Religion vs the Secular State

In Ebrahimian v France, the European Court of Human Rights has delivered a powerful blow against the individual’s right to manifest their religious beliefs.

Ebhrahimian was a social worker in the public sector.  Her contract was not renewed when she refused to stop wearing religious headgear.

She lost her case.  It was important, said EctHR, that the freedom of religion of her patients should be respected – and that meant that she should do nothing that might convey a particular religious world view to others.

I think it’s a surprising decision – although the reluctance of Europe’s judges to interfere with the discretion of member states is becoming more and more plain.

You may recall the case of Ms Eweida, a BA employee whose legal campaign for the right to display a cross became a cause celebre for the right to freedom of religion and belief.

In Eweida, ECtHR said this: “On one side of the scales was Ms Eweida’s desire to manifest her religious belief. As previously noted, this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image.”

Yet in Ebrahimian the value of communicating the claimant’s “central tenet of her life” was trumped altogether by the nature of secular society in France.

The judgment is in French only, at present, but I’ve seen a translation of the single dissenting judge’s opinion and it includes this: “A principle of constitutional law or a constitutional ‘tradition’ may easily end up by being deified, thereby undermining every value underpinning the Convention.”

The point has elsewhere been made – if we must refrain from any manifestation of our religious views, must our public servants become nameless, identified only by initials?  Since the perception of a patient might well be that “Mohammed” isn’t a Christian name, nor David a Hindu one.

Is the decision limited to France, with its constitutional guarantee of secularity?

I think not.  If the ECtHR wants a level playing field (i.e. no manifestation by anyone) then that must apply with equal – or perhaps greater – force in a society where Christianity is an established religion (how else to protect minority rights?)

Europe’s jurisprudence has never been terribly easy to follow.  In this case I suspect the baby has been thrown out with the bathwater.

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.

MP's briefing about Employment Tribunal fees

Well, I know we’ve banged the drum many times about ET fees but I think a recent briefing for MP's is worth a mention. The report is located at:

http://researchbriefings.files.parliament.uk/documents/SN07081/SN07081.pdf.

In a nutshell, the report confirms that:

• ET claims had been in a long-term decline before ET fees were introduced in July 2013; they rose at the height of recession in 2009/2010 but were declining again three to four years before ET fees were introduced

• Claims dropped by 67-69% after ET fees were introduced

• Fee remission (whereby a person can have the ET fees reduced in full or part, for example because they have a low income) was only applied for in 1/3^rd of ET claims (for issue fees) and of those applications, it was only granted in 39% of applications. This shows that the majority of Claimants have to pay full ET fees of as much as £1,200.00.

This again illustrates the drastic impact of ET fees on access to justice. It also reiterates our previous concern about the need for ET fees in the first place; with falling ET numbers, what rational basis was there for implementation?

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.

Trade Union Bill

The much publicised Trade Union Bill will not have escaped anyone’s attention. The government (ahead of more drastic cuts to public sectors which we know are coming) are seeking to greatly reduce trade unions’ ability to organise industrial action – and in the case of ‘important’ public services, effectively remove it.

Under the Bill, for a ballot on industrial action to be legal there must be a 50% turnout of all members. So an abstention will now be equivalent to a ‘no vote’. Further, if you work in health services, education, fire services, transport services, nuclear decommissioning and border security, a ballot on industrial action may well require 40% of those balloted to vote in favour of the action for it to be deemed lawful. Let’s look at the reality of this. 1,000 members are balloted regarding industrial action. 500 members vote – the first hurdle is passed. However, of the 1,000 members who were balloted, 400 (40%) must vote in favour of the industrial action. Therefore, out of the 500 members who voted, for industrial action to be lawful, 400 must vote in favour of it. That is 80% of the voters! Let us not forget that the current government who are bringing through this Bill won only 36% of the votes cast, representing less than 25% of the votes of eligible voters.  They would not be in power, by a shortfall of some 15%, under the test they now seek to apply.

Unfortunately the ideological attack doesn’t stop there. The government will have the power to limit the amount of facility time spent by trade unions in public services, thereby directly limiting the union’s ability to represent their members and assist them in enforcing their statutory rights – clearly, restricting employees’ access to justice with swingeing employment tribunal fees didn’t go far enough. As part of the Bill, Trade Unions will also be required to provide annual reports to the Certification Officer (“CO”) with details of all industrial action and the use of political funds. Numerous restrictions and requirements will be implemented regarding picketing, the duration of strike mandates, and information that must be entered on ballot papers, to name but a few. One clear result of these measures will be an increased financial cost to the Trade Unions in carrying out any industrial action. And should they fail to meet any of these new arbitrary hurdles, the CO will have the power to fine them.

