tribunal reform: fees and more

The government plans a “root and branch” reform of tribunal procedures to speed the process up and cut costs, including developing a rapid resolution system for simpler claims which may be decided on paper with no hearing at all. One problem will be to identify which claims are simple enough to be dealt with in this way. It is suggested that disputes about holiday pay would be suitable – but as recent case developments on the accrual of holiday pay for those on long-term sickness absence show – complex issues can arise in apparently minor areas. This will be another long term project; in the meantime, the government will be pressing on with some measures it considers will improve matters and don’t need to await a full overhaul of the rules.
The first of these forthcoming changes, and one which has generated a lot of publicity, is the plan to require claimants to pay a fee to start tribunal proceedings, which they will get back only if they are successful in their claim.

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protected conversations

I mentioned the concept of “protected conversations” briefly in our October 2011 newsletter and gave it a guarded welcome.
As now presented in the proposed government reforms it is confirmed as a completely new development, in which employers would be able to broach difficult topics and, perhaps, suggest an agreed parting of the ways, without anything said being admissible as evidence. Protection will not extend to anything discriminatory said in meetings – as is the case currently in “without prejudice” discussions.

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alternative dispute resolution to be promoted

As part of the government’s review of employment law strategies to reduce the number of claims which get as far as a tribunal are less controversial, and, some might say, less pro-employer.
ACAS’ current power to conciliate will revert to a duty, and all cases will be referred to voluntary early conciliation before employment tribunal proceedings are started, with an extension of a month to the time limit for bringing claims to allow for this. ACAS has a reasonable track record of success in such early conciliation, but the crunch will be whether they have the resources to cope with the level of work. The need to increase resources is recognised, with the government saying that the additional funding needed will be paid for from the savings made elsewhere. It has to be observed that referral to ACAS in past similar arrangements which operated until 2009 frequently amounted to little more than a few phone calls. Accordingly not too much should be expected from this initiative.

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good in parts: radical reforms of employment law

The top headline news this month has to be the mixed bag of employment law proposals announced as “the most radical reform to the employment law system for decades”. And what a mixed bag it is – everything from tidying up the unintended consequences of statutory drafting to a root and branch review of employment tribunal procedure by way of revisiting some familiar old ideas. Opinion is, of course, divided as to how effective the proposals will be, not always along traditional employer/employee lines, but some at least seem welcome in all quarters – such as the introduction of a portable CRB check.
Many of the measures announced are aimed at reducing the numbers of cases going into the employment tribunal system, speeding up resolution of cases once they get there, and of course keeping costs down – for the government, rather than for employers or employees.

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more on philosophical beliefs

There seems to be a never ending stream of cases in tribunals at the moment concerning whether claims for discriminatory treatment on the ground of philosophical belief should proceed. In our October 2011 newsletter we examined some of the recent case law on the ever shifting limits of what may qualify as a philosophical belief. A Watford employment tribunal has now very lightly put the brakes on.
In Lisk v Shield Guardian Co Ltd, the subject matter was a topical one. Mr Lisk, an ex serviceman, objected when he was asked by his employer, Shield Guardian, to remove his poppy at work and he submitted claims for direct discrimination and harassment on the protected ground of philosophical belief. A pre hearing review was listed to determine whether the "poppy incident" claim should proceed.

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capability or conduct? one, the other or both?

A helpful case for employers, but one that should be treated with caution, deals with the issue of whether a dismissal which is purportedly for misconduct can be found to be fair even if the tribunal holds it is for capability and conduct (both potentially fair reasons for dismissal under section 98(2) Employment Rights Act 1996).
It is a common problem for employers whether, faced with an employee’s incompetence or negligence, they should opt for a capability or conduct procedure and/or dismissal. Often, the behaviour in question overlaps both conduct and behaviour. The soundest advice is to cover both bases although, of course, in the case of a capability dismissal it is expected that a different kind of procedure with different expectations and support will be followed. An early EAT decision in Hotson v Wisbech Conservative Club made clear that an employer is not tied to the label he happens to put on particular facts, nor is he prevented from running the two as alternatives. However, it is clearly wise to ensure that both capability and conduct are considered at an early stage to ensure that no argument can be progressed that prejudice has been caused to an employee.
In Screene v Seatwave Ltd, Seatwave was the victim of a large scale fraud and Mr Screene was the unfortunate financial controller who failed to detect the fraudulent transactions. Mr Screene was called to a disciplinary hearing to consider three allegations, the central one being that he "failed to identify or address large amounts of cash leaving the German bank account totalling to roughly 1.7m euros within several weeks". The next day Seatwave wrote to Mr Screene "to confirm the decision to summarily dismiss you on the grounds of Gross Misconduct". The letter continued: "you have been negligent in the completion of your duties as follows…an absolute failure to complete non UK bank reconciliations leading to significant financial losses for the company". It concluded: "your serious negligence in the performance of your duties…clearly justifies Summary Dismissal".

