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.