April 8 Employment Law Enews

Welcome to the latest edition of Steeles Employment Enews.

SEX DISCRIMINATION: EMPLOYERS LIABILITY FOR THIRD PARTY HARASSMENT

From 6 April 2008, Employers who fail to protect employees from sexual harassment from third parties such as clients or customers will be breaking the law if:

1. A third party subjects the woman to harassment in the course of her employment;
2. The employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so; and
3. The employer knows that the woman has been subject to harassment in the course of her employment on at least two other occasions by a third party.

This means that a hairdresser could bring a discrimination claim against her employer if she had told her employer at least three times that a customer had been sexually harassing her and her employer had taken no reasonably practicable steps to prevent it.

Comment

This "three strikes" rule gives employers ample opportunity to deal with the harassment and imposes a requirement upon the "victim" that they must advise their employer that this harassment is occurring. Previous case law provided that there was no requirement for the employer to know of any previous acts of harassment but under the new legislation not only must the employer know of the harassment but s/he must have known it to have occurred at least three times.

However, interestingly, under the new test, even if the third party is notorious for having harassed employees of the company a new "victim" will have no claim for discrimination until she herself has been sexually harassed on three or more occasions and her employer was made aware of this.

Harassment no longer on the grounds of her sex

Another change relating to harassment means that an employee could bring a sexual harassment claim against their employer where they themselves are not subject to the harassment but the purpose or effect of the unwanted conduct violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

An example of this would be a male manager who calls a female employee a floozy and this is witnessed by another female colleague, who feels that her dignity has been violated.

Comment

Until now only the employee who suffered the discrimination directly had a sexual harassment claim. The effect of this new definition will allow even a witness who is not of the same sex as the victim to bring a claim of sexual harassment even where the employee directly affected by the behaviour does not feel that her dignity has been violated.

EMPLOYERS APPLICATION PROCESS FOR LICENCE AS A SPONSOR GETS UNDERWAY AS PART OF PROPOSED REPLACEMENT OF EXISTING WORK PERMIT SCHEME

The application process for companies wishing to apply for a licence as a Sponsor under Tier 2 of the New Points Based System which will replace the existing work permit system, has now started.

The significance of this application process should not be underestimated. As from later this year, possibly 1st October, any company wishing to take on an individual on a work permit or apply for an extension for an individual to their existing work permit, must be licensed as a Sponsor.

The application process involves an online application and then the submission of specified documentation within 10 working days of the application date.

Most applicants will then receive a visit from an officer of the Border and Immigration Agency as part of the evaluation procedure.

Companies will need to ensure that they are fully aware of all the criteria of the application for the licence and the ongoing obligations as a sponsor as well as having in place the appropriate HR systems to be in a position to administer the new scheme.

"TIME LIMITS" AT THE TRIBUNAL'S DISCRETION

Time Limits for submitting a claim or appeal are generally strictly enforced by the Tribunals. For unfair dismissal claims the claim must normally be submitted within 3 months of the date of dismissal and for appeals to the Employment Appeal Tribunal ("EAT") the appeal must be submitted within 42 days of the date of the written Judgment or 42 days of the date of the written reasons if they are requested and/or provided.

Short extensions can be granted by the Tribunals at their discretion and it seems that there are some recent cases which imply that the Tribunals are more willing to accept out of time applications. Both the EAT and the Court of Appeal have recently suggested that the "overriding objective", which all courts are bound to consider, extends to the Tribunal's discretion to consider whether a case should proceed to tribunal, despite being out of time.

In Bleuse v MBT Transport, EAT the claimant lodged his unfair dismissal claim almost one month out of time. The Claimant's representatives submitted to the Tribunal that the Claimant was a "shy and simple man" who spoke little English so had left the claim for his insurers to deal with. The Tribunal did not accept that this meant that it was not reasonably practicable for the Claimant to present his claim in time. However, the EAT remitted the claim back to the Tribunal as the Claimant could not be expected to know about English Law and it was therefore not unreasonable for him to be reliant on his advisers. The Tribunal had not taken into account the "overriding objective" when it had refused to exercise its discretion to extend the time limit for bringing the claim.

In Jurowska v Hlmad Ltd, CA the employer submitted the appeal to the EAT 33 minutes late as although the basic papers had been filed within the 42 day deadline, the Tribunal's Judgment which is also required to be submitted with an appeal, was filed 33 minutes after the 4.00pm cut off point. The EAT having reviewed the notice of appeal as soon as it arrived realised that the Tribunal's Judgment was not included. The EAT contacted Hlmad's solicitors and advised them that the notice of appeal did not include a copy of the written Judgment. To add further to the delay, Hlmad's solicitors were not in possession of a written copy of the Judgment so they were unable to submit it to the EAT until 4.33pm.

The EAT accepted the appeal as Hlmad's solicitors were unaware that a written copy of the Judgment had been sent to Counsel, until they were told otherwise by the EAT. Hlmad's solicitors had submitted a copy of the written reasons instead of the written Judgment and had acted promptly once they discovered the error. The Tribunal found that the circumstances in which the delay arose were "sufficiently rare and exceptional" to justify and extension.

The employee asked the Court of Appeal to overrule the EAT's decision and although the Court of Appeal was critical of Hlmad's solicitors it agreed with the EAT that time limits should be relaxed in rare and occasional circumstances.

Comment

Although these cases are examples where the EAT and Court of Appeal have allowed the claim/appeal to proceed, more often than not parties will find that the strict time limits are imposed and the Tribunal will refuse to accept the claim/defence or appeal.

INCREASES TO STATUTORY SICK PAY, MATERNITY, PATERNITY AND ADOPTION PAY

The Social Security Benefits Up-rating Order 2008 increases the amount of Statutory Sick pay, maternity, paternity and adoption pay from 6 April 2008.

1. Statutory sick pay increases from £72.55 to £75.40.
2. Statutory maternity, paternity and adoption pay increases from £112.75 to £117.18.

This article copyright © 2008 Steeles Law llp. All rights reserved.