Judges Urge Thorough Review of Employment Tribunal Charging Regime

The number of cases coming before employment tribunals has dramatically declined since the introduction of a controversial charging regime. However, the Court of Appeal has urged the Lord Chancellor to carry out a thorough review of a system which many believe is stifling access to justice.

The regime was introduced in 2013 and, whilst those on the lowest incomes do not have to pay, charges have since been levied against others who wish to pursue complaints against their employers. Access to the tribunal system was formerly free and the charges, which amount to thousands of pounds in some cases, have led to a reduction of around 80 per cent in the number of complaints dealt with by tribunals.

Trade union Unison twice mounted unsuccessful judicial review challenges to the regime and, in dismissing its appeal against those decisions, the Court rejected arguments that the charges were discriminatory and made it impossible, or far too difficult, for those who have suffered wrongs to obtain proper redress.

However, the Court noted that a full and careful review of the regime was needed in order to ascertain the cause of the ‘startling’ decline in the number of tribunal cases. The Lord Chancellor had announced a review in June 2015 and the Court observed that the level of fees would have to be revisited if there were grounds for concluding that sections of the working population were realistically unable to afford them.

Employees Beware! Facebook Abuse Can Cost You Your Job!

Canal BridgeAnyone tempted to vent their spleen against their employer on the Internet should take careful note of a case in which a canal worker was sacked after using a string of offensive expletives to describe his supervisors on Facebook.

The man was unaware that his Facebook account had been hacked and his ‘private’ setting switched to ‘public’. However, his description in explicit terms of his bosses as ‘nasty, horrible human beings’ – and his declaration, ‘I hate my work’ – were visible to millions of Internet surfers.

He had an unblemished eight-year work record and said that he was only ‘indulging in banter’ and did not intend to offend anyone. He pointed out that Facebook posts are often exaggerated and embellish the truth. He argued that his sacking was too harsh and that it was ‘convenient’ that he had been dismissed when he had outstanding bullying and harassment grievances against his supervisors.

However, his employer argued that it had been exposed to public condemnation and that he had breached his position of trust. It was also alleged that the Facebook posts indicated that he had, on one occasion, been drinking alcohol whilst on standby to deal with emergency situations.

His unfair dismissal claim initially succeeded before an Employment Tribunal (ET). However, in upholding the employer’s challenge to that decision, the Employment Appeal Tribunal found that his dismissal was within the range of reasonable responses. The ET had fallen into the trap of substituting its own views on the gravity of his misconduct for those of his employer. In those circumstances, there was only one possible answer to the issue – that his dismissal was fair.

Full-Time Employees Lawfully Given Priority Over Agency Temp

Temporary agency workers are entitled to be treated in the same way as permanent staff. However, in an important decision, a tribunal has ruled that the Ministry of Defence (MoD) did nothing wrong when it gave priority to its full-time employees when considering applicants for a position.

A temporary technical liaison officer worked for the estate management arm of the MoD at a time when a substantial restructuring was underway. More than 500 directly employed staff had been warned of possible redundancy but had been placed in a pool of those awaiting redeployment to other roles.

Full-time employees in the pool were given priority when applying for the post that was currently filled by the agency worker but which was to be made permanent. He argued that that amounted to a breach of the Agency Workers Regulations 2010. His claim was, however, rejected by an Employment Tribunal.

The Employment Appeal Tribunal accepted that he was entitled to be informed of vacant posts in the permanent workforce. However, in rejecting his appeal, it found that the Regulations afforded him neither a right to a guaranteed interview nor to any preference over direct employees. The priority granted to those in the redeployment pool could not be said to be a breach of his rights.

Court of Appeal Rejects Unison’s Employment Tribunal Fees Challenge

The Court of Appeal has dismissed Unison’s appeal against the decision of the High Court that it had failed to make its case that the introduction of Employment Tribunal (ET) fees in July 2013 was unlawful.

In Lord Justice Underhill’s view, the case based on the overall decline in the number of ET claims could not succeed by itself: it needed to be supported by evidence of the actual affordability of the fees in individual cases for the Court to reach a reliable conclusion that the fees are realistically unaffordable in some cases. He also dismissed the discrimination and public sector equality duty arguments put forward by Unison.

The Court acknowledged that the Government had announced that it would be carrying out its own assessment of the fees system, to determine whether its original objectives have been met, and described the decline in the number of ET claims since it was introduced as ‘sufficiently startling to merit a very full and careful analysis of its causes’. Underhill LJ went on to say that if the Lord Chancellor decides, based on the evidence at his disposal, that there are good grounds for concluding that part of the decline in numbers is accounted for by claimants being realistically unable to afford to bring proceedings, ‘the level of fees and/or the remission criteria will need to be revisited’.

Unison has announced its intention to seek permission to appeal to the Supreme Court.

British Overseas Military Bases Not Subject to UK Employment Laws

Jurisdiction can be a thorny issue in many employment disputes with an international flavour and one involving civilian workers at Britain’s two military bases on the island of Cyprus was a case in point.

