The end of employment tribunal fees

In a surprise judgment handed down on 26 July the Supreme Court unanimously decided that charging claimants to bring employment tribunal claims was unlawful and the fees scheme (introduced in 2013) was quashed. The Government promptly acknowledged that it accepted the judgment and wasted no time in confirming that the fees have been scrapped. The Law Society Gazette described the judgment as a humiliation for the Government.

Commentators have described the judgment as being constitutionally significant, since it addresses the question of what is meant by “access to justice”. As such its ramifications could extend well beyond the relatively narrow issue of employment tribunal fees. In his lead judgment (which distinguished legal commentator Joshua Rozenberg described as “terrific”) Lord Reed began by recognising that relationships between employers and employees are “generally characterised by an imbalance of economic power”. He noted that tribunals “are designed to deal with issues which are often of modest financial value, or of no financial value at all, but are nonetheless of social importance”.

In 2011, the Government proposed the introduction of fees on the basis that (1) this would transfer some of the cost of the system from the general taxpayer to its users, (2) it could encourage early settlements and (3) that it would help to weed out weak and vexatious claims.

What happened following their introduction was “a dramatic and persistent fall in the number of claims brought in ETs…of the order of 66-70%”.

Lord Reed first considered whether the fees order was unlawful under English law. At paragraphs 66 to 85 of the judgment, headed “The constitutional right of access to the courts” he sets out a compelling analysis of what is meant by the rule of law and how it is inextricably linked with access to justice. He is concerned that these concepts may have become lost in favour of an ideological view that “…the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings”. His response is firm and clear:

European Court of Justice gives OPINION on unpaid and untaken holidays

Does a worker’s holiday entitlement continue to accrue into successive years if they do not take their annual leave because their employer will not pay them for these holidays?

The Advocate General at the European Court of Justice (ECJ) has answered ‘yes’ to this question, in a non-binding opinion.

In the case of King v The Sash Window Workshop Ltd, the Claimant, Mr King (who was a self-employed salesperson), brought an Employment Tribunal (ET) claim against the Respondent, The Sash Window Workshop, on the basis that he felt he was owed monies for annual leave that he had accrued, but not taken.  In addition, the Claimant sought compensation for annual leave that he had taken, but not been paid for during the 13 years he had been working for the Respondent – his claim for holiday pay therefore amounted to over £27,000.00.  It is of note that the contract under which Mr King was employed, provided no right to paid annual leave and that this contract was terminated in 2012, on his 65th birthday.  The Claimant also submitted a claim for age discrimination.

The claim was initially heard by the ET in August 2013.  It was ruled at first instance that Mr King was to be deemed a worker for the purposes of the Working Time Regulations 1998, and also that his discrimination claim was well founded.

The Respondent subsequently appealed against the decision of the ET in respect of the holiday pay aspect of the claim, the Employment Appeal Tribunal (EAT) allowing the appeal and remitting the holiday claim back to the ET.  Mr King then submitted an appeal to the Court of Appeal who referred the case to the European Court of Justice (ECJ).

ECJ Advocate General Evgeni Tanchev, stated that employers had to provide “adequate facilities to workers” to enable them to take their paid annual leave.  Tanchev further stated:

“A worker, like Mr King, may rely on [EU law] to secure payment in lieu of untaken leave, when no facility has been made available by the employer, for exercise of the right to paid annual leave … Upon termination of the employment relationship a worker is entitled to an allowance in lieu of paid annual leave that has not been taken up.

“I appreciate that the answers to the questions referred I am here proposing would require employers rather than workers to take all the necessary steps to ascertain whether they are bound to create an adequate facility for the exercise of the right to paid annual leave, whether those steps be the taking of legal advice, consultation with relevant unions or seeking counsel from Member State bodies that are responsible for the enforcement of labour law.

“If an employer does not take such action, it will risk having to make a payment in lieu of unpaid leave on termination of the employment relationship. However, this would be in keeping with guaranteeing the effet utile of the right to paid annual leave, a fundamental right of substantive normative weight in Member State law, EU law, and international law, and would also be consistent with the practical reality, recognised in the Court’s case-law, of the worker’s position as the weaker party in the relationship.”

Disability Discrimination: Adjustments for candidate with Asperger’s Syndrome

In the recent case of Government Legal Services v Brookes UKEAT/0302/16, the Employment Appeals Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that requiring a job applicant with Asperger’s to take a multiple-choice test as part of the recruitment process, amounted to indirect discrimination.

Background

The facts of the case were that the Government Legal Service (GLS) was recruiting lawyers in what the EAT later called “a fiendishly competitive recruitment process”. Applicants would be required to complete and pass a multiple choice ‘Situational Judgment Test’ (SJT), in order to be invited for interview.

