Tribunal Fees Order Made

Just a quickie.

The 'made' version of The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 is now available.

Judicial Proceedings Immunity

Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary

Is the improper action of placing undue pressure on a witness to produce a witness statement during proceedings subject to judicial proceedings immunity?

No, says the Court of Appeal in Singh v Morlands Primary School.

Whilst still employed, the Ms Singh brought a discrimination claim against her employer. Upon exchange of witness statements, she resigned claiming that the School had forced a particular witness to provide a statement of 'untruths', which she said amounted to a breach of trust and confidence.
 
In finding that Ms Singh could rely on such conduct in bringing her constructive dismissal claim, the Court of Appeal distinguished false evidence given in a witness statement, which is the subject of judicial proceedings immunity, from placing undue pressure on a witness to produce the witness statement, which is not. The latter conduct could give rise to a breach of trust and confidence, although the former could not.

Settlement did not require formal contract

Thanks to Michael Reed, Employment Legal Officer at the Free Representation Unit for preparing this case summary

Is an exchange of letters, without a detailed agreement, sufficient to settle a claim? It was in Newbury v Sun Microsystems, concluded the High Court.

Sun's solicitors wrote to Mr Newbury, offering to compromise his claim for £601,464.98, paid within 14 days. Mr Newbury's solicitors replied, accepting these terms, but that they would 'forward a draft agreement for your approval'.

The parties attempts to agree that draft floundered.

Mr Newbury then argued that a binding agreement had already been reached.

Analysing the wording of the letters, Lewis J agreed. The offer was detailed enough to be capable of acceptance and it had been accepted.

This case highlights the importance of clarity in the closing phase of negotiation. Parties wishing to agree a figure, but negotiate on other matters, must be careful. As Lewis J commented, the phrase 'Subject to contract' may be signficant.

Update on Tribunal Fees

A brief update on today's events involving tribunal fees.

1.   Fees (apparently) came into force for claims issued on or after today.  I say 'apparently' because nobody in the employment law community has yet seen the 'made' version of theEmployment Tribunals and Employment Appeal Tribunal Fees Order 2013.  I will distribute the link to the 'made' version as soon as it is available.

2.  On Friday afternoon, I sent out a bulletin announcing the publication of the Presidential Practice Direction on Issuing Claims for England and Wales and, separately (to people in Scotland only), one with the link to the equivalent Practice Direction for Scotland.  For those who did not receive that second email but who deal with claims in Scotland, this paragraph duly distributes the link.

3.  Unison's judicial review of the fee regime had its oral permission application in the High Court this morning.  Permission has been granted to proceed with the judicial review application, and there is a full hearing listed for October.  Unison's application for an interim injunction was refused.

4.  The MoJ have confirmed that Equal Pay claims currently fall under fee category 'A', not 'B' (and say amending legislation is likely to be put through in the future)

5.  I understand from comments on twitter and various emails I have received that the 'new' ET3 form has not been working today and has been taken down by the Courts & Tribunals Service (I can't find the online version when looking now, but the paper version you can print off and post ishere).

6.  The Department for Business, Innovation and Skills have told me that my bulletin last Friday (saying that the 'new' forms must be used or an ET1/ET3 will be rejected) is wrong because the 'old' forms have not yet been de-prescribed and thus are still valid (see BIS email).  Apologies for the error.

Presidential Practice Direction on Issuing Claims

The Presidential Practice Direction on Issuing Claims has been published.  It applies to England and Wales only.

It sets out the methods of issuing claims from Monday, 29th July, namely:-

• online (the preferred method)
• by post to the Leicester processing centre
• by hand to any of the following tribunal offices (but not other tribunals, and only between 9am and 4pm Mon-Fri): all four London tribunals, Birmingham, Huntingdon, Leeds, Newcastle, Nottingham, Manchester, Bristol, Cardiff.

Presumably there will be a similar Practice Direction for Scotland, but I haven't seen it yet.

New ET1 and ET3 Forms Published

The new ET1 and ET3 forms have been published, to be used from Monday 29th July 2013. 

The existing forms will be invalid from that date, and any ET1/ET3 submitted on the existing form will be rejected.

