The Coalition has now published the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, the secondary legislation under which fees will take effect.

Fees remain at the punitive levels on which the Government consulted: £390 for the issuing and hearing of a wages claim, or a claim for a redundancy payment, or for certain types of simple, but unusual hearings (eg applications for time off to care for a dependent); £1200 for the issuing and hearing of an unfair dismissal or discrimination claim, £1600 for an appeal.

The government has not taken this opportunity to clarify when fees will be introduced, which remains the vague, official deadline of “summer 2013″. Employment law advisers will know that there is a likely to be a rush by claimants to “beat the deadline”, whenever it is set. The government, presumably, seeks to frustrate any last-minute surge by keeping back the date for as long as possible.

There is nothing in these Regulations about when the hearing fee will be payable, or what the sanctions will be for non-payment (discretionary vs automatic strike-out); presumably the answer will appear in the new Tribunal rules, whenever they appear.

There is nothing in these Regulations about reinstating a claim wrongly struck out for non-payment.

And there is nothing in these Regulations about how to pay: at one point the impression was that all claims would be required to be started online by paying a fee, but the government no longer seems to be insisting on that. This is probably for the best Tribunals (unlike courts) do not have tills, counter staff, etc. Most lawyers, whoever they act for, are cautious about requiring claimants (many of whom are unrepresented, have only a hazy sense of Tribunal procedures, etc) to pay online. This just seems to be ripe with possibilities for injustice. Yet the alternative, of allowing payments at the Tribunal, would have its own problems…

What is the point of employment law? Should you try to work out an answer to the question through the changes which the Coalition government has been making in 2012 and 2013, the first thing you would conclude is that the law exists to rewrite industrial relations to the benefit of employers at the expense of workers.

No “reform” illustrates this better than the changes which are being made to dismissal procedures, starting from this summer, to prevent a tribunal from enquiring about the conversations between employer and employee in the run-up to dismissal. Where an employer proposes that an employee should consent to their own dismissal, this will be deemed a “protected conversation”. If the negotiations break down and the employee maintains afterwards that the employer said something crucial to their dismissal that shines a bright light on the unfairness of all that followed and all that came before, the Tribunal will not be entitled to enquire what it was that the employer said. The proposal is in fact even worse than this makes it sound. The “protection” only operates in one direction. Should the employer want to rely on his own words later – for example, because he made a cash offer to the worker, which the worker failed to beat in subsequent litigation – this will not be protected. The employer can tell the Tribunal, and the Tribunal could perfectly easily take this into account when deciding for example who should pay the costs of the litigation.

Me for New Left Project. More here.

At a time when employment law is changing, rapidly, for the worse, it is only right to report (critically) on a modest victory. For several weeks, the House of Lords and the House of Commons have been batting back and forwards between each other rival version of “employee shareholder” status, previously known as “employee ownership”, ie the scheme unveiled at last year’s Tory party conference by George Osborne, under which employees on joining a company would be required to assign various employment rights, including their right to claim unfair dismissal, in return for a small amount of shares in that company.

Yesterday (24 April), in order to bring to an end a series of defeats in the House of Lords, the government introduced an important concession into the Growth and Infrastructure Bill and the House of Lords voted to accept the scheme (having previously rejected it twice).

How the scheme will work is now as follows: an employee will only shed their unfair dismissal rights if, prior to entering into a contract, the employee has received advice from an independent advisor. Further, the employer will have to pay the costs of that advice (this puts on a statutory footing what was previously merely the common industrial practice that employers pay for employees’ advice on whether or not to accept the terms of a settlement agreement on dismissal).

My fellow employment blogger and barrister Daniel Barnett concludes that “Doubtless unions will now start charging fees for advising on employee shareholder status, and look for those fees to the employer.” If the unions can only manage to do what is good for them, he will be proved right.

The above concession needs to be set in the context of other concessions made by the government (not merely on whether the shares will be taxed; which is what the government has been emphasising), including that any social security claimant who refuses an offer with employee shareholder status will not forfeit their benefits, and existing workers will be protected from any detriment if they refuse an invitation from their employer to switch to an employee-shareholder contract

The essential idea of employee shareholder status – that an employee should assign their most important workplace protection at the start of an employment contract, as a condition of being allowed to work at all, in return for shares of modest value that it may be wholly impractical to redeem – remains wholly malign. What these concessions represent is at least an admission that it would be wrong to make workers at the start of the contract be subject to this bad bargain covertly. Workers are going to be given a choice. The best hope is that sufficient numbers of people choose no, so that the whole scheme becomes unworkable…

You can buy Struck Out with a 30% discount and free UK P&P by entering the code ‘PLUSTRUCK’ here.

