Thursday, 15 December 2011

Fees introduced for employment tribunal claims

The Government has unveiled proposals to introduce fees for employment tribunals in the latest stage of a wider push to overhaul the regime for labour disputes. The details however are hazy with The Government suggesting that low income families will be exempt from the new fee. As the large proportion of workers who apply to a tribunal have been dismissed it is unclear how many claimants will actually have to pay.....

The Ministry of Justice on Wednesday (14 December) unveiled two funding models for consultation. In the first, a fee of £150-£250 would be levied to begin a claim, with an additional cost of £250-£1,250 if the case goes to a hearing and no limit to the maximum award.

Under the second proposal, a single fee of £200-£600 would be charged, limiting the maximum award to £30,000. Those seeking greater compensation would have the option of paying an additional £1,750 fee.

More than 200,000 employment tribunal claims were made in the 2010-11 period, a 44% increase against 2008-09 according to Government figures, costing the taxpayer £84m.

Justice minister Jonathan Djanogly said this expense is "not sustainable", adding: "Our proposed fees will encourage businesses and workers to settle problems earlier, through non-tribunal routes like conciliation or mediation and we want to give businesses - particularly small businesses - the confidence to create new jobs without fear of being dragged into unnecessary actions."

Fee waivers will be available for low-income workers "to protect access to justice".

'Illegal worker' wins wages claim

Okuoimose v City Facilities Management
Appeal No. UKEAT/0192/11/DA

Where an employer attempted to escape his liability to pay wages on the basis that the contract of employment was illegal.

The claimant, who was a Nigerian woman married to a Spanish national, worked as a cleaner for the respondent. She acquired the right to take up employment in the UK as a family member of a European citizen who had the right of residence in a Member State. Her passport stamp said that her right of residence expired on 8 July 2010, at which date the respondent suspended her without pay because, they alleged, the contract of employment was now illegal.

The claimant initiated applied to renew the permit on her passport. The respondent dismissed the claimant on 20 August on the grounds of illegality.

Later the same day the claimant produced a letter, dated 16 August, from the Border Agency which said that until her application had been decided, she would be treated for immigration purposes as being free to work and live in the UK.

The respondent reinstated the claimant but the claimant went off on sick leave and made a claim that she had suffered unlawful deductions from her pay (contrary to s. 13(1) of the Employment Rights Act 1996) during the suspension period .

Employment Tribunal Judgment

The Employment Tribunal considered the fact that the claimant had not produced evidence which showed her entitlement to work in the UK and also the penalties that could have been imposed on the respondent if they had employed an illegal immigrant, and came to the conclusion that the contract of employment was illegal. The claimant appealed.


The EAT accepted the argument of the claimant, who claimed that she had not in fact lost the entitlement to work in the UK simply by reason of her failure to obtain a new stamp in her passport. The claimant had a right to work by reason of her status as a family member of an EU national. This right did not depend upon letters written by the UK Border Agency for she always had the right, irrespective of the expiry of the entry in her passport.

The Employment Judge had erred in that it considered the reasonableness of the employer’s belief that she was not entitled to work, and that it would be exposed to penalties, and these were irrelevant factors.

The Statutory Law

The legislation

5. The legislation arises under treaty obligations. The Claimant's husband is a Spanish national and the Claimant herself is Nigerian, who acquired rights by reason of being a member of Mr Okuoimose's family. The European obligation arises under directive 2004/38/EC, which provides in relevant part as follows:

"Article 23

Related Rights

Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self employment there."

"Article 25

General provisions concerning residence documents

1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.

2. All documents mentioned in paragraph 1 shall be issued free of charge or for a charge not exceeding that imposed on nationals for the issuing of similar documents."

6. The Immigration European Economic Area Regulations 2006, seeking to transpose that directive, provide as follows:

"13.— Initial right of residence

(1) […]

(2) A family member of an EEA national residing in the United Kingdom under paragraph (1) who is not himself an EEA national is entitled to reside in the United Kingdom provided that he holds a valid passport.


"14.— Extended right of residence

(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.

(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.


