Friday 27th July 2012 at 6:00am
One of the themes of my book Struck Out, is the modesty of the impact made on UK employment law by the European Covention on Human Rights, and I draw a contrast with a number of other, comparable, areas of UK law (not least the law relating to landlords and tenants) where the Convention, purposivley applied by the European Court of Human Rights, has made deeper inroads into the UK’s common law traditions.
Part of the reason why human rights have never really “flown” at the EAT has been that claimants have attempted to use the rights set out in the European Convention as a shield, to protect cases which were weak on their facts. The two most important cases have been X v Y (a development officer for a charity working with young offenders who had been prosecuted for cottaging, and was dismissed) and Pay v UK (a probation officer involved in the treatment of sex offenders was dismissed as a result of his connection with an organisation involved in S&M events). Both were dismissals, and in both cases, the Convention was invoked to bolster claims which were unlikely to have the starting sympathy of the judiciary.
(Of course, that raises a delicate question for lawyers about which cases you want to go up to appeal – it’s a bold lawyer who tells their client unequivocally, “you musn’t appeal as you will muck up the law for thousands of other people”, but it’s one of our jobs, and any political lawyer will know the speech by heart).
The trend towards weak cases going “higher” in the system than does anyone else any good has unfortunately continued, as can be seen at work in the recent Court of Appeal decision of Leach v Ofcom, in which an employer was made aware of very serious allegations of child sex abuse against a worker, who was said to have abused minors in Cambodia.
The employer investigated the allegations and dismissed the worker, who was latterly sentenced to 12 years imprisonment in Cambodia. Their claim for unfair dismissal failed at the ET and they fared no better on appeal to the EAT. The Court of Appeal eventually granted permission for their appeal which took place in their absence (the worker still being in prison).
In his decision Mummery LJ doubted that the protection of article 8, “which is not some kind of universal haven for the protection of the whole of human life” was not engaged, or if it was engaged, the employer’s interference with the worker’s art 8 rights was lawful.
You can understand why the (unrepresented) appellant took it this fair, but all they have done in reality is gift the employers in general yet another case to say that article 8′s applicability to the sphere of employment is limited.
“The” strong article 8 case is out there – if only lawyers can find it, and shepherd it to the right conclusion. My own view is that it the Convention will be most use in a case where the employer is clearly cuplable (even if the behaviour is not obviously actionable), i.e. the Convention is made into a “sword”.
Wednesday 25th July 2012 at 6:00am
As eagle-eyed readers of this blog will have spotted, a large part of its point is to (gently) encourage readers to order copies of my book Struck Out, which is available from various publishers in a surprisingly neat inverse relationship to the ethical content of the publishing business.
In the superbly pro-union Bookmarks, Struck Out can be ordered for an admittedly steep £19.99.
The publishers Pluto are offering the book for £17.50 (see link at the top right-hand corner of the page).
The anti-union capitalist megabusiness Amazon are selling a kindle version for just £13.67.
But while Amazon is (sadly) the cheapest option if you’re looking to buy the book, I’m happy to report that Bookmarks (here’s the link again are also offering for just £3, a CD of my talk with Dave Smith at this year’s Marxism festival, which conveys a decent chunk (although not all) of the book’s message as well as some lively contributions including from one or two widely-celebrated tribunal claimants who were in the room.
If you’re interested, just send Bookmarks an email.
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Monday 23rd July 2012 at 6:00am
The Top 30 #ukemplaw Tweeters from Professional Seminars:
30. @nrsnowden solid and sensible lawyer
29. @adamturn such a nice guy. Sadly doesn’t tweet often enough.
28. @emplawyer one of the greats, although sadly tweets less often nowadays
27. @wonkypolicywonk because of his really thoughtful blogging
26. @employmentbar regular tweeter, interesting views
25. @cowhoneybourne otherwise known as David Reade QC. A legend.
24. @legalbrat a fabulous tweeter, and the first respondee to nominate for this list
23. @alexlock master #ukemplaw tactician. And thoroughly cool dude
22. @tribunalwatch so much information. Wowzer.
