"Who Watches the Watchmen?”

Governments tend not to welcome criticism.

They are, in my experience, usually determined to press on with their plans, whatever the intelligent arguments against, and are particularly cross when those plans are thwarted.

It comes as no surprise therefore that the Lord Chancellor, Mr Grayling, should be seeking to undermine the whole system of Judicial Review (“JR”).

JR is the process by which we can challenge the State and its Officers and Institutions. It is an essential feature of the rule of law in this country.  It prevents (or, at least, limits) the abuse of power by public servants and it seeks to ensure the application of the rules of natural justice when we are dealing with those who govern us.

Of course, JR is open to abuse. Some individuals and organisations will use it to frustrate the most well intentioned of administrations.

The reality in practice is that JR is not a remedy handed out willy-nilly by a Judiciary anxious to thwart political progress.

Most JR applications never get past the first hurdle.

Mr Grayling says that it would be a whole lot easier and cheaper for the State to do whatever it likes if JR were subject to additional limitations.

No surprise there, then.

What is surprising are the lengths to which he (ironically as Lord Chancellor) appears to have been willing to go to get his way.

You can read here about how he misled Parliament in relation to the Bill in question:

http://tinyurl.com/l9emw9r

It seems to be that he was particularly lucky that this news blew up on the day that the CIA Torture Report hit the press.

Not only is our Lord Chancellor seeking to deny natural justice to those who look to rein in the worst excesses of the State – but it appears that he is willing to be economical with the truth to achieve his aim – a win at any cost?

All the more reason, therefore, why we should all be lobbying our MPs to ask them not to interfere with one of the few remaining remedies available to individuals against a State convinced of its own infallibility. 

Paul Scholey - Partner

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

A Tale of Two Reports

Two recent but different reports show unhappiness in the world of law.

The World Economic Forum’s ‘Global Gender Gap Report’ shows that the UK has for the first time fallen outside the top 20 most gender-equal countries, dropping from a commendable 9^th position in 2006 to a poor 26^th position this year (www.weforum.org).  Whilst the report identifies that no country in the world has yet reached true gender equality and that once again the Northern European countries make the top 5 (in the order of Iceland, Finland, Norway, Sweden and Denmark) the UK has now fallen behind other comparable North American and European countries including Canada, the USA, Ireland, Belgium, Germany, Netherlands and France. 

My view is that this has much to do with the recent employment law ‘reforms’ brought in since 2012, which make it harder for females to assert their rights - for example, statutory questionnaires, a tool to help an employee obtain earnings information, have been watered down, and to bring an equal pay claim, there is £1,200 in Employment Tribunal fees to pay to get to a hearing. 

A second, similarly depressing report has just been published by a London firm of Solicitors (see www.hjainnovation.net).  Of the firm’s 508 surveyed senior lawyers, 87% believe that ‘wealth is a more important factor in whether justice can be accessed than it used to be’, with one lawyer commenting that access to justice was now only for the ‘very poor or the very rich’.  83% of those lawyers surveyed agreed that ‘the justice system is not accessible to all members of the public’. This is no doubt due to the fact that legal aid is only available for those who are classed as ‘very poor’ and the recent high above inflation increases in fees payable to have a claim brought to Court - I believe the sizeable ‘squeezed middle’ will often find it impossible to obtain access to justice and will now often have to represent themselves, if they are in a position to take proceedings at all. 

Both disturbing reports seem to give a true and accurate snapshot of the real level of lack of access to justice for ordinary people in 2014/2015.  

David Sorensen - Partner

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Fashion Victim

I was interested to receive an e-mail from ACAS advising that new guidance had been published on dress codes, tattoos and piercings in the workplace.  It made me reflect on my own attire for our charity dress down days at the end of the month – how much could I really get away with? Flip-flops and shorts in summer? Woolly hat indoors in the winter? Could I now get that tattoo I wanted when I was a teenager? 

So I read the guidance hoping there’d be some clear instructions to help me tailor my wardrobe to suit - but I was disappointed.

There are some key principles employers must adhere to but no detailed rules. It is for the employer to set the standards that will apply. 

ACAS says employers must - 

• avoid unlawful discrimination in relation to any dress code,
• consider health and safety,
• apply the dress codes to men and women equally and
• make reasonable adjustments for disabled people when dress codes are in place.

