REUTERS | Ali Hashisho

The cost of auto-enrolment and trying to avoid it

All employers are required to enrol their staff in a pension. This obviously comes at a price, sometimes a significant one. This is particularly true for small employers, that are operating in an increasingly tough economic environment, and it may be tempting for less scrupulous employers to try and avoid this obligation. Some may just refuse to do so. Others will be more clever, perhaps trying to create company structures to avoid the obligation. It may be that they will make unauthorised deductions to wages to make up that shortfall; so, for example, they may unlawfully reduce someone’s salary or unlawfully remove benefits such as a bonus. This issue is clearly on the Pensions Regulator’s radar, as it was covered in a blog in late 2016. Continue reading

REUTERS | Mike Hutchings

As the Summer comes to a close, the promised first data from the audit of racial disparities in public services is still awaited. This month, a survey conducted by the TUC has suggested that white workers earn an average of 8.3% more than their black counterparts despite holding the same educational qualifications and the Equality and Human Rights Commission published a strategy on gender, ethnicity and disability pay gaps. The strategy includes a recommendation to extend mandatory gender pay gap reporting to ethnicity and disability.

Following last month’s momentous Supreme Court decision on employment tribunal fees, we have published a new Practice note, Q&A: Practical issues arising from the abolition of fees in the employment tribunal. The note deals with frequently asked questions in response to the decision.

Working time and time off. Advocate General Sharpston has given an opinion on whether time spent on “stand-by” duty is working time. It is for member states to determine whether the quality of time spent on stand-by duty is undermined to such a degree by any restrictions imposed by the employer that it should be classified as working time.

The EAT has clarified that voluntary overtime, standby allowances and call-out payments count towards holiday pay if sufficiently regular. This decision follows the now well-established direction of travel for holiday pay cases, highlighting that voluntary elements of work are in principle to be treated no differently, for holiday pay purposes, than compulsory non-guaranteed overtime dealt with in Bear Scotland. However, some uncertainty does remain. The question of whether a payment is “normal” is a question of fact and degree for a tribunal, which means employers will need to take a view on how they treat borderline cases. Continue reading

REUTERS | Pilar Olivares

The Court of Appeal has considered the meaning of the words “in the public interest”, which were added to whistleblowing legislation by the Enterprise and Regulatory Reform Act 2013. While guidance was provided to employment tribunals, it is clear that a fluid approach should be adopted in considering what is meant by “a reasonable belief in the public interest”.

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Uplifts: where to next?

Following Pereira de Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879, it is clear that the Simmons v Castle uplift of 10% should be applied to awards of compensation for injury to feelings in discrimination claims in the employment tribunal. In this blog we consider whether the Simmons v Castle uplift should be applied to injury to feelings awards in whistleblowing claims. Continue reading

REUTERS | Eddie Keogh

After the recent landmark Supreme Court judgement on ET fees, which confirmed the importance of access to justice, we have seen reams of commentary on the possible implications and expected outcomes for claimants and respondents, and their lawyers.

What about the in-house perspective?

At BT we conduct our employment tribunal claims in-house, including all advocacy. Our in-house team therefore has a unique take on the impact of the introduction of ET fees in 2013 and their subsequent withdrawal, both in terms of the number of claims received and the way they were conducted.

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In Green v London Borough of Barking & Dagenham UKEAT/0157/16, the EAT held there should be no modification to the application of section 98(4) of the Employment Rights Act 1996 (ERA 1996), which tests the fairness of the dismissal, in the case of redundancy where existing employees must compete for a reduced number of new roles within the same organisation.


The claimant was one of three employees in a team performing broadly similar roles at the same level. In October 2012, the respondent proposed a restructure of the team. This involved the deletion of the three posts and the creation of two posts for which the existing three jobholders would compete by way of a written test and interview. As the lowest scoring candidate, the claimant was not offered a new role and was selected for redundancy. The claimant appealed against her redundancy, but the respondent refused to hear her appeal on the basis that it was not a redundancy selection but an assimilation process and as such there was no right of appeal on that issue.

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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