"15.— Permanent right of residence

(1) The following persons shall acquire the right to reside in the United Kingdom permanently—

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b) a family member of an EEA national who is not himself an EEA national butt who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;


7. Separate from those provisions, which deal essentially with the rights of qualified persons, is the Immigration, Asylum and Nationality Act 2006. It is directed at the consequences of immigration control for employers. Regulation 15 sets up a penalty for employing a person without the relevant entitlement to work:

"15 Penalty

(1) It is contrary to this section to employ an adult subject to immigration control if—

(a) he has not been granted leave to enter or remain in the United Kingdom, or

(b) his leave to enter or remain in the United Kingdom—

(i) […]

(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise),

Tuesday, 6 December 2011

Important Appeal case looking at causation in Whistleblowing cases

Charles Price, Barrister examines a new appeal case, NHS Manchester v Fecitt & Ors [2011] EWCA Civ 1190 which looks at the causation test in whistleblowing cases....

Neutral Citation Number: [2011] EWCA Civ 1190


The employer challenged the EAT's analysis on issues of vicarious liability and the causation test in whistle blowing cases.

First ground, it was submitted that the EAT erred in law in holding that the employer could in principle be vicariously liable for acts of victimisation of its employees in circumstances where the employees had committed no legal wrong.

Answer: The Court of Appeal found that the EAT had erred; the House of Lords in Majrowski unambiguously held that an employer could be vicariously liable only for the legal wrongs of its employees. In Majrowski Lord Nicholls defined vicarious liability as follows (para 7):

"Vicarious liability is a common law principle of strict, no-fault liability. Under this principle a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. ..The primary liability is that of the employee who committed the wrong."

It followed that, absent any legal wrong, there was no room for the doctrine of vicarious liability to operate. The EAT had followed the case of Cumbria which was wrongly decided.

Second Ground:

Causation - The EAT appears to have concluded that the Employment Tribunal did not apply, or may not have properly applied, the appropriate test in determining whether or not detriments suffered by the claimants were because of the protected disclosures:

i) the reasoning of the Employment Tribunal demonstrated that even if the EAT was correct in concluding that the employer could discharge the burden of proof only by showing that the making of the protected disclosure played no part whatsoever in the relevant acts or omissions, that onus was plainly discharged here.

ii) the proper test in this context was not whether the decision was materially (in the sense of more than trivially) influenced by the prescribed reason but, as in unfair dismissal cases, it was whether the prescribed reason was the sole or principal reason for the action taken. Section 48(2) provides that the onus is on the employer to show the ground on which any act, or failure to act, was done:

Mr Linden QC counsel for the employer submitted that the EAT was wrong to draw analogies between the whistle blowing legislation and domestic legislation giving effect to EU law. In the latter context it is incumbent on a court to read the legislation compatibly with EU law and the "no sense whatsoever" test is adopted in EU Directives. But where there is no such requirement, the legislation should be given its domestic meaning even if that means that the same statutory language may be differently interpreted depending upon whether there is an EU context or not: see the observations of Lord Brown of Eaton-under-Heywood in R (Hurst) v London Northern District Coroner [2007] 2 AC 189 para 52, UKHL 13. Accordingly, the EAT was wrong to consider that it was obliged to follow the principles set out in Igen v Wong.

The Court of Appeal agreed with the first submission, saying that the reasoning of the ET demonstrated that they did not think there was any causal connection between the protected act and the respondent's acts or omissions to act. The only proper reading of the ET decision was that the Tribunal accepted that the protected disclosure did not play a part in the decision to re-deploy 2 of the claimants and deny 1 claimant the opportunity to work.

The finding of the ET, that there was no breach of s47B of the ERA, was restored.

Charles is a Direct Access Barrister, which means that he can receive instructions from the public without recourse first to a Solicitor

contact: 07846 692325

Monday, 5 December 2011

Bleak House no more as The EAT moves

From 8 December the Employment Appeals Tribunal will move from the austere building on The Embankment!

The new address from 8 December will be 2nd Floor, Fleetbank House

2-6 Salisbury Square, London, EC4Y 8JX

telephone numbers, fax numbers and email addresses will remain unchanged.