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Claims vs trafficker: Employment tribunal

The employment tribunal

The employment tribunal is a type of court, which deals exclusively with disputes arising from an employment relationship.

The employment tribunal has the power to conclude that an employer has acted unlawfully and order that the employer pays financial compensation to the employee.

There are no longer fees to use the employment tribunal, unlike the courts.

Although it can seem strange at first to view employment law as a useful remedy in trafficking situations, it has a very good track record and can be the most accessible remedy.

Who can make a claim?

The employment tribunal can only be used about disputes arising from employment. Employment is widely defined and, for some but not all claims, can include some self-employed workers.

The question as to whether someone is an employee, worker or self-employed is not straightforward because there is no single definition set out in law. It is determined by looking at the specific facts of the employment. The right to bring different claims depends on what type of employment status a person has. Employees have the widest choice of claims, self-employed people the least. Mapping the reality of a trafficking situation to the law on employment status can be unpredictable. .

Time limits

Generally, a complaint to the employment tribunal must be started within three months (less a day) of the act complained of. Therefore, if the complainant was dismissed on 18 June 2019, they must take the first step in their complaint of unfair dismissal by 17 September 2019.

Time limits at the tribunal are extremely strict and can be extended only in very limited circumstances. It is important that a time limit is not missed otherwise the employee will lose the right to complain.

ACAS early conciliation

The first step in a tribunal claim (which has to be done within the three months less one day period) is very straightforward. A victim has to contact ACAS to start what is known as Early Conciliation. They then have at least a further month to start the tribunal claim. 

There is no need to actually conciliate during ACAS Early Conciliation; it is entirely possible to tell ACAS to take no steps to contact the trafficker. All that is required is that the complainant contacts ACAS and obtains an Early Conciliation Certificate.

As of May 2014, it is not possible to start a claim at the employment tribunal without first going through an ACAS conciliation process. The conciliation period is an opportunity to attempt a settlement, but settlement discussions are not limited to that period and can take place at any time.

The conciliation process requires the claimant to fill in an early conciliation form and submit it online or by telephoning ACAS with the relevant information. It is important that the respondent (employer’s/trafficker’s) name is correct or the claimant could find that they are later prevented from bringing a claim. It is better to set out all variations of the respondent’s name rather than an incorrect one.

After ACAS receives the early conciliation form, they will contact the claimant to check the details on the form and find out more about the potential complaint to the employment tribunal. The conciliator will ask if the claimant is willing to consider the negotiating of a settlement and whether an approach can be made by ACAS on the claimant’s behalf.
The conciliator can relay offers between the two parties, but will not give specific advice on whether a settlement should be accepted or rejected.

The early conciliation period will end if either party advises that it does not want to continue, or it becomes clear that no settlement will be reached. At this point an early conciliation certificate will be provided and the claimant is then able to present a complaint to the employment tribunal.

The early conciliation period lasts for one month and can be extended by 14 days. During the early conciliation period, the time for issuing a complaint is extended, coming to an end when the claimant receives an early conciliation certificate.

So if the time limit for issuing a complaint was 15 October 2019 but early conciliation was started on 30 September 2019 then the limitation for issuing a complaint would be 15 November 2019 as the period 1 to 30 September 2019 would be the conciliation period and would not count when calculating the time limit.

Although the Early Conciliation system has made time limits sadly more complex, as long as the claim is presented to the tribunal within a month of the date of the ACAS early conciliation certificate, it will be in time.

Employment contract

The written statement of main terms and conditions forms the contract between the worker and employer. Its purpose is to give the parties clarity as to what is required of them and furthermore, the position is clear in the event of a dispute.

An employer is required to provide a written statement that provides details of the following terms and conditions:

  • Name of employee and employer
  • Date when employment began
  • Address of employer, and workplace
  • Previous employment that counts as continuous employment
  • Job title (or a brief description of the work)
  • Rate and period of pay
  • Hours of work
  • Holiday entitlement including holiday pay
  • Sickness scheme
  • Notice arrangements
  • Grievance/disciplinary procedures.

The statement should be given to the employee within two months of their employment beginning.

Even if no statement is given, a verbal contract between the employee and employer still exists, into which the law implies certain statutory conditions such as the right to paid annual leave or sick pay.

Varying terms and conditions

There may be times when the employer wants to change the contract, for example, to make an annual wage rise. There will be no problem if this is agreed by both the employer and employee and confirmation of any changes should be recorded in writing in order to avoid later disputes.

If there is no written contract/statement of terms and conditions, or there is no clause that allows variations, then the employee can reasonably object to variations proposed by the employer.

Wage rights

The right to the National Minimum Wage is implied by statute into all contracts of employment. This right overrides any agreement between worker and employer. A person cannot waive their right to the minimum wage. This makes it a potentially very powerful tool for victims to recover compensation.

