On being a barrister when the world falls in

Struck Out recovered

The following is a talk I gave to students at the College of North East London (“Conel”). In previous years, a Conel student had given my book ‘Struck Out’ the new cover (above)

The distinction between barristers and solicitors is that we are usually only instructed in the very final stages of any legal procedure.

A good moment to speak to a solicitor, in a Tribunal claim, is around the time that you submit your ET1 claim form. The solicitor can help you to draft it. They can represent you at the early procedural hearings, now known as “Preliminary Hearings”. They can advise you on what a claim is worth and whether to settle it.

Many solicitors will only instruct a barrister if the claim is unusually complex.

Barristers will not usually send letters to the employer, chase missing documents, draft the worker’s witness statements. Solicitors do all of these. We get involved, usually, only right at the end of the case, just before the final hearing.

Barristers like to say that our relation to a solicitor is like a consultant doctor’s relationship to a GP. In other words, we come in because of a referral. And we are the experts in the relationship.

Sometimes it is like that. If I am instructed by a high street solicitor, they may work in lots of different areas of law – crime, employment, immigration. They will have a general knowledge of everything and little specific knowledge of employment law.

More often barristers are not like hospital consultants. A specialist employment solicitor (and almost all union solicitors are specialists) may work in employment law every day of their working lives. Their preferred barristers might typically each cover a range of different courts and several different areas of law.

The barrister’s expertise is not really a better knowledge of employment statutes or case-law. Our expertise is that we spend almost every day of our working lives appearing before Judges, and trying to persuade them to make different orders from the ones that they would make if we were not there.

Being in court all the time gives us a sense of the occasional arbitrariness and good fortune that sits just beneath a court decision.

We get involved in cases late. If I am preparing a 2 day trial, I would hope to get the papers for the first time two clear days before the hearing.

When I used to do crime it was entirely normal for me to take over a complex, difficult case with just an hour or so notice. We are expected to be able to adjust with very little warning

Often unrepresented workers get very nervous when the employer has instructed a barrister. You might think – “they do this for a living, they must be terrifying” (and they often are). It also happens sometimes that the barrister may have seen the papers for the first time that morning, may not have had the chance to think at all deeply about the case, and may be seething with the solicitor for the late instruction.

For a year we have had fees – which at £1300 for discrimination or unfair dismissal claims and £390 for unpaid wages – are punitive

The government has also introduced a 2 year service requirement for unfair dismissal, a compensatory award capped to a year’s salary, “protected conversations” and compulsory ACAS conciliation – all of which make it that little bit harder to bring a claim

Fees have been a disaster for workers, unions and for the providers of free legal assistance. Workers are hit by fees which at around a third of the median award for unfair dismissal claims are just too high. In a context where only about half of all claims succeed, only about half of them lead to an award, and only about half of them (or one eighth of all cases) lead to the full payment of the award in 6 months: it is simply daft for anyone to bring an ordinary unfair dismissal claim any more

Unions – who are trying to support the same number of claims, as if fees had never come in – are hit by having to spend millions of pounds on fees for cases which only 18 months ago were free.

Parallel changes to legal aid mean have reduced the number of legal aim employment cases from around 25,000 per year to 32 –reducing the ability of law centres and CAB to assist the most vulnerable workers

But fees have not been a disaster to the same extent for barristers. We always were instructed principally in complex and high value cases. The number of complex faces is falling but not to same the extent as the number of cases generally.

There is a little less pressure on the court timetable, so that cases which not so long ago might take 18 months to be listed are now heard in 9 months or less

It is even my sense that the balance in unfair dismissal claims in particular has swung just a little towards claimants. It is as if judges are telling themselves – “the worker who has got this far has gone through ACAS conciliation, paid their own fees, passed through a different pre-hearing process: they must be serious to have got this far. So I will definitely give them a fair hearing.”

Both of our two main parties now agree that the future will be one in which there are fewer ET claims. This will be no problem – provided that we as a society find other ways of bringing to book those managers who sexually harass or that employers who dismissal arbitrarily or owners who simply do not pay their workers

Unwelcome figures


from Socialist Lawyer, October 2014

The release of the Employment Tribunal figures for April to June 2014 made unwelcome reading for employment lawyers. The total number of claims issued (18,106) was down 76% on the same period a year ago. Just as important was the 24% fall in claims compared to the previous quarter (i.e. January to March 2014).