21. @paulcall1 one of the earliest #ukemplaw tweeters. Always sensible stuff
20. @Dam_McCarthy always finding good news stories online
19. @davidmorganllb author of bit.ly/NihhhW. And he’s got robots in the background of his twitter photo
18. @dkrenton a view from the other side. Ex-academic and brilliant lawyer
17. @AnnaYoshica the future of employment law
16. @mcdermottqc top silk with jetset practice
15. @hr_emplaw Marc Jones from Turbervilles – a great #ukemplaw solicitor
14. @mjcarty massive #ukemplaw tweeter
13. @tribunalmonkey for having the coolest name
12. @hrbullets for breaking news
11. @agediscriminfo for doing when they say on the tin
10. @michaelscutt been around forever – great lawyer
9. @kevinpoulter always hilarious, always right
8. @MarkTarran Knows more employment law than Mr Harvey himself
7. @seanjones11kbw Super sharp silk. Get him on your side or lose. And he’s hilarious, too.
6. @reedmj Employment legal officer at FRU. Creator of www.etclaims.co.uk
5. @NB_Cunningham author of ET Claims and creator of www.etclaims.co.uk. Top ukemplaw barrister at @outertemple
4. @anyapalmer brings common sense to the party
3. @mrsmarkleham definitive proof that god is female. Listen to her wise words
2. @daznewman top tweeter and blogger. Really knows what he’s talking aboutt
1. @ljanstis the employment lawyer’s employment lawyer. Invented #ukemplaw hashtag.
[seven places above David Reade QC - I am very happy...]
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Friday 20th July 2012 at 6:00am
Struck Out: Why Employment Tribunals Fail Workers and What Can Be Done by David Renton
Pluto Press, £19.99
Reviewed by Phil Chamberlain, Tribune magazine
Sunday, July 15th, 2012
If defenders of the industrial tribunal system want to blame someone for letting David Renton comprehensively demolish its myths – and procedures – they should look to Gordon Brown.
Five years ago, the then Chancellor gave a speech which described the system as out of control. As a result, he basked in the praise of the right-wing press. But it infuriated Renton, a barrister at Garden Court Chambers, who saw what he describes as a piece of political opportunism allow the press to print a distorted picture ever since. Struck Out is his attempt to set the record straight.
As well as practical knowledge of the inner workings of the tribunal system, Renton also has the advantage of an acute political sense and a historian’s training for sifting evidence and making an argument. His book is not a dry legal text but a thoughtful analysis of what remains a worker’s key legal avenue of redress. Using testimony and official documents, he offers a succinct history of the system and its current operation, explains its key decisions, and punctures the myths around it.
He highlights how the wording of legislation has a significant impact on the ability of workers to bring successful cases – and even to be allowed to make a case in the first place. There’s a forensic analysis of how key decisions have weighed the scales in favour of employers.
While readers of Tribune will be aware of the political background to the shaping of employment law, Renton makes the connections to show the evolution of the tribunal system. He charts how it helped to mollify industrial relations, acting as a safety valve for worker discontent. There is a good mix of personal testimony, case law and statistics backed by careful footnotes – a welcome antidote to the hysteria of much employment tribunal reporting. But this is more than a route map of how we arrived at the present system. Government changes offer a serious challenge to those on the left about how it should operate.
Unions have, largely, bought into the system even as it has increasingly failed to deliver fair recompense for those who have been wronged. Renton ends with a series of proposals and questions. His book has the explicit aim of starting a debate among those who want the scales of justice tilted back in favour of workers.
Renton has already published a number of books and writes widely on a diverse number of topics.
His engaging style makes for an accessible book which should spark a vital debate among all those who care about employment rights.
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Thursday 19th July 2012 at 6:00am
England v Scotland, Wembley 1977
I’ll circulate this on #ukemplaw in the hope that someone there can answer this better than I can.
Scrolling through the new EAT decisions on Bailii, as everyone does, I came across the judgment of Lady Smith, President of the Scottish EAT, in Welch v The Taxi Owners Association (Grangemouth) Ltd that a telephone operator was not made redundant in circumstances where there was a decrease in the total amount of work available for her but an ongoing need for a part-time worker to fill some of her role.