These are all very sensible suggestions. But I still wasn’t sure what I could and couldn’t wear.

A number of Tribunal cases have given more specific examples. In Smith –v- Safeway Plc (1996) a male employee of Safeway on the deli counter was dismissed because the length of his pony tail fell below his deli hat. This contravened his employer’s rule, which required employees to dress in a smart and conventional way. Mr Smith thought it was unfair and argued sex discrimination but he failed. The Court of Appeal decided that since the dress code was applied equally to persons of both sexes (i.e. both sexes were required to dress in a conventional way) it was not discriminatory.

So employers might be allowed to apply different standards to female and male employees if the dress code enforces a common principle.  However, it isn’t always easy to get the balance right.  In DWP v Thompson the Claimant received a warning for refusing to wear a collar and tie, when female employees were not required to wear them. The Tribunal confirmed the proper approach was whether the level of smartness required by the employer could only be achieved by requiring men to wear a collar and tie. If it could be achieved by other means the inflexibility might amount to sex discrimination.

Azmi –v- Kirklees Metropolitan Council reminds us of the potential for religious discrimination issues to arise. In this case a Muslim woman was not allowed to wear a veil at work when teaching (but was allowed to wear it at other times).  When she refused to comply with the request, the school suspended her and she pursued claims of discrimination on grounds of her religion and belief. Ms Azmi’s claims failed - the rights of employees to manifest their religion at work are subject to their being able to perform the role they are employed to carry out. The employer in this case had evidence of a detrimental impact on teaching and their request was proportionate.  

ACAS emphasises that any restriction on clothing or jewellery that manifests religious faith must be based on a legitimate business or safety requirement. Employees might be allowed to demonstrate their religious faith through their dress by wearing an unobtrusive cross symbol to denote religious faith (clear reference to Eweida –v- British Airways Plc). However, where health and safety is concerned, it might lead to a different outcome (for example in the Chaplin case where a risk of infection and patients grabbing a necklace outweighed the right of this nurse to manifest her religion by wearing a necklace with a cross symbol). Tackling these thorny issues of religious and sex discrimination is not really made any easier by the ACAS guidance.  

Some cases might be straightforward. One can imagine how necklaces or dangly body piercings in some industries (e.g. manufacturing) might not be allowed. Nobody wants to find an earring in their pasta salad and no worker would want to risk the danger of their necklace getting caught in a conveyor belt. Wearing flip flops on a construction site is just silly. What the ACAS guidance does at least achieve is prompting employers to think about it. Employees should know why the employer believes it is dangerous or unhygienic or unprofessional to wear certain jewellery or items of clothing and this can be written in a policy. ACAS even suggests employees get involved in helping the employer create such policies. But once the employer thinks about it, will it be put off by the complications? Once it is in writing, etched like a tattoo permanently in their policy booklet, the employer might lose the element of discretion which can create a more relaxed and pleasant working environment.  

But there is no doubt that an employer’s image is important – and when it comes to tattoos, it’s all about image. Footballers, film stars, music stars – everyone seems to have tattoos. Apparently one in five British people are thought to have tattoos and they’re most popular in 30 to 39 year olds. ACAS guidance suggests employers need a ‘sound business reason’ for asking that tattoos be covered up. Given their popularity and prominence are they really a problem? Do they really give the impression a person is less professional or less competent than the next or does it show artistic flare and creativity? It’s tricky and the guidance from ACAS is brief. Ultimately it is for the employer to decide on its tattoo policy and I expect it would in most cases be difficult for an employee to take action if the same policy is applied to men and women.

Dress codes aren’t easy to get right – they need to be tailored to suit the business. But I think I’ll be happy to leave my shorts and flip flops for the beach, my woolly hat for winter walks and tattoos for the celebs. 

Daniel Kindell - Associate Solicitor

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Should Overtime Be Accounted For In My Holiday Pay?

In anticipation of the Employment Appeal Tribunal’s (“EAT”) imminent decision in the holiday pay cases of Bear Scotland Limited v Fulton & Baxter, Hertel (UK) Limited v Wood & Others and Amec Group v Law & Others, regarding whether voluntary overtime must be taken into account when calculating holiday pay, we thought it appropriate to provide an overview of the legal issues in the case. To assist we will first look at the way holiday pay is currently calculated.

