Justice and Security Act 2013 and spooks

It is worth noting that the Justice and Security Act 2013 which received Royal Assent on 25 April 2013 will extend the used of closed material procedures (already allowed in employment tribunals) to other civil proceedings, where a party may be required to disclose “sensitive material” and it is in the interests of the ‘fair and effective administration of justice’.
The Act follows a security Green Paper presented by former Justice Minister Kenneth Clarke in 2011. As well as dealing with the extension of the closed material procedures the Act also provides a statutory footing for oversight of MI5, MI6 and GCHQ. It also contains a right for the government to prevent court orders being made for the disclosure of what it considers to be “sensitive information”.
It is a central tenet of our justice system that parties are able to see and challenge an opponent’s evidence as part of advancing one’s own case and
The Crime and Courts Act 2013, which received Royal Assent on the same day, will permit the filming of court proceedings, save that filming may be prohibited in the interests of justice or where it may cause unfair prejudice to a party.
Although not proceeding in an employment tribunal, a case currently in the Southwark Crown Court is providing a fascinating insight into what is alleged to go in within the confines of MI5. A woman under the codename 2363 is the former girlfriend of a spy who was her superior, given the pseudonym Mark Barton. The witnesses are giving evidence behind tall blue screens. He is alleged to have harassed her at work over a period of four months.
However it is alleged that they were watching Andy Murray playing at Wimbledon on an outdoor screen in Sloane Street and he became angry when Murray played badly. He is said to have abused her, saying that she “was nothing” and she was “lucky to be with him”. The prosecution claim that he used MI5’s email system to send her a series of desperate messages, including references to his “top secret work”.

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to consult or not to consult…

It has been a busy month in terms of collective consultation disputes, serving to underline how tricky these obligations can sometimes be. First up is the reminder, in Shields Automotive Ltd v (1) Langdon (2) Brolly and AEI Cables Ltd v (1) GMB (2) Unite (3) Individual Claimants, that awards for breaches of the collective consultation obligations are intended to be punitive and not to compensate the employee for any loss or damage suffered. However, in AEI Cables the Employment Appeal Tribunal noted that failure to consult was because the Company would have otherwise unlawfully traded while insolvent yet only reduced the protective award from 90 days to 60 days. Given that the employer was between a rock and a hard place, this might be viewed as rather harshly ‘punitive’; although the Court did note that the employer could and should have ensured that at least some consultation took place in the limited time available. In Shields (an award for breach of the TUPE collective consultation duties) the ‘technical’ breaches included the scheduling of a meeting to vote in employee representatives at a time when an employee could not attend, and the unilateral selection of one employee representative over another where there was a tied vote.

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Employment Tribunal rules on Seldon and compulsory retirement

In May 2012 I reported the important decisions of the Supreme Court in Seldon v Clarkson Wright & Jakes and Homer v West Yorks Police.
It has taken a while but an Employment Tribunal has now ruled in Seldon, on its remission from the Supreme Court, that a compulsory retirement age set out in the retirement provisions in the law firm’s partnership deed was a proportionate means of justifying legitimate aims, namely succession planning and the retention of staff. No surprises there. The key guidance remains that given by the Supreme Court which set out pointers for determining the justification of direct age discrimination. Applying those guidelines, the Employment Tribunal noted that a mandatory retirement age has to be a balance of the interests of the practice, the partners and of associates who aspire to partnership. Any determination had to weigh up the needs of the partnership against the harm caused by the discriminatory treatment. The age of 65 was within the narrow range of aims to achieve the two stated aims and the partners had consented to the mandatory retirement age. Moreover the default retirement age at the time was 65. In these circumstances, the retirement age was proportionate.

