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EMPLOYMENT LAW BULLETIN – JULY 2024 – PRACTICAL PERSPECTIVES
Employers can avoid employment claims from departing employees by using settlement agreements. These agreements must follow a specific format and the employee must get legal advice before signing. Recent legal cases have examined if settlement agreements can validly settle future unknown claims—those based on facts not existing and not known at the time of signing.
In Bathgate v Technip, the Scottish Court of Session ruled that future unknown claims can be settled if the waiver is clearly worded. This has now been affirmed by the Employment Appeal Tribunal in Clifford v IBM. In this case, the Claimant, who was absent due to disability, entered a compromise agreement (now called a settlement agreement) in 2013. It was agreed that he would remain employed but would move to the Respondent’s disability plan. Under the agreement, the Claimant waived the right to bring disability discrimination claims, whether they were or could be in the contemplation of the parties at the date of the agreement, or not. An exception in respect of future claims did not apply to matters arising from the Claimant’s transfer to the Plan.
The Claimant later claimed disability discrimination due to receiving no increase in payments under the Plan. The tribunal struck out his claim. It was a future claim but was clearly barred by the terms of the compromise agreement. It made no difference that the Claimant remained in employment.
This case is a reminder that it is possible to settle future unknown claims using a settlement agreement but that the wording used is of crucial importance. It needs to be clear and expressly state that it covers claims which were not or could not be in the contemplation of the parties when they signed the agreement.
From April this year, the right to make a flexible working request became a day one right for all employees. Employers should have a clear policy in place, setting out how flexible working requests should be made and how they will be dealt with by the business. Here are 5 things employers should do on receipt of a flexible working request:
Summer 2024 looks set to be a very busy one in the world of sport. The annual spectacle of Wimbledon is joined this year by the Paris Olympics and the Euros. These multi-day sporting spectacles can significantly impact workplace dynamics. As employers, ignoring their existence is not really a practical option. These events often capture the collective interest, leading to increased absenteeism, productivity drops, and workplace distractions. Here are our top tips to help manage workplace issues during these events:
If an employee submits their resignation to their employer, then this is a clear indication that the employment relationship is coming to an end. For whatever reason, the employee is moving on. Unless the employee is resigning because of some historic poor behaviour or discrimination on the part of the employer, the risk of claims is low.
However, a recent employment tribunal case serves as a reminder to employers that their behaviour following receipt of an employee’s resignation is important. Employers should be careful not to hand their employees an employment claim just as they are heading out of the door. In Manjula v immigration and Nationality Services Ltd and IANS solicitors, the Claimant qualified as a solicitor in India before re-qualifying in the UK. Her UK employer obtained a sponsor licence for her, extended her work visa and employed her as a newly qualified solicitor. However, she then resigned to go to work for KPMG. She discussed the resignation with her supervisor and agreed to keep working for another two months (to help with handover of work).
However, when the Claimant told the Respondent’s director about her resignation, he slammed his hands on the table and shouted at her. He accused her of breaching his trust (by leaving once he had paid to extend her visa) and said that he would make her pay for this. He said (in an email) he did not want her to continue to work, she should hand in her notice immediately and that it was her last day. The Claimant was not paid any notice pay.
The Claimant brought several tribunal claims, including for unfair dismissal, which the tribunal upheld. It said the Claimant had been summarily dismissed for misconduct (i.e. ‘breach of trust’), but this was unfair as the employer did not genuinely believe in her misconduct or follow a fair procedure. The real reason for dismissal was that the Respondent wanted to avoid her working (or needing to pay for) her notice period.
Sexual harassment can take several different forms. It can refer to unwanted conduct of a sexual nature. This is what most people understand by the term. Under Equality Act 2010, the term also has a wider meaning. It incorporates unwanted conduct which occurs because a person has either rejected or accepted the sexual advances of another.
Employers need to be aware that unlawful sexual harassment can occur in these wider circumstances as well.
The recent Employment tribunal case of Merriman v Bugibba Independent is an example of this wider application of the term. The Claimant in this case was a doughnut decorator. She alleged that a male colleague had given her a bear hug and touched her bottom at work. After she complained about this incident, the colleague in question made horrible remarks about her calling her a pot washer and swearing at her. The Respondent sided with the male colleague and eventually dismissed the Claimant.
The tribunal found that the Claimant had been sexually harassed. The ‘bear hug’ incident was clearly unwanted conduct of a sexual nature which had violating the Claimant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for her, as its purpose or effect. The actions of her male colleague after she had rebuffed his advances were also sexual harassment – being motivated by her rejecting him.
The Claimant was awarded over £30,000 in compensation.