Claim and Response Forms

I have been in correspondence with the Employment Tribunals Service over precisely which Claim and Response Forms are 'prescribed' for use in tribunals. I am receiving dozens of Emails on this topic and I understand the ETS are likewise receiving many similar queries. Hopefully this bulletin will help clear the air.

Has anything been prescribed?
No statutory instrument has been issued - a matter which has caused a lot of queries. However, there is no requirement under the rules for the prescribed forms to be issued by way of Regulation.

The ETS made a formal submission to Gerry Sutcliffe, Minister for Employment, on 19th September 2005. This contained proposals for exactly what versions of the forms should be used from 1st October 2005.
Gerry Sutcliffe approved the submissions (and thereby prescribed the forms) on 22nd September 2005.

What forms have been prescribed?
The following paper forms have been prescribed:

• the version of the Claim Form which was available from 1 October 2004 (coloured purple);
• OCR compatible versions of the Claim and Response Forms issued in March and September 2005 (coloured aqua);
• Welsh Language versions of the OCR compatible versions issued in September 2005;
• large print versions of the OCR compatible versions issued in September 2005.

In addition, the electronic / pdf versions available from the Employment Tribunals website (submitted either via the website or by Email) are prescribed for use.

Employment Tribunals Service website

Very Important Bulletin

The downloadable .pdf Claim and Response Forms on the ETS website are not in the prescribed form

As readers will know, tribunals are now rejecting Claim and Response Forms that are not the 'official' versions. These include in-house computer forms and forms by commercial organisations such as Laserform.

I have just been told (and checked - it's right!!) that some downloadable .pdf versions of the Claim and Response Forms that are on the ETS website are the old forms which are not valid.

To get the correct forms go to the ETS website at
http://www.employmenttribunals.gov.uk.

Click "Publications" at the top of the page.

The links to the correct forms appear in the main text on that page.

The incorrect forms appear if, instead, you click 'Download' on the left-hand side (rather than 'Publications' at the top) of the ETS homepage. The forms that are then offered for downloading are the old, incorrect forms. The Claim Form does not contain box 11 (disability discrimination claims) or box 13 (mutliple cases), and the Response Form does not contain boxes 1.5 to 1.8

DO NOT USE THESE VERSIONS OF THE FORMS

[Thanks to Paula Lawn at Butcher Andrews for providing this information]

Ainsworth off to the Lords...

I have been told by Thompsons solicitors (acting for the Appellants) that Ainsworth v Inland Revenue has been granted permission to appeal to the House of Lords.

The Court of Appeal decided (overturning Kigass v Brown Aero) that employees on long-term sick did not continue to accrue the right to four weeks' paid holiday each year (see bulletin 22/4/05). The decision was greeted with relief by employers, but it seems the saga has not yet ended...

EAT in Scotland

From this week, all appeals in Scotland will be handled administratively from Audit House, London, rather than from Edinburgh.

The hearings will continue to take place in Melville Street, Edinburgh.

Click here for formal Notice from the EAT

Thanks to Henry Scrope of http://www.emplaw.co.uk for this information

Sexual Orientation and the Workplace

Acas has updated its guidance on sexual orientation and the workplace.

It can be downloaded from the link below. Note it is a large pdf file and may take 10 or 20 seconds to open.

Download Acas Guide

Stress at Work

Just up on BAILII today is a Court of Appeal decision from June.

In it, the Court holds that when deciding whether psychiatric injury is reasonable foreseeable (for the purpose of a stress at work claim), it is proper for the court to take into account that the employer is breaching the maximum average 48-hour working week (and the rest provisions) contained in the Working Time Regulations 1998.

Hone v Six Continents Retail

Imposing Restrictive Covenants

The EAT has just handed down an important decision in Windsor Recruitment v Silverwood, overturning its previous approach to imposing restrictive covenants in Forshaw v Archcraft.