Part of the context is that the Coalition government’s introduction of Employment Tribunal fees has led to a one-off reduction in the total number of claims. The fall has happened because the combined cost of the hearing and issuing fees (£1200 for unfair dismissal or discrimination claims) was set high compared to the value of claims (the median award in either jurisdiction is around £5000, and in most cases the claimant has to fund their legal costs from their damages). It is too early to say with certainty what the long-term effect of fees has been, but it is likely to cause a permanent decline in the number of cases of (very roughly) 60 percent:

In addition, since 6 May 2014, all new claims have been required to go through a pre-issue, conciliation period, during which Claimants are required to register their claim with ACAS, to establish whether the claims are capable of settlement. The impact of ACAS has been to convert what would have been a 60% or so decline in the number of claims to a total decrease of 74%.

The government’s analysis is that the further fall in the number of claims is welcome. Tribunal litigation has enormous hidden costs (psychological as well as financial), for both workers and employers. Under the old system many claims were settled: now both parties benefit from a system which focuses their minds on settlement.

Even if this was true, there are a number of cautions worth recognising. First, the ACAS system is not designed to unblock negotiations which have become stalled. Rather it is a test intended to catch the “low lying fruit”, the cases which were already on the verge of settlement. When a worker contacts ACAS, they are required to give few more details than their name and address and their employer’s contact details. They are then telephoned by an ACAS officer. While a claimant in any area of law, on their first attendance with their solicitor, would be expected to give the full details of their case, ACAS’ calls are much shorter. Workers are not always asked what their complaint is about, nor even, in the initial call, how much money they are seeking by way of settlement. ACAS officers are cautious to be seen to “give legal advice”, or to be seen to “taking sides”. Calls to the employer are, in many cases, equally brief. The employer is asked if they have an intention to settle. No pressure is put on an employer if the answer is No. Unless the parties each already have an intention to settle, the ACAS officer will move on to the next case.

Second, where no settlement is reached, ACAS acts as a buffer, between the claimant and issuing a claim. The intended structure of pre-action litigation is now as follows: a worker has three months from the act about which they complain to issue. They must contact ACAS within this time. The case is then held by ACAS for a month; and then, if no settlement, a worker is issued with a certificate, without which they cannot issue a claim. The three month time limit is extended for the period in which the case was with ACAS. Employment law has seen, in the past, a very large number of cases concerning what the Tribunal should do when cases are late, including in situations where the delay is as short as a few minutes or as long as several years. In a context where time limits are already closely guarded there is an enormous potential for satellite litigation eg where ACAS wrongly fails to issue a certificate, or where there is a dispute between any of the employee, the employer and ACAS about whether the claim was with ACAS for the requisite period or not.

With those two major cautions in mind, it is worth returning to the principal argument in favour of compulsory ACAS conciliation, that it will settle a number of cases which would otherwise have gone to a contested hearing.

A year ago, broadly speaking, around 18,000 claims per month were issued, of which 6,000 settled and 12,000 reached some other outcome (success or failure at a final hearing, disposal at an interim hearing, etc).

Today, it seems that around 17,000 workers a month contact ACAS, and around 3,000 cases are settled. Of the remaining 14,000, 8,000 disappear altogether (ie workers, not receiving any satisfaction, simply drop out of the system with nothing), and around 6,000 claims are issued.

The number of settlement agreements is running at half the level of a year ago: 3,000 per month now, as compared to 6,000 per month then.

It follows that workers have not been rescued from the uncertain waters of court and brought to the safe harbour of negotiated settlement. Instead, both the number of claims and settlements are sharply down on a year ago. Whichever route they prefer, workers’ rights have been sharply curtailed.

How bad have fees been?

This July marks the anniversary of the introduction of fees in the Employment Tribunal. Few people supported them before they were introduced; fewer have a good word for them now.

From the perspective of Claimants, there was always something unjust about making workers pay the burden of fees when it is employers who have the deeper pockets. If fees were necessary (and few indeed with experience of the Tribunal thought that they were) the government could easily have introduced a more balanced system, for example by making Claimants pay an initial issuing fee, but placing the burden on employers to decide how far they contested a claim, and making them pay a hearing fee, where they wanted to fight.

Trade unions also had much to lose. The tradition has been that when a trade unionist brings a claim the union pays all the costs but the worker retains the full damages. In practice, most unions have tried to keep as much of this model as they could in the aftermath of fees, either paying the fees themselves or providing loans to members for them to pay the fees, but in any event asking that members who succeed in their claim seek to recoup their fees and repay them to the union. The potential liability to a trade union, should any significant proportion of its members bring claims, was considerable.

