Counting the Kost(al)…

So the Court of Appeal (CA) has overturned both ET and EAT in the “inducements” case known as Kostal UK Ltd v Dunkley and ors.

See my employment law update for more details about the decision.

I always did think that EAT was brave, upholding the ET decision.  Two letters from management and dozens of workers get £7K individual payouts?

At first blush that’s a surprising windfall, and I suspect the Court of Appeal have been more than a little put off by the six-figure shock to the system that knocked Kostal off its lofty perch.

The CA says that s.145B has to concern a permanent attempt to subvert the collective bargaining process.

But that’s not what s.145B says.

And what of the employer who reads this and says… “so as long as we only go over the Union’s head every now and then, we’ll get away with it”?  Because that’s where we end up.  An army of Respondent lawyers (the same ones who tell us that everything is inside the band of reasonable responses!) arguing that nothing is permanent.  The Union was only kicked into the long grass for a week or 2, because negotiations had broken down.  Of course the company will be back to the negotiating table next time.  At least until the Union shows signs of not bending the knee… since then it’ll be back to direct approaches to the workforce.  But not on a permanent basis.  Obviously.

With respect I’m going to disagree with the CA.  If they had wanted to tone down the decision as little, it would have been easy enough to halve the awards by saying that really the two inducements were part and parcel of the same thing.

But as it stands, instead, we have yet another right to support collective action diluted till it has no teeth at all.

The most successful EU countries seem to have the best collective bargaining arrangements.  It’s no coincidence that pay and workers’ rights generally have all suffered under a neo-liberal vision of individualism that has consistently resisted the collective.  It’s dogma, and it’s not working.

Employees don’t have a level playing field with their employers. S.145B and its ilk – and frankly there ain’t many of them – exist to support Unions trying to redress that balance.  I’d like to see the Supreme Court help them do that.

Paul Scholey - Senior Partner


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The Price of Justice

It seems such a long time ago now that Claimants had to pay fees to bring their claims. It was 26 July 2017 that the fees regime was abolished as being unlawful.  We remember it well, here at Morrish Solicitors – the moment the email arrived confirming the Unison decision, our employment team erupted with a spontaneous cheer!

The decision of the Supreme Court made it clear that the fee regime prevented access to justice, was indirectly discriminatory and was contrary to EU law.

Yet on 18 April 2019 it was reported that the Employment Appeal Tribunal (EAT) in the case of Wray v Jewish Care had refused to grant an extension of time to a Claimant who hadn’t been able to lodge his claim because of that unlawful fee regime.

Mr Wray presented his claims out of time because he was of limited means and did not have strong literacy skills. At the time he was obliged to lodge it, he would have had to pay £250 and he said he couldn’t afford it. He was nearly or slightly overdrawn and so he decided to wait.

In early August 2017 he learned of the Supreme Court’s decision that fees were unlawful and he went on to lodge his claim in early September 2017, the limitation date having expired on 18 July 2017. He was nearly two months late.

And the EAT said this was 2 months too late.

Where Mr Wray went wrong was that he didn’t prove to the Tribunal that he was genuinely dissuaded from pursuing his claims because of the fee payable. He’d waited too long. He also hadn’t properly evidenced his financial means.

So, in spite of an access-to-justice preventing, unlawful fee regime, each case will still turn on its own facts – and now, so long after the Unison decision, we suspect that we will see no more of these “late” cases anyway.

But something is wrong, here.  The Supreme Court excoriated the politicians – what use access to justice, they asked, if no-one could afford to exercise it?  It was always clear that swingeing fees of over £1000 were going to deter individuals from pursuing justice.

Now that the Supreme Court have confirmed what we all knew, it seems ironic that a technical approach means that those denied access to justice by unaffordable fees are now denied it by a narrow decision on practicability.

Daniel Kindell - Partner and Employment Solicitor

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