Company entitled to disclosure of documents from former CEO's home computer

Thanks to Caroline Field of Fox for preparing this case summary.

NOTE:  Five final places released for London Employment Law MasterClassthis coming Monday - booking closes 3pm today.

Can a company require its former CEO to provide inspection and copies of emails sent and received by him while acting on the company’s behalf which were stored on his personal computer following termination of the agreement for the provision of his services?

Yes, said the Court of Appeal in the case of Fairstar Heavy Transport NV (Fairstar) v Adkins and anor. Mr Adkins provided his services as CEO through a company controlled by him and registered in Jersey. Fairstar is based in the Netherlands. The written contract between Fairstar and the Jersey entity is governed by Dutch law and the Dutch Courts have exclusive jurisdiction.

The Court of Appeal criticised the High Court for delving into issues regarding the proprietary rights (if any) of the parties to the emails and the information contained in them. The appeal was allowed on the basis that a principal is entitled to require production by an agent of documents relating to the affairs of the principal. "Documents" in this context included information recorded, held or stored by other means than paper. No submissions were made as to whether the information contained in the documents was confidential. Neither party took issue with the English court's jurisdiction to hear the claim, which concerned emails stored on Mr Adkin’s personal computer in England.

The case highlights a tool which may be useful where there is no employment contract in place requiring an employee’s delivery up of the employer’s documents on termination of employment and where former employees have retained documentation prepared while acting on behalf of their employer which may not constitute confidential information capable of protection following termination of employment.

Tribunal Fees: An Update

This email contains important updates about the tribunal fee regime, which begins on Monday 29th July 2013.

1.  The Ministry of Justice has, this afternoon, issued various leaflets.  They are Employment Tribunal Fees for Individuals, Employment Tribunal Fees for Groups and Multiples, Employment Appeal Tribunal Fees, ET and EAT Fees: Do I have to pay them? and Stakeholder Factsheet.

2.  Unison's application for judicial review of the fees regime has been refused on paper, presumably on the grounds it has no reasonable prospect of success. It has requested an oral hearing for permission, which is listed to be heard at 10am on Monday.  A representative from Unison is attending my London Employment Law MasterClass on Monday to announce and discuss the result from the podium.

3.  Fox & Partners' judicial review in Scotland is (probably) going to be heard in October, and the government has undertaken to refund all fees paid if the JR is ultimately successful.  The MOJ's information sheet has been updated to reflect this undertaking.

4.  Tomorrow (Thursday), at 11am and 2pm, I am holding a free 45 minute telephone seminarwhen I'll be discussing the new tribunal fee regime (and at which I'll also be telling you a little about my MasterClasses).  Places are limited to 1,000 people on each call - if you haven't already signed up, claim your free place here.  Calls are at national rates (4.3p per minute from a BT line)

5.  A reminder: the website for submitting ET1 forms online will be taken offline at 4pm on Friday.  Get your online applications in before then to avoid fees.

6.  The new ET1 and ET3 forms, which must be used after 29th July 2013, are not yet available. They will be published on Monday morning online.

Vulnerable Witnesses – Tribunal Procedures and Case Management

Thanks to Keira Gore of Outer Temple Chambers for preparing this case summary

Can a Claimant in a sexual harassment case succeed where the Respondent has not had an opportunity to cross-examine them about their allegations?

Possibly, but only if the employment tribunal considers carefully what procedures it should adopt to ensure a fair and just substantive hearing, according to the Court of Appeal in Duffy v George.

This case – involving a Claimant bringing a sexual harassment case who said she was too frightened to attend a hearing and be cross-examined by a Respondent who was acting in person – sets out useful guidance for how employment tribunals should deal with vulnerable witnesses.

The Court of Appeal, in allowing the appeal and remitting the case, reminded tribunals that they have a wide discretion when it comes to designing fair procedures for substantive hearings (although this discretion must be exercised judicially). Procedures for handling vulnerable witnesses could include, for example, (1) separate hearings, where each party gives evidence to the tribunal in the absence of each other, (2) each party submitting ‘cross examination’ questions to the tribunal, for the tribunal to put to the other party, and (3) witnesses giving evidence to the tribunal behind screens, as happens in the criminal courts.