Dismissing the claimant’s appeal, Lady Smith held that these circumstances did not and could not amount to redundancy. (The appeal could not succeed, she also found, because the claimant had not sought a redundancy payment in her ET1; neither had she put in any facs to satisfy the reasonableness issues in a dismissal for reason of redundancy) So far so good, and comprehensible as far as it goes.
The difficulty of the decision, which was heard at the Tribunal on 15 June 2012, is that just a month earlier (on 16 May 2012) the President of the EAT in England and Wales, Mr Justice Langstaff, had determined in Packman (t/a Packman Lucas Associates) v Fauchon, a case which turned on what looks to me like exactly the same issue, and in which the same authorities were cited, that there was a redundancy where hours were reduced but there was no reduction in the total number of employees working for a company.
The decision in Packman was explained by Langstaff J in the following terms:
“the lay members in particular of this Tribunal are glad that the result of the appeal is as it is, not least because from an industrial background one would approach the question of hours and number of employees by adopting an FTE (a full‑time equivalent) approach. Essentially, as the extract from Harvey suggests, the full‑time equivalent workforce in that example is cut from two to one, even though the number of employees actually working remains the same. There is a real reduction in headcount, measured by FTE. It is therefore, they consider, entirely consistent with actual industrial approach that the statute should have the interpretation which we think in law properly belongs to it; the consequences of another interpretation would, as it seems to them, have significant adverse effects upon the employment market.”
The decision in Packman appears not to have been brought to the attention of Lady Smith, presumably because it was only published after her own decision had been made.
Now, strictly speaking, it is possible to distinguish these cases as even if the law was rightly decided in Packman, the claimant in Welch probably “should” have lost her appeal – in that even if she was right on the law, she hadn’t properly lined up a complaint of unfair redundancy dismissal at the ET.
But, this is to underestimate the vehemence with which Lady Smith dismissed the claimant’s legal arguments in Welch – which she treated as hopeless (not knowing that her felow President had approved them just 4 weeks before)
Two questions then on the issue of principle (i.e. whether you need a reduction in the headcount for a redundancy):
1) Is there an underlying consistency between these two decisions that I’ve missed?
2) Who is more authoritative: the President of the EAT in Scotland, or the President in England and Wales?
Wednesday 18th July 2012 at 5:40am
“Here be dragons”
I thought it might be useful to post up in a single “index” document a set of links to the posts I’ve published over the last few months summarising (and critiquing) the Coalition’s main changes to employment tribunal procedure. The key changes are as follows:
(As of April 2012)
a) Extending the unfair dismissal qualifying service requirement to new employees to two years
b) A change to the composition of Employment Tribunals, so that ordinary unfair dismissal claims are heard by a single judge
c) An increase in the amount of costs that can be summarily assessed by an Employment Judge to £20,000
d) An increase in the maximum deposit order to £1,000
in the Employment and Regulatory Reform Bill
e) The renaming of compromise agreements as settlement agreements
f) A requirement to contact ACAS and obtain their confirmation that pre-claim conciliation has been declined or was unsuccessful before filing a claim
g) Legal officers to determine certain employment tribunal claims
h) A cap on unfair dismissal awards
i) Fines to be paid to the government where an individual’s rights have been breached
j) Protected conversations once an employee has been identified for possible dismissal
Also under discussion
k) (subject to consultation) The ending of the statutory questionnaire in discrimination claims
l) (from summer 2012) Issuing and hearing fees for Tribunal claims
m) (to be introduced via Regulations) Mr Justice Underhill’s general review of the Tribunal rules
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Monday 16th July 2012 at 6:00am
Underhill J has published both his proposed new Employment Tribunal rules, and his letter to the Ministry explaining their rationale. The documents were published on Wednesday last week, and have been well summarised by other employment law blogs, which have spotted the key proposals – a pre-hearing “sift” where Judges will be able to take action if it appears that a claim or a defence is weak; the merger of the present PHRs and CMDs into a single preliminary hearing with the power to strike out claims; removing the £20,000 cap on the amount that a Judge can order a party to pay by way of costs.