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whistleblowing: causation and vicarious liability

More confusion on the correct causation test in whistleblowing cases as the Court of Appeal controversially overturns the EAT decision in NHS Manchester v Fecitt. The Court of Appeal has held that section 47B of the Employment Rights Act 1996 (protection from detriment on the ground of a protected disclosure) is infringed if a protected disclosure materially (i.e. more than trivially) influences an employer’s treatment of an employee who has made a whistle-blowing allegation. It also held that an employer cannot be made vicariously liable under the whistle-blowing legislation for such actions of its employees as one might otherwise argue amount to victimisation. This is because an employer can only be held vicariously liable for the legal wrongs of its employees (see the House of Lords decision in Majrowski v Guys and St Thomas’ NHS Trust). In contrast to discrimination legislation, there is no clear statutory provision which makes it illegal to victimise employees who make protected disclosures.
Revisiting briefly the facts of this case, it concerned three nurses who worked for NHS Manchester and who, in various capacities, raised concerns about the qualifications of a colleague. An investigation disclosed no major concerns but the three nurses did not let the matter drop and caused general dissent among the staff working with them. As a result of what then became a ‘dysfunctional’ working atmosphere, one claimant had her managerial responsibilities removed, one was redeployed and the other, a bank nurse, was given no further work. They brought claims that they had been subjected to a detriment under s.47B Employment Rights Act. NHS Manchester’s response was that the reason for its actions was that it was the ‘only feasible method’ to deal with the dysfunctional working conditions created by the three nurses.

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first prosecution under the Bribery Act 2010

Employers have been waiting to see whether the application of the provisions of the Bribery Act 2010 will impact upon the way in which they conduct business, most particularly in respect of corporate hospitality and overseas transactions where it is often considered essential to ‘smooth the way’ in order to do business. The Act has a broad jurisdictional reach as it covers acts which take place outside the UK if the individual or company have a close connection with the UK.
It may then perhaps come as a small relief that the first prosecution under the Act is in connection with conduct that most of us would consider to be inappropriate, even immoral. Mr Munir Patel, a former magistrates’ court clerk, was filmed accepting a £500 ‘bung’ to ensure details of a traffic offence were not entered onto the court’s database.

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costs of reasonable (or not?) adjustments under the spotlight as deaf applicant loses discrimination case on appeal

The vexed question of what constitutes a ‘reasonable adjustment’ and whether cost can be a factor in the equation has long been a problem for employers when dealing with disabled employees and job applicants. The Equality Act 2010 largely replicates the provisions concerning ‘reasonable adjustments’ which were previously contained in the Disability Discrimination Act 1995 (DDA). The problem for employers is that the test of reasonableness is objective and is to be determined by a tribunal. Some guidance is provided in the EHRC Employment Statutory Code of Practice (previously contained in the DDA) which sets out a list of factors to be taken into account. However, case law has proved to be helpful to employers in setting out some of the parameters of what may be considered to be reasonable adjustments.
The EAT has now upheld the tribunal decision in Cordell v Foreign & Commonwealth Office which considered the question of to what extent cost can be a factor in the ‘reasonable adjustments’ equation and has helpfully laid down some further guidelines.

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disciplinary hearings and hospital trusts

Along comes another case to add to the long list of claims against hospital trusts concerning alleged flaws in the disciplinary process. Trusts have very detailed contractual disciplinary procedures, complicated by reviews and the introduction of new and often overlapping procedures consequent to Directions issued by the Secretary of State which have led to a plethora of claims of failure to comply with contractual terms, express or implied. These cases have often assisted more generally in the clarification of tricky legal questions (such as the right to legal representation at disciplinary hearings under human rights legislation).
In Lim v Royal Wolverhampton Hospitals NHS Trust the High Court was asked to consider whether Mr Lim (a consultant anaesthetist) should be granted an injunction preventing a capability hearing from proceeding until an assessment panel of the National Clinical Assessment Service (NCAS) had made a determination as to his performance. The court was asked to determine two questions:
1. Whether the Trust was in breach of contract by failing to comply with its own procedures by failing to refer the issues (relating to bullying and inappropriate behaviour) to the NCAS
2. Whether, by seeking to revive allegations of misconduct some three years earlier, the Trust failed to comply with the terms of its own disciplinary procedure that it should act fairly and speedily.

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