Canter Levin & Berg Employment Solutions Canter Levin & Berg Employment Solutions
May 2013

Welcome to all our existing and new readers. Our May review covers a number of important topics for all employers, updated to as recently as this morning (31 May). Topics covered include fees for employment tribunal claimants and fines for employment tribunal respondents, the usual annual increase in National Minimum Wage rates, a biased employment tribunal judge and a selection of cases covering race, religion, philosophical beliefs and conscientious objection. Of particular note are the introduction of various employment law reforms which I have discussed in recent months including, where available, the implementation dates.

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Martin Malone

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This month's news round-up:

1. fees payable for employment tribunal claims and appeals


On 29 May HM Courts & Tribunals Service announced that fees for Employment Tribunals and the Employment Appeal Tribunals will be introduced on 29 July.

Having been in the pipeline for some time now, a draft order allowing for the introduction of fees in these Tribunals, and giving full details of their levels and when they will be payable, has been laid before Parliament. Having said "full details", many of the provisions allow for fees to be payable on "dates specified", either in notices accompanying notices of hearing or in notices issued by the Lord Chancellor. Clearly we will need to wait and see the system in action before we know exactly when parties will need to get their cheque books out.

The Draft Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 has prompted a surge in claim numbers as people seek to pre-empt the introduction of the fees regime.

They specify in Part 2 that fees in employment tribunal proceedings are payable:

  • when a Claim Form is presented ("issue fee"); and
  • on a date specified in a notice accompanying the notification of the listing of a final hearing of the claim ("hearing fee").

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2. fee remissions in courts and tribunals


It's all very well introducing fees across more courts and tribunals in an effort to keep unmeritorious claims away, but there is always the risk of "throwing the baby out with the bath water". What about the deserving cases of those who simply cannot afford the fees? Legal Aid is less and less likely to be of any assistance - assuming, of course, it is even available for a particular jurisdiction in the first place.

So, having got the bit between its teeth on Employment Tribunal fees, with their complex fee remission arrangements, the Government has decided to look more widely at the whole question of the remission of fees. Various systems have been implemented over time across the whole range of courts and tribunals, and standardisation is now the name of the game.

Accordingly, the Ministry of Justice has launched a consultation on proposals for a single system of fee remissions (waivers) for all fee paying courts and tribunals.

The main changes being proposed include:

  • Introducing a capital test - at the moment there is no capital test so people with low income but large capital don't have to pay towards court and tribunal fees, meaning the taxpayer picks up the cost;
  • Ensuring those who can afford to make a contribution to fees do so - the proposals will mean more contributions from those who can afford it and an income cap to stop high earners receiving remissions;
  • Making the remission system simpler – bringing in one unified system to cover the whole of the courts and tribunal system, replacing the complicated current arrangements, and calculating fee remissions using monthly salary figures rather than annual salaries so users have more accessible evidence;
  • Full fees remission for people on specific benefits – ensuring access to justice is maintained for those who cannot afford to pay a contribution to a civil court or tribunal fee.

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3. new Employment Tribunal Rules - but what are they and when will they be introduced?


Back in the summer of 2012, Mr Justice Underhill presented the results of his fundamental review of the Employment Tribunal procedures. Following a consultation by the Department for Business Innovation and Skills, it was announced that a new set of Rules of Procedure would come into force this year. A final version of the rules has still not been produced for public consumption; most of the recent focus seems to have been on the introduction of fees, rather than the new rules.

We were provided with a "teaser" from BIS in March: there will be new strike out powers to stop weak cases, guidance from the Employment Tribunal Presidents to ensure consistency, simplification of withdrawal/dismissal of claims, and new preliminary hearings combining Pre Hearing Reviews and Case Management Discussions, the distinction between which was always at odds with the supposedly simplified procedure applied in a tribunal.

Nonetheless, the rumour mill has persisted in suggesting introduction dates. In early April, speculation that D-Day would be 12 July 2013 was quickly put down by BIS. Then, in a press release accompanying Royal Assent to the Enterprise & Regulatory Reform Act, BIS announced that measures simplifying the procedures and costs of deciding tribunal cases" would come into force on 25 June 2013. However, BIS were again quick to point out that this did not mean the new Rules of Procedure.

According to Daniel Barnett's well respected bulletins, BIS advised him that "It is Government's aim, however to give users of the system as much familiarisation time for the new rules as possible". So how much time is that likely to be? Judging by other measures introduced in recent months, familiarisation time seems to be somewhere near the bottom of the list of the Government's priorities.

