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


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:

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.