Employment Bulletin - May 2019

In this issue:

  • Injury to feelings awards in discrimination claims; what is the purpose and what are the current Vento bands?
  • Balancing the rights of employers and employees in cases of religious discrimination in the workplace
  • Written Statement of Particulars of Employment
  • Can a discretionary bonus be varied so that an employee can become contractually entitled to it?
  • Government resurrects plans for cap on public sector exit payments
  • Employment Tribunal decides its first case on the use of Positive Action under s.159 Equality Act 2010.
Injury to feelings awards in discrimination claims; what is the purpose and what are the current Vento bands?

Discrimination claims are unlike many other claims in the Employment Tribunal (ET) in that compensation is not limited to financial loss, but can also be awarded for injury to feelings. This is separate from any compensation for financial loss, meaning a Claimant can receive an award for injury to feelings even where no financial loss has been suffered.

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Balancing the rights of employers and employees in cases of religious discrimination in the workplace.

The balance between the rights of employers and employees in matters of religious observance seems to have shifted slightly in favour of employers as a result of the Supreme Court decision in Lee v Ashers Baking Co Limited [2018]. This was followed in the case of Gan Menachem Hendon Ltd v De Groen [2019].

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Written Statement of Particulars of Employment

Will an employer who provides a written statement of terms and conditions of employment late, but before a case begins in the Employment Tribunal, have any award increased under s38 of the Employment Act 2002? No, held the EAT in Govdata Ltd v Denton.

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Can a discretionary bonus be varied so that an employee can become contractually entitled to it?

Yes, the Employment Appeal Tribunal (‘EAT’) has concluded, in the case of Bluestones Medical Recruitment Ltd v Swinnerton, that a bonus, purely discretionary in nature can be varied to become contractual in nature. However, a claim on that basis cannot succeed unless the tribunal reaches clear findings on how that variation occurred.

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Government resurrects plans for cap on public sector exit payments.

The Government has launched a consultation on the Restriction of Public Sector Exit Payments Regulations 2019 and associated draft guidance, which resurrect plans to introduce a £95,000 cap on exit payments in the public sector. The consultation closes on 3 July 2019.

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Employment Tribunal decides its first case on the use of Positive Action under s.159 Equality Act 2010.

The Employment Tribunal (‘ET’), in the case of Mr M Furlong v Chief Constable of Cheshire Police, has unanimously found that a police force’s recruitment process directly discriminated against a white heterosexual, male applicant when attempting to boost recruitment from unrepresented groups under s.159 Equality Act 2010.

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