Most employers’ organisations were sceptical about fees, presenting them as a blunt instrument which fell just as hard on deserving as on weaker claims. There was no real belief that workers’ grievances would disappear just because they were stopped from bringing tribunal claims, and considerable concerns that workers would seek alternative means of obtaining redress.

A year on, we know what effect fees have had. Total claims are down by 63% with group claims (typically equal pay and sex discrimination claims) down ever faster at 79%.

Historically, the claims which workers were most likely to win were wages and discrimination claims, as the issues were simpler, and it was possible for a Tribunal to find for the worker without calling into question the whole running of a business. Wages claims in particular used to succeed (at least in part) in around 2/3 of claims. Discrimination claims were harder to win. But the effect of fees has been to obtain a much faster fall in wages and unfair dismissal claims, whereas other types of claim have held up better than trend (race discrimination claims have fallen by “only” 58% for example). The reason for this is that fees have been set at such a high level, that it makes no sense to bring an ordinary wages claim, for example, the fee is just too high a proportion of the worker’s potential winnings. Paradoxically, therefore the claims which have seen the sharpest fall are the ones which workers were most likely to win. The policy hasn’t discriminated against claims which are statistically weaker, rather it has discriminated against the strongest ones.

One of the government’s responses to criticisms was to introduce a “fee remission” scheme, when certain workers with low incomes and no capital would be eligible for partial or complete waiver of the Tribunal fees. In the original consultation on fees, the government estimated that 31% of Claimants would be eligible for fees.

A year on, in response to a question from Andy Slaughter the Shadow Justice Minister, the government has announced that one in five Claimants applies for fee and remission it granted to one in four of those apply. Overall then, just 5.5% of Claimants are securing the remission of their fees, either in full or in part.

As for the unions, the picture seems to be that the number of claims brought by trade unionists has held up far better than it has in the economy as a whole. Firms which specialise in union employment work describe a fall in the claims they issue of a mere 5% or so, a picture which bears no comparison with the rest of the employment world.

Isn’t it going to be a good thing if only trade unionists can afford to bring tribunal claims in future; won’t that encourage non-members to join unions?

Before fees were introduced, a few unions attempted to estimate how much they would have to pay if their members brought claims in the same numbers as before. The general estimate was that, at £1300 for each dismissal or discrimination claim, fees would cost unions about 10% of their total annual budgets (not their legal budgets, their budgets for every service they provided). Few unions charge more than £150 per member per year in fees, and with around one in 50 workers facing dismissal each year across industry, it’s not difficult to see that unions simply don’t have the funds to litigate post-fees without taking other steps to restrict the number of their members who can sue.

Of course, if the government had levied a one-off 10% tax on all unions, they would have been an uproar. This is exactly what the policy has meant in practice, but without the unions yet daring to protest on a scale necessary to make the law unworkable.

Republished from Socialist Lawyer, June 2014

Once more on Compulsory Conciliation


Since Tuesday 6th May, all workers wishing to bring employment tribunal claims will first have go through mandatory conciliation with Acas. On the face of it, the process is perfectly simple. All that is asked of the worker is to fill out a short form (https://ec.Acas.org.uk/). They will be contacted by an Acas officer who will contact them to establish if it is possible to settle their claim.

If the worker and their employer do settle, both sides will have been spared the distress of a lengthy court battle. If settlement is not possible, the claimant will have wasted a month but on receiving confirmation from Acas that the claim did not settle, they will then be able to proceed with an ordinary tribunal claim.

Put like this, the process must seem straightforward, and if anything benign. There is certainly nothing wrong in principle with getting workers and employers to talk to each other early in a claim. The problems come when this simple seeming process is placed in the context of what has been a two year assault on ever worker’s rights, which has already led to an 80% reduction in the number of Tribunal claims…

More here

(The link takes you to the Pluto website, where as well as running my article on ACAS conciliation, Pluto are also kindly offering my book for sale at 50% off the cover price).

ACAS conciliation – what every worker needs to know


1) As from 6 May 2014, if a worker wants to bring a claim to the Employment Tribunal they will be required, first of all, to go through ACAS early conciliation. If you haven’t had confirmation that the ACAS stage is complete – your ET1 claim will not be accepted.

2) The ACAS form is here: https://ec.acas.org.uk/Submission/Create

3) ACAS conciliation, unlike the ET1 / Tribunal process itself, is free. While there are many problems with it (see below), there may be some groups of workers who benefit from it – eg people who are unsure about bringing a claim, and merely wish to negotiate.

4) Make a note of the time and date when you send your claim to ACAS – this could be important later. Keep a copy of any receipt you get. If you haven’t had confirmation of receipt within 24 hours, re-send it, until you get confirmation.

