Wednesday, 17 December 2014

Employment Tribunal Fees Challenge Thrown Out



The High Court has today handed down its judgment in Unison's application for judicial review to challenge the
employment tribunal fees system. The challenge was unsuccessful. Lord Justice Elias delivered the leading judgment.

The scheme was challenged on 2 grounds. Firstly, it was said to be unlawful under the EU principle of effectiveness, as it was virtually impossible or exceptionally difficult for potential applicants to bring a claim. The enforcement of Convention rights must be practical and effective rather than theoretical or illusory. Secondly, it was said that the scheme was indirectly discriminatory.
        As far as the principle of effectiveness was concerned, the  High Court reviewed the limited case law where it was alleged that the cost of litigation denied the Claimant an effective remedy, including the costs of legal representation or by court fees. In Podbielski and PPU Polpure v Poland (2005), the CJEU found that the obligation to pay a fee to pursue an appeal breached the right to a fair and public hearing under Article 6. Limitations on a party's ability to bring proceedings must pursue a legitimate aim and must be proportionate. One of the reasons the scheme was held (rather cynically perhaps) to have breached Article 6 was that the principal aim seems to have been the State's interest in deriving income from the court fees.

The High Court held that any restrictions must satisfy the proportionality test. Even if it is not excessively difficult to bring a case, an unnecessary hurdle which serves no useful purpose would not be proportionate. However, what proved fatal for the case was the lack of evidence. Before the Divisional Court, Unison had relied upon notional rather than actual Claimants. Before the High Court, they still had no actual individuals for the court to consider, Lord Justice Elias stating "the court has no evidence at all that any individual has even asserted that he or she has been unable to bring a claim because of cost." Instead, Unison relied on the recent  employment tribunal statistics which demonstrated a substantial fall in claims. The High Court could not say if the potential Claimants were unable or unwilling to proceed.

As for indirect discrimination, the case focused on the grounds of sex. Type B claims (including discrimination and equal pay) attract a higher fee than Type A claims. The High Court held that a difference in fee could be justified by the level of service or resources required. As for the argument that women were more likely to bring such claims, the court focused on the appropriate pool, and this included male and female claimants. In any event, the scheme could be justified on the basis that those who used the employment tribunal system contributed to its running, it made the system more efficient, and it encouraged settlement.

The judgment clearly hints at 'round 3', when an actual disadvantaged Claimant may bring a test case.  And in any event, the Court has given permission to appeal.


My Comment      Bit of a sigh of relief ,   it looks like the fees will stay with us,   effectively putting off the vexatious cases,      I think it's unlikely UNITE will appeal this decision.            Our thanks go to the always excellent Daniel Barnett site for this news clip


Monday, 1 December 2014

DECEMBER NEWSLETTER, YEAR END ROUND UP

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  << Test First Name >> ,
  
  Well we made it through our first year of publication, thank you for sticking with me!     It is customary at the end of the year to do a round up of the years' news.  So, who am I to disappoint?    Besides,  there's nothing this month (December)  that I haven't already covered.   I'm deliberately keeping this edition short as I know you have much to do,       anyway,    read on for details, and, as always, call me or mail me if you have any concerns about this edition's content.   

Kind regards,     Paul 
 

First The News:   Shared parental leave becomes law as of today

 Technically the legislation came in to force today, the 1st December 2014,    but it applies to children born after APRIL 2015,   so it is anticipated that the first requests for shared parental leave will start to be lodged around February time,  as the prospective parents must give "not less" than 8 weeks notice to their employer.     see the link to the ACAS website,  or,   if you are a client I have prepared a guide sheet covering the requirements of the legislation and I've produced a policy document for those who enjoy the "belt and braces" approach  ,  Just ask and I can send you a copy.   read more  

 


Newsflash:   Holiday pay to now include overtime payments

In a land mark case that really hit the headlines, the EAT (Employment Appeal Tribunal) declared a judgment that holiday pay should reflect the "normal earnings" of a worker. So if a worker had regularly earned an overtime payment , this additional payment should be reflected in his holiday pay. This led to speculation that workers could claim an underpayment going back to 1998 (when the paid holiday legislation came in) and would spell ruin for many a business.  In a collective sigh of relief, we were to learn that the court also judged that any potential claims where there was a 3 month gap between occasions could not be claimed. Effectively blocking any back dated claims.  phew !    However this is not the last you've heard on this,  it is open to appeal,   and whilst it is unlikely any court would overturn their colleagues decision in principle, we've heard that UNITE the union is to appeal  the decision on the 3 month thing.    So,    watch this space,  as they say!