Under the Working Time Regulations 1998 (“The Regulations”) workers are currently entitled to a minimum of 5.6 weeks’ paid holiday each year (inclusive of bank holidays). The first 4 weeks of this are required by the Working Time Directive (“The Directive”). The additional 1.6 weeks are solely provided under the Regulations. The way employers calculate holiday pay varies; however, it is widespread practice not to include voluntary overtime in such calculations. The result is that workers who regularly work voluntary overtime are placed at a disadvantage when taking holiday because they receive less pay than they would if they were not on holiday (and working voluntary overtime). Following recent decisions by the European Court of Justice in Williams and others v British Airways and Lock v British Gas Trading, the question has arisen as to whether such practice is in line with the intentions of current legislation.

In the Bear Scotland v Futon & Baxter appeal, the Tribunal ruled that voluntary overtime must be included in the calculation of holiday pay for the entire 5.6 weeks of holiday provided for under the Regulations. By contrast, in the Hertel (UK) Limited v Wood & Others and Amec Group v Law & Others appeals, the Tribunal ruled that voluntary overtime should be included in holiday pay calculations, but only for the 4 weeks required by the Directive – not the 5.6 weeks provided for under the Regulations.

We would hope that the EAT reject all of the appeals and rule that voluntary overtime must be included in holiday pay calculations. Further, we would hope that the EAT confirm that it should be included for the full 5.6 weeks provided for under the Regulations. In our opinion, any other decision would clearly act as a disincentive to taking holiday for those workers who regularly work voluntary overtime. It is the writer’s opinion that if the EAT confirms that overtime is to be included in holiday pay, it is more likely that it will just be for the 4 weeks required by the directive.

If the EAT confirms that voluntary overtime must be included in the calculation of holiday pay (either for 4 weeks of 5.6 weeks) we would envisage many claims, for unlawful deductions from wages, being commenced in the Employment Tribunals by workers who have not had overtime accounted for in their holiday pay.

If you regularly work overtime (or receive regular pay from your employer that is not part of your ‘basic pay’ e.g. commission, bonuses, shift allowances etc.) and such pay is not accounted for in your holiday pay we would advise you to contact our Employment Right’s Department to seek advice. There are short time limits within which these claims can be commenced so do not delay in contacting us – if you do, you may lose your opportunity. All enquiries should be directed to holiday@morrishsolicitors.com

Tony Ridley

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Cameron vs Ordinary Working People

Following the recent general strike by public sector workers, David Cameron pledges “to overhaul an archaic law" stating that strike laws are too easy for workers to rely upon and that “it is time to legislate and it will be in the Conservative manifesto” for the next election. It seem they propose to ban all ‘electronic picketing’ (the use of texts/emails by unions to gain support), make it a requirement for a 50% turnout for any strike ballot to be lawful (rather than a majority as used to elect MPs) and banning ‘rolling strikes’, bringing in a 3 month ‘shelf life’ for any strike action before a new ballot is needed.

So his policy is further changes to the same strike laws that the Court of Appeal described in 2012 as “highly complex legislation”, which can be seen as “a series of traps or hurdles” for a union to negotiate.

It’s clear that David Cameron simply wishes to make it harder and harder for workers to resort to strike action.

This from the leader of the same party whose leader some years ago described the right to strike as, in the language of the day, “the foundation of the liberties of the working man. In it are involved all those things which matter most in his workaday life…the right to demand improved conditions, shorter hours, higher wages; the right to defend himself against petty tyranny or ill-usage. The capitalist system on which our whole present civilisation is erected has grown up on the basis of the right to strike… the right to strike is the greatest glory of the capitalist system…”

Who was that? A certain Winston S. Churchill, admittedly not a politician who is often perceived as being a friend to the unions or to workers but a politician who seemed to have common sense and a sense of fairness.

David Sorensen - Partner
For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Employment Tribunal Statistics

We have blogged before (click here) about what we see as the serious restriction of access to justice inflicted by the introduction in July last year of the new employment tribunal fee regime. 

It can cost £1200.00 to pursue an unfair dismissal claim to a hearing. 

