George Pennington rounds up this month’s employment law news: the latest statistics from the Employment Tribunals and the EAT; a reminder from the EAT on the importance of correctly identifying the reasons for a misconduct dismissal; social media consultation; and last but not least….this year’s 1 October employment law changes.

Employment tribunals and EAT statistics 2011/2012

Following on from the tribunals service statistics published this summer (please see our July update), the Employment Tribunals and EAT have published their own statistics for the year to March.

At first glance, one of the headline statistics is rather striking: the number of costs awards rose from 487 in 2010-11 to 1,411 to March 2012.  Crucially this statistic is skewed by a case in which 800 claimants were ordered to share the liability of one costs award. If those 800 awards are counted as one single costs award, the total number of costs awards is in fact a slightly more palatable 612. This, of course, is still an increase on last year, but the good news is that 81% of those 612 awards were awarded to respondents.

Some of the other headline figures are:

  • the average award in unfair dismissal claims was £9,133, while the median award was £4,560. Only 2% of all unfair dismissal awards were over £50,000.
  • the largest amount of compensation awarded by a tribunal was just under £4.5 million, in a race discrimination claim.  The median awards for discrimination claims ranged from £4,267 (religion or belief discrimination) to £13,505 (sexual orientation discrimination).

Misconduct dismissals: remit of reasonableness reminder

In Nejjary v Aramark Limited the EAT has held that a tribunal, in finding that a misconduct dismissal was fair, erred in considering aspects of the employee's record that the employer expressly did not take into account when deciding to dismiss.

Mr Nejjary worked as a hospitality manager for Aramark who provided services to Goldman Sachs (‘the client’).  Mr Nejjary was involved in two incidents where he failed to check the booking sheet for breakfast and lunch meetings being held by the client, leading to the disruption of both. A third incident involved the client asking the respondent not to assign the Claimant to an event that they were hosting. At a disciplinary hearing, Aramark concluded that each of the above issues amounted to gross misconduct and dismissed the Claimant. It did not take his previous employment record into account.

Following an unsuccessful internal appeal against the decision, Aramark notified Mr Nejjary that they had put aside two of the incidents and relied exclusively on the first 'breakfast meeting' incident which they found sufficient on its own to amount to gross misconduct and to justify dismissal.

The Tribunal found that no reasonable employer would have dismissed the Claimant for a one-off failure to check a booking sheet. However, in this case Mr Nejjary had previous warnings arising out of similar circumstances and, given these additional matters, the Tribunal decided that dismissal was within the range of reasonable responses. Even if the dismissal was unfair, the ET found that the Mr Nejjary's conduct "inexorably led" to it. His contribution to his dismissal was 100%, such that it would not be just and equitable to award compensation.  Mr Nejjary appealed.

The EAT upheld Mr Nejjary's appeal. It held that when applying the reasonableness test, the Tribunal should have confined itself to the single, specific incident of misconduct relied on by the employer. Given that the Tribunal felt that this single incident was not in itself sufficient to render the dismissal reasonable, the EAT substituted a finding that the dismissal was unfair.

Further, the EAT overturned the Tribunal's alternative finding that the employee contributed 100% to his dismissal and would therefore not be entitled to compensation in any event. When examining contributory fault, the Tribunal erroneously took into account matters that were not causally connected or related to the dismissal i.e. the other matters not expressly relied on by the employer when dismissing.

This case is therefore an important reminder that when considering the reasonableness of a dismissal, an Employment Tribunal can only take account of the reasons for dismissal that were operative in the employer's mind at the time. It cannot take into account matters that an employer might have relied on, but did not actually take into account.  This means that the framing of allegations of misconduct, clarity on the findings in respect of each allegation and careful drafting of the dismissal letter is crucial. 

Consultation on new social media guidelines

The misuse of social media remains a hot topic for employers – following on from our recent social media and the workplace articles, Keir Starmer QC has announced that a wide public consultation shall take place before new guidelines on abuse arising from the use of social media are issued.

A series of meetings are to be held with media lawyers, social media experts, academics, law enforcement bodies and campaigners in order to produce rules which seek to aid consistent decision making in these difficult types of cases. The announcement comes in the wake of a footballer being arrested and then released without charge having posted a homophobic comment on Twitter about Olympic divers Tom Daley and Peter Waterfield.

Starmer commented that, in his view, "the time has come for an informed debate about the boundaries of free speech in an age of social media".

October 2012 changes in employment law

A couple of key employment law changes have been implemented from 1 October 2012.

Pensions auto-enrolment. As Theo Paphitis may have told you, all employers in Great Britain are now obliged to automatically enrol eligible jobholders into a pension scheme. The new duties will be formally implemented over four years, starting 1 October 2012, with larger employers being affected before smaller employers and new businesses.

National minimum wage. The national minimum wage rates have increased for workers aged 21 and over and apprentices:

  • The standard adult rate (workers aged 21 and over) has risen to £6.19 per hour (up 1.8% from £6.08).
  • The development rate (workers aged between 18 and 20) has remained at £4.98 per hour.
  • The young workers rate (workers aged under 18 but above the compulsory school age who are not apprentices) has remained at £3.68 per hour.
  • The accommodation offset has risen to £4.82 per day (up 1.9% from £4.73).

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