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ACAS Code can also apply to “some other substantial reason” dismissals

The Employment Appeal Tribunal has usefully confirmed for us in Lund v St Edmund’s School, Canterbury that in cases where an employee is dismissed for some other substantial reason (SOSR) which has some overlap with conduct then the Acas Code of Practice on Disciplinary and Grievance Procedures should be adhered to. In this instance the EAT believed that the disciplinary procedure should have been invoked in the first place (rather than going down the SOSR route) and that, in itself, meant that the Code should apply. Of course, this does not mean that the Code should apply in all SOSR dismissals. We are talking about cases where there is a live issue about conduct and where a disciplinary process should really have been invoked.
On the facts in this case, there was a breakdown in the relationship between Mr Lund, his colleagues and his employer. The employer was concerned that his behaviour had alienated him from his teaching colleagues. As a teacher of graphics and design he was unhappy with the computer equipment which he was required to use. Even when the equipment was replaced he regarded the new computers as still unsatisfactory. He dismantled the system and refused to allow a consultant who was engaged to report on his teaching to observe his class. He went off with stress and a consultant psychiatrist concluded that his stress was a consequence of his frustration with the computer system. However he was deemed fit to return to work. His suspension was not lifted and at a meeting in October 2010 he was handed a letter notifying him of his dismissal.
His unfair dismissal claim succeeded.

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take your ‘clean record’ with you

Welcome to most readers and seen by many as long overdue is the Disclosure and Barring Service’s new Update Service which is stated to be one of the Government’s top priorities and came into force on 17 June 2013. As stated on the www.gov.uk website: ‘it will put individuals in greater control of their own information; allow DBS certificates to be reused when applying for similar jobs; and reduce bureaucracy’. The new initiative is intended to enable individuals, for an annual fee of £13, to subscribe to the DBS Update Service which provides them with DBS certificates which will be kept up to date and be transferable from job to job (a problem that dogged the last scheme where employees had to apply for a new certificate for each new job).
The benefits are clear. The recruitment process should hopefully be much quicker since employees that work at different workplaces (e.g. locum or music teachers working at different schools) do not have to reapply for a certificate each time, which used to slow up the process of employment. Employers are able to make free online status checks, with the employee’s consent, and employees are able to challenge the contents of their certificates before they are released to third parties. The DBS will no longer automatically issue a copy of the applicant’s DBS certificate to the registered body who countersigned the application form and employers will need to ask the applicant for sight of the DBS certificate.
Employers will doubtless be greatly relieved that that they can now make instant online checks and will have no more DBS application forms to fill in.

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Equal Pay Audits: reducing inequality or simply heralding a rise in settlements?

The Government Equalities Office’s publication of a consultation on the scope of proposed regulations to bring in equal pay audits where a tribunal finds that an employer has breached equal pay legislation has re-opened the debate on whether these proposed regulations will promote a culture change with regard to the equal treatment of women or simply promote a rise in spurious tribunal claims (Equal Pay Audits: a further consultation). The regulations will be brought in by section 98 Enterprise and Regulatory Reform Act 2013 which inserts a new section into the Equality Act 2010 giving the government the power to make them.
The fear is this. The estimated cost, calculated in a regulatory impact assessment, of a mandatory equal pay audit is around £12,800. Add that to the legal costs (an estimated average of £6,556 per case) of defending a claim and the cost of any compensation (average compensation for breach of equal pay between 2000/1 and 2010/11 was around £18,500) and it begins to look more attractive to employers to settle cases than to fight them. With this in mind, employees will be more encouraged to bring spurious claims in the expectation that their employers will strike a deal before the claim gets to court.
What about publication of the audit? The government has indicated that it will not require the results of the audits to be made public yet it encourages employers to do so if they wish (whilst issuing a warning about data protection issues) but the audit results would have to be disclosed to employees covered by the audit, trade unions and the tribunal that ordered the audit.
Some commentators have sought to reassure employers that they need not be concerned about the Government’s proposed regulations since a tribunal could only make an equal pay audit order following a successful claim for unequal pay. With respect, this rather seems to be missing the point that the critics are making.

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a little more religion and employment law

Regular readers are aware that I have a particular interest in the frequently uncomfortable overlap between religion (and philosophical beliefs) and employment law. This month has provided more examples of moral dilemmas and what might at first appear to be unexpected outcomes which push the boundaries of jurisprudence, even in what would otherwise be mundane cases.
“I cannot tell a lie”
A tribunal in Birmingham has heard a case brought by a Christian telesales who complained that he was, contrary to his beliefs, required to lie in order to make sales. In Hawkins v Universal Utilities Ltd t/a Unicorn. Mr Hawkins commenced work on 22 February 2012. Things did not go well. He was told during his induction to “be creative” when speaking with PAs and secretaries and made a note that the trainer advised him “to lie”. He felt by the end of the first day “that he would end up in an employment tribunal”.
He was dismissed two days later because he had failed to meet his targets. His employment tribunal claim duly followed.
Significantly, the Tribunal found that a belief that an individual should not tell lies under any circumstances is a protected philosophical belief under the Equality Act 2010.