In theory, a system of “remission” exists so that fees can be waived if you cannot afford to pay them.  In practice, fewer than 1 in 10 remission applications have been granted, and since capital is taken into account, any termination payment you have received if your employment has come to an end might automatically disqualify you from any help with the expensive fees.

The government was sure that fees would deter meritless claims – and business would reap the benefits.

3 months ago, the first set of statistics showing the effect of the introduction of fees suggests that tribunal cases had dropped by some 80%.  In other words, compared to the same period a year before, only 1 in 5 cases was being presented in the new regime where fees have to be paid.

We wondered whether that was a “blip” – but it seems not.

The latest snapshot for a further 3 month period confirms that the drop in tribunal claims has been dramatic. 

80% of claims made a year ago are no longer being presented. 

Now, every practitioner will tell you that some tribunal claims were speculative.  Some people lodged claims even in the face of advice from lawyers or unions that those claims were weak, and the old system meant that claims could be lodged at no cost to the claimant.

No one to my knowledge has ever seriously suggested that 80% of claims were without merit or purely speculative. 

Indeed, we are now in a position where the number of claims being lodged has now dropped below the level of the number of claims that originally used to succeed.

So it has not just deterred speculative claimants. 

We have deterred claimants with reasonably arguable cases. 

Worse still, we have deterred claimants who, according to the old statistics, would have won their cases against their employers.

Access to justice has been denied.  That was always going to be the case, but the dogmatic approach of government has meant – not for the first time – that the views of professionals and stake holders have been ignored once more.

For shame: what price are worker’s rights, if no one can afford to enforce them?

Paul Scholey - Senior Partner
For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.


 

Judicial Review on Unfair Dismissal Cap Dismissed

On 29 July 2013 the Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2014 came into effect. 

The upshot of this Order is that the compensatory award in unfair dismissal proceedings will now be limited to 1 year’s gross salary (or to the statutory cap on compensation, £76,574 (as of 6^th April 2014), whichever is the lesser amount). 

At the end of 2012 the London-based employment law firm Compromise Agreements lodged a Judicial Review Application for this Order to be reconsidered.

The founder of the firm, Mr Alex Monaco of Counsel, asserted that the new cap on compensation would disproportionately affect older people as they were, previously, most likely to receive more than a year’s salary in compensation due to increased difficulty in finding another job and thereby mitigating their loss.    

However, on Tuesday 13^th May 2014, the High Court dismissed the Judicial Review Application at a Permission Hearing.

In a recent statement Mr Monaco stated that he is currently “looking at options and looking at appealing [the decision]”. 

As a firm, we are of the collective opinion that the new cap is yet a further example of the current government’s deliberate erosion of fundamental employment rights.

In other news the Trade Union, Unison, is also currently challenging a High Court ruling (made back in February 2014) which rejected a request for a Judicial Review of the Government’s decision to introduce Tribunal fees, (fees which also came into effect on 29 July 2013.)

Recent statistics show that, since the introduction of Tribunal fees, the number of employment law claims has dropped sharply, with a 79% fall in the final quarter of last year compared with the same period in 2012. 

A recent written answer in the House of Commons has also revealed that only 24% of remission applications (i.e. applications for reduced fees) made between the introduction of Tribunal fees on 29th July and 31st December 2012 were granted (in full or in part). To place this in context, these figures evidence that remission has been granted in only 5.5% of the 9,305 single claims and 1,519 multiple claims that were issued in the same period. This is significantly lower than the Ministry of Justice’s initial prediction, prior to the onset of fees, when they stated that around 69% of Claimants would qualify for remission, either in full or in part.

Chris Ridley - Solicitor

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Changes to the TUPE Regulations

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, or “CRATUPEAR” for short, came into force on 31^st January 2014. The current government asserted that the TUPE Regulations 2006 (“TUPE Regulations”) provided transferred employees with more protection than was expressly required under the Acquired Rights Directive (“ARD”). The aim of CRATUPEAR was therefore to amend the TUPE Regulations to remove this so called ‘gold-plating’.

