Employment Tribunal Fees

The Supreme Court has, this morning, granted permission to Unison to appeal the Court of Appeal's decision rejecting Unison's judicial review of the employment tribunal fee regime.

Tribunals' Annual Report

The Senior President of the Tribunals has published his Annual Report.

The following points are relevant to employment practitioners:-
 

• last year was the 50th anniversary of the establishment of employment tribunals;
• at pages 97-100 of the report, there is a very good summary of the interesting cases of the year;
• employment tribunals lost a number of salaried employment judges through retirement, but there was no recruitment of salaried or fee-paid judges to replace them, leading to a reduction in judicial numbers
• the number of EAT appeals last year was about 45% of those pre-fees (July 2013)
• a drop in the last six years from 60% of EAT litigants being professionally represented, to just 40% being professionally represented
• various options arising from devolution of the Scottish employment tribunal system are set out.

Holiday Pay: Full Lock Decision available

Thanks to Karen Jackson of didlaw for preparing this case summary

Can domestic legislation be interpreted in a way which conforms to EU law on holiday pay?

Yes, held the EAT in Lock v British Gas, upholding the submissions of UNISON legal who represented Mr Lock.

Domestic legislation is contained in the Working Time Regulations 1998 ('WTR') and sections 221-224 of the Employment Rights Act 1996. European Union law is contained in Council Directive 2003/88/EC, the Working Time Directive.

The right to paid leave is a pillar of EU social law from which there can be no derogation.

Mr Lock was paid basic salary and results-based commission but only basic pay during leave. A reference was made to the CJEU. An employment tribunal held that results-based commission must be included when calculating holiday pay and that it was possible to read words into the WTR. British Gas appealed.

The EAT dismissed the appeal. It is permissible - and indeed necessary - to imply words into the WTR to comply with EU law. Parliament's intention must have been to comply with EU law. Following Bear Scotland (concerning guaranteed overtime), the EAT saw no reason to depart from the reasoning of Langstaff J. The EAT considered a number of other authorities including the Court of Appeal decisions in Bamsey and Evans but concluded that Bear is correct. The EAT is not bound by its own previous decisions but they are persuasive and may only be departed from if manifestly wrong or in other exceptional circumstances. Such departure could not be justified.

Employment Tribunal Postponements

Thanks to Naomi Cunningham of Outer Temple Chambers

In January 2015, the Government published a consultation on proposed amendments to the Employment Tribunal Rules of Procedure to do the following:

- limit the number of postponements to hearings that may be allowed to two per party, save in exceptional circumstances (or where the other party is at fault, or both parties want the case postponed in order to facilitate settlement negotiations);

- require applications for postponement to be made at least 7 days before the hearing, save in exceptional circumstances;

- oblige the employment tribunal to consider a costs or preparation time order where an application is made less than 7 days before the hearing.

This was a non-solution to a non-problem. The nearest the consultation came to identifying any evidence that multiple postponements are a causing serious difficulties in the employment tribunal system is a vague assertion that ‘stakeholders’ have ‘voiced concerns’ about the time proceedings can take. Proceedings can take too long, for various reasons. But employment tribunals are already required to exercise their general case management powers in accordance with the overriding objective, which includes avoiding delay. Nothing in the Government response explains how - or even whether - employment tribunals are thought to be getting the balance wrong at present, or how the proposed amendments will improve matters.

Thirty-three organisations and individuals responded to the consultation, most opposed to the changes, and many of them pointing out that the employment tribunals’ case management powers were already adequate to the task of granting postponements when they were necessary, refusing them when they were not, and awarding costs against parties whose unreasonable conduct gave rise to a need to postpone.

In its response published on 15 February 2016, the Government announced its intention to press ahead anyway, in the terms proposed in the consultation.

Appeal documents cannot be lodged using Dropbox link

Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary

Can a notice of appeal to the EAT be lodged by sending a link to a Dropbox document?

No, held the EAT in Majekodunmi v City Facilities Management, in a case calculated to charm aficionados of the Postal Rule and its many variants.

The Claimant’s employment tribunal claim had been struck out, and he sought to appeal. On the penultimate day of the 42 day time for appealing, his representative emailed the grounds of appeal and some of the mandatory supporting documents to the EAT. On the last day, instead of sending the remaining documents as attachments to one or more emails, as directed in the relevant EAT guidance (set out in leaflet T440), she sent a link to a zip file on Dropbox.

HHJ Eady agreed with the Registrar that the appeal had not been validly lodged within the 42-day period. The difference between an email attachment and a Dropbox link was clear. In one case, the EAT would have possession of the attachment as soon as it had collected the email - even if it then lost its internet connection. In the other, someone would need to follow the link to an external location and save a copy of the document before the EAT would have possession of it.

Reasonableness of Lay-Off Period

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

Is an express power to lay off subject to an implied term of reasonableness?

No, held the EAT in Craig v Bob Lindfield & Sons.