Windsor Recruitment wanted to impose restrictive covenants on its workforce. It dismissed some employees who refused to accept them. It had faced several successful episodes of poaching both staff and business by its competitors, and there was clearly a good business reason for imposing the restrictive covenants.

The employment tribunal held that the covenants were too wide and therefore unenforceable. It held that the employer could not, therefore, establish 'some other subtantial reason' for the dismissals, which were consequently unfair.

The EAT (Burton P. presiding) overturned this decision (also overturning the previous EAT authority of Forshaw v Archcraft, which was on almost identical facts).

Burton P. stated that dismissal for refusing to accept restrictive covenants is capable of being 'some other substantial reason' unless the covenants were "in fact a cover or a ruse to get rid of the employee" (para. 23).

The consideration of the reasonableness of the covenants then comes in not when deciding the reason for the dismissal, but instrad deciding the general 'fairness' issue. The EAT set out the approach for tribunals at para. 24, namely:

• if the proposed covenant is plainly unreasonable and is not severable, it will make it easier for a tribunal to conclude there was unfairness;
• if the proposed covenant is arguably unenforceable (and/or severable), then consideration must be given to the employer's approach to the matter; in particular, the amount of time given to employees to consider the proposals and the opportunity given for legal advice;
• if the covenant is plainly reasonable then, whilst consideration of procedure is still necessary, it will be easier for a tribunal to conclude the dismissal is fair.

(Note: the unfairness of the dismissal was actually upheld on separate, procedural grounds).

Windsor Recruitment v Silverwood

Disability Discrimination

Phew - wet towel time!

The Court of Appeal has, this morning, handed down a staggeringly complicated decision on the correct approach to claims under the Disability Discrimination Act 1995. Don't even think about trying to read this one unless you're very, very brave...

In a nutshell:

• when considering what "any arrangements made by or on behalf of an employer (which)...place the disabled person...at a substantial disadvantage" means, an 'arrangement' covers an employer's belief in the Claimant's ability to fulfil the job requirements, and is not limited to the irreducible minimum of the job;
• the correct comparator(s), when examining whether the disabled person is at a disadvantage, is not the population as a whole, but those others who fulfil the other conditions for the job;
• the justification test for deciding whether a failure to make reasonable adjustments is justified (under the old s6 of the DDA) is objective. The justification test when deciding whether an employer has treated a Claimant less favourably (under the old s5 of the Act) is subjective.
  

Go on... read it...

Smith v Churchills Stairlifts plc

10 Key Facts on Age Discrimination

The 'Age Positive' website has just published ten 'Key Facts your business needs to know about age discrimination' (rather embarrassingly, under the headling '20 key facts', although there are only 10 of them!).

They can be accessed by clicking here

Claim and Response Forms online

The Employment Tribunals Service has introduced a service enabling Claimaints and Respondents to save their Claim / Response Forms online.

This makes it much easier to use the online facility, as the forms can be filled in over a period of time and do not need to be completed in the one sitting.

Claim and Response Forms

Thanks to Ed McFarlane of Qdos Consulting for telling me about this development

Compromise Agreements

A majority decision from the EAT sitting in Scotland, holding that a Compromise Agreement did not exclude an Equal Pay claim...

As often happens, the Claimant signed a Compromise Agreement on termination of employment. In exchange for signing away her statutory rights, she was given a payment exceeding her statutory entitlements. She had some 12 or so discussions with her solicitor before signing the agreement.

Several months later, she read an article in the newspapers about part-time workers' pension claims. She brought fresh proceedings under the Equal Pay Act 1970 on the basis she had been excluded from her employer's pension scheme whilst a part-time worker. The employer responded by asserting she had signed a compromise agreement which excluded proceedings under the Equal Pay Act.

It was common ground for the purpose of the appeal that the Claimant did not know of her right to bring a part-time pension claim, and equally that her solicitors had not enquired of her whether she might be able to bring such a claim.

