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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

Consultation launched on Employment Tribunal fees

On 31 January 2017, the government published its review of the Employment Tribunal (ET) fees system. As our readers will be aware, the current system of requiring claimants to pay ET fees has faced significant criticism as creating a barrier to access to justice. The government has reviewed the situation and found that the introduction of fees has “broadly met its objectives”. The lengthy report explains that, among other reasons, the introduction of the successful early conciliation scheme has contributed to the decline in potential claims proceeding to the ET. Further, that while people may have been discouraged from bringing claims because of the applicable fees, “there is no conclusive evidence that people have been prevented from bringing a claim”.

Despite the glowing praise for the current system, there are still a few areas that the government have found to be unsatisfactory. First, as of 31 January 2017, no fees are required to bring a claim related to the recovery of a redundancy payment from the National Insurance Fund. The government has recognised that early conciliation may not resolve this dispute via early conciliation and that, as the employers are insolvent, the claimants will be unable to recover their fees from their employers. Second, the current Help with Fees scheme (which helps claimants with fee remission) is proposed to be extended, so that workers who earn approximately the National Living Wage, will be able to benefit from this scheme and have support with fees.

Please access the report (and respond to the consultation by 13 March 2017) by clicking on the link.

Consultation launched on Employment Tribunal fees

Insight: UK Employment Law Round-up – November 2016

Employment Round Up THUMBNAIL In this issue we look at a recent Court of Appeal decision focusing on sexual orientation protection following a refusal to bake a cake decorated with a gay rights message. We also look at the rights of breastfeeding mothers at work, and Asda’s equal pay claim case, which may lead to further claims against Asda. We consider Tribunal decisions deciding employment status and rest break rights. We review the importance of having clear guidelines on job descriptions, and proposals to provide an entitlement to bereavement leave. Finally, we give an update on changes to the Immigration Rules.

Read the full newsletter here.

Insight: UK Employment Law Round-up – November 2016

Insight: UK Employment Law Round-up – October 2016

UK Employment Law Round-up In this issue we look at recent case law decisions which have provided a useful reminder of the position when dealing with contracts tainted by illegality and taking prior disciplinary warnings into account. We also bring you up to date with the latest thoughts on calculating holiday pay, and the scope of ACAS Early Conciliation certificates. We review the new judicial assessment procedure in the employment tribunal, along with proposals to inspect corporate governance and to ask employers to disclose employed foreign nationals.

Read the full newsletter here.

Insight: UK Employment Law Round-up – October 2016

One small step for the adversarial system, one giant leap for litigants in person

The President of the Employment Tribunals (England and Wales) has issued Presidential Guidance on the protocol for “judicial assessment” in the Employment Tribunal. The guidance came into force on 3 October 2016. Employment Tribunals must have regard to the guidance, but they are not bound by it.

Judicial assessment is an unbiased review undertaken by an employment judge on the merits of the parties’ respective claims (including liability) and/or the potential remedy. This takes place at an early stage of the proceedings, typically at a preliminary hearing, and it is a confidential assessment with the aim of encouraging settlement between the parties. The assessment can only take place subject to the parties’ consent and after the parties formally identify the issues and the judge gives case management orders.

The protocol makes it clear that the parties cannot refer to the assessment in later stages of the litigation. Therefore, if they do not succeed in settling the claim, the independent judge conducting the final hearing will not be aware of the outcome of the judicial assessment. As such, the judge who carries out the assessment will make it clear that this assessment is provisional and the result of a final hearing may well differ. This judge will then normally cease having any involvement in the case (except for day-to-day case management of the proceedings).

It appears that this procedure will be particularly helpful for litigants in person (a party to a claim without professional representation) as it will highlight strengths and weaknesses of their case that they may not otherwise be able to identify. In any event, this development marks an interesting second small step away from a purely adversarial system in the Employment Tribunal, following the introduction of judicial mediation 10 years ago.

One small step for the adversarial system, one giant leap for litigants in person