Prior to commencing the test the Claimant, Ms Brookes, contacted the GLS and asked if adjustments could be made due to her Asperger’s – in particular, she asked if she could give her answers in a short narrative format rather than multiple choice so that she was not placed at a disadvantage.

Unfortunately, the GLS advised her that an alternative test format was not available, however did state that additional time allowances might be permitted for tests taken at a later stage following the successful completion of the entry tests.  The Claimant therefore completed the SJT in its existing format and failed, albeit she scored just 2 points under the pass mark required.

Ms Brookes brought claims of indirect disability discrimination and failure to make reasonable adjustments at the ET, arguing that the multiple-choice format of the test placed her at a disadvantage in comparison to other candidates who did not suffer from Asperger’s.  She further claimed that there could be no justification for this, and no reasonable adjustments had been made to the process.

The decisions

Can workers receive payment for ‘sleeping’ at work?!

The Employment Appeal Tribunal (EAT) has recently considered this question, more specifically whether workers are entitled to the national minimum wage when ‘on-call’ (or sleeping!) at work.

In the case of Focus Care Agency v Roberts, along with two other cases heard at the same time (Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake), Mrs Justice Simler (President of the EAT) assessed whether the Tribunals had been correct in deciding whether ‘sleep-in’ time should be considered ‘time work’ for the purposes of the National Minimum Wage Regulations.

The EAT essentially concluded that it depends on the circumstances – although it disapproved of the approach taken where workers are deemed to be working simply by being present on the employer’s premises or even provided with accommodation when being on-call. The EAT decided that a multi-factorial approach was required, or in other words it depends on the facts of each case.

Employers will obviously be asking themselves at this point how you differentiate between cases where a worker is “working” throughout a sleep-in shift, being paid to be on the employer’s premises “just in case”, and those where a worker is “on call” and not deemed to be working the entire time? The EAT guidance provided is as follows:

Consider the employment contract in addition to the nature of the engagement and the work to be carried out. Does the contract provide for the period in question to be part of the employee’s working hours? Depending on the facts of the case it may be appropriate to consider whether the contract provides for pay to be calculated by reference to a shift or by reference to something else, and if so, to what; or to whether a period is directly specified during which work is to be done.
The fact that a worker has very little/nothing to do during certain hours does not mean that they are not working. A particular level of activity is not required. An individual can be working simply by being present even if they are simply required to deal with unexpected circumstances, but are otherwise entitled to sleep – this is the case even where the likelihood and frequency of an untoward matter arising is low.
No single factor is determinative and the weight each factor carries varies according to the facts of the particular case in question. Potential relevant factors in determining whether a person is working by being present include:

EAT Judgment: There can be no disability-related harassment claim without first establishing the disability

In the recent case of Peninsula Business Service Ltd v Baker, the Claimant had advised his manager that he had dyslexia and had also provided a psychologist’s report confirming the diagnosis.

The Employer’s occupational health provider prepared a report confirming that the Claimant was likely to be considered disabled and recommended reasonable adjustments, however the Claimant’s supervisor had reservations about this and thought that the Claimant could have engineered the report in his favour.

The Employer subsequently arranged for a private company to carry out covert surveillance of the Claimant, the reason for this being that they suspected that he was carrying out work for a second Employer. The surveillance report did not substantiate the Employer’s suspicions, however it did show that the Claimant was not devoting all of his time to his work. Disciplinary proceedings were commenced and a copy of the surveillance report was sent to the Claimant during these proceedings, despite not showing that he was engaged in any fraudulent conduct.

The Claimant brought claims at the Employment Tribunal, claiming that the surveillance was harassment (unwanted conduct relating to his disability) and also victimisation as the disclosures he had made about his disability were ‘protected acts’.

The Tribunal found that the surveillance could not be deemed to be harassment as the Claimant did not know about it at the time, however later telling him about it for disciplinary purposes was harassment. Furthermore the Claimant’s reliance on his asserted disability was the reason for the surveillance, so the conduct did relate to his disability. The Employer arranging the surveillance was also victimisation – as the Claimant’s performance appraisals had always been positive the surveillance could only have been triggered by suspicions about his disability.

The EAT allowed the appeal.

Publication of employment tribunal decisions

A little publicised but potentially very significant development in the field of employment law in 2017 will be the introduction of the routine publication of employment tribunal judgments. As matters stand, anyone (other than the parties and their representatives) who wants to search for or browse first instance decisions in the Employment Tribunal has to attend in person at the Bury St Edmunds office for English and Welsh decisions or Glasgow for Scottish decisions. Copies of specific decisions can be ordered but at a cost £10 and £5 each for additional decision in the same order. Decisions of the Northern Ireland Industrial Tribunals and Fair Employment Tribunals have been available online for some time.