The government has also seen fit to change the opt-out requirements regarding the use of political funds. Currently trade union members are balloted providing them with the opportunity to opt-out of part of their subscriptions going towards political funds. Under the Bill, members will instead be required to opt-in to their funds being used in this way, and they must do so every 5 years. It is widely known that opt-in processes reduce participation. The result - a restriction in trade unions’ ability to engage in political debates, and to support the party or parties that support them,  We see no similar restriction on the ability of millionaire hedge-fund managers to donate as they wish, to support the parties that they prefer.

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.

60% reduction in Tribunal cases

On Wednesday 29 July 2015 it was the 2 year anniversary of the introduction of Employment Tribunal fees. Not a day for celebration.

Latest statistics from the Ministry of Justice show a 60% reduction in Tribunal cases.

But on a more positive note, on 21 July it was announced that the House of Commons Justice Select Committee will conduct an inquiry into the effects of increased court fees and introduction of tribunal fees. This follows the long awaited announcement in June 2015 that the Ministry of Justice will also review the impact of Employment Tribunal fees.

Could this lead the way to fees being abolished and restoring access to justice?

The MoJ internal review, conducted by civil servants, will gather evidence, data and research on alternative dispute resolution and its impact; volumes and progress of claims including settlements, withdrawals and those that got to a hearing; fee remission data; income from fees; costs incurred in setting up the systems; characteristics of Tribunal users and other evidence. However, it will not take evidence from external bodies and one of the aims is to assess whether the fees regime has successfully transferred costs from the taxpayer to tribunal users. The MoJ will no doubt want to justify its own decision to introduce fees in the first place. 

In contrast and with an emphasis on access to justice, the House of Commons Justice Select Committee, made up of 11 cross-party MP’s, will welcome views from external parties and Tribunal/Court users on any aspect of the subject, but is particularly interested in:

• How the increased Court fees and the introduction of Employment Tribunal fees have affected access to justice and how they have affected the volume and quality of cases brought; and

• How the Court fees regime has affected the competitiveness of the legal services market in England and Wales, particularly in an international context.

Submissions must be made by 30 September 2015.

One need only look at the statistics to see that the introduction of fees is blocking access to justice for those who need it. Sex discrimination claims, for example, fell by almost 80% in the first 12 months after fees were introduced. The total number of claims heard between April 2014 and March 2015 was 61,306; down from 105,803 over the same period in 2013/14 and 191,541 in 2012/13, the last 12-month period before the introduction of fees, according to the figures.

The Justice Select Committee review is therefore welcomed with open arms and we can only hope the findings are positive and properly considered by the Government.

In the meantime, Unison’s judicial review challenge is still progressing in the Courts and was heard most recently in June, with a reserved judgment currently awaited.

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.

The Enterprise and Regulatory Reform Act 2013

The Enterprise and Regulatory Reform Act 2013 introduced a new power for tribunals to order a losing employer to pay a financial penalty of up to £5,000 where the case has "aggravating features".

Against a background of a government doing its best to undermine employment rights across the board, there was much trumpeting from Westminster about how “rogue employers” would get some harsh treatment too.

We were always suspicious that this was too little, too late.  Was it really going to deter employers?  Why was the money going to the state, not the injured party?  Would Tribunals want to take on the role of “fine imposition”?

It turns out our suspicions were not without merit.

On 8 June 2015, Caroline Lucas MP asked how many financial penalties have been imposed.

The Government’s reply: three fines have been imposed to date.

Three.

Thousands of ET cases, and the new power has been used three times.

It gets better.

Only one of the three has been paid.

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.

ACAS Early Conciliation – Another hurdle for Employees?

I’m not altogether against the Early Conciliation (“EC”) regime introduced in employment cases last year.

It gives the parties a chance to sort things out without recourse to litigation – I’m all for industrial resolution of disputes.

It can give an employee a “last crack of the whip” with a view to negotiating a settlement when the farcical Employment Tribunal Fees regime means that he or she can’t afford to lodge a real claim in the ETs.

Employers can benefit too, from early, economic settlement.

So I get it.  But it ought not to make rights impossible to pursue.  And in two recent cases that’s exactly how the EC scheme has operated.

In Cranwell the Claimant alleged appalling treatment: sexual harassment, demeaning, discriminatory conduct and even a physical assault.  The court was unsurprised that she was reluctant to enter into conciliation with the employer who had treated her so awfully.