Employee Shareholders - Commencement Date

Regulation 2 of The Growth and Infrastructure Act 2013 (Commencement No. 3 and Savings) Order 2013 has been made, providing that the new section 205A of the Employment Rights Act 1996 on employee shareholders comes into force on 1st September 2013.

This section creates a new type of employment status, whereby employees give a bundle of employment rights (most importantly, most unfair dismissal claims and statutory redundancy payments) in exchange for an award of shares worth at least £2,000.  There are several safeguards, including a right to a statement detailing the shares, an requirement for the employee to take legal advice, and a 7-day cooling off period.

The law is complex and important, and has been one of the most vibrant topics in my MasterClasses over the last two weeks (seethis week's testimonials).  Just London and Manchester to go now (more details).

Sickness Absence and Holiday Pay

Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary

Can additional annual leave be carried forward in the absence of an agreement between the parties?

The EAT in Sood Enterprises v Healy said that it cannot.

Mr Healy was off work sick for a year and a half when he resigned. The EAT held that unlike 'ordinary' annual leave, provided for by Regulation 13 Working Time Regulations 1998, additional annual leave, provided for by Regulations 13A Working Time Regulations, cannot be carried over unless there is an agreement in place between the parties, which there was not.

In other words, when an individual is on long-term sick leave, only four weeks' annual leave carries over automatically - and not the additional 1.6 weeks granted by UK law which exceeds the European minimum of four weeks' annual leave.

Important: Starting Claims before new Fee Regime

The new employment tribunal fees regime arrives in a week, on Monday, 29th July 2013.

If you are planning to issue any Claim Forms before then, in order to avoid your client(s) paying fees, the Ministry of Justice has announced the latest time it will accept online submission of Claim Forms is 4pm on Friday, 26th July.  You will not be able to issue claims online over the weekend.

The new ET1 claim form will go live next Monday.  It is not yet known what it looks like, or what information it requires.

See here for the MOJ's information on the above.  And if you need to know anything about fees, or the myriad of other employment changes, come to this (but only if you can get to London or Manchester - the other venues have been and gone).

(and well done to the eagle-eyed Stefania Falford from Lennons, who spotted this and posted iton Twitter).

CJEU Decision in Alemo-Herron v Parkwood

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.

In Alemo-Herron v Parkwood Leisure Ltd the European Court has delivered its long awaited judgment in the litigation concerning whether clauses in employment contracts which oblige an employer to follow determinations of a third party (such as a national negotiating body) in setting pay are binding on a transferee employer.

In British law, the answer was originally that such clauses are dynamic in nature, thus transferring to the new employer under TUPE even if the new employer has no say in the national bargaining arrangements. In the case of Werhof [2006] ECR 1-2397 the European Court held, however, that such clauses are static in nature, thus obliging the new employer to follow only the current collective agreement affecting pay and conditions and not future determinations by a third party when the employer is not a party to the negotiations.

In this case, a public sector to private sector transfer (the contracting out of Lewisham Council's leisure services), it was argued that the dynamic interpretation was permissible under British law even if not permitted under European law, under the principle that a Member State may, it its domestic law, grant rights more favourable than contained in European law.

The European Court disagreed.

This was because a dynamic clause referring to collective agreements undermines the balance between the interests of the transferee in its capacity as employer, on the one hand, and those of the employees, on the other. Under Article 16 of the Charter of Fundamental Rights of the European Union, an employer must have the right to conduct a business and assert its interests effectively in a contractual process to which it is party. This allows it to negotiate the process of determining changes in the working conditions of its employees with a view to its future economic activity.

A dynamic interpretation was therefore inconsistent with the Charter. As such, Member States are not permitted to allow dynamic clauses referring to collective agreements negotiated and adopted after the date of transfer where the transferee does not have the opportunity of participating in the negotiating process by which such a collective agreement was concluded.

PI Claim for Manner of Dismissal / Johnson Exclusion Zone

Thanks to David Campion of Garden Court North Chambers, for preparing this case summary

Was it correct to strike out a personal injury claim, arising from an employee's removal from work premises, as the claim fell within the Johnson v Unisys / Eastwood v Magnox exclusion area? 

