January Employment Law Update

Latest statistics show huge increase in Employment Tribunal claims and yet another holiday pay decision 

As expected, new Ministry of Justice figures show a significant increase in the number of claims made to the employment tribunal since fees were abolished.

In recent case law, a worker was able to claim holiday pay arrears continuing over 13 years.

ET claim numbers on the increase 

The first set of employment tribunal statistics since the abolition of fees has been published and show, as could be expected, a rise in claims.

The statistics cover the period of July-September 2017: the figures show an immediate significant jump in the number of claims made in August 2017, the first full month where no fee was payable, compared with July 2017, where fees were still in place for almost the entire month. In July, 1,358 claims were made; in August 3,045 claims were made.

Compared to the same quarter in 2016, when fees were payable, the number of single claims made in July-September 2017 has increased by 64 per cent and the number of cases of multiple claims has also increased by 63 per cent.

The Government has confirmed a new fee-paying system is likely - one of the reasons for the introduction of fees was to weed out vexatious claims and this is still an objective - but the details of such are not yet known.

Key cases to look out for in 2018

Employment status will continue to be a key issue for the Courts in 2018 as many gig economy workers wait to hear the outcome of ongoing litigation. Claims on different elements of wages including shared parental pay and payments for sleep-in shifts are also to be determined. 

Fit for Work Scheme to be reduced

Free occupational health assessments, previously available under the Fit for Work scheme, have been removed. Introduced in 2014, the scheme assisted employers in dealing with employees on sickness absence of four weeks or more by, amongst other things, providing a return to work plan aimed at getting the employee back into work. In England & Wales, new referrals are no longer being taken although anyone referred before 15 December 2017 will receive the full service. Although assessments will not be available, the scheme’s online and phone services will continue.

Case law

A worker is permitted to claim holiday arrears for the full length of his 13 year engagement, the European Court of Justice (ECJ) has confirmed in King v Sash Windows Workshop, because his employer had not “allowed” him to take leave. Both the worker and the employer had mistakenly believed he was self-employed.

The Employment Appeal Tribunal (EAT) has confirmed in The Chief Constable of Norfolk v Coffey that rejection of a job applicant because of a perception that her medical condition will be a disability in the future, and that future adjustments would have to be made, is disability discrimination.

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