In news that will delight claimants (and employment solicitors!) there will be no more employment tribunal fees. The Supreme Court (formerly the House of Lords) has ruled them unlawful.
Until today, employment solicitors thought that change would only come about through political means, via a Labour election win.
Fees (typically of £250 to start a claim and £950 to go to a hearing) have been with us since 2013. They were introduced by the Coalition Government to transfer some of the cost of the justice system to the actual users as opposed to the general population and to weed out weak claims.
Since the fees were introduced, the Unison union (acting with others including the ECHR) has been campaigning for their removal, citing the impact on justice. A government is not allowed to take an irrational decision so Unison argued that the decision was ‘irrational’ using statistic-heavy evidence and technical arguments such as
- The indiscriminate effect on cases, strong and weak alike.
- The discriminatory effect on claimants in protected classes, eg women, who earn less and have more trouble finding the money.
- For access to justice to be restricted by Government frustrates the will of Parliament, which has granted employment rights.
In turn, the Government argued that it had adequately addressed these arguments with a remissions process (a means test for those who could not afford the fees).
But the tribunal fees system was always a blunt tool compared to the court fees system, where fees were often lower for the same type of case and where the fee varied more with the size of the claim, which is fairer (and therefore more ‘rational’).
The Court decided (as many employment solicitors have been saying for years) that:
- Because tribunal fees do not relate to the size of the claim, they disproportionately put off smaller claims, not weaker claims.
- Despite the two price bands attempting to match smaller cases with smaller fees, they don’t even relate well to the cost of providing the justice service.
- The statistical evidence showed that the effect of fees was a dramatic and persistent fall in the number of employment tribunal claims , with a greater fall in the number of lower value claims and claims in which a financial remedy was not sought.
- Case studies of model claimants showed showed that paying fees would take below a reasonable living standard. Broadly, this is an decision that is not lawful for a government to make its citizens choose between food and justice.
- This puts women at a particular disadvantage. This is because women tend to bring discrimination claims as opposed to (the cheaper) wages claims. Although wages claims attract cheaper fees, they are more expensive pound for pound compared against the amount of the award.
The Supreme Court is the highest court in the land so this decision will not be overruled.
The Government may do nothing about it just yet; it has a lot on its plate trying to negotiate a deal on Brexit.
It may go back to the drawing board and re-design the fees system so that it produces the same revenue in a fairer way. For example making the means test reach more people and making it scale better with the value of a claim. Perhaps fees will only be payable when the case has ended and the value of the case is known.
The number of tribunal cases will increase by almost 150% overnight. This is the effect of reversing legislation that has, in the past four years, after the fees were introduced, the number of claims brought to employment tribunals fell by up to 70%.
What about fees paid in the last four years? What other implications are there?
The Government has already announced that no more fees will be charged and it will have to return all fees paid in the last four years.
We are pro-actively contacting all our previous clients about this. Do contact us if you would like to discuss this with us.
If any employers have lost cases in the last four years, they will have been ordered to reimburse the claimant their tribunal fees. Employers will want their money back under common-law legal principles and employees will want to say no on the basis that the money has been spent. The same applies not only to cases that employers have lost, but also cases that they have settled.
We don’t know whether the Government will do an automated reimbursement through the banking system or simply repay on an as and when basis.
Legal commentators and employment solicitors are unclear on what should happen in the case of claimants whose cases were struck out for non-payment of the £950 hearing fee in the last four years. In our view, those claimants should be given another bite of the cherry, especially where the reason for non-payment was genuine hardship.
We are also reaching out proactively to claimants who decided not to bring or continue claims in the last four years.
Photo courtesy of Houses of Parliament
The Government has announced plans to close Bedford Employment Tribunal from September.
After closing 140 courts in 2011, the government last year announced a further 80 to be closed in a second tranche. We have learned that this includes the Bedford Employment Tribunal. The Ministry of Justice cites underuse and cost (the courts involved cost the taxpayer around half a billion pounds each year). The Justice Minister said that more than 97% of citizens would still be able to reach their required court “by car within an hour”. However this is not ideal for many people.