Not where the removal from work may have taken place some weeks prior to dismissal, says the Court of Appeal in Monk v Essex County Council.

On 10th July 2008, the Claimant, a primary school administrative assistant was asked to leave school premises immediately. The Claimant alleged, in a High Court claim for personal injury, that she felt humiliated at her public removal and as a result suffered a psychiatric injury.

The Claimant's claim stated her dismissal occurred on 10th July, however the Claimant later argued that she was dismissed on 31st August, as she was paid until this date. Considering dismissal occurred on 10th July, the High Court struck out the claim as it fell within the Johnson v Unisys exclusion area.

The Court of Appeal confirmed that the Johnson exclusion area prevents the pursuance of common law claims, such as personal injury actions, which are caused by an employee's dismissal or the manner of dismissal, but not claims which are independent of dismissal.

Although not reaching a firm conclusion as to the date of dismissal, Moore-Bick LJ stated that if the Claimant had been dismissed on 10th July, her removal on that day was probably too closely related to dismissal to escape the Johnson exclusion area, whereas if she had been dismissed on 31st August, it would be difficult to argue her removal on 10th July was sufficiently closely related to dismissal to be excluded. Interestingly, Underhill LJ opined that even if the Claimant had been dismissed on 10th July, the Claimant's removal from work might still be regarded as independent of dismissal and not fall within the exclusion area.

The decision to strike out the claim was overturned and the Claimant was allowed to amend her claim to argue that she was dismissed on 31st August.

Confidential Information

Thanks to Vanessa Latham of Berrymans Lace Mawer for preparing this case summary.

This is a good example of an employer being granted injunctive relief where its former employees have gone into competition with it, having taken steps to compete with the employer whilst they were still employees.

In Whitmar Publications v Gamage, three employees had worked for the Claimant, a publisher, for a number of years. In January 2013, they resigned from their employment in order to go into competition with their employer. This was an urgent application for injunctive relief, and the court was able only to make a preliminary assessment of the weight of the evidence, but concluded that "there was a strong case" that the Defendants were taking steps to compete against their employer prior to their resignation, and that the steps they took were not just preparatory, but were active steps to compete.

"One of the badges of competitions in cases such as this", said the judge, "is the secrecy with which those who are competing go about their business". In one email, for example, the Defendants emphasised that all traces of their illicit plot should destroyed. On that basis, the Claimant had a "very good chance" of succeeding at trial, and the injunctive relief was granted.

Amendments to the EAT Rules

Thanks to Claire Darwin of Matrix Chambers for preparing this case summary.

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.

There are 4 key changes and 1 key omission:

1. The removal of the right (pursuant to rule 3(8) of the old EAT rules) to submit a fresh Notice of Appeal within 28 days of the original Notice of Appeal being rejected by an EAT Judge (at the 'sift stage') on the grounds that the appeal does not have reasonable prospects of success.

2. 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.

3. A similar amendment in respect of cross-appeals, again if an EAT Judge considers that the statement of grounds of cross-appeal is "totally without merit".

Given that the law reports are full of appeal cases which, although ultimately successful, were initially rejected at the sift stage by an EAT Judge, the above three amendments are deeply troubling.

4. A new mechanism for challenging a decision by a Registrar to strike out your appeal on the basis that you haven't paid your EAT fee, when in fact you have paid it but the new "centralised processing facility" hasn't informed the EAT that you've paid it, or has lost your file etc. Appellants will be able to apply endlessly (there is no time bar or restriction on the number of times you can apply) to a Registrar to have their appeal reinstated pursuant to the new rule 17A(2).

5. However, whilst the new rule 34A(2A) provides that the EAT can order a Respondent to a successful appeal to reimburse the Appellant in respect of the EAT fees, the rules do not provide for a situation in which it is not the parties fault that they are in the EAT, but the fault of the Employment Tribunals Service because the parties had a dud Employment Tribunal. In these cases, the parties will simply have to try and recover their wasted costs and fees directly from the Ministry of Justice.

