Employment Rights Update – June 2016

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June has been a quiet month for new and interesting cases but there is some very good reading for Claimants in the House of Commons’ Justice Committee report released this month and, just a few days ago, the first Employment Appeal Tribunal case on the admissibility of ‘protected conversations’ are in the Tribunal. So we’ll deal with them here…

Justice Committee review into Court and Tribunal fees

The Justice Committee, appointed by the House of Commons to examine expenditure, administration and policy of the Ministry of Justice and associated public bodies has this month published its report on Court and Tribunal fees. Unfortunately, the findings in the report are not binding on Parliament (and publicity has been overshadowed by Brexit) but we can only hope it goes some way to persuading the Government to significantly review the Tribunal fee system.

When fees were introduced, there was an “undisputed and precipitate” drop in the number of cases brought, approaching 70%. The Government promised to review the introduction of fees on 11 June 2015 but to date no report of that review has been published. The Justice Committee has noted in its report that “there is a troubling contrast between the speed with which the Government has brought forward successive proposals for higher fees, and its tardiness in completing an assessment of the impact of the most controversial changes”. Much criticism was made of the Government for its lack of action in this regard.

The conclusion of the Justice Committee was that “the arguments presented to us by the Government in this enquiry […] have not swayed us from our conclusion, on the evidence, that the regime of Employment Tribunal fees has had a significant adverse impact on access to justice for meritorious claims”. The Government sought to attribute the drop in claims to the success of ACAS Early Conciliation, however the report concluded that “even on the most favourable construction” that suggestion was “superficial”. We always knew this to be the case but for the Justice Committee to publish it, is promising.

There are plenty of stats in the report about the drop in numbers of certain types of claims, for example, Working Time Directive claims down 78%, unauthorised deductions from wages claims down 56%, unfair dismissal claims down 72%, equal pay claims down 58%, breach of contract claims down 75%, and sex discrimination claims down 68%. But in addition, the report references the pronounced discriminatory effect of fees in relation to pregnant women and new mothers who suffer poor treatment at work. Maternity Action made the case that “if you are a pregnant woman saving for your baby, for the toys, bedding and so on – that money falls to be taken into account. All those small capital elements might prevent you from getting remission of fees in an Employment Tribunal case”.

It was also clear that many individuals have been deterred from bringing claims for smaller sums and in fact “many” Judges, according to the report, had reported hearing no money claims at all! Citizens Advice indicated that 47% of Claimants would have to put aside all their discretionary income for 6 months to afford the £1,200 needed to bring a type B claim. Higher fees for discrimination claims were said by the Equality and Diversity Forum to “further marginalise those people who have a protected characteristic and deterring them from using the service”.

So what recommendations were made?

Helpfully, the report recommends a “substantial” reduction in the overall level of fees charged; a review of the fee structure; increasing the disposable capital and monthly thresholds for fee remission (for a person to be exempt from paying a fee), as well as only requiring one fee remission fee application to be made for both the issue and hearing fee; and further special consideration being given to women alleging maternity or pregnancy discrimination.

We will have to wait and see what tack has been taken by the Government in its own review of the implementation of fees, but let’s hope this report is a little push in the right direction.

Protected Conversations

If an employer wants to discuss the options that are open to an employee to leave employment voluntarily, it can ask to have a ‘protected conversation’ (section 111A Employment Rights Act 1996). If invoked, an employee can’t rely on those conversations, if they later pursue an unfair dismissal claim against the employer. However, until now, it hadn’t been made entirely clear to what extent the fact of such conversations having taken place could put before a Tribunal.

In the case of Faithorn Farrell Timms LLP v Bailey the Claimant tried to refer the Tribunal to the settlement discussions (including the offer of a settlement agreement) that had taken place prior to her resignation. The Tribunal decided the Claimant was entitled to say the discussions had taken place but couldn’t reveal what was said.

The EAT disagreed. It decided that neither the fact of the discussion, nor the contents of it should have been brought to the Tribunal’s attention. It also decided that settlement discussions at company level between HR and managers couldn’t be referred to. Finally, it held it wasn’t possible to waive the protection afforded by s111A by agreement between the parties to the discussion. The protection was therefore absolute.

Don’t forget that there are still exemptions from a conversation being protected under s111A if there is evidence of unreasonable behaviour or discrimination for example, however assuming conversations fall within the boundaries, Claimants won’t be able to use them to any extent in support of an unfair dismissal claim.

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