Last June HM Courts and Tribunals Service announced that new employment tribunal decisions will be publicly available online from autumn 2016, subsequently put back to early 2017.

As many readers will know, employment tribunal decisions are not binding on subsequent tribunals so why is this news potentially very significant? Well, it’s primarily to do with reputation management. Years ago it would be quite usual to see local court reporters attending employment tribunals and their reports on cases would frequently appear on a page in a local paper devoted to employment and other judgments. However, the regional press has suffered huge financial cutbacks in recent years and the days of reporters attending tribunals as a matter of routine have long gone. Generally, cases are not reported unless they come to the attention of journalists as a result of contact from the parties or their representatives. For example, unions often issue press releases about cases they have backed in order to demonstrate successful outcomes for their members. Barristers’ chambers also publish details of successful cases, but these are overwhelmingly appeal hearings which are already available online, for example through the EAT online service and BAILII.

The new online employment tribunals decisions service will be an easy and free resource for accessing newsworthy content without the need to send someone to a tribunal. We can therefore expect to see a notable increase in the number of cases reported. Of course, online publication increases the chance of case reports being picked up by mainstream and national websites, with syndicated content (authorised or not) at the heart of many news websites.

ACAS early conciliation certificate can relate to a claim where the claimant resigned after the certificate was issued

Many employers will by now be familiar with the ACAS Early Conciliation (EC) process which was initially introduced in April 2014.  The concept of Early Conciliation is that ACAS will attempt to resolve any potential claim before it is formally submitted to an Employment Tribunal – indeed it is now the case that claims must have completed the process and an EC certificate issued before a claim can be lodged.

There are some exceptions to this rule – for example in cases of a claim being made against the Security Services, or another joint Claimant already having an Early Conciliation certificate in respect of the matter, however generally the Tribunals have been quite strict in imposing the rule.  It therefore may come as a surprise to learn that in the recent case of Compass Group UK and Ireland Ltd v Morgan, the Employment Appeal Tribunal held that the Claimant’s constructive dismissal claim was covered by an EC certificate that had been issued before the Claimant had resigned.

The background to the case is that in October 2014 the Claimant submitted a grievance to her employer when she was instructed to work in an alternative location in a more junior capacity to her existing role. In November 2014 she commenced the EC process and on 3 January 2015, the EC certificate was issued after no action was taken to resolve her grievance. The Claimant subsequently resigned and brought two Employment Tribunal claims – constructive dismissal and disability discrimination.

The Respondent initially argued that the Claimant’s constructive dismissal claim was not properly instituted as she had not followed the EC process given that she resigned after the EC certificate had been issued. They further submitted that any cause of action occurring after ACAS had been notified, even in circumstances where it relates to facts occurring during the EC process, could not be capable of being pursued without ACAS being notified. At first instance the Employment Tribunal found in favour of the Claimant and held that there was a connection between the matters in dispute during EC and the matters in dispute in the claim itself.

The Respondent subsequently appealed to the Employment Appeal Tribunal (EAT), this time stating that the cut-off date after which the EC Certificate does not extend is the issue of the EC Certificate (not the date of notification to ACAS as was the argument to the Employment Tribunal).

Definition of a ‘worker’ in whistleblowing cases

Further to Susan Stafford’s article earlier this month in respect of whistleblowing, in the recent case of McTigue v University Hospital Bristol NHS Foundation Trust, the Employment Appeal Tribunal (EAT) has provided clarification regarding when an agency worker can claim protection for whistleblowing against an end user using the extended definition of a workers under section 43K of the Employment Rights Act 1996.

 

The claimant in this matter is a nurse who was employed by an agency and placed to work at the respondent NHS Trust.  She brought a claim for protected disclosure detriments against the respondent under the Employment Rights Act 1996 (ERA). Under the ERA , only employees and workers are eligible to bring such claims against their employers. At first instance, the Employment Tribunal found that the claimant could not be categorised as such an employee/worker and her claim failed. The claimant therefore appealed to the EAT.

 

The claimant argued that she was employed by the Trust for the purposes of bringing a whistleblowing claim because she fell within the extended definition of “worker” at s.43K(1)(a) ERA, which states as follows:

“…an individual who is not a worker as defined by section 230(3) who—

(a) works or worked for a person in circumstances in which—

(i) he is or was introduced or supplied to do that work by a third person, and

(ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them…”

 

The respondent however presented the counter-argument that the Tribunal had been correct to find that it had not “substantially determined” the terms of the claimant’s engagement, as her terms were largely determined by her supplying agency work. The respondent further stated that as the claimant was undoubtedly a worker  in relation to the agency, she could not also be a worker of the Trust for the purposes of s43K(1)(a) ERA as that extension only applies to “an individual who is not a worker as defined by section 230(3)”.