Presumably the EAT will amend the 2008 Practice Direction in the near future, so that it is consistent with the amended Rules.

Tribunal Fees: MOJ Factsheet

The Ministry of Justice has published its Employment Tribunal and Employment Appeal Tribunal Fees Stakeholder Factsheet, which summarises the new employment tribunal fees regime coming into force on 29th July 2013.  For a reminder of the current status of the judicial review challenges to the fees regime, click here.

For a thorough discussion of the new fees regime (amongst all the other big employment law changes of 2013), come to myEmployment Law MasterClass.  We're in Birmingham tomorrow and Cardiff on Thursday; then just London and Manchester to go.

Latest Employment Law Reform Announcements

Jo Swinson, the Parliamentary Under-Secretary of State for Employment Relations and Consumer Affairs, has issued a written ministerial statement announcing the following:- changing the cap on the unfair dismissal award to the lower of £74,200 or one year's pay with effect from 29 July 2013 (we knew this was happening sometime this month, but now the commencement date is confirmed). publication of the government's response to consultation over how Acas Early Conciliation will work.   a call for evidence on the framework of whistleblowing laws (this is separate from the whistleblowing reforms which came in on 25th June). Keep up to date with all these developments at myMasterClasses.  I'll be in Birmingham and Cardiff this week, followed by Manchester and London shortly.

Tribunal Fees - Further Update

Further to yesterday's emails on tribunal fees, here is a fuller update.

The (Scottish) Court of Session declined to grant an interim interdict, given the Lord Chancellor's undertaking that any tribunal fees paid after 29th July will be repaid if, at a full hearing in (probably) October, the Court decides the fees regime is unlawful.

This is welcome, but does not help those who will choose not to lodge tribunal claims between 29th July and the Court of Session hearing because they cannot afford the feeds.

Meanwhile, also yesterday, the judge in the (English) Unison JR case agreed to expedite the judicial review hearing.  It is understand a decision will be issued on whether permission is granted next week (and permission seems highly likely).  If permission is granted, then "consideration may be given to deferring implementation of the new fees regime" (according to the Unison press release).

Back to the Court of Session: the Lord Chancellor has conceded that a ruling by the Court of Session will bind the whole of the UK, not just Scotland.  Further, the government made three concessions in open court:-

• only one fee is due for multiple appeals in the EAT (the drafting of the Fees order suggests one fee per Appellant)
   
• preliminary hearings will not warrant any hearing fee
   
• Equal Pay claims fall into 'Type A' claims (triggering the lower fee level) - a drafting error which will need legislation to correct.

We had the QC from the Court of Session come along and talk to us, straight after the judgment, at yesterday's MasterClass in Edinburgh (see photos).  Next week's MasterClasses take place in Birmingham and Cardiff, followed afterwards by Manchester and London.

Tribunal Fees: JR Update

More details are now in of this morning's Judicial Review hearing in the Court of Session.

The Judge refused to grant an interim interdict, based upon the balance of convenience, given

• his view there was a strong prima facie case to go to a full hearing, coupled with
• an undertaking from the Lord Chancellor to the effect that any fees paid after 29th July will be refunded (with interest) if the fee regime is held to be unlawful.

A further hearing will be held later this year.

Costs of the hearing were awarded to Fox Solicitors, who brought the judicial review application.

Newsflash

The Court of Session has refused to grant an interim interdict (injunction) prohibiting employment tribunal fees.  In the absence of an appeal, or the English courts taking a different approach in the judicial review application brought by UNISON, fees will be coming in as expected on 29th July 2013.

More details will become available during the day. I'm on the podium at my MasterClass in Edinburgh (feeling a bit like a reporter saying 'reporting live from the scene'!).  We'll tweet updates as soon as they come in using hashtag #emplawmasterclass.

Right to be Accompanied

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

If a worker ‘reasonably’ requests to be accompanied by a companion at a disciplinary or grievance hearing under s.10 Employment Relations Act 1999, does the request for a particular companion have to be ‘reasonable’?

No, says the EAT in Toal v GB Oils Ltd.

