Wednesday, 17 July 2013

Lamentable new rule on EAT appeals

Amendments to the EAT Rules have turned up a howler and represent an affront to justice in my view:

The 1993 EAT Rules have been amended in the Employment Appeal Tribunal (Amendment) Rules 2013, ahead of the introduction of the government's new fee regime for enforcing employment rights. The amendments come into force on the same day - 29th July 2013.

The end of the automatic entitlement to an oral hearing (a so-called 'rule 3(10) hearing') after the sift stage, if the Appellant wishes to challenge the assessment of an EAT Judge that the Notice of Appeal discloses no reasonable grounds for bringing the appeal. Now if an EAT Judge considers that an appeal is "totally without merit" he can order that a party is "not entitled to have the matter heard before a Judge" at a rule 3(10) hearing.

There have been plenty of appeals where they have been refused on the papers but at least the Appellant is permitted to orally try and explain herself. Many of these appeals go on and win. Now this opportunity will be dashed at the strike of a pen.

If the Government wanted to save money then charge for it is my view.

European challenge please somebody!

Tuesday, 18 June 2013

Unison challenges Government introduction of tribunal fees

Unison has released a press release as follows (grounds of appeal at the bottom):

"It is completely wrong for access to the law and employment justice to be based on what you can or cannot afford" said Dave Prentis, General Secretary of UNISON today. The union is challenging the decision by the Ministry of Justice to bring in fees for claims in the Employment Tribunal and Employment Appeal Tribunal on 29 July 2013, by calling for a Judicial Review.

UNISON is applying to the High Court to judicially review the decision having written to the Ministry of Justice on 1 June 2013, warning them if they did not revoke this legislation, the union would lodge proceedings.

Contrary to EU law, by bringing in these charges the government will make it virtually impossible for a worker to exercise their rights under employment law. The new fee regime will impose fees which will often be greater than the expected compensation, even if the claims were successful.  

Dave Prentis went on to say:

"The Government should not put a price on justice – that is why UNISON is calling for a Judicial Review.   These charges are a blatant attempt to stop working people from exercising their employment rights.  It will give unscrupulous employers the green light to ride roughshod over employees’ already very basic, rights at work.

"The Government like to talk about equality but these charges will hit women in particular hard.   We do not have class actions in this country and over the years UNISON has lodged equal pay claims for hundreds and thousands of women. If those women did not have union backing, and had to pay up front for access to justice, many would have
lost out.

The union is highlighting that, had the government conducted a proper assessment, it would have discovered charging high fees was disproportionate to the numbers of claims brought by individuals with protected characteristics and the low compensation that is often awarded. A Ministry of Justice study has said a third of all claimants had not even received their Employment Tribunal awards a year after judgment was given.

Legal arguments:

1.         In accordance with EU law, national courts must not make it virtually impossible, or excessively difficult, to exercise individual rights conferred by European Community law. When considering litigation a reasonable person will calculate whether the likely costs of proceedings outweigh the benefits. [Median awards are low; and even where individuals are successful, research commissioned by the MOJ in 2009 found that of those awarded compensation by the Employment Tribunal, 39% had received nothing from the employer 42 days after judgment. One year after judgment 31% had still been paid nothing. In order to comply with EU law, the right to bring such a claim must be fully effective]. However, the new fee regime will impose fees which will often be greater than the expected compensation, even if such claims were successful. They are set at a level which is prohibitive even to those entitled to partial remissions. Reasonable people will not litigate to vindicate their EU rights in such circumstances.

2.         Fees are not payable at all in most claims brought to the First-Tier Tribunal, a similar tribunal at the equivalent level in the judicial hierarchy to the Employment Tribunal. It is a breach of the principle of equivalence to require significant fees to be paid to vindicate EU rights where no fees are required to vindicate similar rights derived from domestic law.

3.         There has been no proper assessment of the Public Sector Equality Duty. An assessment should then have been made of the potential adverse effect of introducing fees in terms of the numbers and proportions of claims brought by individuals with protected characteristics which would previously have been brought and will now not be pursued.

4.         Indirect discrimination. Eg. Charging prohibitively high fees to pursue such claims will therefore have a disproportionate adverse impact on women. Given that women will not (if they earn an average income) be entitled to any remission of fees in the Employment Tribunal, it is difficult to see how that impact could be said to be a proportionate means of achieving a legitimate aim.