 

The EAT held

Can workers claim injury to feelings for a breach of the Working Time Regulations 1998?

This question was recently considered by The Employment Appeal Tribunal (EAT) in the case of Santos Gomes v Higher Level Care Ltd UKEAT/0017/16.
The Facts
The Claimant, Miss Santos Gomes was successful in proving that her employer, Higher Level Care Ltd, had failed in their duty to provide her with 20 minute rest breaks as required by the Working Time Regulations 1998 (WTR).  or this element of the claim she was awarded compensation for her financial loss in the amount of £1,220. The Employment Tribunal however refused to entertain a further compensation claim for injury to feelings.

The Claimant brought an appeal to the EAT on the basis that Regulation 30(4) did not prevent an award for injury to feelings being made, compensation for injury to feelings was not restricted to discrimination laws, and the WTR did not provide an adequate remedy for this as is required by EU Law.
The Law
Regulation 12 of the WTR states that a worker is entitled to a minimum rest break of 20 minutes when working for more than 6 hours per day. Subsequently a worker is permitted to bring a complaint against their employer for a breach of these entitlements. When in such occasions an ET finds in favour of the Claimant, a declaration must be made in this regard and an award of compensation can be made.

The WTR state only that any compensation awarded should be what the ET considers to be ‘just and equitable’ taking into account all of the circumstances and the employers default in refusing to allow the worker to exercise their right (Reg 30(4)(a)) and any subsequent loss sustained by that worker attributable to the matters complained of (Reg 30(4)(b)).  Whilst compensation for injury to feelings is available in some types of employment law claims (mostly for discrimination), you cannot claim such compensation for breach of contract or indeed unfair dismissal claims.
The decision of the EAT

Indirect religious discrimination

Can a worker be dismissed for refusing to leave a partner convicted of unrelated criminal conduct with which the dismissed worker was not involved?

 

This question was considered in the recent case of Pendleton v Derbyshire County Council & Anor (Religion or Belief Discrimination) [2016] UKEAT 0238 15 2903.  The facts of this case were that the Claimant’s (Mrs Pendleton’s) husband was the headteacher of a local school.  The Claimant herself was also a teacher employed at another local school where she was teaching a Year 6 class, had an unblemished disciplinary record and was highly respected both in school and also within the Anglican Christian community (being a devoted and practising Anglican Christian).

 

In January 2013 the Claimant’s husband was arrested on suspicion of downloading indecent images of children and voyeurism.  He was later convicted of these offences and sentenced to ten months’ imprisonment.

 

The Claimant initially left her husband and went to stay with her parents, taking leave from work – at this point the headteacher of the school where she was employed assured her that her position would remain open for when she returned.  Although there was no evidence that the Claimant had any knowledge or involvement in her husband’s actions, the headteacher had also stated that the school couldn’t support her if she stayed with her husband.

 

During her period of leave the Claimant decided that whilst she did not condone what her husband had done, she placed importance on her marriage vows and would therefore stay with him if he could show unequivocal repentance.

 

The school subsequently dismissed the Claimant summarily, stating that she had “… chosen to maintain a relationship with [her] partner who has been convicted of making indecent images of children and voyeurism. This has led the panel to believe that [her] suitability to carry out the safeguarding responsibilities of [her] role … have been eroded. Furthermore, the choices [she had] made in [her] personal life are in direct contravention to the ethos of … the … School”.

 

The Claimant’s appeal against her dismissal was unsuccessful and she therefore brought claims of unfair dismissal, wrongful dismissal and indirect religious discrimination against the Respondent based upon her religious beliefs as noted above.

 

The Employment Tribunal agreed with the Claimant’s submission that she had been unfairly dismissed, stating that the reason for her dismissal was not some other substantial reason (SOSR) – she had not committed an act of misconduct let alone gross misconduct – but rather the Respondent’s view that the Claimant had used poor judgment in staying with her husband despite him being a convicted sex offender.  The Claimant’s claim of wrongful dismissal also succeeded in light of the above.

 

With regards the indirect discrimination claim however, the Tribunal noted that the claimant held a belief for the purposes of section 10(2) Equality Act 2010, that: “her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith”.  The Tribunal further accepted that the Respondent had applied a provision, criterion or practice of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism, however concluded that the Claimant would have been dismissed whether she believed in the sanctity of marriage or not as another individual in the same situation would have also been dismissed, even if they did not share the Claimant’s religious belief.  The tribunal did comment however that had they needed to consider the question of proportionality, they would have found that the Respondent did not show that the dismissal was a proportionate means of achieving a legitimate aim.

 

The Claimant appealed to the Employment Appeal Tribunal (EAT) on the basis that making her choose between her marriage vows and her career was enough to show she had been placed at a disadvantage, especially given she had been required to act against her religious beliefs.