The National Minimum Wage is a single average hourly rate. Employees will be entitled to the minimum wage whether they work on a permanent, full-time, part-time, temporary or casual basis; work shifts, nights or through an agency.

The minimum wage is currently:

Year 25 and over 21 to 24 18 to 20 Under 18 Apprentice
April 2020 (current rate) £8.72 £8.20 £6.45 £4.55 £4.15
April 2019 to March 2020 £8.21 £7.70 £6.15 £4.35 £3.90

It is important to remember that the National Minimum Wage increases on a yearly basis, currently every April.

What counts as salary

Salary is deemed to be actual payments made to the employee. An employer cannot pay part of the employee’s salary in cash and the remainder, for example, by providing a travel card or clothing or alcohol. While this might be seen as an employee benefit for tax purposes, it would not count for the purposes of salary.

Cash-in-hand payments
Payments can be made cash in hand but must comply with tax and national insurance obligations and the employee must still be provided with a payslip.

Itemised payslips
All employees/workers, regardless of hours of work, are immediately entitled to an itemised pay slip. Every pay slip should give the following particulars:

  • Gross amount of wages
  • Amounts of any fixed deductions (e.g. trade union subscriptions)
  • Amounts of variable deductions and the purpose for which they are made (e.g. tax and national insurance)
  • Net wage payable
  • Amounts of any tax credits paid.
Deductions from wages

Some employees/workers find they have other deductions (including non-payments and partial payments) made from their wages. There are rules which govern the way these deductions can be made.

What are the rules
A deduction may only be made:

  • For tax or national insurance
  • If there is a written clause in the contract allowing an employer to make deductions (the employee must have a copy or have written notification of such a clause)
  • If there is a separate agreement in writing allowing deductions to be made.

In either case the agreement must be clear and unambiguous and signed by the employee. If these conditions have not been met, the deductions may be unlawful.

What is covered

All sums payable in connection with employment are covered including:

  • Wages
  • Fees
  • Bonuses and commissions
  • Holiday pay
  • Guarantee pay
  • Sick pay
  • Maternity pay
  • Payment for time spent on official union duties
  • Payments ordered by employment tribunals.

If your employer does not pay money owing, or pays only part of the money due under these headings, a complainant can claim the money in the employment tribunal..

Exclusions

Some deductions are not covered by these rules, as follows:

  • Pensions
  • Redundancy/severance payments
  • Overpayments of wages
  • Sums deducted under a court order (e.g. maintenance)
  • Sums payable to a third party (e.g. trade union fees)
  • Fines for strike or industrial action
  • Disciplinary fines.

If the employer deducts money under any of these headings, the employee can only claim the money back in the County Court.

The Family Worker Exemption

Under the National Minimum Wage Regulations 2015, workers who are employed in a private household might not be entitled to receive payment of the minimum wage if certain conditions apply:

  • The worker is a member of the employer’s family
  • The worker resides in the family home of the employer
  • The worker shares in the tasks and activities of the family
  • The worker is not a member of that family, but is treated as such (in regards to the provision of living accommodation, meals and the sharing of tasks and leisure activities)
  • The worker is neither liable to any deduction, nor to make any payment to the employer, or any other person, as respects the provision of the living accommodation or meals
  • If the work had been done by a member of the employer’s family, it would not be treated as work or as performed.

The exemption is to be construed narrowly with the burden on the ‘employer’ to demonstrate that the exemption applies. This should be widely understood, but on occasion, ACAS will suggest that a claim will fail because the claimant was a live-in domestic worker and question a claim being pursued. Unless the conciliator states this with specific reference to the facts of the case, they may well be mistaken as to the belief that there is no entitlement to the national minimum wage.

It is possible to argue that the exemption is unlawful, as it results in greater numbers of men than women not entitled to receive the national minimum wage, or indeed a salary at all. The Employment Tribunal will hear arguments on the lawfulness of the exemption in April 2020. Puthenveetil v Alexander, George & The Secretary of State for Business, Energy & Industrial Strategy 2361118/2013.

Where the exemption is raised as a defence, then a letter should be sent to the respondent and the Government Legal Department advising that in the event that the exemption is held to apply that arguments will be made that the exemption is incompatible with EU treaties requiring equal treatment between men and women in respect of pay.

Because a judgment and any application to appeal is likely to occur before the expiry of the transition period, at present it does not appear that the UK’s exit from the European Union will preclude future challenge of the family worker exemption, based on principles of EU law.

However:
Changes to immigration rules, came into force on 6 April 2015. An immigration officer, when granting applications to enter the UK as an overseas domestic worker, must be satisfied that an employer will pay at least the national minimum wage. Employers are now required to complete application forms confirming that they do not consider the exemption to apply and the worker will receive the minimum wage. Therefore, it should be much harder now for employers to argue that those entering on overseas domestic workers visas are genuinely not entitled to receive the minimum wage.