A consequence of the closure of these courts has resulted in expensive journeys to court and tribunal, with many having to travel further to lodge their claims. The claims in the Bedford Tribunal will be distributed across Cambridgeshire, Hertfordshire and Bedfordshire.
Witnesses in the Employment Tribunal are not reimbursed their travelling expenses any more (unless they are compelled to attend by a Tribunal order), so this is a matter of some concern to our clients.
Surprisingly, the government failed to notify its plans to the Mayor of Bedford and the local MP, who said the closure is a “devastating blow to justice in this town”. These cuts together with those already made in the region have led to a decline to local services in the Bedford Borough.
Courts closing down means inaccessibility to many who cannot afford to commute. Tribunal statistics from April 2015 to March 2016 show an increase of 25,000 claims on the previous year. This shows that the closing down of courts does not necessarily mean a decrease of claims being bought but rather increased inconvenience for claimants.
However, the Birmingham Employment Tribunal’s position is quite safe. It deals with enough cases per year that its future is not in doubt.
By Manpreet KoonerRead More
Note: a subsequent legal change has affected the accuracy of this material.
A very large percentage of respondents in tribunal cases don’t pay their employment tribunal awards. This rarely, if ever, happens to Hatton James Legal as we vet our opponents so that our clients don’t waste their money.
Where an employer fails to pay the required sum on time, an enforcement officer can issue a “warning notice” to the effect that a financial penalty will follow unless a specified amount is paid by a set date, at least 28 days from the warning notice date.
Where the employer fails to comply with a warning notice, the enforcement officer may issue a “penalty notice” imposing a financial penalty, which will be 50% of the unpaid amount but no more than £5,000. If the employer pays the outstanding amount and the financial penalty within 14 days of the issue of the penalty notice, the penalty payable is reduced by 50%. The money from the financial penalty does not go to the successful claimant but the government.
Since April 2016, tribunal enforcement officers have been able to impose financial penalties on employers who fail to pay employment tribunal awards made against them. Given that it costs up to £1,200 in employment tribunal fees alone to bring a claim, it is ever more important to ensure that applicants receive the awards to which htey are entitled. The Commercial Secretary to the Treasury, Baroness Neville-Rolfe, has confirmed that since the introduction of the penalty regime, 60 penalty notices have been issued, confirming that htis number comes as a result of 164 warning notices for defaulting employers. This has led to an amount of £83, 000 being recovered.
Financial penalties are a bid to enforce payment and serve as a warning to other employers to comply with the employment tribunal order to pay compensation to the employee. However, the figures indicate that some employers are taking a laid-back approach to paying employment tribunal awards on time. For this reason, employment tribunal judges are exercising this power without hesitancy and it seems likely that this approach will continue in the future as the government continues to encourage compliance.
By Gina Mukova
MPs are calling for employers to be fined firms for sex discrimination in dress codes.
The government must ban sexist dress rules at work that discriminate against women, a committee of MPs has recommended.
The Women’s and Equalities committee began an inquiry following the case of Nicola Thorp, who was sent home from a receptionist’s job with PWC for not wearing high heels. She refused to obey the then rules of her employment agency, Portico, that she should wear shoes with heels that were between two and four inches high.
She argued that wearing them all day would be bad for her feet and that her male colleagues were not asked to follow similar rules. “This may have started over a pair of high heels, but what it has revealed about discrimination in the UK workplace is vital, as demonstrated by the hundreds of women who came forward via the committees’ online forum” Mrs Thorp said. She added: “The current system favours the employer, and is failing employees“.
The committee received reports of women being told to dye their hair blonde and wear revealing clothes at work, such as shorter skirts.
Her parliamentary petition on the issue gained more than 150,000 signatures.