5) After you have completed the form, ACAS should contact you, probably by telephone. The ACAS conciliation officer will use the call to ascertain what sort of claim you have, and what its very rough value might be.

6) You would be well advised to prepare for the call from ACAS, for example, by thinking through the one sentence which would best explain what your claim is about, and writing it down in advance. For example, “I have just been told I will be dismissed, and I want to bring a tribunal claim for unfair dismissal.” Or, “my employer owes me £200”. Or, “my manager has been bullying me and I think the reason for the bullying is my race”.

7) If you have a trade union, or a solicitor, you cannot name either on the ACAS form. ACAS will not know that you are represented until you tell them. That means that you would be well advised to have your representative’s number written down and at hand. You must tell ACAS the number, or ACAS will speak only to you and not to your representative.

8) From ACAS’s perspective, the sole purpose of their involvement will be to obtain an agreement between you and your employer that you will not bring a claim in return for your employer offering you a (modest) sum of money. If agreement is achieved, then from ACAS’s perspective, this is a “result”. If it is not achieved, then ACAS’ involvement will be a failure.

9) Because ACAS officers are under instructions to seek to obtain an agreement between you and your employer, you should be cautious about their involvement. If you don’t have a solicitor, and your employer does (and most employers will engage solicitors as soon as ACAS is involved), there is a real likelihood that the ACAS officer will find it easier to pressure you to make an agreement, and harder to put pressure on the employer’s solicitor (the solicitor will have been here more times before, will know what to say, and will be less amenable to pressure). Be cautious about making an agreement that will result in your claim being settled at an under-value. Agreements, once made, are not reversible. If in any doubt at all, speak to your union or to a solicitor before agreeing anything.

10) The ordinary time limit for a Tribunal claim is three months from the act about which you are complaining. If ACAS has your claim, and you do not reach agreement with your employer, your time will be extended, potentially, by up to a month. The best ways to make sure that ACAS’ involvement does not take your claim out of time are: a) involving ACAS early, at least a month before the three month deadline runs out, and b) making sure that you keep any documents showing when ACAS received your claim (in case there is a dispute later about when ACAS received your details), and c) making sure that you keep the documents showing when exactly ACAS’ involvement in your claim ended.

Disciplinary and grievance hearings: what you need to know


The following is based on some training I recently did for a trade union. I hope it will be useful for anyone who is just starting to become a caseworker and learning to accompany other workers at hearings of this sort.


What is a disciplinary meeting?

A disciplinary meeting is a meeting which has been requested by the employer, usually became a manager is thinking of taking disciplinary action against (i.e. punishing) a worker

What is a grievance meeting?

A grievance meeting is a meeting which has been requested by a worker, either became the worker wants his employer to take disciplinary action against a manager or another worker, or because the worker wants to complain about a decision taken by his employer

What is the relationship between discipline and dismissal?

If an employer wishes to dismiss a worker, then whatever the reason was for the dismissal, ordinarily, the employer should not take any action before first inviting the worker to a meeting.

If an employer wishes to dismiss a worker, there are in UK employment law only six fair reasons for dismissal: capability, conduct, redundancy, retirement, contravention of statute, some other substantial reason (section 98, Employment Rights Act, 1996).

o “Capability” is where a worker is incapable of doing their job, either because of illness or because they lack the skills to do it to the appropriate standard.

o “Conduct” is where a worker has done something wrong (eg stealing, fighting, persistent lateness or absence)

o “Redundancy” is where an employer has less need for a worker to carry out work of a particular kind or in a particular place (section 139, Employment Rights Act, 1996)

Some of these dismissals come about because the employer believes a worker has done something wrong and the employer is considering taking action against her. Those sorts of meetings are called disciplinary meetings.

If an employer wishes to punish a worker, there are two types of actions the employer can take: they can dismiss the worker, or they can subject them to a disciplinary penalty short of dismissal (eg a warning, or a demotion)

What should happen at a disciplinary or grievance hearing?

The answer will depend on what it says in the employer’s disciplinary or grievance procedure. Many employers publish their procedures on their website, and if your employer does not publish theirs, you should ask personnel for a copy of the policy as soon as you know that there is going to be a meeting.