[Written with Anna Macey; originally published at Left Foot Forward. Re-reading it now, "ever" is hyperbolic; but this is certainly the worst sets of attacks since we acquired individual employment law 40 years ago]

The coalition government has launched the most radical overhaul of employment law since unfair dismissal was created in 1971.

On Saturday, another series of employment law reforms were implemented, including reducing the amount of time employers need to consult on collective redundancies from 90 days to 45 days, the removal of legal aid for all employment cases except discrimination, and adding the requirement that a disclosure for the purposes of protection from whistleblowing has to be in the public interest.

This is on top of earlier reforms, including increasing the time an employee needed to work before bringing a claim of unfair dismissal from one year to two years, raising the amount of costs that can be awarded by an Employment Tribunal from £10,000 to £20,000, and the removal of lay members from tribunals in most cases.

Further reforms are planned, including capping the amount an employee can be awarded for lost earnings in an unfair dismissal case at one years’ salary (or the national average if they earn more than that), and – most controversially – the plan to charge workers fees to have their case heard by an employment tribunal, which will come into effect this summer.

Undemocratic

It is worth emphasising that neither party of the coalition included any of these changes in their manifesto, they were not a part of the coalition agreement, and there is no popular mandate for them. Tellingly, they are not even supported by employers, with less than 1 per cent of those cited in the BIS Call for Evidence in 2011 saying that unfair dismissal legislation put them off hiring new employees.

Yet to justify the obstacles it has erected in a workers’ path to justice, the government has stated two overriding aims: to encourage employers to recruit, and to reduce the number of claims before employment tribunals.

The government are convinced that a vital part of kick starting an economic recovery is to reduce workers’ rights, and make it more difficult to enforce those rights that remain – such as, say, claiming compensation should they be dismissed without good cause. The policymakers reason that this will persuade employers to recruit more. This reasoning is flawed; it ignores the fact the UK already has one of most deregulated labour markets in the West.

Lack of evidence

Taken together, the evidence that these “reforms” will promote employment is simply not there. They will, however, promote job insecurity, enable bad employers to get away with breaking the law, and impact particularly those least able to cope with unemployment (such as older workers who will find it more difficult to find further work) – after which they will then be hit by the benefit changes that have just been made.

The biggest change which came into force on April 6 was the reduction of the 90 day consultation period for redundancies of 100 or more workers to 45 days. The government argues this change will save administrative time and reduce costs, therefore potentially leading to fewer redundancies. Meanwhile, employees will apparently benefit from “greater certainty and a less marked impact on morale and productivity”.

This ignores spectacularly the purpose of a redundancy consultation: it is not merely a means of delaying the inevitable redundancies to enable employees to find new jobs, or even work out the fairest way of selecting for redundancies. It is to provide time for a genuine consultation between a large employer and their employees, a time for both sides of industry to meet to try and avoid, or at least reduce, the need to make redundancies at all.

For a large business – and this change only affects large businesses – that inevitably takes time. It is difficult to see how a fair consultation, taken in the spirit of a consultation, could be completed in merely 45 days.

The government’s bizarre suggestion that technological advances make consultations quicker to carry out conveniently ignores the fact that the difficulties with consultation are normally brought about by a failure by employers to genuinely consult, rather than about a lack of access to information.

Misleading

That the government sees fit to argue workers themselves will benefit from this change is worrying: being deprived of the opportunity to have a genuine consultation, reducing the chances of changing an employer’s mind about the need for a redundancy, and having less time to apply for other positions can hardly lead to certainty and improved morale.

Of course, this is one of many, many changes that have been made, with many more in the pipeline. Although concerning on an individual level, it is when taken together that the full force of the changes becomes apparent.

Collectively, the changes to employment law amount to the biggest assault on workers’ rights ever. They very significantly weaken worker bargaining power, and will increase job insecurity for millions. And like so many of the coalition government’s policies they impact particularly on the most vulnerable.

[Left Foot Forward readers are then informed that they can purchase our latest publication Justice Deferred: a critical guide to the Coalition’s employment tribunal reforms at a cut price of 75 per cent off by quoting 0804Lff2013. Links to do so are at the end, here]

The most important change to employment law which takes effect from today is the one which has had the least coverage – the near-abolition of legal aid in employment cases.