Holiday, sickness and breaks

The Working Time Regulations 1998 provide minimum standards for breaks and holidays. as follows:

Breaks
  • A limit on the hours that a worker can be required to work: an average of 48 hours a week although workers may choose to work longer
  • A right to four weeks paid leave per year (see below)
  • A right to 11 consecutive hours’ rest in any 24 hours period
  • A right to an in-work rest break if their working day is longer than six hours
  • A right to one day off each week
  • A limit on the normal working hours of night workers to an average of eight hours in any 24-hour period, and an entitlement for night workers to receive regular health assessments.
Annual leave (holidays)

Workers and employees are entitled to paid annual leave. Public holidays count towards this. In total a worker should receive a minimum entitlement of 28 days leave per year.

If no leave year is specified then it is the date the worker started up to the anniversary (for workers employed before 1/10/98, the leave year starts 1 October).

Annual leave cannot be paid in lieu except on termination of employment. This means that an employer cannot pay an worker holiday pay instead of giving them time off.

Annual leave is not in addition to public holidays; they are included in the statutory entitlement but there is nothing to prevent the employer agreeing to give additional entitlement.

A worker can take leave by giving correct notice. They must give twice as many days notice in advance of the first day proposed for leave as the number of days in total.

If the employer objects they must give counter-notice of the number of days leave in the worker’s notice.

Sick pay

Workers/employees must give their employer a GP’s ‘fit note’ if they’re off sick for more than seven days. The fit note will say the employee is either ‘not fit for work’ or ‘may be fit for work’.

If it says the employee ‘may be fit for work’, employers should discuss any changes that might help the employee return to work (e.g. different hours or tasks). However, if agreement cannot be reached then the employee should not be treated as ‘fit to work’.

For periods of sickness less than seven days then the worker/employee can ‘self-certify’ and there is no need to obtain a GP’s fit note.

A worker/employee will be entitled to Statutory Sick Pay if:

  • They pay class 1 National Insurance contributions
  • Their earnings are above the National Insurance Lower Earnings limit, £120 per week
  • Their contract of employment is for a minimum 13-week period; and
  • They have been sick for at least four consecutive days (they do not have to qualify again if two periods of sickness fall within eight weeks).

Under this scheme the employer must pay for the first 28 weeks of absence from work due to illness. After this period the worker/employee will usually be entitled to claim incapacity benefit from the Department for Work and Pensions although this benefit is being replaced by the Employment and Support Allowance.

The flat rate payment is currently £95.85 a week.

Contractual sick pay

A contract may contain a better provision than the statutory scheme but cannot leave the worker/employee worse off.

Workers/employees who are not eligible for Statutory Sick Pay may be eligible for Employment Support Allowance which would be administered by the benefits agency.

Discrimination

It is unlawful to treat someone less favourably than someone else because of the following personal characteristics:

  • Being pregnant or having a child
  • Having a disability
  • Race, including colour, nationality, ethnic or national origin
  • Religion, belief or lack of religion/belief
  • Sex
  • Sexual orientation
  • Age
  • Being or becoming a transsexual person
  • Being married or in a civil partnership.

As well as overtly discriminatory language or comments, discrimination could take the form of:

  • Refusing to employ
  • Selecting a particular employee for redundancy based on a protected characteristic
  • Paying a particular employee less than another without good reason.

Discrimination does not have to be deliberate and intentional. An employer can discriminate indirectly by applying working conditions or rules that disadvantage one group of workers more than another, without any real need for the rule. For example, a condition that all workers of a cleaning company be six feet tall would restrict greater numbers of female employees as they are less likely than men to be that tall. Without any real justification for the rule it would be deemed indirectly discriminatory.

Notice

Employees are entitled to a minimum notice period if their employer wishes to terminate their employment. This is dependent on their length of service, as follows:

  • Under 1 month……….…………. No notice
  • Over 1 month……………………. 1 week
  • 2 years service……………..…… 2 weeks
  • 3 years service……………..…… 3 weeks
  • 4 years service……………..…… 4 weeks

An employer can include in the statement of terms and conditions a period of notice which the employee must give to end their employment. However, if they leave with less notice than agreed, there is little action that the employer can take, beyond issuing a complaint of breach of contract at the County Court. This is expensive and the employer will only be successful if they can demonstrate that they suffered financial loss as a result of the notice period not being fulfilled. As a result, in practice such complaints are few and usually related to executives of large companies.

An employer cannot withhold salary for work already carried out by the employee if they fail to work their notice period.

Dismissal

An employer can terminate an employment relationship if it is done lawfully, this means that they must have a good reason for dismissal and follow a proper procedure.

An employer cannot lawfully dismiss because the employee:

  • Has asked for payment of their salary
  • Asked for time off
  • Asked for the return of their passport
  • Asked for maternity leave/pay.

A worker who has been employed for two years continuously can bring an unfair dismissal complaint. If the complaint amounts to an assertion of a statutory right e.g request for payment of salary then dismissal is automatically unfair and there is no need to have two years continuous employment.

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