 

Expectant fathers and partners to have the legal right to time off to attend antenatal  appointments.
 
This came in on the 1st October and told us that as of this this date employees who are the partners of expectant mums can now share the mum's right to have time off to attend antenatal appointments, midwife or obstetrician.     The general feeling is on balance,  this is unlikely to upset the country's economic recovery, because of poor take up  and is just the further advance of "family friendly policies"


 
Minimum wage went up as of 1st October   
The annual increment in national minimum wage rates went up as of this day.  The national minimum wage will increase by 19p an hour to £6.50, the government has announced.
The new rates were implemented as of 1st October and will benefit a million workers.    Silent partner Jacob Marley said he had accepted a recommendation from the Low Pay Commission that the minimum wage should increase by 3%.It is the first time in six years that the rise will be higher than inflation. The rate for 18 to 20-year-olds will go up by 10p to £5.13 an hour, a 2% increase.The rate for those aged 16 and 17 will rise by 7p to £3.79, also a 2% increase.  However , he rejected the proposal that Christmas Eve should also be declared a bank holiday.                   
 

Less than 25% of discrimination cases succeed at tribunal 

Less than a quarter of discrimination cases are successful at employment tribunals, new research suggests.
       The findings from GQ Employment Law found that 710 of 3,210 (22%) of discrimination cases heard at an employment tribunal were successful.
“There is always a bit of a risk for employers in defending a discrimination case at the employment tribunal, but these figures show that employers normally win.”
“This might encourage risk-averse employers who would normally settle a case to avoid a employment tribunal hearing to take stronger line against weak claims.”  says Jon Gilligan of GQ employment law.

 

And finally tonight ! 

To all who take the time to read my offering, to those who mail in with your questions, and to all my clients and chums who bother to tell me they actually read this stuff,  and find it useful,   my heartfelt thanks !
      May  I wish you a contented and peaceful festive holiday with your families.

Merry Christmas and my very best wishes:
Regards

Paul Murray






 

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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.
CASE 229   Vandals could sue if they hurt themselves
 A local Councillor has approached the panel with this query - We have been closing an area of the park at dusk, where the toilets and play equipment are located, because of vandalism. Some councillors have challenged this on Health and Safety grounds, as the "vandals" may get injured whilst climbing over the fence and they believe that the council would be liable.           committees eh !

 
CASE 237     Health & Safety brings candy floss to a sticky end!

 It has been suggested that candy floss should no longer be served on a wooden stick as this presents a potential health & safety risk !.......   (Denied by the HSE by the way!)



 
CASE 298   School ties to be banned on H&S grounds
 

  As we said at the start of the last school year, few parents would see wearing ties at school as a safety issue. Millions of children have been wearing ties as part of their uniform for years without any problems.
Simple precautions such as removing the tie during laboratory work or around machinery make sense. But if the concern is really about children fighting, while clip-on ties may help, the real issue is discipline.
So HSE doesn't ban school ties - it's up to schools to make their own decisions about uniforms. 
 
  CASE 178   It's ok to have a general handyman work on  gas appliances
Gas and cowboys don't mix! Anyone who is employed to work on gas appliances must be listed on the Gas Safe Register. If the person you're using isn't registered then they might not be safe and they are also breaking the law.
 