The reason it has had so little coverage is that most lawyers who practise in employment law (and whose practices are viable) have a majority Respondent business – they chiefly represent employers. There is very little reason for an employer to ask whether the person suing them is being represented pro bono, on a win no fee agreement, by a trade union, or on legal aid. Moreover, the sorts of clients who are most likely to be on legal aid – unemployed workers, without union representation, and with low-value claims, generate the sorts of cases that are least likely to end up taking a lengthy amount of court time or appearing in legal reports, etc.

The rule change is as follows: until today, it was (theoretically) possible to get “legal help” (ie assistance with drafting documents, etc, but not “representation”) in almost every category of employment tribunal claim. Representation was availablle for appeals to the EAT and higher courts.

As of today, legal help remains available, but only for discrimination claims (ie claims under the Equality Act – not, for example, union discrimination cases) and for traficking cases (of which there are very few in the system indeed).

On appeal, representation remains theoretically available.

The government estimates that the cut in legal aid in employment law will reduce its total spend on this category of case by around 76%. There will of course be knock-on effects elsewhere. No-one especially believes that workers, unable to get legal help with wages claims, will stop bringing them. Instead they will be heard by a judge, with the claimant unrepresented.

The recent words of Sir Alan Ward in Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234, reflecting the exasperation of one previously important voice in the legal system, ie the senior judiciary, in response to the rule change:

“What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.”

More details about how legal aid is changing here here.

Realistically, it is likely that very few solicitors indeed will continue to offer employment law on legal aid; the key difficulty will be finding a solicitor who can act for you in cases of this sort.

Also changing this month are the rules on:

Redundancy: Where 100 or more employees are involved, the minimum period for collective redundancy consultation is reduced from 90 days to at least 45 days before the first dismissal occurs.

SSP, SMP, etc: The weekly rate of statutory sick pay increases from £85.85 to £86.70. The weekly rate of statutory maternity, paternity and adoption pay increase from £135.45 to £136.78.