But the case was kicked out nonetheless – the obligation to conciliate was absolute; even justifiable oversight was impermissible.  The claim failed.

And in Sterling the Claimant’s claim form was rejected because a typographical error meant that the EC reference number was incorrectly transposed onto the ET1 form.  The Claimant had done the necessary – ACAS had been involved – but the failure accurately to copy a reference number killed the claim.

It will be said that a case can, of course, also be made for certainty – that a rule is a rule, and exceptions make for endless arguments.

I don’t buy it.  We have some really draconian rules in the ETs about time limits – but there are exceptions.  Mistakes are not always punished with lethality.

If we are going to require an employee to jump through another hoop before starting an ET claim, let’s at least be fair about the consequences of non-compliance.  Did anyone ever intend that a typo might put paid to a perfectly valid claim?  Who benefits from that (save the windfall-happy employer)?

It brings the system into disrepute; a little discretion would go a long way.

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.

A new Government – where to, employment law?

Whilst we await further announcements, our David Sorensen has reviewed the Conservative manifesto and other policy documents to work out the 6 steps most likely to be taken by the new Government in employment law:

1. Scrap the Human Rights Act and replace it with a British Bill of Rights – this will inevitably affect e.g. the way in which Employment Tribunals conduct themselves and the sort of arguments about privacy in email use/social media/misconduct cases in the unfair dismissal context.

2. Restrict strike laws further – bringing in a minimum turnout for industrial action of 40% of the workers entitled to vote within certain sectors (fire, transport, health and education), criminalisation of certain types of picketing, an extension in the length of a union’s required notice of industrial action from 7 to 14 days, a reduction in the ‘life span’ of industrial action ballots so as to require regular fresh ballots to be called, allowing employers to use agency workers to provide cover during a strike etc. All of these steps will inevitably make it even harder for unions to support workers who strike and increase the (already enormous) red tape unions face in these cases.

3. Restrict trade unions in other ways – increasing the regulation of union members’ subscriptions, reducing union representatives’ facility time in the workplace, reforming the Certification Officer’s role etc.

4. Keep ET fees – despite the evident unfairness (e.g. Vince Cable said just before the election “there is enough evidence to suggest that this was a very bad move and should be reversed. It is highly suggestive that the fees are discouraging people - particularly low paid women - from pursuing their rights”) it seems that, subject to any adverse Court of Appeal ruling in the ongoing Unison judicial review, ET fees may now be here to stay.

5. Pull out of the EU? The big question – if so, what happens to all the EU-sourced legislation such as the anti-discrimination laws, Equal Pay, TUPE, Collective redundancy consultation? Does it stay or also have to go?

6. There are some potentially positive measures (assuming they are implemented fairly and appropriately) – the ‘tackling’ of illegal working; the ‘encouragement’ of businesses to pay the ‘Living Wage’; a tax-free minimum wage by increasing a worker’s tax free personal allowance to £12,500; 3 days’ paid volunteers’ leave for employees in businesses with 250 employees or more or those employed throughout the public sector.

The direction of travel is clearly going to be anti-union and anti-industrial action. Access to justice for workers and employees is not going to be a priority. There are bound to be more employment law changes coming as well – will they revive the previous Adrian Beecroft report? That recommended cuts to maternity rights, a reduction in TUPE protection for transferring employees, increases to ET fees (e.g. from the currently high £1,200 to the extreme £3,750) as well as the removal of unfair dismissal protection and replacement with ‘No Fault Dismissal’. Time will tell.

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.

Clarification of the term 'establishment' in connection with Collective Redundancies

On 30^th April 2015 the Court of Justice of the European Union (CJEU) delivered their long-anticipated Judgment in the well-publicised ‘Woolworths [1]’ case.

This case concerns the obligation on employers to inform and consult when they propose to make mass redundancies. 

The circumstances are rather complex, but a brief summary of the facts follows:- 

In 2008, the well-known retail chain, Woolworths, entered administration after a lengthy period of difficult trading.  Shortly afterwards the clothing retailer, Ethel Austin, became a further casualty of the recession as they too appointed administrators. 

Their insolvencies ultimately resulted in the dismissal, on grounds of redundancy, of thousands of employees across hundreds of individual stores throughout the United Kingdom.

Employment Tribunal claims for Protective Awards were brought.  The claimants in those actions sought compensation for the failure of both companies to inform and consult their former workforce, prior to mass redundancies being made, in accordance with the statutory duty under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRA”).    