The committee said the Equality Act 2010 should ban discriminatory dress rules at work and that but in practice the law is not applied properly to protect workers of either sex. Chair of the Petitions Committee, Helen Jones MP, said: “It’s clear from the stories we’ve heard from members of the public that Nicola’s story is far from unique.” It said that discriminatory dress codes remain commonplace in some sectors of the economy.
The MPs report recommends a publicity campaign to ensure that employers know their legal obligations that workers know how they can complain effectively. But its key recommendation is that the existing law should be enforced more vigorously, with employment tribunals able to apply bigger financial penalties.
A government spokesperson said: “No employer should discriminate against workers on grounds of gender – it is unacceptable and is against the law. Dress codes must be reasonable and include equivalent requirements for both men and women.
By Naomi Vlad. Image used under CC courtesy of Veenya VenterRead More
From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Dav.
Dav drove HGVs for 15 years with the same company. A few years ago he started suffering health problems and his employer re-assigned him temporarily to a different role.
He was diagnosed with sleep apnoea, a condition that interrupts breathing during sleep. Left untreated, this can cause the patient to fall asleep during the day. Once the diagnosis was made, his doctors notified DVLA, who suspended his driving licence until it could be treated. He was treated with a Continuous Positive Airway Pressure (CPAP) machine, to be used whilst he was sleeping. After his doctors signed off that it was working, he was allowed to resume driving by the DVLA.
A couple of years later, at a routine hospital review, he learned that he had been using the machine slightly wrongly and again the doctors told the DVLA.
However, this time, his employer had had enough. He was sacked on the spot.
Dav searched for employment solicitors in Birmingham. Employment law was on his side. It is unfair dismissal to sack someone with more than two years’ service without following a procedure. Sacking someone on the spot is no procedure at all and in his case that would lead to £5k in compensation.
But he could also expect to receive a large award / settlement if he could show that dismissal was also unfair in practice. This would be the case if the decision to dismiss would have been the same, even after a proper procedure. In that case he could expect to obtain compensation for a reasonable period of lost income.
And because sleep apnoea is a medical condition that qualifies as a disability, the actions of the employer drove a coach and horses through the Equality Act’s employment law protections for the disabled, amounting to discrimination. The dismissal was discrimination for a reason relating to his disability, that reason being the suspension of his licence.
He came to us for employment law advice and we offered to take his case on a no-win, no-fee agreement, which would entitle him to legal advice all the way to trial at no cost if it was unsuccessful.
The employer’s only real argument was that without his licence, if Dav had no income if wasn’t because he was dismissed (the employer’s fault) but because couldn’t get a new job with his medical condition (not the employer’s fault). They would still have to pay compensation but not as much. So Dav worked very hard to chase the hospital and DVLA to get a clean bill of health and his licence back, which took away this argument.
We had to issue a claim to do it but we secured a settlement for just under £20k. The employer learned a valuable lesson that day.
Our clients agree to the use of their stories in this Birmingham employment law series but names are changed for anonymity.
Image courtesy of Sally Butcher, used under CC
Birmingham’s employment solicitors are watching the case of a teaching assistant who was sacked for complaining about her pupils being shown footage of the 9/11 New York tower attacks.
She felt her 11-12 year olds shouldn’t be watching footage of the towers’ occupants falling to their deaths, which was shown as part of a class on poetry. She was dismissed an hour after raising the issue with her managers.
She has been offered £11,000 to settle her claims for whistleblowing-related unfair dismissal and discrimination but is holding out for an apology at a December 2016 hearing, if the matter doesn’t settle at a November mediation.
After dismissing her, the school allegedly completed an internal safeguarding form that raised concerns about her suitability for a role in teaching. The form also suggested that she had been motivated by her faith when raising the concerns.
For her part, the former employee insists that she was motivated only by concern for the children and to have suggested that her religion was relevant was discriminatory.
The school is one of those named in the so-called trojan horse scandal, which was about Muslim agendas in the management of Birmingham schools.