Just for an example of a typical disciplinary procedure: see a London university’s procedure. Amongst other things, the procedure says:
· Many disciplinary problems will be dealt with informally (i.e. between the worker and the manager without a formal meeting). In an informal disciplinary action, the most the manager can do is give the worker an informal warning. If the manager is dealing with the complaint as if it were a formal procedure, at any time, the worker can stop him and say that the hearing should be dealt with formally (allowing them to be accompanied by a co-worker)
· If the process becomes formal then it will be in three stages:
· Stage 1 – investigation. A manager will investigate a complaint against a worker. The manager should report on the outcome of their investigation within 10 days of the complaint being made.
· Stage 2 – formal meeting. The worker should get at least 5 days notice of the meeting. They should be told who will be there from management and what punishments may be made. The worker should be told of their right to be accompanied at the meeting.
· At a formal meeting, the employer can make the following punishments: 1. formal oral warning, 2. first formal written warning, 3. first and final, or final, written warning. 4. dismissal.
· An employer should not dismiss, or give a first and final warning, unless the behaviour is so bad that it would justify immediate dismissal
· Stage 3 – appeal. The worker should appeal in writing. They will get a written response from the original investigating manager at least 5 days notice of the meeting. They should be told who will be there from management and what punishments may be made. The worker should be told of their right to be accompanied at the meeting.

Wherever you work, you should always familiarise yourself with your employer’s disciplinary procedure as it may contain rights which assist you, or the member you are accompanying. For example, the university’s procedure says the following about what trade union reps should or shouldn’t do at hearings. Unlike most employers, whose policies don’t allow for more than one rep, this particular policy does:

“In cases where dismissal may be a possible outcome or in complex cases, the employee may request to be accompanied by a second representative. Such a request should be made in writing to the Director of HR at least two working days in advance of the hearing and will be carefully considered by the School taking account of the particular circumstances of the case. Normally the role of the second representative will be to take notes unless agreed otherwise by the Director of Human Resources.”

Apart from my employer’s procedure, what other rules are there?

Some of the rules regarding disciplinary and grievance hearings are set out in primary legislation (i.e. Acts of Parliament).

Section 10 of the Employment Relations Act 1999 provides that:

Right to be accompanied.
(1) This section applies where a worker—
(a) is required or invited by his employer to attend a disciplinary or grievance hearing, and
(b) reasonably requests to be accompanied at the hearing.
(2) Where this section applies the employer must permit the worker to be accompanied at the hearing by a single companion who—
(a) is chosen by the worker and is within subsection (3),
(b) is to be permitted to address the hearing (but not to answer questions on behalf of the worker), and
(c) is to be permitted to confer with the worker during the hearing.
(3) A person is within this subsection if he is—
(a) employed by a trade union of which he is an official within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992,
(b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker’s companion at disciplinary or grievance hearings, or
(c) another of the employer’s workers.
(4) If—
(a) a worker has a right under this section to be accompanied at a hearing,
(b) his chosen companion will not be available at the time proposed for the hearing by the employer, and
(c) the worker proposes an alternative time which satisfies subsection (5), the employer must postpone the hearing to the time proposed by the worker.
(5) An alternative time must—
(a) be reasonable, and
(b) fall before the end of the period of five working days beginning with the first working day after the day proposed by the employer.
(6) An employer shall permit a worker to take time off during working hours for the purpose of accompanying another of the employer’s workers in accordance with a request under subsection (1)(b).

If you want to find this legislation in its original form then (in common with all the statutes referred to in these notes), it is on the www.legislation.gov.uk website

Some of the rules are contained in guidance provided by ACAS.

The ACAS guidance on disciplinary hearings provides that employers should
· Inform employees of problems
· Notify them of the need to attend a hearing and their right to be accompanied
· Inform them of their right to appeal

The procedure is very similar for dealing with employee’s grievances

You can read the ACAS guidance here

Where an employer or a worker does not comply with the ACAS guidance, and the worker subsequently brings a Tribunal claim which succeeds, the Tribunal may increase or reduce the award by up to 25% (section 207A Trade Union and Labour Relations (Consolidation) Act 1992)

o Is it appropriate for an employer to deal with poor attendance by a disabled worker under a disciplinary procedure?
o Should the same procedures be followed if the employer’s misconduct complaint is about a trade union representative?
o If the worker makes a grievance about a decision to dismiss her, should it be conducted under the disciplinary or grievance procedures?
o What if the worker’s rep is on holiday for 5 days and the employer says: “I am not rescheduling the disciplinary hearing?”
o What if the employer says “you can have a colleague to take notes but I’m not allowing them to speak at your disciplinary hearing”?

Catastophe in more detail

Most of my readers will have picked up, either from the various legal update services who have already covered this story or from the reports in the press, that the latest Tribunal figures, released yesterday, show that ET claims have fallen sharply, following the introduction of fees in July 2013.

