Employment Tribunal Fees

It's been a few weeks since the last update on where we are with employment tribunal fees, so here we go...

Last week, the Enterprise Minister, Matthew Hancock, hailed the 79% drop in employment tribunal claims as demonstrating the ending of the tribunal system from being "ruthlessly exploited by people seeking to make a fast buck" (see Telegraph article). His comments have attracted widespread criticism, such as in this blogpost.

Meanwhile, the well-known and well-respected policy advisor Richard Dunstan has proposed an alternative fees regime which would raise the same amount of money and not have the effective impact of removing enforcement of workplace rights.

EAT Judge Retirement

The Ministry of Justice has announced the retirement of HHJ William Birtles, who has sat as a judge of the Employment Appeal Tribunal since 2003.

The announcement is here. We wish him a very long and happy retirement, and thank him for his contribution to the development of employment law over the years.

TUPE: No consultation claim against transferee

Thanks to Jasvir Kaur of Squire Sanders for preparing this case summary Can employees bring a direct claim against a transferee for failure to provide information to a transferor? No, held the EAT in Allen v Morrisons Facilities Services Ltd. The EAT held that employees can only bring an action for failure to provide information under Reg 13 TUPE against their employer. The only method that they can seek compensation from the transferee is to bring a claim against the transferor for breaching Reg 13(2), who then gives notice to the transferee under Reg 15 and makes them a party to the proceedings. An order for compensation against the transferee will only be awarded if the employees can establish that the transferor is in breach of their Reg 13(2) obligations, and the transferor shows that it was not reasonably practicable for them to perform their duty because the transferee had failed to provide information to the transferor under Reg 13(4). As the case against the transferor had settled, the employees could not bring an action against the transferor, so the claim against the transferee failed.

Whistleblowing: The Manner of Complaining

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

When identifying the reason for subjecting an employee to detriment or dismissal, can a protected disclosure be separated from closely connected events?

Yes, held the EAT in Panayiotou v Kernaghan. Mr Panayiotou was a police officer. He made protected disclosures relating to other officers' treatment of victims. An investigation largely upheld his concerns.

Mr Panayiotou continued to campaign to make good the wrongs he'd identified and which, in his view, hadn't been rectified. This made him increasingly difficult and time-consuming to manage. In the end, he was dismissed, ostensibly on the basis that he had an incompatible outside business interest.

The tribunal were critical of the way Mr Panayiotou had been treated. They also concluded that the manner of his dismissal was a 'device', intended to avoid any outside challenge.

However, they also found that Mr Panayiotou's disclosures were not the reason for the mistreatment or his dismissal. They were caused by his campaign and his employer's escalating frustration. These events were related to, but distinct from, the disclosures themselves. Therefore, his claims failed.

The EAT upheld the employment tribunal's reasoning and conclusion.

EAT: Practice and Procedure - Remission of Cases

Thanks to Neil Addison of New Bailey Chambers for preparing this case summary

Is the EAT obliged to remit a case to an employment tribunal where there is an issue of fact to be decided?

Usually yes, unless the parties agree otherwise, held the Court of Appeal in Jafri v Lincoln College.

The case involved unfair dismissal. The employment tribunal made findings of fact which the EAT considered were unjustified; however, it did not remit the case back to the employment tribunal, stating that the employment tribunal would have reached the same conclusion anyway.

The Court of Appeal held that the EAT was not entitled as of right to resolve factual disagreements. However, Lord Justice Underhill and Sir Timothy Lloyd said this "with regret", noting that remitting cases prolongs cases and expense. They added that even where there was a factual dispute, "there is no reason why the EAT cannot still decide the issue if the parties agree; and in an appropriate case they should be strongly encouraged to do so".

As a result of this case, the EAT may encourage parties to agree that it should make a final decision in preference to remission back to the employment tribunal.

Interim Injunctions and Right to Work

Thanks to Lydia Banerjee for preparing this case summary.

Could the National Theatre be required by law to re-engage musicians in the production of the War Horse?

In December 2012 the National Theatre took the decision to cease using a live orchestra during productions of the War Horse, from March 2013 the musicians' roles were dramatically reduced and in March 2014 the National Theatre gave notice to the musicians to terminate their contract on grounds of redundancy.

The Claimant musicians sought an injunction to require the National Theatre to engage them to play their instruments in the production of War Horse.

Mr Justice Cranston refused the application for an interim mandatory injunction for the following reasons:
 

• it would amount to a breach of the Article 10 ECHR rights of the producers and artistic team
• having decided that the live orchestra did not add to the production there was a loss of confidence such that on ordinary principles specific performance was unlikely to be ordered at the final hearing
• the production had already been rehearsed without live musicians meaning the order would require reworking of the production
• damages would be an adequate remedy for the musicians but not for the producers and the National Theatre.

Ashworth & Ors v The Royal National Theatre [2014] EWHC 1176

Consultation and the implied term of trust and confidence

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

Can a simple employment law point be extracted from a gargantuan pensions judgment with 1597 paragraphs (plus 5 annexes)?

No, according to the judgment in IBM UK Holdings Ltd v Dalgleish. The judgment demonstrates that employers who hold themselves out as maintaining high ethical standards may find courts considering such statements in the context of the implied term of trust and confidence.

IBM wished to alter its pension arrangements: closing the defined benefit scheme (including freezing the pensionable salary of members of that scheme) and restricting early retirement.

The majority of the case is about the pension law implications. But Mr Justice Warren also considered whether IBM's failure to consult properly was a breach of the contractual term of trust and confidence.

He concluded that IBM's employees were entitled to expect consultation in accordance with IBM's statements of principle. There were expressed in virtuous terms: 'Never make misrepresentations...Honesty based on clear communication is integral...'

