Vento Bands Increase
The “Vento bands” are the guidelines that Employment Tribunals follow when assessing the appropriate level of financial compensation for ‘injury to feelings’ awards in cases of discrimination. There are three bands, all of which increased on 6 April 2023 as follows:
- Lower band: £1,100 to £11,200 (less serious cases, e.g., a one-off act of discrimination).
- Middle band: £11,200 to £33,700 (cases that do not merit an award in the upper band).
- Upper band: £33,700 to £56,200 (the most serious cases, e.g., following a lengthy campaign of discriminatory treatment).
In exceptionally serious cases, the upper band could exceed £56,200 and, as such, there is no “limit” on injury to feelings awards. Nevertheless, awards in excess of the upper band are extremely rare.
Worker Protection Bill gets Government Support
This Bill, designed to protect employees from harassment by their co-workers and third parties, such as customers, has government support. The Bill seeks to amend the Equality Act 2010 as follows:
- Impose a proactive duty on employers to take all reasonable steps to prevent sexual harassment of employees.
- Re-introduce protection against harassment by third parties.
- Introduce a compensation uplift of up to 25% where employers fail to take reasonable steps to prevent harassment.
A government amendment is intended to put ‘a ceiling on what can be considered reasonable steps for an employer’ to avoid employers shutting down conversations in the workplace. In preparation for this becoming law, we strongly advise clients to review and update relevant policies relating to harassment, bullying and discrimination, and carry out an audit to identify areas of greatest risk and establish a safe reporting line.
Low Pay Commission Report on NLW
To help employers plan ahead, the LPC’s March 2023 Report estimates that, in accordance with the latest wage growth forecasts, the National Living Wage is likely to increase to £11.16 per hour (the range being from £10.90 to £11.43) in 2024, although this will be kept under review. It also notes that workers aged 21 and 22 are due to be moved onto the NLW. The LPC has also launched a consultation on the proposed 2024 rates; for example, the impact of lowering the age when workers become eligible for the NLW; and the removal of apprentice rates post-2024 so that apprentices are paid the NMW. You can find the consultation here and it closes on 9 June 2023.
Health & Disability White Paper
The government has published its proposals to encourage and support people with disabilities and long-term health conditions to get back into work. There are three prongs to the approach: investment in employment support (and reform of the digital services underpinning that support – for example, the digitalisation of fit notes); ensuring people have access to that support; and reform of the benefits’ system. Conscious that the proposals have generated some concerns, the DWP has confirmed that implementation will be gradual to give both employers and individuals time to adjust.
Policy Review with YEAR
Given the amount of new legislation coming down the line, as well as new Codes of Practice, employers will need to review a large number of policies if they are remain compliant. As a minimum, the following areas will need to be addressed: flexible working, extended protection for pregnant employees, harassment and bullying (see above), carer’s leave, neonatal care leave, fertility treatment, parental bereavement leave, and changes to employment terms and conditions.
For our YEAR clients, we will be providing updated policies and guidance as part of their retainer. For those clients who have not yet signed up for YEAR, this is your opportunity to discover how YEAR can not only save you money but ensure that your policies are properly integrated, legally compliant, and provide a bulwark against potential claims. For more information, please get in touch with Tina Chander.
Case Update
When “I’m done” does not mean “I resign”
Cope v Razzle Dazzle Costumes Ltd
A tribunal recently upheld two claims (for unfair and wrongful dismissal) brought by an employee whose comment “I’m done”, made after she was unable to discuss a difficult situation regarding a colleague with her employer, was incorrectly interpreted – and accepted – as a resignation.
Mrs Cope had been accused of bullying by a fellow worker, an accusation she denied. She told her employers (Mr & Mrs Parker) that she could no longer work with him and would go off sick if she was made to do so. Her employer encouraged her to behave professionally; despite undertaking to be supportive, at another meeting held shortly afterwards, she threatened to resign if matters were not sorted out. Following another attempt to speak to Mrs Parker, she put her keys to the workplace factory on the desk and said, in the presence of another employee, “I’m done” with a gesture that implied she was finished. The situation was exacerbated by the fact that Mrs Cope wore a stoma bag after having had a colostomy, and the bag had leaked, adding to her stress levels. Mrs Cope went on sick leave and supplied a sick note. Mr Parker accepted that Mrs Cope had indeed resigned and took no further action until the latter asked for a meeting to apologise and to return to work. This was not accepted: “Following you walking out of the factory on Thursday 9 September 2021 the company has made the decision not to allow you to return.”
The tribunal concluded that Mrs Cope’s alleged resignation was ambiguous, relied on the evidence of another colleague, and was made when she was clearly upset and anxious. The submission of a sick note was further evidence that she had not intended to resign. The tribunal found that a reasonable employer would not have considered Mrs Cope’s actions to be sufficient grounds to dismiss her.
Although employees can resign verbally, employers should be clear that there is no ambiguity. If any is suspected, they should examine the employee’s intentions thoroughly and potentially give them a cooling off period.