At a grievance hearing the employer refused the Claimant his choice of companion, a Trade Union official. A substitute official accompanied the Claimant. The Employment Tribunal held that the Claimant had waived the breach of his right to be accompanied by choosing another companion.

The EAT rejected this approach: by choosing another companion, the Claimant did not waive the right to be accompanied. The right to a companion is limited only to the categories set out in s.10(3) Employment Relations Act 1999, and within that may be whoever the worker wishes. The EAT rejected the guidance at paragraph 36 of the relevant ACAS Code of Practice relating to the ‘reasonableness’ of the choice of companion as creating problems of its own.

The EAT remitted the matter to the same employment tribunal for compensation to be assessed, noting that the statute provided for compensation linked to the loss or detriment suffered by the worker, and it was not a penal provision. If there was no loss or detriment, only nominal compensation in the traditional sum of 40 shillings (£2 in new money) or a sum ‘of that order’ should be ordered (para 33).

Conflict of Protected Characteristics

Thanks to Bonike Erinle of Farrar’s Building for preparing this case summary

Is a Christian hotelier's decision to restrict the offer of double bedrooms in a small, family-run bed and breakfast to married couples unlawful?

Yes, as this is a form of both direct and indirect discrimination, says the Court of Appeal in Black & anor v Wilkinson.

The Defendant refused to allow a homosexual couple who were not in a civil partnership to stay in her bed and breakfast, on the basis that her religious beliefs would only tolerate the sharing of double bedrooms by monogamous heterosexual married couples.

The Master of the Rolls considered:

• the county court was right to conclude that this was a case of direct discrimination.
   
• if not, it would still have been one of indirect discrimination, as the Defendant's policy put homosexual couples at a disadvantage on the ground of their sexual orientation when compared with heterosexual couples.
   
• the Defendant would not have been able to justify her treatment of homosexual couples by reference to her right to manifest religious beliefs, and to enjoyment of her home, as the proportionality exercise would have swayed in the Claimants' favour: (i) priority is only given to religious beliefs in certain narrowly circumscribed circumstances; (ii) the Defendant had failed to show that she would suffer serious damage if she were not to be allowed to refuse rooms to homosexual couples.

Confidential Pre-Termination Negotiations: Commencement Date

Confidential pre-termination negotiations, contained in s14 of theEnterprise and Regulatory Reform Act 2013, are coming into force on 29th July (see commencement order).

Also coming into force on 29th July is the re-naming of 'compromise agreements' as 'settlement agreements' (and well done to Zandau Laffart Weir solicitors for snaffling the website).

Confidential pre-termination negotiations are important.  They are a new, complex, statutory framework which will allow certain discussions to be kept confidential from a tribunal in most unfair dismissal cases.  If you want to know a little more, here is asample of the slides I'll be using at the Employment Law MasterClasses this month.

TUPE Consultation Response Delayed

Readers of this bulletin will know the government consulted on TUPE reform earlier this year. 

A response, along with draft Regulations to amend TUPE, was expected this week.  However, it is being reported that the Employment Minister, Jo Swinson, announced yesterday that BIS's response to the consultation (and the draft Regs) is unlikely to be published before September.  Query whether the government is still aiming for the proposed October implementation date...

Tribunal Fees: Judicial Review Update

As reported yesterday, the Court of Session in Scotland held an initial hearing this morning on a judicial review application challenging the legality of tribunal fees (due to come into force 29th July 2013).

The Court has expedited the full hearing, which will be heardTuesday and Wednesday next week.

The issues in the Scottish Judicial Review are understood to be slightly wider than those in the English Judicial Review.  In Scotland, the argument on the principle of equivalence appears stronger, because fees for lodging claims in the Sheriff Court are modest (about £87 issue fee, £207 per day hearing fee).  Thus the cost of a one day hearing in the Sheriff Court is under £300, compared with a £1,200 fee for a one-day discrimination claim in the tribunal if the fee regime is introduced.

We will keep you informed.  And if you're coming to myMasterClass in Edinburgh next Thursday, Fox and Partners (who have lodged the judicial review application) have agreed to join me on the podium and explain the grounds of the judicial review application and how the previous two days' hearing went.