Here is my own list of the second-order proposals which I also found interesting
There will be new ET1 and ET3 forms (so far unpublished)
Style: Underhill’s team have taken real care to make the rules comprehensible. They are much clearer and easier to read, and to that extent are just better rules
Presidential guidance: although almost none of this is published yet, Underhill wants to be remembered for what might be termed “intermediate” guidance, which will not be binding (unlike rules) but illustrative, especially for unrepresented parties who want some sort of advance idea of how their case will be judged
ADR: as in all new civil codes for the past two decades, the parties are encouraged to mediate rather than litigate. There doesn’t appear to have been any real thought on how this is supposed to interact with the Coalition’s penal proposals to compel parties to spend time in the care of ACAS (without ACAS having the time or resources to do anything useful with their cases)
In the letter to the Minister, Underhill says (in effect) that he resisted pressure from the Coalition to look for changes that would increase the number of cost orders (although the removal of the £20K cap will no doubt increase the amount of costs orders, when orders are made)
Underhill dodged the question of whether / how to give powers to legal officers
And, a surprising one this, Underhill has suggested that primary legislation should be drafted enabling costs orders to be made where a party is represented by non-lawyers (this could in theory be a route back into Tribunal litigation for trade unions, whose officials could get their time paid, if the claim succeeded).
As for the rules themselves, here they are.
Friday 13th July 2012 at 4:10pm
The government published today its response to the public consultation on Employment Tribunal fees. The story has reached the news, together with the government’s planned introduction date of “summer 2013″ (which, if nothing else, contradicts the general practice in employment law of only making new changes from April or October of any year).
The government’s ostensible justification for fees has shifted to some extent. At one time the primary reason given for fees was that they would reduce the number of weak claims, but obviously this was wrong – they will reduce the total number of claims (60% of which overall are of course won by claimants), but there is no real reason to think that the axe will fall harder on the claims. Now, the primary justification for fees is austerity; fees are necessary to make the system pay for itself, or more accurately start paying for itself. The government accepts that the proposed fees are too low to achieve that, and has structured into its proposals plans to increase fees hereafter.
The majority of those responding to the Consultation opposed fees in principle and fees only for claimants (the document reports that the for most of the proposals around 67% of those responding were against); but the Coalition proposes to press on regardless.
Daniel Barnett has published this summary of the amount of fees, which is a valuable simplification of several tables in the document:
“level 1 claims (the very straightforward ones such as unlawful deductions – there is a very long list in the Response Document) – £160 issue fee; £230 hearing fee
level 2 claims (pretty much everything else) – £250 issue fee; £950 hearing fee
Employment Appeal Tribunal – £400 appeal fee; £1,200 hearing fee
there are several other fees, eg £60 for an application to dismiss following settlement and £600 for judicial mediation”
Without having checked back against the original consultation paper, these fees do just seem a little lower to me than those in the consultation document, for which I suppose we should all be grateful.
Also, the government has dropped its discriminatory and nasty plan to nudge discrimination claimants in particular towards agreeing a capped award at the outset in return for a slightly lower fee.
Save for those modest changes, fees are to be introduced without concession.
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Friday 13th July 2012 at 6:00am
Through the past year the Haldane Society, along with many others, has been doing everything in our power to resist the Coalition’s attacks to legal aid. Employment law has been an important if subsidiary part of this story. Even before the Legal Aid and Sentencing and Punishment of Offenders Act 2012 (LASPO) was passed there was no provision for representation at the Employment Tribunal to be funded by legal aid. With the Act, things get worse: legal help is removed from unfair dismissal and wages claims and remains only for discrimination claims.
But for the claimant-focussed employment solicitor contemplating the ruins of her career, LASPO is far from the worst culprit. April 2012 saw the extension of the qualifying period for unfair dismissal from one to two years, the removal of Tribunal panellists from unfair dismissal cases (now heard by a sole Judge) and the doubling of the amount of costs orders (a favourite threat of Respondent representatives to unrepresented Claimants, especially ones with a strong case).