The majority of the EAT held that the Compromise Agreement did not prevent her from bringing a new claim because, at the time of signing the agreement, she did not know that such a claim existed. They placed reliance on the fact that the Compromise Agreement stated that she was only excluding such claims as "you believe you have against the Company". So here is a drafting tip: if you are acting for the employer, don't use a phrase like that in your Compromise Agreements.

The minority (wing) member held that it was contrary to policy to allow an employee to avoid the effect of a Compromise Agreement, the purpose of which is to create industrial certainty for employer and employee.

Just out of interest, the EAT also held that it was not relevant that the Claimant's solicitor was only being paid £250 for dealing with the Compromise Agreement (see paragraph 18 of the judgment)!

Hilton Hotels v McNaughton

New Family Friendly Proposals

The government has just announced its new family-friendly proposals, following extensive consultation. They will appear in the Works and Families Bill, to be published soon.

The new / changed laws will be:

• extending Statutory Maternity Pay and Maternity Allowance to nine months from April 2007 with the ambition of moving to a year by the end of the Parliament;
• a power to introduce new paternity leave for fathers, enabling them to benefit from leave and statutory pay if the mother returns to work after six months but before the end of her maternity leave period;
• extending the right to request flexible working to carers from April 2007;
• measures to help businesses manage the administration of Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay;
• introducing 'keeping in touch'days so that where employees and employers agree, a women on maternity leave can go into work for a few days, without losing her right to maternity leave or a week's statutory pay;
• extending the period of notice for return from maternity leave to two months enabling employees and employers to more effectively plan for return to work;
• making clear in the regulations that employers can make reasonable contact with their employees on maternity leave to help employers plan and ease the mother's return to work.

For more information, click here

Personality Dismissals

The Court of Appeal has, today, handed down its judgment in Perkin v St Georges Healthcare NHS Trust.

It stands as authority for the proposition that employers are entitled to dismiss employees for having a difficult personality, even when they are technically good at their jobs and there are no criticisms of their integrity, on the grounds of 'some other substantial reason'. (Note, on the facts, the dismissal was technically unfair because the decision-maker was biased, but the tribunal declined to award compensation).

It is also authority for the proposition that, in an appropriate case, it is possible to:

• have a finding of 100% contributory fault; and,
• because of the aggressive way in which the employee defended himself (making allegations of fraud against the Chief Executive of the NHS Trust), any disciplinary panel - even if not chaired by the biased chairperson - would be 100% certain to have dismissed him on the grounds he would not be able to continue working with senior executives of the Trust.

Perkin v St Georges Healthcare NHS Trust

'Gender Duty' Consultation

Probably of interest only to those who deal in/with the public sector...

The government has launched a consultation on its proposals to introduce a public sector duty to promote gender equality - commonly referred to as the 'gender duty'. These proposals will require public authorities to eliminate discrimination and promote equality of opportunity between men and women. The main three themes oblige public authorities to:

• identify and implement specific gender equality goals;
• develop and publish an equal pay policy statement; and
• assess the impact of new policies and changes to services on men and women - allowing negative effects to be mitigated.

View consultation paper here (large .pdf file - takes about 30 seconds to download on broadband)

Redundancy Consultation

The EAT decision in Leicestershire City Council v UNISON has just been placed on the EAT website.

Leicestershire City Council were renegotiating terms and conditions for about 2,600 employees. As commonly happens, they gave notice of dismissal and offered new jobs on new terms. This consitutes a 'redundancy' for the purpose of the collective consultation obligations in s188 of TULR(C)A 1998.

The EAT (HHJ McMullen QC presiding) upheld the tribunal's decision that the time for consultation (ie when the dismissals were 'proposed') began when the practical decision had been taken by the Council's staff - notwithstanding that it needed a formal political vote/decision by the Council to ratify it - and not when the Council voted in favour of the decision to dismiss / re-hire.

This was consistent with the ECJ decision in Junk v Kuhnel, namely that consultation must take place before the decision to dismiss was taken.