Mr Justice Warren concluded that IBM had failed to consult openly and transparently. Management mislead the members; failed to disclose their true motives and did not consult with an open mind. This, particularly in the context of IBM's statements of principle, was a breach of the implied term of trust and confidence.

Number of Tribunal Claims

Many are concerned about access to justice after the MOJ published statistics last month suggesting that there has been a 79% drop in the number of tribunal claims since fees were introduced (a statistic I find unlikely given union and insurance backed claims, plus claims from those who would be likely to bring claims irrespective of merits and cost-effectiveness, must surely have exceeded 21% of claims before July 2013).

The chair of the Employment Lawyers Association, Richard Fox, now reports that in one employment tribunal region, East London, they are experiencing something very different.  Read his blog for more details.

UK ban on secondary/sympathy strikes is lawful

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

Are the UK's restrictions on secondary industrial action (otherwise known as 'sympathy strikes') an unlawful interference with freedom of association under the European Convention on Human Rights?

No, holds the European Court of Human Rights, unanimously, in RMT v UK, but with differing reasons.

The case arose after the RMT abandoned secondary action at a rail contractor, Jarvis Rail Ltd, to protect members who had transferred from Jarvis to Hydrex Ltd, and ultimately agreed to new terms with Hydrex.

The unanimous decision of the Court was that there was no breach of Article 11 of the Convention, which guarantees the right to freedom of peaceful assembly and of association with others, by the UK laws restricting secondary industrial action.

The majority considered the Vienna Convention on the Interpretation of Treaties, interpreting the Convention in harmony with general principles of international law (para. 76), noting that secondary action was recognised and protected as part of trade union freedom under the International Labour Organisation Convention (ILO) no. 87 and the European Social Charter.

The majority noted that there was a broad margin of appreciation available to national legislatures in dealing with 'a secondary or accessory aspect of trade union activity" (para. 87) and "it cannot be said that the ban on secondary action struck at the very substance of the applicant's (RMT's) freedom of association" (para. 88). Overall, UK law struck a fair balance (para. 103). There was no unjustified interference with the RMT's right to freedom of association, and it was able, despite UK law, to exercise the essential elements of freedom of association in negotiating with the employer of its members and in organising a strike.

The majority of the ECHR did note that it had no competence to assess whether or not UK law complied with the ILO's charter or the European Social Charter.

There were two minority concurring judgments, with three judges jointly noting that secondary strikes were not necessarily or directly relevant to the rights or interests of those engaged in strike action, and one judge holding that Article 11 of the ECHR was not applicable to the case.

The ECHR threw out as inadmissible a challenge by the RMT to the UK's provisions on strike ballot notice provisions, noting that the RMT had complied with the UK's requirements and led a successful strike despite the procedural requirements of UK law. Readers may recall the Metrobus case.

Statutory Sick Pay no longer reclaimable from government

With effect from 6th April 2014, it is no longer possible for employers to reclaim statutory sick pay from the government.  See this statutory instrument.

Previously, employers could reclaim any amount of SSP which exceeded 13% of its national insurance contributions in the month.  The rationale for abolishing it is that it gave employers an incentive not to encourage long-term sick employees to return to the workplace.

The money saved (estimated at £50m a year) will be put towards the new Health & Work Service, due to start in 2015, which will help employees and employers put together plans to facilitate a return to work.  Here's a really good article on the new Health & Work Service.

Acas Early Conciliation Form

It's just gone midnight on 6th April. Early Conciliation is now available. And having arrived back from a very good dinner with friends in Shoreditch, I've discovered the Acas Early Conciliation Form has been published.  So has the Acas Early Conciliation website.

Three points spring to mind immediately as I type this:-

1.  It's not easy for Claimants to find.  It needs three (specific) clicks from the Acas home page, a lot of reading, and a lot of scrolling down the third page.

2.  It might be open to legal challenge.  The Regulations provide that the compulsory information required on the form is the Claimant and Respondent's name and address.  The actual Early Conciliation Form also requires Claimants to include both their telephone number and the Respondent's telephone number. The Form cannot be submitted online without that information.  That is arguably a barrier to completion not permitted by the legislation.

3.  Join this (£).  Seriously.

Bedtime.

Employment Tribunal Fees

It is being reported by the Law Society Gazette that, at a forum today, Jenny Willott MP (minister for employment relations and consumer affairs) said that the level of tribunal fees is being kept under review by the government.

She added that the regime is going to be subject to "a lot of parliamentary scrutiny", albeit no indication was given of what form any review would take.

Meanwhile, I am told that Unison are now seeking the Court of Appeal's permission to appeal the High Court's decision refusing their judicial review application over tribunal fees (Unison had previously announced their intention to appeal).

[Thanks to Caspar Glyn QC and Sarah Keogh, who respectively posted the information about the Law Society Article and the JR appeal on Twitter]

Acas Early Conciliation: Important Change

The Acas Early Conciliation rules come into force next week, on 6th April 2014 (they are optional for the first month, and become mandatory on 6th May 2014).  An amending statutory instrument has been published making an important change. The original statutory instrument provided that where there was more than one potential Respondent, the Claimant only needed to name one on the Early Conciliation Form.  An amending statutory instrument has just been published, now requiring a Claimant to submit a separate Early Conciliation Form for each Respondent (or, if notifying Acas by phone, identify each Respondent over the phone). I'm running a telephone seminar on Wednesday, 9th April which will explain exactly how Acas Early Conciliation works, including:-   how to register a claim with Acas the new role of 'Early Conciliation Support Officer' Claimants and Respondents who don't cooperate what happens if conciliation succeeds what happens if conciliation fails extensions of limitation periods - the pitfalls what if Acas doesn't receive the Early Conciliation form? problem areas More information and registration details (£75+VAT).