I thought it would be useful to look beneath the headline figures, which have typically been reported as a fall of 63% (individual claims) or 79% (total claims), to show which jurisdictions are hanging together, and which ones aren’t.

The following table shows in the left hand column, the decline in the number of cases brought in December 2013 and December 2012; in the middle column, the number of cases brought in that jurisdiction in December 2012 (i.e. their numbers in a typical month, pre-fees); and in the right hand column, the jurisdiction:

-90% 1,606 Redundancy – failure to inform & consult
-86% 776 Written statement of terms & conditions
-83% 1,760 Sex Discrimination
-82% 989 Redundancy pay
-80% 1,825 Equal pay
-77% 2,708 Breach of contract
-74% 638 Disability discrimination
-72% 4,425 Unfair dismissal
-71% 100 Written pay statement
-70% 3,108 Unauthorised deduction from wages (formerly wages act)
-67% 68 Written statement of reasons for dismissal
-66% 64 Discrimination on the grounds of sexual orientation
-66% 2,708 Working time directive
-61% 214 Age Discrimination
-60% 381 Race Discrimination
-59% 65 Discrimination on the grounds of religion or belief
-53% 104 Transfer of an undertaking – failure to inform & consult
-48% 31 National minimum wage
-41% 108 Suffer a detriment/unfair dismissal – pregnancy
-38% 54 Part time workers regulations

The first thing to note is that the fall has been sharpest in the jurisdiction which involve the most claims: if you were a lawyer thinking “I can reinvent myself as a specialist in part-time workers’ claims”, clearly that won’t work – they may be holding up better than the average but there are too few of them to make a difference

Next, if you separate out the jurisdictions which indicate group claims (i.e. single cases involving perhaps hundreds or thousands of joined litigants, which take up a tiny proportion of the system’s net time but have distorted the Tribunal figures over the past few years) – they have declined very sharply in numbers, giving the impression that the working time claims in aviation and the equal pay / sex discrimination claims in local government and housing have in essence become historic – all or almost all were issued prior to fees coming in, last July, and they won’t appear in future years. This alone will reduce the statistical number of claims dramatically, even if it won’t make much difference at all to 99% of Judges, lawyers, Claimants or Respondents.

I had expected wages and similar claims to fall fastest, as fees have been set so high that the Tribunal regime is punitively unattractive (who would spend £390 chasing a debt of less than £500, especially when even if the Claimant succeeds, Claimant’s recovery rates are below 50%). This has happened to some extent – witness the cluster of redundancy claims and breach of contract near the top of the pile.

I had hoped though that unfair dismissal would decline less sharply – maybe by around 60% post-fees: it is the bread and butter of the Tribunal system, and has some the same problem as wages (who would spent £1300 chasing a likely award, if successful, and if compensation is ordered, of a median £4500 or so?) but to a lesser extent.

The real surprise is discrimination. At a decline of “just” 61% and 60%, age race discrimination cases (the only numerically significant groups of claims to be holding up at all) show what one Employment Judge told me recently, “all our one five day cases are still in the diary, it’s the one day cases which have vanished”.

But look at sex and disability discrimination with their much sharper falls of 84% and 74% – these are even worse, and much worse, than even I had feared, and I have been among the greatest pessimists.

If you take two steps back and look at the picture as a whole, what you see is Claimants, in all jurisdictions, with winnable cases (remember: 3/5 of all Tribunal claims succeed), voting with their feet, and concluding that fees have taken the Tribunal decisively out of the reach and that there is no justice for them.

And this is before we get compulsory Acas conciliation in April 2014: which will almost certainly result in a further chunk of 60-70% or so of all cases coming out of the Tribunal system.

If workers were getting anything in return it might not be so bad – but they are not – this is a significant defeat for everyone at work. And the only hope will be if workers find alternative ways of obtaining justice, by putting pressure, directly, on their employers.

Statutory interpretation for trade union reps

Or, everything, you need to know about employment law in just 40 minutes

(Me speaking to students at Glasgow Kelvin college, earlier this year)

On the picket line: Doing less than nothing about Zero-hour contracts

Zero hour contracts protest

Twenty years ago, one of the buzzwords of industrial sociology was the idea of “flexibility”. The workplaces of the digital future, optimists said, would contain large numbers of highly-skilled workers, well remunerated and able to work short hours. At the start of any week, they would choose the employers for whom they intended to work and the days they would work. Pessimists warned that if the employers had their way, they would choose workers from workplaces scattered across all the continents, engaged in insecure, low-paid work with no underlying rights.

