REUTERS | Jim Young

Employment tribunals. In a momentous decision, the Supreme Court declared that employment tribunal and EAT fees are unlawful under domestic and EU Law. The Court quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) on the basis that it prevents access to justice. The effect is that all fees paid since 29 July 2013 will be reimbursed by the government and fees are no longer payable for future claims. The government has accepted the ruling and is putting in place systems for reimbursing all fees paid to date.

In two contrasting decisions, the EAT considered whether a difference in the respondent’s name on the EC certificate and the claim form was a “minor error” with the result that the claim could proceed. The EAT upheld an employment tribunal’s decision to reject an ET1 where the respondent’s name substantially differed to that on the EC certificate.  However, in a case with essentially the same facts, a differently constituted EAT held that incorrectly naming the respondent on the EC certificate was a “minor error” which should have been overlooked.

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REUTERS | Russell Cheyne

Many Scottish employment lawyers advise on employment law in England & Wales, and many English practitioners deal with cases north of the border. The majority of employment laws are based on UK-wide legislation so provided that the representative is aware of the areas of differences, especially when it comes to tribunal procedure, this doesn’t pose too much of a problem. However, certain issues and areas of law, particularly those based on the common law, have a distinct Scottish perspective and can pose a real risk for English lawyers dipping their toes into an unfamiliar jurisdiction. One of these risk areas is the enforcement of restrictive covenants.

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As long ago as 1974 a benevolent approach to the assessment of the merits of a case was adopted in the Employment Tribunal (ET). Sir High Griffiths sitting in the NIRC, when addressing an application for costs, stated the following:

“Ordinary experience of life frequently teaches us that that which is plain for all to see once the dust of battle has subsided was far from clear to the combatants when they took up arms. We do not therefore attach undue weight to the fact that at the end of a skilful cross-examination on the last day of the hearing the employee was forced to concede that in the circumstances as they had emerged the employers had acted reasonably in dismissing him.” (E. T. Marler Ltd v Robertson [1974] ICR 72.) Continue reading


The Employment Tribunal Rules (ET Rules) and the CPR

The amount of a costs order in the employment tribunal (ET) can be made subject to detailed assessment, to be carried out (either by the ET or by a county court) in accordance with the Civil Procedure Rules 1998 (CPR) (rule 78, ET Rules).  It was traditionally understood that this application of the CPR to ET procedure was limited to the assessment of the level of costs, as opposed to the separate question of whether costs should be ordered at all. As reflected in the CPR, “costs follow the event” in the civil courts.  In contrast, the ET has a limited costs jurisdiction, which depends on the existence of improper or unreasonable conduct and the exercise of discretion in the presence of such conduct as to whether to award costs. Continue reading

REUTERS | Lucy Nicholson

The Taylor Review of Modern Working Practices has unsurprisingly elicited a range of views. Some believe it is a missed opportunity for radical change, while others bemoan a worker-friendly approach that will stifle much-needed innovation in a post-Brexit economy. There are also many who think it has struck the right note. My own perspective lies somewhere in the middle. Continue reading

REUTERS | Faisal Mahmood

It’s commonly observed that equal pay legislation has been in place for over 40 years but a significant gender pay gap stubbornly persists. One of the likely reasons for this is that equal value claims are dauntingly complex, long-running and expensive. While claimants in most employment tribunal litigation can expect a result comfortably inside 12 months, equal pay litigation can go on (and therefore have to be continuously funded) for years. Some of the high-profile claims against Asda, for example, started in 2008 and there is no end in sight, even at employment tribunal level, after which subsequent escalating appeals seem inevitable. Continue reading

REUTERS | Eddie Keogh

For the employment lawyer, HR leader and finance director, large multiple equal pay claims are the perfect storm: legally complex, divisive for the workforce and potentially enormously expensive. They’re also rare; most employment lawyers will go through their entire career without encountering one.

All of which means that it’s often a sweaty-palms moment when the call comes in from a worried HR director: “A thousand equal pay claims just arrived. What do I do?” Continue reading

REUTERS | Ilya Naymushin

Queen’s speech and Brexit. The Queen’s Speech on 19 June 2017 included the announcement of a new Immigration Bill to deal with the immigration status of EEA Nationals and the forthcoming repeal of EU freedom of movement law. A new Data Protection Bill was also announced to implement the EU General Data Protection Regulation and give individuals greater rights over their data, including the right to be forgotten.

The government has since published its plan for EU citizens residing in the UK after Brexit. However, it has also been reported that a third of migrant workers are considering leaving the UK in the next five years, and that UK farming is already facing a migrant worker shortfall.

Working Time and Time Off. The Advocate General has given an opinion that a worker is entitled to be paid in lieu on termination for any periods of annual leave that have accrued during employment, which the worker has been discouraged from taking because it would have been unpaid. If followed by the ECJ, this could have major implications for misclassified gig economy workers.

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The First Commandment of discrimination law is that each person has a right to be judged on the basis of his or her individual attributes. Stereotyping is anathema. Young women, on average, may have higher labour turnover than young men, but that does not mean that it is right to assume that every young woman will be more prone to leave their job than every young man. And in Great Britain, ever since the Sex Discrimination Act 1975, any employer who makes a recruitment decision on the basis of such a generalisation would be acting unlawfully. The same prohibition applies to stereotypes relating to the other protected characteristics. Continue reading

REUTERS | Yuya Shino

Everyone knows that it is always impermissible to take a lapsed warning into account when deciding whether to dismiss an employee. According to both the Court of Appeal and the Employment Appeal Tribunal, “everyone” is wrong.

As set out in Stratford v Auto Trail VR Ltd UKEAT/0116/16, the position is actually far more nuanced than might be imagined. Continue reading