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how long can a risk of bias last for?

In 2011 Mr John Healey, described as “an experienced litigator”, brought an Employment Tribunal claim against Wincanton Group. The case came before Employment Judge Robinson sitting in Liverpool, was duly heard, and the tribunal reserved its decision. So far, so good.
Unfortunately, Employment Judge Robinson’s memory failed him with disastrous consequences for the eventual judgment, which went against Mr Healey. It transpired, as Judge Robinson did recall before giving the judgment, that previously he had acted for Mr Healey in his capacity as a partner at Jackson & Canter. Furthermore, in 1998, he had dismissed a claim brought before him by Mr Healey – a decision overturned by the Employment Appeal Tribunal on the basis of the appearance of bias. The Judge should not have heard the case or continued with it after actual knowledge.
Apparently Mr Healey’s memory was better than that of the judge (who in fairness cannot perhaps be expected to remember every client and every party before him during his career), but he was unaware that he could have applied for the judge to recuse himself, and so kept his silence. When he lost, however, he appealed on the grounds of bias. It is all the more remarkable that, although Judge Robinson might not remember all the cases he had dealt with, one would have thought that he would be very likely to have remembered one which was the subject of a successful appeal on the ground of bias. However that was not the case, or at least not until well into the case, and history therefore repeated itself.

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National Minimum Wage increases announced

The Government has settled on the rates of National Minimum Wage, as proposed by the Independent Low Pay Commission, to come into effect on 1 October 2013.
The announcement had been delayed for a month, prompting speculation that the Government might freeze the rates but Business Secretary Vince Cable said that he was confident that the increases struck the right balance.
In a similar vein the CBI welcomed the “careful balance” that had been struck; the TUC was more reserved, noting that it would have liked to have seen a higher increase, but focused more on ensuring that there is proper enforcement of the NMW rates.
However Adam Marshall, director of policy at the British Chambers of Commerce was disappointed with what he pointed out were increases averaging 1.9%:
While the pressures of inflation are affecting many people, including the lowest-paid, the scale of this rise adds significantly to business costs, most of all by contributing to broader pay inflation. It will also make some employers less inclined to hire additional members of staff.
The new rates are as follows:

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Enterprise & Regulatory Reform Act becomes law – dotted with various employment law reforms

On 25 April 2013, the Enterprise & Regulatory Reform Act became law, on receiving Royal Assent.
It is an enormous Act and, quite frankly, a thorough hotch-potch. There are Parts covering the UK Green Investment Bank, abolition of the Competition Commission, laws concerning cartels, the appointment of bankruptcy adjudicators, copyright law and rules concerning estate agents. Part 2 (covering sections 7 to 24) is entitled Employment and it brings into law a number of provisions which have been covered by blog posts over the last few months. Where known I have included the relevant commencement dates. Key among them are:

ACAS and conciliation
There is a requirement for the reference of claims to ACAS before implementation, to attempt conciliation, along with extended limitation periods to enable this to happen (sections 7-10 & Sched 2): to those who remember the 2004 dispute resolution procedures, does this idea sound worryingly familiar? In a climate of cutting red tape this looks very much like adding some.
Employment Tribunals
There are changes to the potential make up of both Employment Tribunals and the Employment Appeal Tribunal – the latter to allow more appeals to be heard by a judge sitting alone (sections 11 and 12). As far as Employment Tribunals are concerned “legal officers” will be able to make legal decisions, including those determining proceedings, in place of an employment judge. There can be no doubt that this is nothing more than a cost cutting measure and has little if anything to do with the proper administration of justice.
Qualifying periods (effective 25 June 2013)
Section 13 deals with the removal of any qualifying period for a complaint of unfair dismissal based on political opinion (thus implementing European Court of Human Rights requirements identified in Redfearn v UK).

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