The EAT also upheld the award of 90 days' pay (by way of protective award) to a large group of the workforce. It considered that the fact the employer had provided information before the technical obligation to consult arose did not mean that there must be an automatic reduction from the presumed 90 days' pay (as set out in Susie Radin). The protective award to another section of the workforce was reduced (on fact-specific grounds).

Leicestershire City Council v UNISON

Compulsory ET1 and ET3 Forms

As subscribers will know, use of the 'official' ET1 and ET3 forms becomes compulsory from next week.

Following comments made at user group meetings in Cardiff and Bristol, it seems tribunal staff are being trained to accept and reject the following...

Acceptable from 1st October 2005

• riders (i.e. separate attached sheets);
• a pdf version of the forms which will soon appear on the Emplotment Tribunals website which can be downloaded and completed offline (the ETS will be providing software to enable users to fill in these forms - I am told this is likely to happen over the weekend);
• faxed ET1 / ET3 forms; and
• black and white photocopies of ET1 / ET3 forms (but note that the coloured guidance notes and text boxes on the forms may not reproduce on a b&w photocopy).

Not acceptable from 1st October 2005

• any in-house or commercial version that is not produced by the ETS.

Note that the reason for requiring the forms to be asbolutely identical to the prescribed version is to enable them to be scanned in to the new ETS case management system.

The administrative staff at the tribunal offices have all received extensive training in what forms to accept (and reject!) from next week.

The lesson is simple: use the official forms. If you don't have them, they are available on the ETS website.

Further information can be obtained from the Employment Tribunals Service Public Enquiry Line on 0845 7959775.

ETS website - download forms from here

[Thanks to Barry Clarke of Russell Jones & Walker for providing the above information]

Commission for Racial Equality

The Commission for Racial Equality has just published its 'Race Equalty Scheme' for 2005-2008, setting out the way in which it intends to meet its obligations under the Race Relations Act 1976. Click here to view the Scheme.

It has also just published, on its website, a case law database for court decisions relating to race discrimination. Click here for access.

Unfair Dismissal Time Limits

The EAT has handed down a decision restating the importance of a solicitor ensuring he does not leave presentation of the Claim Form to the last day.

The Claimant instructed solicitors a week after she was dismissed. The firm, which had only one employment lawyer, was extremely busy and the lawyer concerned adopted a 'time-bar list' approach, i.e. leaving cases to just before the limitation deadline before dealing with them.

On the Friday (before time expired on the following Monday), the solicitor was about to go on holiday but told his secretrary to fax the Claim Form on the Monday morning. She fell ill over the weekend, did not work on Monday, and faxed the Claim Form on Tuesday, i.e. one day late.

The tribunal (sitting at Dundee) held it was not reasonably practicable for the Claim Form to be presented within three months, as the failure to present the claim in time was caused by an unforeseen absence by the solicitor's secretary.

The Employment Appeal Tribunal (HHJ Serota QC presiding) held that this conclusion was wrong in law because the tribunal only looked at the events of the last few days. What it should have done was look at the entire three month period - and there was no good reason why the Claim Form could not have been presented earlie. It reaffirmed cases stating that if a solicitor leaves presenting the Claim Form until the last moment, he does so at his own risk.

Agrico v Ireland

Managing Change: Practical Ways to reduce long hours and reform working practices

The DTI has just published the booklet: Managing Change - Practical Ways to reduce long hours and reform working practices. This is a joint project between the TUC, CBI and DTI.

The booklet identifies practical ways of implementing change management programmes in the workplace and share this learning between businesses.

It is very much aimed at HR practitioners rather than lawyers. But there is a case study of working practices at Eversheds (where flexible working seems to be huge success) - see p20.

Download booklet here (large file - 1.8Mb - Adobe Acrobat required)

London Central Tribunal

Some information for aficionados of the London Central tribunal...

Their phone systems and Email systems have been down since (about) the beginning of the week. They now have intermittent phone access and 'slow' - whatever that means - Email access.

So if you think you're being ignored, don't panic (unless you're facing a time limit - in which case, panic!). I am told they do not know when normal service is to be resumed.