February 2024

Court of Session rules that future unknown claims can be settled using a settlement agreement

The Court of Session has recently handed down its judgment in the case of Bathgate v Technip Singapore PTE Ltd which concerned whether a settlement agreement could be used to settle future unknown claims.

The Claimant was made redundant and left employment under a settlement agreement. After the settlement agreement had been signed, the Respondent decided that it did not need to make an additional payment to the Claimant, under a collective agreement, as he was over the age of 60. The Claimant claimed age discrimination in relation to this decision.

Section 147 Equality Act 2010 allows claims for discrimination to be settled using a settlement agreement provided that the settlement agreement relates to the ‘particular complaint’. The tribunal concluded that the age discrimination claim had been settled by the settlement agreement, even though the act complained of only occurred after the settlement agreement had been signed. The Employment Appeal Tribunal disagreed and held that future unknown complaints could not easily be considered ‘particular complaints’, as they would not have occurred at the point that the agreement was signed. The point was appealed to the Scottish Court of Session.

The Court held that the Claimant’s age discrimination claim had been validly settled by the settlement agreement. The agreement stated that it constituted full and final settlement of the claims that the Claimant ‘intimates and asserts’ and listed various types of claim, including age discrimination. The agreement also included a general waiver of ‘all claims… of whatever nature (whether past, present or future)’.

The Court stated that “a future claim of which an employee does not and could not have knowledge may be covered by a waiver where it is plain and unequivocal that this was intended”. In this case, the Court held “it was clear that the agreement was intended to cover claims of which the parties were unaware and which had not accrued”.

Top tips on redundancy selection criteria

When there is a reduced need for a certain type of work, a redundancy situation can happen. In these types of redundancy situations, the employer has to choose who is at risk of losing their job from a larger group of employees doing the affected work. To avoid any legal claims, employers need to make sure they choose fairly. Here are some tips for fair selection:

Employers have flexibility in deciding which group of employees to choose from for redundancy. As long as the employer’s choice is reasonable, tribunals won’t usually question it.
Before applying the proposed pools and selection criteria, employers should discuss them with the at-risk employees. Employers should consider any comments from employees, but they don’t have to make any changes based on those comments.
Proposed selection criteria should be objective and measurable whenever possible. Using criteria based on personal opinion can lead to accusations of bias and discrimination, increasing the risk of legal claims.
However, it’s possible to use a mix of objective and subjective criteria. For subjective criteria, the business should clearly define the parameters for scores and have two separate managers score against them. The average of the two scores should be used. This makes it harder for employees to argue that their score is unfair or biased.
Employers should consider factors like attendance and make allowances for employees with sickness linked to disability or pregnancy.
Before making a final decision about redundancy, employers should provide employees with their scores and give them a chance to challenge their selection. This allows any mistakes to be identified and is an important part of fair consultation.

All employees to have the right to one week of unpaid carer’s leave per year from April 2024

Many employees have to balance their work and family responsibilities. They can already take time off at short notice if they need to take care of a family member (time off for dependants). But until now, they didn’t have the right to request time off for other non-urgent reasons.

From April 2024, this will change. The Carer’s Leave Regulations 2024 will allow employees to apply for one week of unpaid carer’s leave within a 12 month period. Key features include:

The right is a day one employment right.
The right applies to employees who have a dependant with a long-term care need and want to be absent from work to provide or arrange care for that dependant. A dependant is defined as a spouse, partner, child, grandchild, parent, or someone who depends on the employee for care.
Requests can be in consecutive or non-consecutive half-days or full days.
Employees must give notice in writing of their intention to take carer’s leave – confirming their entitlement to take it and giving at least twice the amount of notice than the period of leave requested or, if longer, three days’ notice.
Employers can postpone a request if it would disrupt the operation of the business. In these circumstances, the employer must give notice of the postponement before the leave was due to begin, explaining why the postponement is necessary. The employer must then allow the leave to be taken within one month of the start-date of the leave originally requested. Rescheduling the leave should happen in consultation with the employee.
Employees are protected from detriment and dismissal because they take or seek to take carer’s leave, or the employer believes they are likely to do so.

Acas publishes revised draft Code of Practice on Flexible Working

Acas have published a revised draft statutory Code of Practice on Flexible Working which will sit alongside the changes being made to the law in this area in the coming months. Responding to consultation on the Code’s previous draft, Acas have made the following changes:

A recommendation that employers discuss alternative options with their employees if they are unable to agree to the request in its originally-submitted form.
A removal of the requirement to hold a meeting if the request is granted.
A recommendation that, although there is no legal right for an employee to be accompanied at a flexible working meeting, they may be accompanied by a work colleague, trade union representative or an employee of a trade union.
A recommendation that, in all businesses, appeals should be handled by a different manager where possible. Previously the draft Code indicated that this requirement only applied to larger organisations.

The Code imposes no legal obligations and failure to observe it does not by itself give rise to any claim. However, provisions of the Code can be taken account by courts and tribunals in proceedings where the court or tribunal considers them relevant.