Tuesday, 18 November 2014

Less than 25% of discrimination cases successful


Less than a quarter of discrimination cases are successful at employment tribunals, new research
suggests.
The findings from GQ Employment Law found that 710 of 3,210 (22%) of discrimination cases heard at an employment tribunal were successful.
For Non-discrimination case, 18,847 our 30,498 (62%) were successful.
Jon Gilligan, Partner at GQ Employment Law said: “Employers are very anxious about defending discrimination claims in the employment tribunal. Many believe that the employees are at an advantage and consistently win the majority of cases. When you look at the most expensive class of cases this appears to be untrue.”
“There is always a bit of a risk for employers in defending a discrimination case at the employment tribunal, but these figures show that employers normally win.”
“This might encourage risk-averse employers who would normally settle a case to avoid a employment tribunal hearing to take stronger line against weak claims.”

My Comment:   well this is encouraging,   although it does rather suggest that a large number if cases are ill-conceived in the first place,   so who is advising these applicants to "have a go" ?

our thanks to HR grapevine for this piece  see them at :

Wednesday, 5 November 2014

Holiday pay to include overtime payments

Holiday pay to include overtime payments


The Employment Tribunal Appeal has this morning handed down judgment in AMEC Group Ltd v
Law and related appeals: the holiday pay test cases which Government, the private sector and employment lawyers have been so closely watching. The EAT’s key conclusions are as follows:
  1.  Article 7 of the Working Time Directive requires workers to be paid “normal remuneration” during the holiday to which they are entitled under EU law, i.e., broadly speaking, their typical average pay, not only the basic hours’ pay which has long been understood to be the entitlement of workers with normal hours of work under the UK’s Working Time Regulations.
  2. It is possible to “read down” the domestic Working Time Regulations under the Marleasing principle to achieve compliance with the requirements of Article 7 — potentially giving a very large number of UK workers who have been paid holiday pay representing only their basic hours’  work claims for unlawful deductions from wages. On this and the Article 7 issue, the employers’ appeals failed.
  3. However, the employers’ appeals succeeded on a key issue of limitation: the meaning of a “series of deductions” from wages. If there is a gap of more than three months in any alleged series of deductions, the Employment Tribunal loses jurisdiction to hear claims for the earlier deductions. Further, workers are not entitled retrospectively to designate which holiday was “EU” holiday under regulation 13 of the WTR and which was additional domestic leave under regulation 13A so as to create an unbroken “series”. The EAT’s conclusions may thus severely restrict the ability of workers to bring valuable, retrospective claims for underpaid holiday pay.
My Comment : Firstly remember this is not a change in the law per se it's the judgement from a senior court,  (EAT)which will affect decisions on other courts (Tribunals) but, there may yet be an appeal, which could overturn this decision.  So we haven't heard the last of this.   Secondly,  it's a relief to hear that the impact is not going to be as bad as was first thought,  in terms of back claims amounting to tens of thousands of pounds.  The judgement has been worded to indicate where there is a break of three months since the deduction was made, there will be no valid claim, which pretty much means only holiday just taken this year will count at best.    The industry commentators are all working hard to try to clarify this judgement and Vince Cable has promised a "working party"  to examine the impact on industry.    So,  watch the press and HR blogs for more info  as it emerges .

Monday, 3 November 2014

Paul Murray HR Newsletter November Issue

My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  << Test First Name >> ,
  
  Crumbs!  November 2014 already.    Big story this month is the information available on the introduction in April 2015 of the shared parental leave for parents. I've provided a link to the ACAS site for this most helpful guide .  A serial litigant was finally caught up with this year. This guy had made some 30 applications to tribunals to bring cases against employers he'd never actually worked for!    It was all to do with him claiming discrimination because his job applications were unsuccessful!    People had wondered why I was such an advocate of the introduction of fees for tribunal applications.  The idea is that upfront fees will prevent at least some of the vexatious and hopeless cases being brought, for no other merit than just because they can.            Read on for details, and, as always, call me or mail me if you have any concerns about this edition's content.

