Deposit orders can be a useful tool for respondents facing unmeritorious claims. This is particularly true for discrimination or whistleblowing claims, which are notoriously difficult to get struck out. A separate deposit order can be made in respect of each allegation in a claim, not just each claim, and this can be useful where the claims make wide-ranging allegations over a long period. Continue reading
As the Brexit case rumbled on in the Supreme Court, with a decision expected early in the New Year, the House of Lords Library published a briefing paper on leaving the EU and the Bar Council Brexit working group published “The Brexit Papers” to help the government assess the most pressing legal concerns arising from the UK government’s decision to withdraw from the EU. For information on the process of Brexit and the protection of employment rights following Brexit, see What to expect in employment law: Brexit.
In a timely decision for anyone whose holiday season is not complete without a discussion of the legal pitfalls of Christmas parties, the High Court has held that a company was not vicariously liable when the managing director assaulted an employee during a drinking session after the office party.
In a case concerning survivor’s pensions for same-sex partners, the ECJ has disagreed with the Advocate General’s opinion, and held that there was no discrimination based on sexual orientation or age where the spouse of the deceased member was unable to benefit because of a “death-bed marriage” restriction in the pension scheme rules. The couple could not have married any earlier because UK law at the time did not permit same-sex marriages. Continue reading
Claimants and respondents in employment tribunal litigation are frequently concerned about details of their cases being public, or worse, being reported by the press. Employment tribunals have a discretionary power to make an order preventing or restricting the public disclosure of any aspect of proceedings (rule 50(1), Employment Tribunal Rules of Procedure 2013). In making an order, the tribunal must give full weight to the Convention right to freedom of expression and the principle of open justice, namely that justice is administered by the courts in public and is therefore open to public scrutiny. Employment tribunals have become increasingly reluctant to order any restriction on the full details of any case being ventilated in public, including more limited measures such as the redaction of names of individuals peripheral or irrelevant to the issues. Continue reading
Lawyers are forever arguing over the meaning of words. With its long history of challenging discriminatory slurs and epithets, nowhere is language more important than in the realm of discrimination law, and no aspect of discrimination law is more linguistically fraught than when looking at trans issues. Let’s start with the basics: lots of you probably work in organisations with LGBT groups. But if we untangle that initialism (it’s not an acronym, strictly), we see that it combines three aspects of sexuality (the L, G and B) which are concerned with what you do and with whom, and one aspect of gender (the T) which is simply about who you are. It’s far from clear that trans people will find this an acceptable shorthand designation. Continue reading
Few people enjoy sitting down with a colleague and telling them they are not cutting the mustard. For partners in professional practice, managing fellow partners is often even less appealing, as those colleagues are usually their peers. Yet mishandling of underperforming partner exits are, in our experience, the most significant source of unlawful discrimination complaints by partners. Continue reading
Following the Prime Minister’s announcement last month that notice to leave the EU under Article 50 will be given by the end of March 2017, the High Court held that the government does not have power to do this under the Royal Prerogative. It therefore seems that an Act of Parliament will be required, although the government has no plans to introduce a bill before the Supreme Court rules on the appeal, which is due to be heard between 5 and 8 December, with judgment expected in the New Year. The High Court of Justice in Northern Ireland dismissed a challenge to the government’s power to trigger Article 50 based on the Northern Ireland Act 1998. Both cases are considered in the Public Sector Blog post, Article 50 and Brexit in the High Court: the immediate aftermath of Miller and Santos and McCord, and further developments. For more information on Brexit and employment rights, see What to expect in employment law: Brexit. Continue reading
On 3 October 2016, the President of the Employment Tribunals, Judge Brian Doyle, issued presidential guidance on a newly introduced process of “judicial assessment“.
Are such assessments likely to add anything to the employment lawyer’s toolkit for resolving disputes? Or are they likely to become another footnote in the history of tribunal practice, initially heralded but then largely ignored in the same way as protected conversations? Continue reading
When the Equality Act 2010 came into force, it introduced various measures to tackle gender inequality in the workplace. These included designating pregnancy and maternity as protected characteristics, widening the definition of “employee” for protection against pregnancy and maternity discrimination and gender pay reporting. The Equality Act (Gender Pay Gap Information) Regulations will make it mandatory for companies with 250 employees or more to publish an annual report on the gender pay gap within the company. They are expected to come into force in April 2017. Continue reading
Earlier this year an Acas research paper into early conciliation reported that just over half of these cases were resolved under a COT3 agreement, and there were high satisfaction rates with this process.
Satisfaction with Acas should not be interpreted as claimants (particularly unrepresented claimants) getting the best possible outcome. Acas conciliation officers’ availability to broker settlements, prior to claims being made, is helpful. However unrepresented claimants can be particularly vulnerable when negotiating this type of settlement. Employers are likely to have had the benefit of legal advice, but with the demise of public funding, such as Legal Help, claimants with limited resources lack access to employment law advice. This means they are unable to make informed decisions before accepting an offer of compensation. When this lack of advice is coupled with employment tribunal fees, they can present a huge disincentive to lodging claims. Continue reading
Is the process of Brexit becoming clearer? The Prime Minister announced Article 50 would not be triggered before the end of March 2017 and the House of Commons library published a new briefing paper on the employment law implications of Brexit. For more information on the process of Brexit and the protection of employment rights following Brexit, see What to expect in employment law: Brexit.
October has also been a busy month for the courts. The Court of Appeal upheld the EAT’s decision in British Gas Trading Ltd v Lock and another that statutory holiday pay must include a representative element of result-based communication. The EAT held that the objective test under section 15 of the Equality Act 2010 in a claim for discrimination arising from disability means that, an employee’s treatment must be justified, not the employer’s underlying procedure. The EAT also found that an employment tribunal had jurisdiction to decide whether a settlement agreement which satisfied the requirements set out in section 203(3) of the Employment Rights Act 1996 was nevertheless unenforceable because the claimant had lacked the mental capacity to enter into it. Continue reading