Welcome to the January Newsletter. This month we have several examples of the technical nature of employment law straying into the realms of intellectual fantasy including the ECJ (as then was) deciding on whether twin births trigger double maternity leave and a battle over the wording in a disciplinary letter lasting almost half a decade. Enough to make even experienced employment lawyers raise eyebrows. In other news, the Government has announced "plans" to "reform" the Employment Tribunal system. These plans include making claimants pay £500 as a deposit to bring a claim, extending the unfair dismissal qualification period to two years and allowing Employment Judges to hear cases alone. Now, I am generally very forthright about my views on undeserving claimants; those of you whom I have represented in the Employment Tribunal over the years can vouch for the fact that there is little quarter given to those who do not have a deserving claim. However, I do believe that everyone in this country has the right to access justice and that the current proposals are nothing short of an unlawful block to over 100 years of hard won rights. I understand the case for extending the qualification period for unfair dismissal, however, the proposal that claimants have to pay £500 just to lodge a claim is ridiculous. County Court costs are not that high for claims worth tens of thousands of pounds and the jurisdiction and budgetary limitations of the Employment Tribunal are well below the level afforded to the County Courts. A deserving claimant on a low wage would be precluded access to justice and I believe that the legislation, if it comes to it, will be judicially reviewed, immediately and successfully.
If the Government really wants to reform the Employment Tribunal system, the answer is to acknowledge that the law involved now outstrips much civil law in terms of intellectual rigour and implement a proper costs regime whereby the losing party pays the costs of the winner. The Employment Tribunal is no longer the employer and employee having a chat over a desk, it is a vast £1billion a year goliath without adequate resources. The parties should be either legally represented or litigants in person (thus ridding the Employment Tribunal of the consultancy firms that clog up the system with inefficiency, ineffectual pleadings and constant postponements). Claimants would then be able to take advantage of insurance covering their legal costs in the event of a loss. The poor claims would not be insured thus preventing claimants with poor claims from lodging them. The employer would know that once the claim has been won, their legal costs will be paid by the other side. Problem solved and access to justice maintained.
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This month's news:
1. Equality Act - positive action
On Sunday 23 January the Daily Mail published an article under the heading "Equality Madness" in which it said that the government is spending tens of millions of pounds in order to comply with the terms of the Equality Act 2010. Examples referred to include £100,000 spent on a DEFRA report investigating how efforts to boost Britain's coastal fish stocks would affect minority communities including the Chinese, homosexuals and Welsh speakers and a leadership course for NHS managers designed for gay, lesbian, bisexual and transsexual employees.
While the wider debate on such matters will no doubt continue, employers need to be alert to the changes which impact on workplace arrangements and potential issues arising in an employment law context.
2. End of the default retirement age
We have reported on several occasions over the last few months that the government is planning to scrap the default retirement age at age 65 but doubts were expressed about whether the change would be implemented as forecast. Those doubts have now been resolved as a result of the government's announcement on 13 January that employers will no longer be able to force staff to retire at 65 from this October. Employment relations minister Ed Davey said that it was "great news" for older people, businesses and the economy
3. Associative discrimination - when a gay pub becomes a gastropub
In Lisboa -v- Realpubs Limited and others the Employment Appeal Tribunal was asked to consider whether the employer's policy of encouraging a wider clientele at what was previously recognised as a gay pub led to less favourable treatment of gay customers which in turn caused Mr Lisboa to resign in circumstances amounting to discriminatory constructive and wrongful dismissal. Although the case was decided on the basis of the legislation which applied prior to the implementation of the Equality Act 2010 the principles remain relevant.
4. Tribunals costs firms £8,500 each
The British Chambers of Commerce (BCC) has undertaken research which shows that the average cost for an employer to defend itself at an employment tribunal is £8,500 whereas the average cost to settle is £5,400, making settlement the cheaper option. Last year there were more claims made than ever (236,100) and the current recession is unlikely to lead to anything other than a further increase this year.
5. New limits for unfair dismissal and redundancy payments
Under the annual index-linked formula new limits for unfair dismissal compensation, redundancy payments and other awards come into effect on 1 February.
The main changes are as follows:
6. It turns on the words - "theft of money" and "loss of money"
Celebi -v- Scolarest Compass Group UK & Ireland Limited is a decision of the Employment Appeal Tribunal which emphasises the importance for employers of ensuring that they use the right terminology when taking disciplinary action against employees. The case is also a good example of how an apparently straightforward dismissal can keep an employer occupied for years because the relevant events took place in November 2006 and Mrs Celebi was dismissed in May 2007. The case went to the Employment Appeal Tribunal in 2008 when the issues mainly concerned technical matters relating to the procedures in the Employment Act 2002 (which no longer apply) and a rehearing was ordered. That took place and the resulting decision led to the appeal which took place last year. I'm commenting on it now, first because the case demonstrates how employment cases can become very protracted and expensive and, second, because of the warning that it provides to employers who think they have acted correctly but who happen to use the wrong words at the wrong time can undermine what was otherwise an apparently fair process.
7. Does the birth of twins create double parental leave?
Well, it's a straightforward question with a predictable answer. However, it's got as far as the Court of Justice of the European Communities (formerly the European Court of Justice). The decision of the European Court includes in its summary the delightfully philosophical question "what is the meaning of birth?"!
8. Liability for discrimination resulting from a reference
It used to be the case that an employer could claim legal "privilege" concerning the contents of a reference on the basis that the purpose of a reference is to provide a "no holds barred" assessment of the individual concerned. In recent years that protection has been eroded so that the provider of the reference can be held liable and required to pay compensation to both the subject of and the recipient of the reference if the opinions expressed do not stand up to scrutiny.
9. Dismissal for religious belief or how that belief is manifested?
The Equality (Religion and Belief) Regulations 2003 (now part of the Equality Act 2010) were introduced, as the name suggests, to protect against discrimination on the grounds of religion or a belief system.
In Power -v- Greater Manchester Police Authority the Employment Appeal Tribunal considered the dismissal of Mr Power, a committed spiritualist, who worked as a Special Constabulary Trainer. Shortly after he started his job his employers discovered that police officers had complained that, in his previous work, he had been disruptive and unhelpful on training courses and that he had been distributing CDs and posters about spiritualism.
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