The different hopes and fear of workers and employers shaped the press’ discovery in autumn of last year that there are between 250,000 (Office for National Statistics) and 5,500,000 (according to the trade union UNITE) workers on zero-hour contracts in the UK. Under these contracts, a worker remaining on the employer’s books is offered duties every week. In contrast to most workers, who have a fixed working week, there is no obligation to offer, or indeed pay, any minimum number of hours.

Zero-hour contracts may sound like self-employment but the worker is under the same degree of control and subordination a full-time employee. Unlike self-employed contractors, a zero-hours worker is subject to the employer’s disciplinary, conduct and absence procedures.

What this means in practice is that the “flexibility” of the arrangement goes only in one direction. According to ONS, 42% of all zero hour workers, are given less than 12 hour notice of their shifts. If a worker is contacted on a Sunday evening and asked “are you free to work on Monday and Thursday afternoons this week?”, and answers “No”, then there is a real risk the employer will never contact them again.

Because of the irregularity of their hours, zero hour workers rarely receive holiday or sickness pay, maternity rights or pensions.

One sector in which zero hours contracts are prevalent is social care, where the typical underlying relationships might be something like the following: a local authority provides care services to a shifting group of 200 or so elderly patients living in the community. It contracts out the care provision, which was once provided by council employees, to a private company. The identity of the patients will change from week to week, as their health gets worse or better, and new people require care. Using zero hours contracts enables the private company to pass on to their workers the insecurity structured into their relationship with the patients.

The Coalition government, noticing a large number of press stories about zero hour contracts, is now consulting about legislative change. The best thing would be to abolish these contracts altogether. A minimum reform would be to insist that a flexible contract (“your duties may change from week to week”) must pay a minimum number of paid hours, which might be as low as 8 per week (i.e. a full working day). This would at least give workers some protection from complete abuse, and the cost to employers would be modest (after all, what is the point of employing someone, with all the difficulty of putting them through your PAYE systems, etc, if you are not going to offer them as little as a single day’s work per week?)

Rather than do this, the Department for Business, Innovation and Skills (BIS) has limited its consultation to the issues of “exclusivity” and “transparency”.

By exclusivity, what is meant is that a contract might at present say “you are obliged to make yourself available to the employer 40 hours per week, while the employer is under no obligation to offer or pay you for any work at all”. Such clauses pay havoc with workers lives, their ability to get another job, their benefits entitlement, etc.

BIS’ own figures suggest that less than 10% of zero hours contacts have an exclusivity clause. This sounds reassuring but is misleading: the assumption of exclusivity is implicit in the zero-hour contract and there is no need to make it explicit. Most employers don’t formally dismiss a zero hours worker who does not make themselves available to work. An employer can achieve just as much without dismissal by no longer offering the employee work. There is no dismissal, so (in principle) the employee cannot sue. If the worker did persuade a Tribunal that they had been dismissed, their compensation might be nothing, as the employer would say “but there was no guarantee of work and the usual hours were a mere zero”.

BIS offers a range options for dealing with the problem of exclusivity ranging from an outright ban to positive encouragement and invites comments. Reading between the lines, it is most likely that they will do nothing to limit the terms but issue a Code of Practice as to how they might be interpreted.

That the Coalition is minded to propose such a Code is apparent from their second area of consultation, “transparency”. BIS notes that a large number of workers are unsure whether they are on a zero-hour contract or not, and proposes including within a Code of Practice a model zero-hour employment clause. It is hard to resist the feeling that the real purpose of this Consultation is to put zero hour contracts on a firmer foundation and to make them if anything more common in future.

(reprinted from Socialist Lawyer, March 2014)

Why the books don’t work


Employment law requires, for its successful operation, its knowledge by hundreds of thousands of non-lawyers. Any large employer will have a personnel department, staffed by the company’s in-house legal experts. On the employee side, there may well an equal number of informal or formal employees’ representatives. A dispute may arise about (for example) whether the employer is entitled to offer its full-term employees just 4 weeks’ holiday per year. The answer will be initially in the employees’ contract, but if the employees are dissatisfied with the answer they find there, attention will generally turn next whether the contractual provision is lawful. To know the answer, you have to know what it says in “employment law”.