Nineteen spouses of British military personnel based on the island claimed that they were treated less favourably in their civilian roles than workers recruited locally from the island’s population. They launched proceedings, claiming that they had suffered discrimination on grounds of their marital status, or national origin, in breach of the Equality Act 2010. An Employment Tribunal (ET) accepted jurisdiction to consider their complaints.

However, in overturning that decision, the Employment Appeal Tribunal found that the ET had erred in finding that English law applied to the spouses’ employment contracts with the Ministry of Defence. The sovereign bases, as British overseas territories, operated under their own legal regime. The issue as to whether the cases were sufficiently closely connected to the UK and UK law to confer jurisdiction was sent back to the ET for reconsideration.

Does Your Business Rely on Migrant Workers? Watch Out!

Many businesses depend on migrant workers from outside the European Union but the rules on employing them have become increasingly tough. In one case, a nursing home faced insolvency after being caught out in a Home Office investigation.

The home had its licence to sponsor entry into the UK by non-EU workers revoked following allegations that three of its employees, who had been registered as skilled public relations officers, were in fact working as care assistants.

In challenging the decision at the High Court, the nursing home insisted that the three had worked in accordance with their job descriptions. It was also submitted that the withdrawal of the licence would put the home out of business, resulting in the loss of more than 100 jobs and uncertainty for many vulnerable residents.

In refusing to overturn the decision, however, the High Court found that the home had seriously defaulted on its obligations under the licensing scheme and breached the trust placed in it by the Home Office. The Court noted that it remained open to the home to recruit staff from Britain or other EU member states.

Executive Who Violated Ex-Employer’s Confidentiality Fined

A senior company executive who lied to the High Court when he categorically denied having breached the duty of confidence he owed to his former employer has come within an ace of being sent to prison for his contempt.

On leaving the company’s employ, the man signed a settlement agreement which contained comprehensive non-compete clauses and restrictions upon his use and dissemination of confidential information.

The company became convinced that he was violating those terms and launched proceedings. His response was to give formal undertakings to the court and to flatly deny in a sworn affidavit that he had breached the terms of the agreement.

However, conclusive proof subsequently emerged and the man accepted that his previous statements were false. He admitted that he had retained a USB stick on which a sales database and other confidential information were stored. He also accepted that he had disseminated a significant volume of information which was alleged to be confidential to two of the company’s competitors.

In the light of those developments, the Court entered summary judgment against the executive to the extent of his admissions. His dishonesty was, in principle, capable of passing the custody threshold. However, in the light of his frank admissions and expressions of remorse, the Court imposed a £1,000 fine.

Feeling Undermined on Maternity Leave? You Are Not Powerless!

A finance professional who resigned on the basis that her position in the office hierarchy had been critically undermined while she was on maternity leave has had her compensation hopes boosted by an Employment Appeal Tribunal (EAT) ruling.

The woman performed a managerial role as a dealer and portfolio administrator for an asset management company. During her absence, the department in which she worked was restructured and a new manager was appointed who would be senior to her on her return. She took the view that she was being eased out of her role and resigned shortly after she was due to return from leave.

Her claims of sex discrimination, unfair constructive dismissal and automatically unfair dismissal were, however, rejected by an Employment Tribunal (ET), which found that there had been no attempt to reduce her seniority and that her job had properly been kept open for her.

However, in upholding her appeal against that decision, the EAT found that the ET had failed to deal with a central issue in the case, which emerged during the hearing. That was whether the job to which she was required to return was the same as the job she had previously had. The woman’s appeal was allowed and the matter was sent back to the ET for consideration of that issue.

How Do Holiday and Sick Leave Interact? Tribunal Gives Guidance

The interaction between sick leave and annual holiday leave poses a tricky problem for employers. However, in giving valuable guidance on the issue, the Employment Appeal Tribunal (EAT) has improved the position of employees who have to take prolonged periods off work for medical reasons.

A print worker was on sick leave for more than three years after suffering an accident at work. He did not take holiday leave during those years and, after his employment was terminated, sought payment in lieu of those entitlements. However, his claim was dismissed by an Employment Tribunal on the basis that he could not show that he was unable, by reason of his medical condition, to take annual leave.

In allowing his appeal, the EAT identified a mismatch between the Working Time Regulations 1998 (WTR) and the European Directive on which they are based. The Directive requires that an employee on sick leave is not required to take annual leave but may choose to do so. Having decided not to take annual leave during his period off sick, the printer was entitled to take it at a later date. He was not required to demonstrate that he had been medically incapable of taking holiday leave.

The EAT acknowledged that the Directive did not confer an unlimited right on sick workers to carry over periods of annual leave to subsequent years. However, in interpreting the WTR in conformity with the Directive, it found that employees on sick leave are entitled to take holiday leave within 18 months of the end of the relevant year in which the entitlement to that leave accrued.