Thursday, 17 August 2017

Latest on reimbursement of employment tribunal fees

The Employment Tribunals (England & Wales) have stated today:

"As you are probably aware, in advance of the Supreme Court’s judgment in the Unison case an undertaking was given to the Court to refund Employment Tribunal and Employment Appeal Tribunal fees, should the Fees Order be declared unlawful.

"We are now working on the detailed arrangements of the scheme to enable that undertaking to be met and we aim to ensure that the process is as simple and unobtrusive as possible for those who make an application, while ensuring that refunds are only paid to those who are entitled. There are, however, a number of points of detail that we do need to address including, for example, how to deal with refunds in claims involving multiple claimants, and how it will operate when the tribunal has ordered the opposing party to reimburse a fee.

"Please bear with us during this period, and we hope to be in a position to make an announcement on the details of the refund scheme during September."

Thursday, 10 August 2017

Long awaited tribunal pension guidance

The long awaited employment tribunal pension guidance has arrived 10 years after the last set. The Guidance is complex but crucial for working out compensation when it comes to pension loss.


Monday, 7 August 2017

New Laws Will Allow People to Claw Back Their Data

The General Data Protection Regulation (GDPR) will apply in the UK from 25 May 2018. The government has confirmed that the UK’s decision to leave the EU will not affect the commencement of the GDPR.

The GDPR applies to ‘controllers’ and ‘processors’. The definitions are broadly the same as under the DPA – ie the controller says how and why personal data is processed and the processor acts on the controller’s behalf. Both data processors and controllers will face further obligations imposed on them.

The definition of 'Personal Data' is expanded under the GDPR. Under The Data Protections Act 'personal data' requested under a SAR for example is set out information 'capable of identifying' those who make the request but is the definition found in The ICO Guidance provides caveats and contradictory statements which blur the meaning.

The GDPR’s definition is more detailed and makes it clear that information such as an online identifier – eg an IP address – can be personal data. The more expansive definition provides for a wide range of personal identifiers to constitute personal data, reflecting changes in technology and the way organisations collect information about people. Personal data that has been pseudonymised – eg key-coded – can fall within the scope of the GDPR depending on how difficult it is to attribute the pseudonym to a particular individual.

Personal data relating to criminal convictions and offences are not included, but similar extra safeguards apply to its processing (see Article 10).

"The new Data Protection Bill will give us one of the most robust, yet dynamic, set of data laws in the world," said Mr Hancock MP in a statement.
"It will give people more control over their data, require more consent for its use, and prepare Britain for Brexit," he added.
Proposals included in the bill will:

  • make it simpler for people to withdraw consent for their personal data to be used
  • let people ask for data to be deleted
  • require firms to obtain "explicit" consent when they process sensitive personal data
  • expand personal data to include IP addresses, DNA and small text files known as cookies
  • let people get hold of the information organisations hold on them much more freely
  • make re-identifying people from anonymised or pseudonymised data a criminal offence
  • This places a strong burden on firms to protect data and allows for significant fines if they fail to protect information or suffer a breach.

Tribunal Fees System Ruled Unlawful.

In what may be one of the most monumental employment decisions in recent times, the Supreme Court has just ruled  that the employment tribunal fees system is unlawful.

In R (on the application of Unison) v Lord Chancellor (Supreme Court), Unison's challenge to the employment tribunal's fees system succeeded at the final hurdle.

In a damning indictment of the use of high fees to reduce the number of cases,seven Supreme Court judges  decided unanimously  that the employment tribunal  fees system is  unlawful and the legislation that introduced the fees must be quashed.

The case has been described as one of the most important judgements in the history of UK employment law, and an important constitutional case,reiterating that the Government cannot use its powers to block citizens' access to justice.

It will now have to pay back around £32 million to claimants who have already been charged a fee since they were introduced in 2013.

The Supreme Court ruled that the Employment Appeal Tribunal Fees Order 2013,which allowed fees to be imposed in respect of proceedings in employment tribunals and the Employment Appeal Tribunal,was unlawful, both at common law  and under European Union law,and indirectly discriminating, because it effectively prevented access to justice.

The decision begs important questions.Firstly,will the system of fees  be abolished completely or will a new fee structure be introduced taking in mind the Supreme Court's ruling? Secondly ,what about all those people who chose not to bring  a claim when a claimant was significantly impeded from doing so by an unlawful fees regime?

R (on the application of Unison) v Lord Chancellor (2017) UKSC

Wednesday, 26 July 2017

Tribunal Fee Ruling Quashes Existing Regime

This morning The Supreme Court has allowed the appeal by Unison, holding that the Employment Tribunals and the Employment Appeal Tribunals Fees Order 2013 (which led to a 70% reduction in claims) is unlawful and will be quashed.

Fees for people bringing employment tribunal claims have been ruled unlawful, meaning the government will (it has been suggested by the BBC) now have to repay £32m to claimants.

This has been the third challenge to the fee regime but this time Trade union Unison argued that the fees prevented workers getting access to justice. Apparently the comparable fees paid at the small claims court were considered relevant.

The Supreme Court also found fees were indirectly discriminatory to women.

Friday, 16 June 2017

Capability and the re-deployment argument

 The Claimant in this case was dismissed on the grounds of capability.She lost her claim of unfair dismissal after the ET found that the Respondent had a genuine belief that the Claimant's capability fell below a standard that they considered acceptable and she had not been dismissed for raising an issue of overwork.The Claimant appealed on the grounds that an employer should consider redeployment prior to making a decision to dismiss on capability grounds.

The EAT dismissed the appeal.The Employment Judge did not err in law in the way he approached the question whether the Respondent ought to have found redeployment for the Claimant after her dismissal on capability grounds.

Awojobi v London Borough of Lewisham UKEAT/0243/16/LA

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Self-incrimination and employment tribunal procedure examined

The Claimant was dismissed after the Respondent found he had been dishonest.He brought a claim of unfair dismissal at the ET. At the hearing,one of the Respondent's witnesses said they had heard that the police had referred his case to the CPS (although no criminal charges were ever brought).

The EJ decided that the Claimant should not give evidence because of the privilege against self-incrimination and he continued the case without the Claimant being cross-examined.He dismissed the claim and the Claimant appealed.

The EAT allowed the appeal.The Claimant's evidence,and cross examination apon it,was relevant to the issues the Employment Judge had to decide.He should not have proceeded without hearing it,and the Claimant's representative did not consent to that course.

The Employment Judge had not,however,been bound to adjourn the case.He could and should have waited to see if the Claimant  had claimed any privilege against self- incrimination and made an application to adjourn.He should have considered any application to adjourn having regard to the submissions of both parties.

Coletta v Bath Hill Court (Bournemouth) Management Co.Ltd. UKAET/0297?16/RN

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