Many of us who in practice in this area forget all too easily how little opportunity any of these people have to refresh their knowledge of the law. No-one working in the personnel department will be a lawyer; all will be expected to keep up to date with employment law. Even if the employee representatives are trade union representatives (and, at present, only a minority of workplaces have a union rep) and belong to a recognised trade union with “facility time” (paid time off) for some of their duties; almost certainly, these days, the reps will not be given permission to attend training or refresher courses in the law. In a small company, of course, it is perfectly usual for there to be no-one, whether employer or employee, familiar even with simplest rules of employment law: such as whether a written contract is necessary, or whether wages may be lawfully deducted for poor performance…

As a non-lawyer, how are you supposed to be certain that an employer’s decision complies with the law? Many non-lawyers think the answer can be approximated by purchasing a good, detailed textbook published by an authoritative source. But if you spend any time among employment lawyers, you will see that few of us possess or (fewer still) read such a book. There are various reasons why not:

One, superficial, reason for our dislike of law books is our consciousness that employment law is always changing. What the books specialise in is summarising decisions which appeal courts make about how the law should be interpreted (“caselaw”). But the decisions of caselaw are constantly changing with the result that what is said in any one book is constantly of being out of date and therefore wrong.

Let me give a practical example of how this can happen. In 2013, the Employment Appeal Tribunal (EAT) was faced with a decision as to how to interpret parts of the Equality Act 2010 which prohibit an employer from punishing an employee who has been associated with a complaint (or in the technical language “victimisation”). What happens if the relationship has ended? Section 108 of the Act makes it unlawful for the employer to punish a former employee. But subsection 7 of sub-section 8 says that, “(7) … conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A”. On 5 March 2013, handing down the decision in Rowstock Ltd v Jessemey [2013] UKEAT 0112/12, Mr Recorder QC sitting as a Judge in the EAT held that on the plain meaning of these words, Parliament had not given ex-employees protection against victimisation. Then on 1 May 2013, in Onu v Akwiwu [2012] UKEAT 0022_12_0105the Honourable Justice Langstaff sitting as a Judge in the EAT held that on the plan meaning of the same words, Parliament had given ex-employees protection against victimisation.

Now imagine that you were a learned author of an annual textbook whose publication deadline was the first week of April (to coincide with the new tax year: this is not an uncommon date). Vigilant to report the law exactly as it is, you find yourself holding back the final page proofs of your book until the beginning of March. In 2013, you find that by holding back until March, you have had the good fortune to sneak in one last case. Confidently, you begin the relevant paragraph by saying, “An employee is not protected after their dismissal against victimisation” and cite as proof the decision in Rowstock. Within weeks, your text is ruined. You were accurate when you published it; since Onu the law (or, more accurately, its interpretation) has moved on.

If anyone reading this possesses their own law library I would advise them to try the modest experiment of reading all your books and looking for the dates on which they were published. If you can’t find a date, that is a small but telling imprecision on the author’s part and a sign that the book is worth less than you might hope. If you can find a date and it is more than a year, do remind yourself of how few weeks passed between Rowstock and Onu, and reflect how much chance there has been for the interpretation of the law, in whatever area most concerns you, to move on.

There is a second, much more profound reason, why lawyers distrust textbooks. When non-lawyers think about employment law, they tend to assume that the answer is found in decisions of the courts. So to give you an example, and, this is a query I have been asked in the last few weeks. “Does employment law protect a council employee who stands for local elected office, from dismissal or detriment, if they say something which could be taken to be prejudicial to their employer?” The scenario, if you think about it, is obviously one which is likely to occur. A person who wants to be elected to a council is likely to say that the previous councillors have acted badly in their post. If the candidate does not think that, then why is she standing? But anything robust she says is capable of being taken, by an unsympathetic manager, as prejudicial to the good name of the council for which she works. Yet even though we might expect this difference of interests to have generated case law, as far as I have been able to tell from a quick search, there never has been any such case.

So if this situation was to arise in real life, lawyers would be dealing with it from what we consider first principles. Section 98 Employment Rights Act 1996 only allows very few fair reasons for dismissal: conduct, capability, retirement, redundancy, some other substantial reason. An employee dismissed for what they said during an election campaign would say that their words do not come within this short list or that, if they did, they should not be treated as “misconduct” which is the only one into which the situation could be fitted. Alternatively, the employee might say that the reason for their treatment was their political opinions or belief, and that this was unlawful direct discrimination contrary to section 13 Equality Act 2010. In neither case, would there be much caselaw to go on, and a Tribunal would find itself focussing carefully on the plain, ordinary words of the relevant statutes.

Even in the case of post-employment detriment, while the effect of the decision in Onu was to reverse the decision in Rowstock, both of these cases were about the interpretation of statute. Case-law might shift the interpretation of language one way or another, but in the first and in the last resort all we have are the words of the main employment statutes – these, not case-law, determine whether claims in victory or defeat.

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