Hatton James Legal advised two teachers from other trojan horse schools, which treated them badly in 2013-2015. One was a disabled IT teacher who was left on the shelf and not permitted to return to work after an operation. The other was an English teacher treated similarly when she fell pregnant. We secured compensation payments for them substantially more than the £11,000 reportedly offered to the teaching assistant in this case.
Because of its topicality, Birmingham employment solicitors are taking a keen interest in the case.
The school in this case, advised by employment solicitors in Birmingham County Councils legal department, refused to comment while the case was ongoing.
Reporting by Jason HarbourneRead More
Note: a subsequent legal change has affected the accuracy of this material.
Employment tribunal claims against employers are in decline and have been since the introduction of employment tribunal fees two years ago.
Under current legislation, the odds are still stacked up against any employee who wants to seek redress through the employment tribunals.
Since the introduction of employment tribunal fees, it costs up to £1,200 to see a claim through to the final hearing (£250 to issue an employment claim and £950 for a hearing fee).
Our other article explains the system for rebates.
According to a recent study the number of employees who are bringing claims for cases such as discrimination or unfair dismissal continues to dwindle. The TUC cits a fall of up to three-quarters of unfair dismissal claims being pursued. Also that discrimination cases on grounds of sex has fallen by 90%, race claims by 61% and disability by 63%.
They reported that the average figure of claims being pursued has fallen to less than 7,000 claims per month. In contrast, the figures for the 2012 to 2013 were more than twice this.
The TUC general secretary, Frances O’Grady, said: “These figures show a huge drop in workers seeking justice when they’ve been unfairly treated. Now bosses know they can get away with it, discrimination at work can flourish unchecked and people can be sacked without good reason. The evidence is there for all to see. These fees – of up to £1,200, even if you’re on the minimum wage – are pricing out thousands each month from pursuing cases”.
Since taking the reins of power our current PM Theresa May has pledged that employment rights will not be reduced, so she now has every opportunity to reverse the restrictive fees and allow every worker in the land to have full access to justice.
However it is Conservative policy to continue the fees regime – only the Labour party has pledged to remove employment tribunal fees from the statute books.Read More
We read that multi-claimant employment solicitors Leigh Day are taking a class action against Tesco, who are cutting pay rates for night and weekend shift workers on hourly rates.
The complaint is by workers who are unhappy at pay rates decreasing for weekends, bank holidays and night shifts.
17 employees are involved in the test case to protest against the cut introduced in July. The employment solicitors involved in the case believe that 38,000 members of staff could be affected.
It often comes as a surprise to employees but employers are allowed to reduce pay and conditions as long as they introduce the changes in the right way, which includes proper consultation. Tesco agreed the changes after consultation with union in February. The move was accompanied by a 3% pay rise to staff and a lump sum to those affected. The employees concerned were given 18 months of the difference in their pay as compensation.
However, the main change has been that double time for Sunday and bank holiday shifts becomes time and a half instead.
The employment law issue is that the hourly-paid staff are mostly those over the age of 40 years old. Therefore this could be seen age-discrimination unless it is justified, which is a tough legal test for Tesco to beat.
In a trend that we anticipate will become even stronger after Brexit, retailers are making cuts to staff wages.
It is the longer-serving staff in these businesses who usually suffer the most, said the employment solicitors bringing the case.
The transition payment was equivalent to the loss in pay over the next 18 months. Tesco did not confirm how many workers were affected but said it was a small number.
We hear that Marks & Spencer may be facing similar issues. Recently they reduced the earnings of about 10% of its shop-floor workers by cutting anti-social hours payments.Read More
In any workplace, employees will joke around with one other, forming friendships that allow spirited banter. While this is tolerable to many, others may find it to be unacceptable or even discrimination.
At what point does banter cross the line to harassment? Employers often face this question. Sometimes, it is only at the point when an employee raises a formal grievance or even leaves.
An extreme example of harassment in the workplace is Jimmy Savile. Female colleagues reported that they (and others) were harassed in the workplace but were afraid at the time to speak up.