The Coalition’s plans for employment law remain subject to refinement but we can anticipate the weakening of the employee’s protections on transfer of employment, the emasculation of the employer’s duty to consult in collective redundancies, and fees of between £400 and £1500 for Tribunal hearings (in a jurisdiction which has never required fees) to be paid by Claimants, not employers.
What, if anything can be done? The primary task must be to encourage voters to complain in large numbers. The Haldane Society is playing its part, by touring trades councils and trade union branches, speaking to the proposed changes, and attempting to rally the sort of public revulsion that is necessary to cause the Coalition to think again. Indeed if there any trade unionists reading this who would like to invite us to speak at a meeting, we would be happy to do so. You can approach the Society via our Secretaries, firstname.lastname@example.org and email@example.com.
It may be that some senior trade unionists are at last starting to consider a collective response. If so, this is not before time. Not only are individual claimants in the Coalition’s firing sights, so undoubtedly are the unions themselves.
Most trade unions have a legal budget, which has to cover more than just Tribunal claims, of around £10 per member per year. If it would take 150 members’ contributions to cover the cost of just issuing a claim, let alone doing initial work on it, or still less representing the member at a full hearing, then we are reaching the point where unions might no longer be able to offer representation to their members.
For many years, unions have marketed themselves to potential members on the basis of benefits including protection, amounting to legal insurance, where a worker is dismissed. But the Coalition’s reforms will price unions out of the game.
One question we are often asked is whether any of these measures, particularly fees, could be challenged by judicial review? On the face of it yes: the fees are high, and will have a discriminatory impact. Unions have co-funded JRs before (as in 2003, over the Sexual Orientation Regulations). But time is running out.
A version of this article first appeared in the July 2012 edition of Socialist Lawyer, the magazine of the Haldane Society of Socialist Lawyers
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Wednesday 11th July 2012 at 6:00am
Another of the measures on which the government is consulting (until 7 August) is its plan to abolish statutory discrimination questionnaires. The questionnaires themselves can be found on the EHRC website. The idea behind them is that a worker, contemplating a Tribunal claim, can ask the employer questions designed to establish whether the employer has discriminated against them.
EG if the issue is whether the reason a manager treated worker badly was because of her race, the worker can ask how many grievances there have been against that manager previously and what the racial background was of the workers who complained.
The process is intended to enable both sides to establish, relatively quickly, whether a claim has merits. From time to time, it makes a real difference – I was in a case once where there had been 4 grievances against a manager, all had been brought by black employees, in a small organisation which had only ever employed 5 black people. The fact that both sides could infer from this that the Claimant had a relatively strong case meant that the case was settled relatively quickly and painlessly.
In “the Barton guidelines”, which were approved in Igen v Wong it was said that an evasive or equivocal answer to a statutory discrimination questionnaire can cause the burden of proof to shift, putting the burden on the employer to prove that there was a non-discriminatory reason for an action. In D’Silva v Natfhe, unfortunately, the EAT said that this inference would not always apply – “it is necessary in each case to consider whether in the particular circumstances of that case the failure in question is capable of constituting evidence supporting the inference that the respondent acted discriminatorily in the manner alleged; and if so whether in the light of any explanation supplied it does in fact justify that inference.” In other words, even supporters of the questionnaires have to acknowledge that they have been tending to become something of a dented shield.
That said, there is something especially unfortunate about abolishing the questionnaires at just the same time as the government is introducing a lengthy “cooling off” period for ACAS mediation. It’s pretty obvious that if mediation was intended to do any good, then rather than just sitting on their hands during this period both sides should be using this time to assess the value of the claim – i.e. disclosure should take place during ACAS mediation, and this would be the right time also to have employers completing statutory questionnaires, which would give both sides a better idea of the true prospects of a claim.
The Coalition’s failure to integrate the questionnaire procedure into this ACAS conciliation period is another small sign of how little the government cares about making employment law “work”, and how much of its agenda its driven by the simple desire to recalibrate employment law in favour of employers.