Month: October 2017

The Supreme Court decision on 26^th July 2017 declared Employment Tribunal and Employment Appeal Tribunal fees unlawful and abolished them with immediate effect but what does this mean practically for employers?

Abolition of tribunal fees:

Firstly, businesses should consider an audit of their employee records to identify possible “high-risk” dismissals when the fees were payable.

Businesses should also assess the potential numbers of historic claims that could now be brought by ex-employees, and whether those are claims that were referred to the ACAS Early Conciliation scheme, or not. If they were, these claims are more likely to now be revived and employers should consider how strong a position they would be in to defend such claims, should they materialise.

Out of time claims:

Currently, we still do not know the Government’s stance in relation to those Claimants who were deterred from bringing a claim or lodging an appeal due to fees between July 2013 and July 2017. It is unclear whether they may be allowed to submit a claim out of time but it is anticipated that they will. Should that be the case, significant numbers of claims may be brought long after the event; therefore, employers should take preparatory steps now.

Until we have a test case or guidance from the higher courts on the issue, claims will be considered on a case-by-case basis, and the financial circumstances of each individual Claimant will need to be considered by a tribunal when deciding whether they will be allowed to submit their claim now.

Recovering fees

Another practical step for employers will be to recover sums owed to them. It anticipated that those Respondents who were ordered to repay fees to a Claimant (and did so) will be eligible to be reimbursed for those Employment Tribunal and Employment Appeal Tribunal fees, just as Claimants from November 2017 onwards.

In some cases, employers will have paid other fees themselves, such as fees for judicial mediation, and these too are anticipated to be recoverable. To prepare, employers should calculate the value of sums subject to reimbursement. Having done that, they should identify an individual or department with responsibility for tracking developments and dealing with any applications for reimbursement.

Increased training:

Employers now need to consider whether staff need additional training in dealing with tribunal claims, particularly if their exposure to them has been limited because of the vastly reduced numbers of claims seen over the last few years. They should also consider their insurance policies and see what cover they currently have in relation to tribunal litigation, both for costs and awards made, as this may need to be reviewed.

Finally, for many claims, Early Conciliation via ACAS is compulsory and employers may need to reconsider their approach to this. It may pay to be more receptive to the idea of Early Conciliation, as potential Claimants are now inevitably more likely to issue claims if conciliation is unsuccessful.

Moving forward, a Claimant may be less inclined to settle at the Early Conciliation stage whereas previously they may not have gone on to submit claims in any event due to having to pay a fee. Respondents, on the other hand, are now likely to have more to gain by engaging in conciliation in circumstances when previously, when fees were payable, they may not have done.

If you are an employer and have any questions relating to the issues raised above or are looking for experts to deal with applications for reimbursement of paid tribunal fees then we can assist you, please register your interest using a ‘Contact Us’ form and explaining your situation or alternatively call a member of the expert team on 0116 212 1000 / 01858 445 480.

 

A former senior vice president is taking his employment discrimination case to the court of appeal after previous hearings at an Employment Tribunal and an Employment Appeal Tribunal. The case revolves around whether it is fair for an employee to be dismissed for refusing to co-operate in workplace discrimination against them.

The Claimant needed a serious operation after being employed for 8 months so needed time off work. He recovered quickly and was medically fit to return to work after 3 months, however he did not end up going back until the following January – 11 months after his operation.  It is the Claimant’s case that his employers purposefully delayed his return which had a negative impact on him.

Upon returning to work, he learned he had been given a different position to the one he left which was less involved and appeared an obvious demotion from his previous role. Understandably, the Claimant was unhappy with this decision subsequently raising a grievance which in turn was not actioned sufficiently. Due to the disparities, he made the decision not to carry out the demoted role based on the fact he was perfectly fit and able to carry out his previous role and that his employers not supporting him in his return was an act of discrimination.

Shortly after, the Claimant was formally dismissed by his employer who stated he should have carried out the demoted role. The case was taken to an Employment Tribunal where it was proven the employer had acted in a discriminatory manner.

Both the Employment Tribunal and Employment Appeal Tribunal ruled that the employer was negligent in their treatment of the claimant upon his return to work and that he fully co-operated with what he was required to do as part of the return to work processes

Lawson West Employment Associate, Carrie-Ann Randall, comments: “It is disconcerting to hear of such complaints where it is clear that the principal issue should be the employers knowledge and the correct level of communication.  The Equality Act 2010 stipulates that a person can qualify as a disabled person if they have either a physical or mental impairment which substantially and adversely affects their day to day abilities. Taking this into consideration, it means that there are many persons whom suffer with either physical or mental impairments that might be considered as disabled with the provisions contained in the Equality Act complying (i.e. protection from discrimination). 

It is understood and appreciated that it can be difficult for employers to have knowledge of all possible ‘disabilities’ and the best processes to follow, however in this instance, as with many cases that I have represented on, if legal advice was considered at the outset and possible adjustments implemented, whilst keeping the correct level of communication, matters of this magnitude could be avoided.”

If you find yourself in a situation where you need to bring an employment tribunal claim, or if you have raised a grievance and are not happy with the result we can help. Please remember there are strict time limits in Employment claims and you should take good legal advice as soon as possible.

In addition to No Win No Fee, Lawson West solicitors act for our clients on a variety of other funding arrangements including Legal Expenses insurance funding. We can assess your case to decide which is the best funding option for you.

With offices in Leicester, Wigston and Market Harborough we are happy to discuss your employment law claim at any branch.

In addition we are a national provider of expert employment law advice and welcome a free discussion with you regarding you circumstances and potential claim.  If you believe you have a situation where you require free legal advice, please contact us on 0116 212 1000 or 01858 445 480. Alternatively fill in the free Contact Us form above and we will get in touch as soon as possible.