Mr Craig's employment contract allowed for lay off and short-term working for an indefinite period, without pay. After four weeks lay off without pay, he resigned and claimed that he had been constructively dismissed because the lay off had gone on for longer than a reasonable period.

An employment tribunal followed the decision of Kenneth MacRae v Dawson [1984] IRLR 5 (preferring it over the earlier decision of A Dakri & Co Ltd v Tiffen [1981] ICR 256 to the contrary) and held that there was no term to be implied as to reasonableness so far as the length of lay off was concerned, but that if there had been, the period was not unreasonable in all the circumstances of the case. As there was no repudiatory breach of contract, there was no constructive dismissal.

The EAT (Langstaff P presiding) dismissed the appeal, ruling that there was no implied term as contended for. Dawson should be followed unless obviously wrong, and, since it was later in time, and had expressly considered Tiffin, it was in any event to be preferred.

Langstaff P firmly stated that a contract remains a wage/work bargain. If that bargain provides that there are some circumstances in which no money will be paid, no work done, or both, then the failure of the employer to pay in those circumstances will not be a breach of contract. Further, Parliament had provided a scheme for balancing the rights and interests of employer and employee on those occasions where both were adversely affected by a downturn in business. The Employment Rights Act 1996, s148 provides for a period of lay off or short time working (LOST) during which there is no entitlement to claim a redundancy payment. But, after the period of LOST prescribed by ERA s148(2), an employee can serve a notice claiming a payment. For this additional reason this left no room for the implied term in the employment contract advanced by Mr Craig.

Langstaff P did not rule out (see para 46) a constructive dismissal claim based on the employer's breach of the duty of trust and confidence (for example if the employer's desire to maximize profits resulted in behaviour calculated to damage or destroy the relationship of trust and confidence). But this did not arise in the present case.

Important: Gender Pay Reporting

The Government has published the draft The Equality Act (Gender Pay Gap Information) Regulations 2016.

Now intended to come into force in October 2016 (with the first reports to be published in April 2017), the draft Regulations set out the framework for the new gender pay reporting requirements.  Employers will be required to publish mean and median pay information gleaned from the whole workforce.  They must also publish how many men and women appear in each quartile of pay in the workforce.

The full pay report information must be published on the employer's website every year, and left there for at least three years, and must also upload the information to the Government.  The Government's initial intent is for employers who do not comply to be 'named and shamed', and will review whether civil or criminal penalties for non-compliance should be introduced in due course.

The draft Regulations are open for consultation until 11 March 2016.

View all documents from the Government Equalities Office.

TUPE

Who hates TUPE? Raise your hand now…

In Mustafa v Trek Highway Services, the Employment Appeal Tribunal has ruled on an appeal which was - essentially - a case turning on its own facts.

But it’s a good decision to read if you’re a TUPEphile or suffer from TUPEphobia, as it reviews many well-established TUPE principles in an easy-to-understand way.

Apprenticeship Levy

The Government has published the draft legislation introducing the apprenticeship levy, expected to come into force in April 2017.

The levy is on UK employers to fund new apprenticeships. The levy will be charged at a rate of 0.5% of an employer’s paybill. Each employer will receive an allowance of £15,000 to offset against their levy payment - meaning it won't be payable by employers with a payroll under £3 million.

Spotted the year it's coming in? 2017. So I won't be talking about it at the Employment Law MasterClass 2016. But I will be covering some excellent stuff that you need to know about for this year.
 

Disability Discrimination: Meaning of 'Day to Day' Activities

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

Are 'warehouse operations', such as manually lifting and moving cases of up to 25 kg, 'normal day-to-day activities' for the purposes of disability under the Equality Act 2010?

Yes, held the EAT overturning an employment tribunal's decision in Banaszczyk v Booker.

The Claimant, a picker in a distribution centre, had been found not to be disabled at a preliminary hearing. The Employment Judge, having accepted medical evidence regarding the Claimant's long-term back condition, considered that it did not have a substantial adverse effect on his carrying out 'normal day-to-day activities' as its impact was limited to manual lifting of items of up to 25kg at work, which the Employment Judge regarded as not being a 'normal day-to-day' activity.

The EAT disagreed, noting that the scope of 'normal day-to-day activities' extended to warehouse work (and work generally). So, on the evidence accepted by the employment tribunal, the only conclusion was that the Claimant was a disabled person.

The EAT cautioned against regarding a work rate, such as a warehouse 'pick rate', as an impaired activity, e.g. a target of moving 210 cases per hour, but rather to look at the impairment of the activity itself, e.g. the lifting and moving of cases.

Whistleblowing - Prescribed People

A qualifying disclosure will normally be protected, for whistleblowing purposes, if made to the employer. It will also be protected if made to a 'prescribed person' and is within their remit, and if the information disclosed within it is substantially true.

The Government has updated its list of prescribed persons, to whom a protected disclosure can be made.