Upon close analysis of the changes implemented by CRATUPEAR it is our view that the pendulum has shifted in the employer’s direction to such an extent that certain provisions of the new TUPE Regulations are no longer compatible with the ARD. One such example is the new provision that permits a transferee to vary the terms of a transferred employee’s contract if there is a term in the contract that permits variations (even if the reason for the variation is solely or principally related to the transfer itself). We would argue that this is in contravention of the ruling of the CJEU in Daddys Dance Hall [1988 IRLR 315}  that held that a transferee could “alter the terms of the contract in all ways permitted by national law.................. provided that the transfer of business itself did not constitute the reason for the alteration.”

Domestic courts are required to implement domestic legislation in a way that is compatible with EU Law. If a domestic court determines that domestic legislation is incompatible with an EU Directive or a ruling of the CJEU, it is obliged to construe the legislation in a way that is compatible with EU Law; if necessary by inserting words into the legislation (Litster and others v Forth Dry Dock & Engineering Co Ltd and another [1989] IRLR 161). If a domestic court is unable to construe the legislation in a way that is compatible with EU Law then it is required to remove any contrary provisions from the legislation which renders it inconsistent (Kucukdeveci v Swedex & Co KG [2010] IRLR 346).

If our courts share our opinion that some of the provisions enacted by CRATUPEAR are not compatible with the ARD it will be up to them to construe such provisions, or alternatively remove words from them, to render the provisions compatible with the ARD. The result is an increase in uncertainty in the legislation surrounding TUPE. It would seem that (not for the first time) the government has proceeded with unnecessary (and frankly ideological) changes to our legislation. The only certainty is that there will undoubtedly be an increase in litigation in the area as a result of these botched changes. Employee protection is further reduced; but employers, too, will justifiably complain that they are less sure where they stand legally.  The acronym itself, CRATUPEAR, is telling of the inadequate amount of thought put into this piece of legislation.

Tony Rippon - Legal Assistant

For further information on Employment Rights, please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Employment Tribunal Fees – the employer pays?

Whilst Unison’s judicial review application in the High Court about the introduction of ET and EAT fees was unsuccessful (for now) the Judgment in that case has shed light on the likelihood of repayment of ET fees to a winning Claimant.

You’ll no doubt appreciate that Claimants now need to pay ET fees to issue a claim and get a hearing (an individual may have to pay as much as £250 to issue and £950 for a hearing, the fees in ‘multiple’ group claims can be as high as £5,700 to issue and a further £5,700 for a hearing).

The ET Rules are brief on the point of repayment – they simply confirm that a Tribunal ‘may make’ an order requiring the employer to repay the ET fee where the Claimant’s case succeeds, ‘in whole or in part’. Note the ET fee is never repaid by the Tribunal.

This brevity has been cause for enormous concern about the fairness of the new fee regime and the serious risk posed by it in terms of lack of access to justice. This is because not only are the ET fees very high, and so likely to deter would-be Claimants who need access to justice, but if winning Claimants are unlikely to recover the ET fee why would they bother going to Tribunal in the first place?

In the High Court, Unison managed to eke some clarity out of HM Government – the Government ‘relented’ confirming, I imagine with great reluctance, that ‘the general position is that, if you are successful, the respondent will be ordered to reimburse you’ (my emphasis) with amended Guidance to be published (which I can’t yet find on the Ministry of Justice website) and ‘consideration’ being given to amendment of the ET Rules. A good sign - no doubt a clarification only given because of the very fact of the legal challenge in the High Court.

Very helpfully the Employment Appeal Tribunal has since stepped into the fray in the recent case of Portnykh v Nomura International plc [UKEAT/0448/13/LA]; whilst this concerned the possibility of repayment of an EAT fee, the ET and EAT Rules concerning repayment of fees are very similar. In this case, the EAT ordered the losing employer to repay the fee to the winning Claimant, identifying that the Rules give the EAT ‘the widest of discretions’ on fees and that ‘a broad view’ should be taken. The EAT pointed out that some factors weighed in the Claimant’s favour: the Claimant’s sometimes unhelpful and uncooperative conduct did ‘not make any significant difference to the conduct’ of the proceedings, the employer had the means to pay and ‘substantially lost’ the case.

So, where a Claimant behaves reasonably in the proceedings, the employer has money to pay and, most importantly, the Claimant wins in whole or in part, the omens look good for the Tribunal to require that the ET fee should be repaid by the employer.

David Sorensen - Partner

For further information on Employment Rights, please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.