Banking employee fired for using an offensive racial term is awarded over £470,000 by the Employment tribunal

In Borg-Neal v Lloyds Banking Group plc the Claimant was dismissed for gross misconduct after using an offensive racial term in a diversity training session. He admitted using the term but alleged that he had done so owing to difficulties associated with his dyslexia which prevented him from being able to quickly think of a way of avoiding using the word. The Employment tribunal held that he had been unfairly dismissed and subjected to disability discrimination.

The Respondent has appealed this decision but, whilst this appeal is pending, a decision on remedy has been made. The tribunal has awarded the claimant over £470,000 in compensation. In determining this award, the tribunal took into account that the Claimant was not fit to work because of mental ill-health caused by his dismissal and the subsequent tribunal proceedings, and that it may take one to two years for him to recover.

The Claimant was also awarded £15,000 for injury to feelings and £23,000 for personal injury in recognition of the severe depression and anxiety triggered for the Claimant, by the circumstances of his dismissal.

This case is a reminder to employers to always consider the wider context in cases of alleged discriminatory conduct. The Respondent was found to have been unduly focused on the wider message which would have been sent if the Claimant hadn’t been dismissed. They had failed to take sufficient account of the wider context and the Claimant’s language difficulties.

Calling someone bald can amount to sex-related harassment against men

In the recent case of Finn v British Bung Company the employment tribunal found that calling someone bald could be sex-related harassment. The Claimant had worked for the Respondent for 24 years as an electrician. He was dismissed following arguments with his supervisor in which his supervisor made derogatory statements about the fact that he was bald.

The tribunal held that there was a connection between being bald and the protected characteristic of sex. Although both men and women can be bald, baldness is significantly more common in men.

The judgment was appealed to the EAT who did not agree with the Respondent’s argument that parliament had intended sex-related harassment only to apply to acts that are specific to being male or female.

The EAT upheld the tribunal decision, ruling that insulting a man for being bald can count as sex-related harassment.

5 things employers should know about working in extreme winter weather

The UK’s cold climate in the winter months can impact on working life. We have set out below 5 things that employers should know about working at this time of year:

Indoor workplaces in the UK do not have a legal minimum temperature. However, the Workplace (Health, Safety and Welfare) Regulations 1992 state that the temperature must be “reasonable”. The HSE recommend a minimum temperature of 16oC for sedentary indoor work and 13oC for physical indoor work.
If extreme winter weather prevents an employer from opening their workplace and employees cannot work remotely, the employer will still have to pay full pay for the day unless they have the contractual right to lay-off.
Employers whose business may be affected by extreme weather should consider including a contractual right to lay-off in their contracts of employment. With this right, employers only have to pay statutory guarantee pay (currently £31 per day) if they cannot provide work.
If an employee cannot come to work due to extreme winter weather, unless they can work remotely, they will not usually be entitled to pay.
If extreme weather causes school or nursery closures and an employee cannot come to work because of this, they can use the right to time off for dependants to care for their children.

National Minimum Wage exemption for live-in domestic workers to be removed from 1 April 2024

From 1 April 2024, employees who carry-out domestic work whilst living with their employer will be entitled to receive National Minimum Wage. Previously, live-in domestic workers were exempt from National Minimum Wage if they were not members of the family but were ‘treated as such, in particular as regards …. the provision of living accommodation and meals and the sharing of tasks and leisure activities’. This exemption will now be removed.

Business secretary Kevin Hollinrake told MPs that it was difficult to prove whether somebody is being genuinely treated as part of the family. He said: “The removal of the exemption will remove the inequality facing these workers, who are more likely to be migrant workers and women”.

The criteria required for a valid settlement agreement

Statutory employment claims can only be validly settled through Acas (who do not tend to get involved until legal proceedings are issued) or by the employer and employee signing a valid settlement agreement. Settlement agreements are a special form of contract between the employer and the employee under which the employee agrees not to pursue certain employment claims against the employer, usually in return for a monetary payment.

For a settlement agreement to be legally valid (and prevent an employee from being able to bring tribunal proceedings), the following conditions must be met:

The agreement must be in writing.
The agreement must relate to a particular complaint or proceedings.
(Note: Simply saying that the agreement is in ‘full and final settlement of all claims’ will not be sufficient to contract out of employment tribunal claims. To be legally binding for these purposes, a settlement agreement must specifically state the claims that it is intended to cover.)
The employee must have received advice from a relevant independent adviser on the terms and effect of the proposed agreement, and its effect on the employee’s ability to pursue that complaint or proceedings before an employment tribunal.
(Note: The independent adviser can be a qualified lawyer; a certified and authorised official, employee or member of an independent trade union; or a certified and authorised advice centre worker.)
The independent adviser must have a current contract of insurance or professional indemnity insurance covering the risk of a claim by the employee in respect of loss arising from that advice.
The agreement must identify the adviser.
The agreement must state that the applicable statutory conditions regulating the settlement agreement have been satisfied.

Disclaimer: This post is for information purposes only. Reasonable steps have been taken to provide accurate information, but no responsibility is taken by the author (Hunter Law Ltd) for any consequences arising from its usage.

This post is not intended to and does not constitute legal advice and you should instruct a solicitor formally should you require this.