Kind regards,     Paul 
 

First The News:   ACAS produce a helpful guide on the introduction of shared parental leave in APRIL 2015

 ACAS has published a detailed guidance note on the new shared parental leave rules, together with supporting material including standard letters and a policy document. These documents are available for download .    read more    

My Comment:  This issue could prove to be very complex to manage,   as the employer may have to liaise with another employer they don't even know, both  it's your employee who is the mum, or if your employee is the father.  It affects adoptive parents too.    
      read full details
 


Newsflash:   Serial litigant who brought 30 employment cases in 4 years is banned from tribunal claims

In DLA Piper’s latest case report, the Employment Appeal Tribunal (EAT) granted a restriction of proceedings order preventing the submission of any further claims for an indefinite period against a claimant who brought repeated claims in employment tribunals, most of which were hopeless or vexatious. Her Majesty’s Attorney General v Iteshi EAT/0435/13
Facts:
Section 33 of the Employment Tribunals Act 1996 enables the Attorney General or Lord Advocate to apply to the EAT for a restriction of proceedings order against a serial vexatious litigant, to prevent him or her making further claims.
                        
   My Comment:   This case is a stark warning for serial litigants and should provide comfort for employers and recruitment businesses alike.    our thanks to "Personnel Today" for this piece.    read more 
 
 

 

Tribunal fees judicial review to be heard this month  

The new judicial review of the lawfulness of the Government’s introduction of employment tribunal fees will be heard later this month at the High Court.
 
The Lord Chancellor gave Unison the go-ahead last month to launch fresh proceedin in
the light of consistent statistics from the Ministry of Justice that the number of employment tribunal claims has fallen dramatically since the introduction of upfront fees for claimants.
 
My Comment:   I really do think this would be a backward step if they undid this legislation, and would again open the flood gates to spurious claims.   read more
 
Judge accepts sacked PCSO's claim she had amnesia when she forgot to tell Scotland Yard of a previous theft conviction.
Rachida Sobhi, 43, took the Metropolitan Police to court after she was denied a role as a police constable in December 2009, claiming she was discriminated against because of a disability.
ie she'd forgotten she had amnesia!   the case continues

 



TUPE transfers: different ways of working and new client types not substantial changes to working conditions
This employment tribunal held that a heating engineer whose new employer had different types of client and required him to do more of his own administration work did not suffer substantial changes to his working conditions to his material detriment after a TUPE transfer.
 

And finally tonight ! 

Paedophile awarded £30,000 after suing his former employers from his prison cell.
After reading of his sentence his employers suspended his holiday pay and cancelled a redundancy package, arguing he had 'frustrated' his contract by not being available to work.
        However, Ian Van Maanen, from the Citizens' Advice Bureau, successfully argued that as Wills was on agreed leave at the time and was not expected back at work before his job came to an end, he was not in breach of his contract.
            My comment : I report this because, one of my clients recently had an employee jailed for two years, and I had still advised we went through a proper procedure because this is what can happen, even from behind bars! 





 

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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.
CASE 321   Scouts not allowed to have an allotment
The enquirer has been advised by the chair of their local allotment community gardens site that a group of scouts under the supervision of a leader can not have a plot, for "health and safety reasons !. The scouts are keen to grow their own veg, and an allotment would be ideal for a small group to get started with.            committees eh !

 
CASE 317   School told that "Pin the tail on the donkey" game, a Health & Safety Risk

 This ranks alongside the well known "conkers ruling" that safety goggles should be warn when playing conkers !   (Denied by the HSE by the way!)
CASE 298   Supermarket staff not allowed to water dying plants
 Following a visit to a local supermarket store the enquirer complained about the state of plants that were on sale. They had dried out and were dying, due to lack of water. The staff told them that they had been instructed not to water the plants due to health and safety. !   
 
  CASE 178   Fish to be filleted at fish counter  told it was too slippery
The enquirer wanted to purchase filleted trout in her local supermarket. None was available pre-packed so they asked the assistant on the fresh fish counter if he could fillet some from a whole fish. He agreed but then his supervisor intervened saying that this wasn't possible on the grounds of health and safety because the fish are too slippery. The enquirer noted that on the supermarket website, it states "just ask if you'd like your fish skinned or filleted".
 

 The information contained in these pages is an HR overview and not intended to be comprehensive legal advice, always seek specific qualified advice before taking any action that could lead to litigation.   Equally, were we have provided links to external web pages, we are not responsible for the content of other sites.

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