Wednesday, 12 June 2013

BIS publishes timetable for commencement of Enterprise and Regulatory Reform Act‏

Provisions coming into force on 25 June 2013:

S.12: changes to EAT composition
S.13: no qualifying period of employment where reason for dismissal is employee’s political opinions or affiliation
S.15: power to change the maximum compensatory award for unfair dismissal
S.17: disclosures not protected unless believed to be made in the public interest (for disclosures pleaded on or after 25th june)
S.18: power to reduce compensation where protected disclosure not made in good faith
S.20: extension of meaning of ‘worker’ for protected disclosure claims
S.21: changes to deposit and costs orders
S.22: changes to timing and rounding of annual adjustment of statutory limits, and
S.64: changes to the Equality and Human Rights Commission.
Provisions expected to come into force in Summer 2013 via commencement order:

S.14: confidentiality of negotiations before termination of employment
S.19: workers subjected to detriment by co-worker or agent of employer for making a protected disclosure
S.23: renaming of compromise agreements as ‘settlement agreements’, and
S.72 and Schedule 20 (partially): abolition of the Agricultural Wages Board (intended for 25 June).
Provisions coming into force on 1 October 2013 via commencement order:

S.65: removal of employers’ liability for third-party harassment
S.69: removal of strict liability for breach of health and safety duties, and
S.72(4) and Schedule 20 (partially): abolition of the agricultural minimum wage and introduction of the national minimum wage in the agricultural sector.
Provisions expected to come into force at the beginning of November 2013 via commencement order:

S.72 and Schedule 20 (remaining provisions): abolition of the Agricultural Wages Committees and Agricultural Dwelling-House Advisory Committees in England.
Provisions coming into force on 6 April 2014 via commencement order:

S.7 and Schedule 1: mandatory pre-claim Acas conciliation
S.8 and Schedule 2: extension of limitation periods to allow for conciliation
S.9: power to define ‘relevant proceedings’ for conciliation purposes, and
S.66: removal of the questionnaire provisions in S.138 of the Equality Act 2010.

Tuesday, 11 June 2013

Whistleblowing changes likely to close another avenue of claim

Everyone believed that the number of whistleblowing claims would rise now The Government has jumped in its Delorian and taken us back to the 80s by introducing the obstacle of 2 years service for anyone thinking of bringing an unfair dismissal claim. Well it seems that they may have slammed shut that door too by introducing the following:

1. A disclosure will be protected only if the worker reasonably believes that it is being made in the public interest. This effectively reverses the ruling in Parkins v Sodexho and means that an employee won’t normally be able to claim whistleblowers’ protection in connection with a breach to their own employment contract. Of course nobody quite knows what 'in the public interest' means quite yet.

2. The disclosure no longer has to be made in good faith (but see item 3 below)

3. If the disclosure was not made in good faith (for example the Tribunal finds it was motivated primarily by money or spite) compensation can be reduced by up to 25%

Coming into force at a later date is the amendment that will allow an employer to be held vicariously liable for a detriment caused by another worker. This reverses the loophole that was exposed in the case of Fecitt v NHS Manchester, where whistle-blowers were victimised by colleagues rather than by their employer and the employer was not vicariously liable for their actions because the employees themselves could not be personally liable.

Friday, 15 February 2013

ECHR Guidance on Religion and Belief

In January the European Court of Human Rights handed down its judgment in Eweida and ors v United Kingdom, which considered four combined cases about religious rights in the workplace. The Equality and Human Rights Commission (EHRC) has now published guidance to help employers understand the implications of the decision.


The judgment affects employer responsibilities for policies and practices protecting religion or belief rights in the workplace, the rights of employees (including job applicants) and the rights of customers.

Thursday, 31 January 2013


For personal injury claims of all types, including RTA and accidents at work, visit The Claim Group - a UK based compensation specialist .

For any issues with discrimination at work in Oxford or Aylesbury, visit Oxford Employment Law- Solicitors for Employers and Employees

Thursday, 17 January 2013

Those on JSA get full remission from fees

The Government has published a paper outlining the new fee regime being introduced in the Summer. Those on JSA and those who have very low incomes will be exempt. There have also been announced ways of paying the fees online.

