Wednesday, 17 December 2014
The High Court has today handed down its judgment in Unison's application for judicial review to challenge the
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
Tuesday, 18 November 2014
Less than a quarter of discrimination cases are successful at employment tribunals, new research
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
The Employment Tribunal Appeal has this morning handed down judgment in AMEC Group Ltd v
- 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.
- 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.
- 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.
Monday, 3 November 2014