It is natural that once you are comfortable enough around someone the relationship can evolve to comments about physical features, their way of talking and past events. These can be about relationships, it could be of a sexual nature, or about the football team they support.
In predominately male offices, women are subjected to unwanted sexual jokes. A TUC online survey reported that 32% of women had experienced unwelcome jokes of a sexual nature and comments of a sexual nature about body or clothes. More than a third of women who had experienced sexual harassment had also received unwanted sexual advances six times in their lives.
We at Hatton James Legal have seen an Italian employee claiming racial harassment because colleagues watching an England-Italy match ribbed their Italian colleague over his country’s “lazy” performance on the pitch. Although he was sacked for crashing a company lorry, his claim included all sorts of allegations about inappropriate workplace banter that had never been an issue before.
Discrimination law says that workplace banter becomes harassment when it is “unwanted” and any one of the following – “hostile, humiliating, degrading, intimidating or offensive”. This is such a wide definition that you could be forgiven for thinking that almost anything could cross the line. The employee has to prove that it was offensive to both him and to the reasonable person.
Since employees have different opinions as to what acquaints to a joke and harassment, which leaves the question – what can employers do?
Employers should use their handbooks to illustrate what they count as banter and examples of what constitutes harassment. Employees can then have no excuse for not understanding when their behaviour is out of context.
Having a simple word with the employee in question can resolve the matter simply. Employers should not be afraid to apply disciplinary procedures and give warnings as necessary. If the employer has taken all reasonable steps to stop employees harassing each other then they won’t be responsible, but compensation can still be claimed against the colleague.
Employers can only defend themselves against discrimination claims if they can show they take grievances seriously. They may face future tribunal requests for documents showing how they have handled previous complaints. Educating employees on harassment during induction training also provides employers with this defence.Read More
Note: a subsequent legal change has affected the accuracy of this material.
What do employment solicitors think of the Acas Early Conciliation procedures?
Claimants now have to contact Acas before bringing a claim, although they don’t have to let Acas actually contact the employer; they can just ask for the process to be closed immediately.
We at Hatton James don’t think that the Early Conciliation procedures provide a real substitute for dealing with claims.
Employment Tribunal claim numbers have been lower since conciliation and fees were introduced. 60% lower, in fact. The reason for the drop was probably the fact that hefty fees were introduced for lodging a claim and taking it to a final hearing – £1,200 for most claims.
We wrote an article after 18 months of their introduction. After a further 6 months, it’s time to spill the beans on our approach to them at Hatton James.
We suspect that many employees have wrongly thought that Acas Early Conciliation would bring about a successful end to their claim. Instead, they have been strung along by the employer who had no intention of settling. Some employees may have even have thought that the process was a formal adjudication of the dispute.
Many who ended their tribunal claim for a small sum at Early Conciliation or were put off by tribunal fees would have won at trial.
Just before the introduction of fees and Early Conciliation, about 10% of unfair dismissal cases that reached a judge were successful at a hearing.
If fees and Early Conciliation had been successful at deterring the weakest claims, we would have expected the success rate to increase as the weakest claims were weeded out. But we find the opposite to be the case. The success rate has dropped to 8% . Weak and strong cases alike are dropping out of the system.
We hasten to say at this point that the success rate of claims handled by employment solicitors is a lot higher than 8%, which includes a huge amount of claims brought by lay claimants who don’t know what they are doing.
Our strategy only includes taking the Acas Early Conciliation process seriously where the employee has a cast-iron case. Our experience is that employers need to be dragged to the negotiating table and shown the strength of the employee’s case. Often this can only be done after the claim is set out formally, the evidence has been presented and the claimant has had the opportunity to show his resolve.
Even where we have presented a cast-iron case to the employer, we have found that often they want to see whether the employee has it in them to issue a claim and put their money where their mouth is.
Acas remain on hand to assist with conciliating the dispute after the claim has gone in, so there is nothing to lose except the lodging fee by bypassing the early conciliation process and, in our experience, everything to gain.
By Jaspreet SanghaRead More