Section 188 of TULRA requires employers to consult with affected employees (either via a recognised Trade Union, elected employee representatives or with the individuals themselves) for a minimum period of (as is now the case) 30 days prior to the first dismissal taking place. 

However, this duty only arises if 20 or more individuals are employed at the same “establishment”, which, significantly, is not defined by TULRA. 

In ‘Woolworths’, the Tribunal was asked whether the duty to inform and consult under TULRA applied to separate shops that employed fewer than 20 people, even though more than 20 people were made redundant across the whole workforce by the closure of the business.  In other words, was it possible to aggregate shop workforces to satisfy the “20 redundancies” requirement? 

At first instance, around 450 former employees were refused a Protective Award, with the Tribunal determining that each individual store should be regarded as a separate “establishment” for the purposes of redundancy consultation. 

The Court of Appeal of England and Wales, which is currently hearing the case on appeal, previously asked the CJEU to clarify the meaning of “establishment” in order to assist the application of the law in the domestic courts.  Specifically, the CJEU was asked whether “establishment” could be interpreted so as to cover the whole of the business, or, alternatively, whether it should be afforded a more narrow interpretation and apply only to the particular unit in which the workers concerned were assigned to carry out their duties. 

Although the provisional opinion of Advocate General Wahl was provided some months ago, the latest Judgment confirms the CJEU’s position that the term, “establishment”, should be interpreted as the entity to which the workers made redundant were “assigned to carry out their duties”. 

In other words, the Court of Justice has, regrettably, applied a narrow interpretation.

The upshot is that thousands of people made redundant by the closure of Woolworths, Ethel Austin, and indeed other businesses who have entered administration, may not receive any compensation (depending upon whether the Court of Appeal’s pending Judgment is consistent with the CJEU’s – as seems overwhelmingly likely).   

We take the view that it is profoundly unfair that some individuals will likely find themselves unable to claim a Protective Award (which could equate to up to 90 days’ gross pay) simply because they worked at a smaller site, even though the whole of the business is affected by redundancy. 

---

[1] USDAW and another v WW Realisation 1 Ltd (in liquidation) and others (C-80/14)

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.

So, what’s the big thing on the Government’s agenda?

Poverty? Global terror? IS? The deficit? The trade gap between imports and exports?

It seems to be Employment Tribunal hearing adjournments. Of all things, are ET adjournments really that important? Are they really a current scourge that is devastating our society?

Part of SBEEB¹ is designed to give ETs a power to restrict the number of times that a party can postpone or adjourn an ET hearing.

The main points are:

·    that no party should generally be allowed to postpone hearings in its case (including preliminary hearings) more than twice;

·   that applications made less than seven days before the hearing in question should only be granted in exceptional circumstances;

·   that if a postponement application made within that time is granted, the ET should be obliged to consider a costs order against the person making it; and

·   that these rules do not apply to adjournments necessitated by something done or not done by the ET or the other side or where both sides agree and the ET thinks the adjournment may lead to a settlement.

Phew.

One of the principal drivers for the proposals is stated to be the length of time that ET proceedings take. No need is paid in the paper to the shortening in waiting times likely to accompany the dramatic fall-off (off a cliff) in numbers of ET claims since the introduction of ET fees (i.e. a 70-80% fall) and the reduction in the number of cases being heard by a full panel by opposed to a Judge alone.

It seems to us that the ET rules already provide for the ET to take these steps. The wide discretions afforded to Judges by the ET rules as they stand already permit the refusal of late or repeated adjournment requests and the award of costs where the other party is prejudiced – the proposals just complicate and duplicate what is already in place.

Further, this is from a Government whose Prime Minister stated recently: “I have insisted on slashing needless regulation. We will be the first government in modern history to have reduced – rather than increased – domestic business regulation during our time in office”.

Against a wider picture of dropping ET claims, I really wonder what, apart from posturing before an election, it really hopes to achieve by this.

Perhaps, most telling, is the statistic in the accompanying consultation paper that around 80% of application requests are made by Claimants. It is therefore clearly Claimants who would be most prejudiced by this change, not employers. I suspect many of these Claimants will not be legally represented. So in practice these changes are mostly aimed at the unrepresented Claimant without the benefit of union and/or legal support. No doubt many will be fearful of adverse costs and be more likely to drop a claim for fear of the risk.

In all, it seems to be further loading of the employment law dice in favour of an employer.

¹ Small Business Enterprise and Employment Bill and not a Bond villain – currently it’s working its way through Parliament.

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.