The December 2012 report of the Commission on a Bill of Rights (by a 7-2 majority) proposed repealing the Human Rights Act and replacing it with fresh legislation. A British Bill of Rights would incorporate “all” of the UK’s obligations under the European Convention on Human Rights, the chief difference being that the new Bill, unlike the present Human Rights Act (HRA), should be “written in language which reflected the distinctive history and heritage of the countries within the United Kingdom”. If all that was being proposed was he same legal rights with no change save wording, you might wonder why such a change was needed.
We can only understand the Commission’s proposals by placing them in the content of the British constitutional settlement. Our political system is different from the majority of contemporary liberal democracies, most of which were rewritten, from first principles, in the modern age. Sovereignty is not said to reside in the British people but in our representatives (“the Queen in Parliament”). Further, the doctrine of “parliamentary sovereignty” implies all sorts of second-order theories, including that the decisions of the government (which is treated for these purposes as merely an extension of Parliament) also should not be capable of scrutiny by the courts.
Britain has in consequence long had a political culture in which the executive has been singularly above formal democratic control. This is the world portrayed in programmes such as Yes, Minister or The Thick of It, a world of career civil servants who are only weakly accountable to Ministers, and where mere voters have no direct input into the appointment or scrutiny of key state positions
Now the legal principles which underpin our constitutional settlement have been decaying in coherence for at least 30 years. As a condition of membership of the European Union, the UK is subject to European legislation and therefore to the jurisprudence of the European Court of Justice (ECJ). Inevitably, EU membership subordinates Parliament, if only in areas which Parliament has ceded to the Europe.
By article 6 of the Lisbon Treaty of the European Union, the principles of the European Convention for the Protection of Human Rights are general principles of EU law. Britain is in effect required to sign up to the European Convention on Human Rights (ECHR) and has in any event (since 1966) allowed people living in the UK to take cases to the European Court of Human Rights (ECtHR) in Strasbourg. Within the limited civil and political and democratic rights afforded by the Convention, the ECtHR is relatively activist (seemingly more so than the ECJ). As with the ECJ, subordination to the European Court of Human Rights weakens Parliament.
Moreover, our present “neo-liberal” moment, in contrast to the politics of postwar Britain and the world, is characterised by the demise of strategies for popular incorporation which attempt to tie economic reforms (the NHS, redistributive taxation, the welfare state) to national institutions (the monarchy, Parliament) reflecting a supposed consensus between rulers and ruled. In place of the old state measures of redistribution, the state is used more and more to finance units of private capital (Atos, Capita, G4S etc). New strategies to make free market politics popular are required, whether the “Thatcherite” tax-dodging and share-purchasing culture of the 1980s, or the subtler proliferation over 30 years of supposed individual rights and emphasis on individual litigation. Trends such as the transfer of power towards the EU intensify this process. Juridification in turn makes it more difficult to justify old doctrines such as the placing of executive decisions above private legal scrutiny.
Further (and this helps to explain why the ECHR has become central to the legal understanding of the British political settlement), in 1998, when the Human Rights Act (HRA) was passed and the Strasbourg jurisprudence became directly effective in the UK, New Labour provided, in effect, that any future laws passed by Parliament must be compatible with the European Convention on Human Rights. This is done through section 3 HRA, which requires any court to interpret legislation in a way which is compatible with the rights set out in the Convention, and section 4, which authorises an appellate court to declare any statute incompatible with the Convention. While this does not make the statute unenforceable; and for that reasons Parliament remains sovereign; a declaration of incompatibility binds the hands of subsequent courts, making it difficult for the legislation to continue. The first New Labour Parliament, in other words, limited the space for successor Parliament not to legislate in certain ways. But this, in the classical understanding of the British political settlement, is precisely what Parliament is never allowed to do.
Newspapers such as the Telegraph, Times and Daily Mail have been running for years a story to the effect that the Human Rights Act 1998 which gives partial domestic effect to the European Convention on Human Rights, is a major impediment to good government (i.e. neo-liberalism). It protects the rights of individuals, often unpopular individuals, and it infringes onto grounds (such as national security or foreign policy) which might be expected to be the exclusive domain of politicians. The newspapers are able to say this and be believed because while this story is essentially untrue it contains enough truth to be plausible.
Readers of this magazine well know that our senior judiciary has not been transformed from a bastion of conservatism, as it undoubtedly has been, into a workers’ shield. Key decisions of the Courts in the past twenty years have been responsible for some of the worst features of British life: in employment law, it was the courts not Parliament which deprived Britain’s million-plus agency workers of the right to bring a claim of unfair dismissal. In housing law, the higher courts fought a desperate rearguard option for many years to enforce Parliament’s attempts to make whole categories of people (tenants in the private sector, introductory and demoted tenants, those housed subject to a homelessness duty…) evictable at will before conceding a partial defeat in the face of repeated, contrary decisions of the ECHR.
That said, during the period of New Labour, whose authoritarian decision-making was clearly at odds with the instincts of its electorate, the senior judiciary showed a certain independence, which it proved difficult for the politicians to restrain. If the best-known judge of the 1960s and 1970s was Lord Denning, then the Master of the Rolls (i.e. the senior judge in the Court of Appeal), who showed extraordinary creativity in inventing new measures of penalising workers’ strikes, the most authoritative figure in the judiciary of the 1990s and early 2000s was Lord Bingham, a former pupil of Christopher Hill at Balliol College, Oxford, who as Lord Chief Justice (i.e. the head of the Judiciary) presided over a House of Lords (now Supreme Court) which reached a number of “liberal” decisions, including outlawing the indefinite detention of non-UK national terror suspects, and finding that destitute asylum seekers were entitled to state support. Moreover, while in the mid-1990s, the legal challenge of authoritarian government had generally been done through reliance on legal fictions resting on the notion of an unlimited British “common law”, in practice, the broad language of the European Convention of Human Rights has meant that the terrain of contest has shifted to the ECtHR and the Human Rights Act.
The ambition of the Daily Mail and its allies in Parliament is not to de-politicise the judiciary (nor, still less, to resolve the contradictions in the practice of Parliamentary sovereignty), but to re-politicise the judiciary on fresh terms, to force back into the background its “Bingham” tendencies and to make it more “Denning”.
The desire to re-politicise the law can be seen in the biographies of the Commission on a Bill of Rights: three of the nine appointees (Lord Faulks, Jonathan Fisher and Anthony Speight) were members of the Society of Conservative Lawyers, while a fourth (Martin Howe) was in 2006-2010, a member of the Conservative Party’s Commission on a Bill of Rights for the United Kingdom., and a fifth, the Chair Sir Leigh Lewis, was formerly the senior civil servant at the Home Office with responsibility for Crime, Policing and Counter-Terrorism. This majority was “balanced” by Sir David Edwards, a technocrat Judge with no political background, Lord Lester, a Liberal Democrat peer, Helena Kennedy, a Labour critic of Blairism in the Lords during the years of the Blair-Brown governments and Philippe Sands, author of Torture Team (Sands, 2008), a brilliant expose of the rehabilitation of torture by Donald Rumsfeld during the War on Terror.
The Commission majority justified their proposals to repeal the Human Rights Act on the basis that repeal would not be needed “if there were widespread public acceptance of the legitimacy of our current human rights structures, including of the roles of the Convention and the European Court of Human Rights. But they believe there is not”. It is hard not to feel scepticism as to who is supposed to make up the “public” that does not consent to the HRA. The Commission organised two consultations, a large majority of responses to which opposed the proposed Bill, and the Commissioners accepted that the HRA is popular in Wales, Scotland, and Northern Ireland, as well as in large parts of England too.
Two Commissioners opposed the recommendations of the majority, Philippe Sands, and Helena Kennedy. Their main arguments were as follows: there could be no “British” Bill of Rights when Northern Ireland as part of the peace process was consulting on its own Bill of Rights and when (depending on the outcome of the Scottish devolution vote) large parts of the implementation of the new rights contained in the Bill would no longer be capable of discussion at Westminster, but would pass to Holyrood under either independence or enhanced devolved powers.
They further suggested that the Tory barristers who dominated the Commission had been proposing a British Bill merely as a halfway house towards their real goal which was to resile from the rights contained in the Convention: “[T]he view [was] expressed in the course of the Commission’s deliberations by a number of their colleagues on the Commission, to the effect that they would like the United Kingdom to withdraw from the European Convention on Human Rights.”
What the Government needed from the Commission was a clear mandate in favour of the removal of the Human Rights Act. The result is more equivocal; and in particular the minority seem to have persuaded the majority that the issue should at least be put on hold until at least the outcome of the Scottish referendum. The next step will be for the politicians to take rather than the lawyers. But the appetites of the Tory right have been whetted and we should expect them to come back for more.

