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Timing and permission to amend an ET1

In the recent case of Galilee v Commissioner of Police for the Metropolis the EAT held that the doctrine of ‘relation back’, whereby amendments take effect from the date of the original document which it amended, does not apply in the tribunal.

The case concerned a claim for unfair dismissal and disability discrimination. The Claimant later sought to amend the ET1 to include additional accounts of disability discrimination which occurred prior to the dismissal.

In the first instance the tribunal found that these additional accounts had been made out of time and was not persuaded that time should be extended on a ‘just and equitable’ basis. Further, the tribunal was concerned that the Respondent would be deprived of its jurisdictional defence should permission be granted to amend the ET1.

The Claimant appealed the tribunal’s decision and the appeal was allowed by the EAT. The EAT held that the doctrine of ‘relation back’ does not apply in the tribunal and the amended claim takes effect from the date when permission is granted as opposed to the date on which the original claim was brought.

Therefore, granting permission to the Claimant to amend the ET1 does not deprive the Respondent of the right to argue that the additional accounts are made out of time. Further, it is not necessary for a tribunal to determine if a claim is out of time when deciding to grant permission to amend the ET1, other than in clear cases. The tribunal can grant permission to amend subject to the time point being decided at a later stage.

Employers should be aware that employees may be able to amend ET1s to add additional claims even where such claims are made out of time. Tribunals are not required to determine the time point when such applications are made but a timebar argument can be made at a later date.

Timing and permission to amend an ET1

Uber appeals to Supreme Court

Uber presented its application to the Supreme Court to appeal the Employment Appeal Tribunal (EAT) decision that its drivers are workers and should have associated rights.
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Uber appeals to Supreme Court

Tribunal fee refund scheme is now open

Further to the Supreme Court decision in R (on the application of Unison) v. Lord Chancellor, which held tribunal fees were unlawful, the government has announced that the first claimants eligible for fee refunds will be able to apply from today. The government has also confirmed that fee refunds will include an interest payment of 0.5 per cent.
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Tribunal fee refund scheme is now open

Supreme Court rules that embassy staff are not excluded by state immunity

In the recent case of Benkharbouche v. Secretary of State for Foreign & Commonwealth Affairs & Anor the Supreme Court agreed with the EAT and the Court of Appeal and unanimously held that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 (SIA) cannot protect embassies from Employment Tribunal claims brought by domestic staff in the UK.
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Supreme Court rules that embassy staff are not excluded by state immunity

President of the Employment Tribunals announces increase in the Vento Bands

Following a recent consultation, the President of the Employment Tribunals has announced a rise in the compensation that employees can recover for 'injury to feelings', in the event that they suffer from discrimination in the workplace.
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President of the Employment Tribunals announces increase in the Vento Bands

Tribunal fees are unlawful: extension of time granted

Following the Supreme Court's decision in R (on the application of Unison) v. Lord Chancellor (Unison) there was speculation as to whether there would be an influx of applications requesting an extension of time on the basis that, if it were not for the illegal fees, the cases would have been brought in time. The first of these cases has now been brought.
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Tribunal fees are unlawful: extension of time granted

Supreme Court holds Employment Tribunal fees unlawful

It's rare for employment law to make "breaking news" headlines (unless you count President Trump's attacks on his own staff). But that's what happened, if briefly, with yesterday's decision by the Supreme Court that the Employment Tribunal fees regime introduced controversially in 2013 was unlawful.
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Supreme Court holds Employment Tribunal fees unlawful

Can employees doing different work bring their equal pay claims on the same claim form?

In the recent decision of Farmah & ors v. Birmingham City Council & ors, the EAT held that claimants could not bring equal pay claims on the same ET1 form where they were carrying out different work. Rule 9 of the Employment Tribunal Rules 2013 (the Rules) states that two or more claimants “may make their claims on the same claim form if their claims are based on the same set of facts”.

Three of the appellants were retail staff doing different jobs in supermarkets and claiming that they were performing equal work to men working in distribution centres. The women all included their claims in the same claim form. Some of the affected men argued in the same ET1 that, if the women were successful, they did equal work with the female claimants. The remaining two appellants undertook different jobs in local government and claimed their work was equal to that of men performing a variety of jobs. The respondents argued that the claims should be struck out on the basis that they did not comply with Rule 9 of the Rules.

The EAT found the fact that the claimants were performing different work and, even if based on the same comparator, did not satisfy the definition under Rule 9 of the Rules. Therefore, the use of a single claim form was in breach of Rule 9. Under Rule 6 of the Rules, wrongly including claims by two or more claimants in the same claim form is an irregularity and the Tribunal is a permitted to “take such action as it considers just” as a consequence, up to and including striking out the claims.

The full case report can be found here: Farmah & ors v Birmingham City Council & ors.

Can employees doing different work bring their equal pay claims on the same claim form?

The proposed shake up of Employment Tribunals

Digital claims, the delegation of authority to caseworkers and a tailored composition of tribunal panels are just three of the proposed reforms to Employment Tribunals.

On 23 February 2017, the government published its response to the MoJ and BEIS’s joint consultation aimed at simplifying and speeding up the resolution of disputes. The consultation forms part of a wider initiative to review the entire civil justice system.

The government confirmed its commitment to the digitisation of claims, recognising that claims should be made and processed online. Depending on the nature and complexity of the claim, some cases would also be suitable for online decisions. Recognising the inevitable risks of new IT systems creating unforeseen problems, the reforms will take place over several years and digital transformation will be the latter part of the programme.

The government also recognised the importance of providing procedural flexibility to meet future challenges by supporting the delegation of tasks to tribunal caseworkers who would be legally “trained or qualified”. Noting the concerns raised around ensuring that only those matters suitable for delegation are, in fact, delegated, the government expects that any delegation implemented would follow further engagement between the Senior President of Tribunals, the Employment Tribunal judiciary and Tribunal users.

The government also intends to proceed with its proposal for the Senior President of the Tribunals to have responsibility for deciding the panel composition of the Employment Tribunal and the Employment Appeal Tribunal. We will see a new Employment Judge and a legal practitioner with specific experience of the Employment Tribunal introduced to the Tribunal Procedure Committee. Obviously these reforms will take some time to implement but the proposals mark a long overdue overhaul of processes that have been in place for a very long time. A move to modernise the more antiquated systems can only be welcomed, as long as the appropriate level of care is taken to ensure that the new processes work.

The proposed shake up of Employment Tribunals

Increase in limits

This week new limits applying to certain awards of employment tribunals, and other amounts payable under employment legislation, have been increased.

The increases apply where the event giving rise to the entitlement to compensation or other payments occurred on or after 6 April 2017. Limits previously in force are preserved in relation to cases where the relevant event was before 6 April 2017.

Key new relevant limits are as follows:

  • Minimum basic award in cases where a dismissal is unfair by virtue of health and safety, employee representative, trade union, or occupational pension trustee reasons: Old limit – £5,853; New limit – £5,970
  • Limit on amount of guarantee payment payable to an employee in respect of any day: Old limit – £26.00; New limit – £27.00
  • Limit on amount of compensatory award for unfair dismissal: Old limit – £78,962; New limit – £80,541
  • Maximum amount of “a week’s pay” for the purpose of calculating a redundancy payment or for various awards including the basic or additional award of compensation for unfair dismissal: Old limit – £479; New limit – £489
Increase in limits