carrying forward holiday entitlement
On 25 July the European decision that employees can take extra holidays to make up for time off sick while on holiday was expanded when it was confirmed by the Court of Appeal that a worker who was unable to take four weeks’ annual leave due to sickness did not have to make a request to carry forward the untaken leave into a new holiday year in order to receive a payment in lieu of it on termination of employment. Many employers restrict the right to carry forward untaken leave into the next holiday year. This restriction is now of no practical effect for those who were sick when on holiday.
wearing religious symbols
In a suprisingly specific intervention, David Cameron has referred to the Eweida case (which we have previously reported) by stating in a PMQ reply that it is "an absolutely vital freedom" for employees to be entitled to wear religious symbols at work. Ms Eweida was told that she could not wear her crucifix necklace on health and safety grounds. The case is due in the European Court this September.
Baby P still featuring in employment law
Long after the tabloid headlines have gone the employment issues surrounding the “Baby P case” are still occupying the Employment Appeal Tribunal. The latest case concerns whether or not it was reasonable to dismiss two employees who had received warnings for misconduct.
The written warnings concerned alleged failure to follow monitoring procedures. Following the intervention of the Secretary of State for Children, Schools and Families, the individuals concerned were recalled for formal disciplinary proceedings concerning the issues which had resulted in the initial warnings. Notwithstanding that they had already been judged concerning the matters under review (the legal principle of "res judicata") both were summarily dismissed for gross misconduct.
The Employment Appeal Tribunal held that the dismissals were fair. The new investigators were entitled to reach a different view because the initial disciplinary proceedings were not " judicial". However, it was emphasised that each case should be considered on its own facts so that this should not be regarded as a "green light" for others to act similarly.
"super injunctions" in employment law and compromise agreements
Gary Walker was employed as Chief Executive of United Lincolnshire Hospitals Trust and was sacked when it was alleged that he swore openly in meetings. However, his dismissal was reported to be about him disobeying a government order to focus his attention on hitting targets for non-urgent medical cases and instead concentrating on emergencies.
He claimed unfair dismissal and an employment judge found that there was evidence that his disclosures about patient safety were protected under whistle-blowing legislation.
The claim was settled on payment to him of £320,000 plus legal fees and a confidentiality clause which prevents him from talking about the issues behind his dismissal.
David Bowles, chairman of the Trust until he resigned in 2009 concerning the targets issue stated:
The thing which really shocked me is that I, and all the other witnesses who would have been appearing at the employment tribunal, received gagging letters as well.
Tribunal system in “meltdown”
According to a report in People Management the number of outstanding tribunal cases has quadrupled from 144,900 in 2007 to 530,400 at the end of 2011. ACAS also has a significant backlog which calls into question its ability to provide a filtering process for new claims, as envisaged by the government’s recent proposals.
OPINION: Much of the recent press coverage about employment law and procedure has been focused on liberating small businesses from the burden of what are perceived to be onerous (and often described as European) employment law rights. The reality is that many SMEs are forced into settlement of unwarranted claims by the wholly unreasonable protraction of what should be straightforward claims. The sooner the employment tribunal system is abandoned as a failed "short cut" and brought into the civil court process with the ability to apply tried and tested filtration of claims the better.
Jonathan Djanogly, Ministry of Justice Minister, has said that it is unfair for the taxpayer to foot the bill for tribunals which cost £84 million a year. As you will have gathered from the last item I agree, but probably not in the way that Mr Djanogly has in mind. His proposal is that for "level one claims" the issue fee will be £160, with a hearing fee of £230 and "level two claims" will have an issue fee of £250 and a hearing fee of £950.
Level one claims are supposed to be "routine matters" such as deductions from wages and level two claims are to be classed as more complex matters such as unfair dismissal and discrimination claims.
OPINION: Let’s just pause at the fees. The usual exemptions will apply so that people who have just lost their jobs, and consequently their income, will qualify for fee exemptions. A key element of the vast majority of employment claims is for loss of income (no surprise) and costs provisions require the determination of who is the "winner" and who is the "loser". Does that sit comfortably with the concept of tribunals (a supposedly fee free alternative to court proceedings) so that property owners can go to the Lands Tribunal at no charge but former employees (with correspondingly no income) have to pay? This may seem to be employee biased but the bigger picture is that the "winner" has to pay the "loser". By the time that you get to that concept there really is no point in maintaining tribunals.
There is also a basic access to justice point. Theo Huckle QC, Counsel General to the Welsh government, has commented as follows:
True and free access to justice for all citizens, whether their claims are popular or unpopular, is an integral part of the democratic settlement in the UK. This decision totally undermines that principle.
The process of approaching a legal court or tribunal is off-putting for most citizens. The thought of doing so without direct legal advisory support and representation is daunting in the extreme.
To be required to do so and pay substantial fees as well in advance will undoubtedly deter many applicants with good claims who will thereby be denied access to justice.