £5.90 to £6.15/hour;
- 21-24 year olds will increase from £7.38 to £7.70/hour.
Other changes included: the ability for businesses liable to the apprenticeship levy to be able to invest up to 25% of the levy to support training of apprentices; and, for smaller employers not liable to the levy, the “co-investment” rate for apprenticeship training will be reduced from 10% to 5%.
It was also confirmed that whilst the introduction of employer Class 1A National Insurance Contributions on termination payments over £30,000 will still go ahead, its introduction will be delayed until April 2020.
Workers (Definition and Rights) Bill 2017 - 2019
A Private Members Bill was recently introduced into the House of Commons which proposes the introduction of a number of measures surrounding worker status and worker rights.
Proposed changes include: a single employment status for employees; a requirement for employers to give reasonable notice of shifts and changes to shift patterns; a right to fixed and regular hours (essentially seeking to eradicate the use of zero hours contracts); limits on employers requesting workers to work additional hours; and a right for workers of a contractor to recover wages from the client if their employer fails to pay them.
The Bill is timetabled to have its second reading on 23 November 2018 and, whilst it is unlikely to become law, it will no doubt lead to further discussion on the issues. This, together with the string of high profile cases on zero hours contracts and the current “gig culture”, certainly suggest the Government will need to do something in the not too distant future to address the ongoing debate about workers rights.
Withholding evidence during a disciplinary hearing
In the case of Mr J Hargreaves v the Governing Body of Manchester Grammar School, the EAT considered whether the schools investigation and process was rendered unreasonable by them failing to present a number of witness statements to Mr Hargreaves and the disciplinary panel.
Mr Hargreaves had an unblemished employment record but was dismissed following allegations that he had inappropriately grabbed a pupil, pushed them against a wall and put his fingers down their throat. The Employment Tribunal found the dismissal to be fair, but Mr Hargreaves appealed arguing that the investigation was inadequate given the potential ramifications on his career. In particular, he argued that the Tribunal’s findings were flawed given the school’s failure to disclose to him, and the disciplinary panel, evidence from two other pupils and a member of support staff who said they had seen nothing. He argued that evidence was highly relevant, despite the fact he had not raised the point during the internal process.
The EAT dismissed his appeal. Not only was it satisfied that the Tribunal had directed itself correctly but, in relation to the witness evidence, it considered the Tribunal’s findings that the school had acted within the range of reasonable responses to be permissible. That was particularly so given those witnesses would have had no direct view of the incident. Whilst the EAT did not consider Mr Hargreave’s failure to raise the issue during the internal process was irrelevant, it was satisfied that the Tribunal had still had in mind that it was the Respondent’s obligation to ensure there had been a fair investigation.
The Tribunal will expect an employer to demonstrate a higher standard of investigation in cases of dismissal; however this case shows that it is still important to have in mind the relevance of evidence collected. Whilst it would not ordinarily be advisable to withhold evidence, an investigation will also be expected to reflect a certain degree of analysis of that evidence in light of the allegations against the employee. Ultimately it will always be for the employer to justify its actions and to demonstrate that it has acted reasonably in the circumstances.