Go to this release and click on 2 'Notes to Editors' for the full response and scroll to the bottom for more details.

Tuesday, 15 January 2013

CMD agenda template

This is a decent CMD agenda document adopted by at least 3 tribunals but still a useful guide for preparation if no agenda has been set in your case.


Based on Rules 10-13, 17 and 28
Employment Tribunals Rules of Procedure 2004

Employment Tribunals Rules of Procedure 2004

It will assist the conduct of the Case Management Discussion if each party or representative could complete this agenda, as far as possible and as relevant to the case. Send a completed copy to each other party and to the Tribunal in good time before the Case Management Discussion. An agreed agenda is particularly helpful.

1. Parties

Are the names of the parties correct?

Should any person be joined as a respondent or party?

Should any respondent be dismissed from the proceedings?

Is this claim part of a multiple claim?

Are there any claims that should be considered together or separately?

2. The claim and response

What are the complaints or jurisdictions raised in the claim?

Is there any application to amend the claim?

Is there any application to amend the response?

Is there any request for additional information?

Has a statutory questionnaire been served and/or replied to (discrimination cases only)?

Is leave to serve a statutory questionnaire sought? Why?

3. Remedy

If successful, what does the claimant seek by way of remedy?

What is the value of the claim?

Has a schedule of loss been prepared?

Date for service?

What mitigation of loss has occurred?

4. The issues

What are the issues or questions for the Tribunal to decide?

Are there any preliminary issues or jurisdictional issues?

Are there any issues under the Human Rights Act or EU Law?

Should the parties or their representatives prepare a schedule of issues (to be approved by the Tribunal)?


5. Preliminary hearings

Is a further case management discussion required? What agenda?
Time allocation? Dates?

Is a pre-hearing review required? What applications or issues?
Time allocation? Dates?

Is any other type of interim or preliminary hearing required?
What applications or issues?
Time allocation? Dates?

6. Documents and expert evidence

Have lists of documents been exchanged? Date for mutual exchange of lists?

Have documents been inspected or copies exchanged? Date for inspection or mutual exchange of copies?
for a preliminary hearing
for the Hearing

Who will be responsible for preparing
draft index of documents?
the hearing bundles?
Date for completion of this task?

Is this a case in which medical evidence is required?

Dates for
disclosure of medical records
agreeing any joint expert
agreeing any joint instructions
instructing any joint expert
any medical examination
producing any report
asking questions of any expert
making any concessions

Is this a case in which any other expert evidence is required? Relevant dates?

Are there any other disclosure requirements?

7. Witnesses

How many witnesses will each party call?

Who are those witnesses?

What is the relevance of their evidence?

Are any witness orders required?

Who are those witnesses?

What is the relevance of their evidence?

Should witness statements be prepared?

Should exchange be on the same date?

Dates for exchange?
for a preliminary hearing
for the Hearing

8. The hearing(s)

Time estimate for:
case management discussion
pre-hearing review
other preliminary hearing

Dates to avoid (with reasons)

Hearing dates for:
case management discussion
pre-hearing review
other preliminary hearing

Is there an application for a private hearing (rule 16)? Why?

Is there an application for a hearing (or part of one) via electronic communications (rule 15)? Why?

Is a restricting reporting order (rule 50) or register deletion order (rule 49) required? Why?

9. Other preparation

Should there be admissions?


Should there be agreed facts?


Should there be a chronology?


Should there be any other agreed document to aid the Tribunal? What?


Should there be written submissions or skeleton arguments?


Is reading time for the Tribunal required? Why?

Does a party require further guidance on any matter of preparation?

Are any reasonable adjustments required?

10. Judicial mediation

Is this a case that might be suitable for judicial mediation?

Are the parties interested in the possibility of judicial mediation?

If relevant, Judge to consider whether criteria for judicial mediation apply and then raise with the parties and record response. If necessary, give a direction for a response. Refer to REJ, if appropriate

11. Any other matters


Monday, 14 January 2013

A web designer I recommendation !

Dear all, one of the hardest things to do is to find a reliable web designer, who not only can create you a professional looking site but who also can promote it up the Google rankings, well I am duty bound to mention, Bristol based 'Sol Media' who have achieved both goals for me.  A huge thanks to them!