Could it be that the Government is finding that "simplifying the Rules and keeping down costs" is not as easy an exercise as might have been thought.

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4. conscientious objectors


Termination of pregnancy remains one of the most controversial issues we have in our society. When Parliament legalised it by the Abortion Act 1967, it recognised that, despite all the strict procedural requirements and safeguards it sought to build in, nonetheless this would simply be a step too far for some people in the light of their ethical, moral or religious views.

For this reason, the Abortion Act 1967 contained a "conscientious objection" provision at section 4, whereby nurses and midwifes cannot be required to participate in the termination of a pregnancy.

Fast forward 40 years, and these sorts of concerns are addressed by the Equality Act 2010, which, along with the Regulations that preceded it, offer protection against discrimination on, among other things, grounds of religion of philosophical belief. Yet there has been a swathe of recent cases drawing a distinct line between what is discrimination, and what is simply requiring people to do the job they are employed to do (think about Lillian Ladele, the Registrar who refused to conduct same-sex civil partnership ceremonies, or Mr MacFarlane, refusing to give Relate advice to same-sex couples).

In the light of increasing numbers of terminations, and perhaps spurred on by the mind-set of the Courts, Glasgow Health Board attempted to draw a fine distinction between requiring nurses and midwives to participate directly in the termination of pregnancy (which it would not do), and requiring them to perform duties of delegation, administration and support for those involved in such duties (which it would). The midwives objected that their right of conscientious objection was being eroded, because the performance of any of these duties in connection with a patient admitted to hospital for a termination of pregnancy would give rise to their participation in treatment.

The Outer House of the Scottish Court of Session agreed with the Health Board. Lady Smith - doubtless influenced in a style of interpretation from her extensive sitting in the Employment Appeal Tribunal - considered that the right under the Abortion Act was a limited one, "the word 'treatment' being used 'to denote those activities which directly bring about the termination of the pregnancy'". Anything else the nurses could legitimately be required to do.

In Doogan & Anor v NHS Greater Glasgow & Clyde Health Board, the Inner House disagreed:

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5. Enterprise & Regulatory Reform Act becomes law - dotted with various employment law reforms

Enterprise and Regulatory Reform Act

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
Employment Tribunals
Qualifying periods (effective 25 June 2013)
Confidential negotiations
Compensation cap
Fines for employers (effective for claims presented on or after 25 October 2013)
Whistleblowing (effective 25 June 2013)

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6. National Minimum Wage increases announced

National Minimum Wage

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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7. how long can a risk of bias last for?

employment tribunal

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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8. 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". Click to read more...

"is it because he is white?"

In terms of the law the Employment Tribunal decision in Turton v Halal Food Group is unremarkable. However it has attracted attention because the claimant, Christopher Turton, described as white British, claimed race and religious discrimination and was awarded compensation of £2,550.

Mr Turton was one of only two non-Muslim employees in a workforce of about 300. He was promoted from area manager to national concession manager. Following his promotion and email was circulated among the workforce questioning whether his promotion was "because he is white" and pointing out that he was not "a Muslim brother". Click to read more...

"servants of God"

In The President of the Methodist Conference v Preston the Supreme Court has delivered its decision concerning whether or not working for a church is employment similar to any other employment and thereby attracting the same legal protection, or whether it has a "spritual character" which transcends such temporal arrangements.

This is a vexed question that has kept the courts busy for many years - as reported in the judgment "ever since the introduction of national insurance in 1911". The more recent authorities make the distinction between an office and an employment. They also emphasise that there is a spiritual nature to a minister of religion's "calling" which makes it unnecessary to characterise the relationship with the church as creating any legal relations, let alone those sufficient to establish a contract of employment. However, in Percy v Church of Scotland, a decision of the House of Lords dating back to 2006, Ms Percy was able successfully to establish that she was employed under a contract personally to execute work so that her claim in an employment tribunal could proceed.

Notwithstanding the decision in Percy an employment tribunal rejected the claim by Ms Preston because it concluded that she did not have a normal contract of employment and was not employee. However, that decision was successfully reversed on appeal to the Court of Appeal in 2011. In turn, the Church appealed on the basis that categorisation as employment did not accurately reflect the true nature of the "covenant relationship" between her and the Church which, for example, prevented her from being able to resign unilaterally. Click to read more...

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