First published in Socialist Lawyer, February 2013.

Few Morning Star readers will have forgotten Chancellor George Osborne’s speech to last year’s Tory Party conference, announcing a new type of employee contract. In return for £2,000 in shares, so-called “employee-owners” would be required to sign away their rights to bring unfair dismissal claims. The incentive is that the employees who are signed up to the scheme will not have to pay capital gains tax on their shares. It wasn’t so clear how employees are supposed to claim these shares – the employers that the scheme is aimed at are small companies, not listed on the stock market, whose valuation is usually at the whim of a single owner. But the scheme allowed “we’re all in it together” Osborne to tell his fellow Tories in the snidest quote of 2012: “Workers of the world, unite.”

Me in Monday’s Morning Star.

What can a worker do where they are placed in a redundancy pool, scored alongside their team-mates and selected for dismissal but the employer refuses to disclose the evidence and rationale on which the scores were based?

This is hardly an unfamiliar scenario for employment lawyers, many of whom will have encountered circumstances such as where a long-standing and outspoken employee is marked “0 out of 5″ for their contribution to the business, in rivalry with a new employee in their first week of employment, who is scored “5 out of 5″ in inverse proportion to their capacity to make life awkward for senior managers.

A recent case involving a North London council suggests that part of the answer can be to use the Information Commissioner’s Office to force the reluctant employer to disclose the assessment behind the scores.

The applicant was made redundant from a job she had held for 10 years. For the 3 years prior to her dismissal she she had been acting up in a management post 4 grades higher than her formal position. More junior staff were successful and the organisation was still left with seven vacancies in the role after she had been dismissed. Those vacancies were filled by agency staff, despite the business case for the redundancies having been that the reductions were a cost-cutting exercise.

Soon after dismissal, and having gone through an appeal, where she was still refused access to the documents, the employee made a request to the organisation’s Information Officer, under the Data Protection Act 1998. The documents were still not provided.

The Applicant made a complaint to the Information Commissioner’s Office, who reviewed the case documents she sent, including copies of e-mails where she had asked and been refused sight of the assessment document and evidence used. The ICO held the organisation had an obligation under the Data Protection Act 1998 to treat her request as subject access request within the terms of the Act and provide her with the documents.

The decision shows that an organisation cannot refuse to provide redundancy assessments when they are requested by an employee.

“When speaking to non-lawyers about discrimination law, they will often make guesses about what the law says. Their guesses reflect the common-sense values of society as a whole. So, it is often assumed that an individual should only be found to have done an act of race discrimination if they clearly intended to discriminate. Moreover, it is assumed that any person associated with an act of race discrimination must be ‘a racist’. This common-sense understanding is applied in reverse; where an individual does not display clear and evident signs of ‘racism’ in all their ordinary day-to-day behaviour then by definition they are incapable of having committed any act of discrimination.”

Thanks to the Institute of Race Relations for posting my piece on why race discrimination claims have such low prospects of success at the Tribunal – markedly lower even than other categories of Tribunal claim