Access to Justice: Supreme court rules to quash Employment Tribunal fees

The Supreme Court has handed down a game changing judgement relating to Employment Law. Seven Supreme Court Justices agreed, in the case of Unison v Lord Chancellor, that the Employment Tribunal and Employment Appeal Tribunal Fee Order 2013 prevented access to justice and furthermore was considered unlawful.

The result of this judgement is that fees structure for Employment Tribunals and Employment Appeal Tribunals has now been removed.

Nigel Daniel, CJCH Employment Law and HR Services Lead had this to say on the developments:

The implications of this decision are numerous. When the fee structure was in place (As of today, it no longer is), employers had a certain protection from vexatious claimants, who may very well have filed a claim hoping for an economic settlement, when in reality the claim may have had no prospect of success whatsoever.

CJCH represents both employers and employees in various matters, and we would predict that this development will result in a sharp increase in new instructions.

Immediately after the introduction of fees, claims to the Employment Tribunal dropped by 79%, so we would expect that trend will see an immediate reversal.

Claimants, who are at their most vulnerable, after losing their job, no longer have to worry about finding £1200 (estimated) to actually get a case to the Tribunal. I still feel, however, that we have a duty to advise responsibly, and inform possible claimants of potential costs penalties if that claimant persists in bringing a vexatious, or malicious case.

Our Commercial Law Lead, Gareth Thompson, considers the point of view of employers:

Since the run up to Brexit and its aftermath, the current government appears to have taken a semi-detached approach to their relationship with business and employers.  Following the election and its now precarious hold on power in parliament, it seems increasingly desperate to demonstrate its ‘People’ friendly credentials.

The announcement that employment tribunals are going to abandon the requirement for fees to start claims might be seen as the latest evidence of this.  The last upwards hike in fees slashed all new employee claims to tribunals by nearly 80%, almost overnight.  The removal of any fees promises to usher in a tsunami like wave of fresh claims.  From the employee’s perspective, this may be perceived as good news and the employment marketplace as a new happy hunting ground.

From an employer’s perspective, it may provoke a collective groan of despair and knee jerk defensive responses.  All may agree that prevention of claims is better than cure.  Some reactive employers may be tempted to simply look even harder than they otherwise have done at anyone employed by them for less than two years and pro-actively purge the ranks of anyone likely to prove problematic in the longer term.

However other employers will sensibly take a more enlightened approach.  They will look hard and long at their recruitment processes to ensure that they take on the right people for them in the first place.  They will also review their training and appraisal policies to ensure they become meaningful and valuable personal development tools instead of internal compliance-driven tick-box exercises.  They might consider giving them representation on management boards or simply have regular meetings to share knowledge and experience, air any issues and invite constructive suggestions for improvement.  They might also want to consider imaginative reward schemes to incentivise everyone employed by them and give them a real vested interest in the success of the business.

Businesses don’t need to introduce truly radical human resource management to prevent negative confrontation.  All that is required to create a positive and productive working environment is good management practice and a healthy dose of common sense. Traditional hierarchies and old fashioned practices should be the first thing to be axed if any organisation is serious about success and growth.  Conversely, an inclusive and all-embracing approach to their workforce should be the first thing to be introduced as the best defence against negative and expensive grievances and claims.

 

Changes to the National Minimum Wage/National Living Wage

April 2017: Changes to the National Minimum Wage/National Living Wage

Next month, changes will be made to the National Minimum Wage.  Max Wootton, our employment law trainee, talks us through the changes and what they will mean for employees and employers.

The National Minimum Wage (NMW) is the minimum pay per hour that most workers are entitled to by law. The rate depends on a worker’s age and also if they are an apprentice or not. 

The National Living Wage (NLW) was introduced on 1st April 2016 for all working people aged 25 and over.

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The rates of both the NMW and NLW are set to change every April starting with April 2017. 

The rates from 1st April 2017 will be:

·        £7.50 per hour  – 25 years and older

·        £7.05 per hour  – 21-24 years old

·        £5.60 per hour  – 18-20 years old

·        £4.05 per hour  – 16-17 years old

·        £3.50 per hour  – For apprentices under 19 or 19 and aver who are in their firstyear of apprenticeship.

The following people are NOT entitled to the NMW/NLW

·        Self-employed people

·        Volunteers

·        Company directors

·        Family members/people who live in the family home of the employer who undertake household tasks.

Non-payment of the NMW

It is against the law for employers to pay workers less that the National Minimum Wage

Workers

If a worker is not receiving the correct rate from employer they should speak to their employer and try to resolve this. 

A worker can make a complaint to HMRC who will investigate the complaint. If HMRC find that an employer hasn’t paid at least the National Minimum Wage, they can send a notice of arrears plus a penalty for not paying the correct rate of pay to the worker.

Alternatively, if an employer refuses to comply with the NMW, a worker may wish to instruct a solicitor to resolve the situation.

Employers

To flip the coin on the side of the employer, the maximum fine for non-payment of NMW is £20,000 per worker. Employers who fail to pay the NMW will also be banned from being a company director for up to 15 years.  

An employer may consider instructing a specialist employment solicitor to advise on worker’s payments and up to date legislation changes, therefore, preventing compliance penalties which may be caused. 

CJCH Solicitors have a vastly experienced employment team who are accustomed to dealing with both workers and employees on matters such as the above.   For assistance with a related matter please contact employment@cjch.co.uk.

 

Gender Pay Gap: Corporations will soon be legally made to publish the pay gap between male and female employees

Publishing the pay gap between male and female employees will soon be a legal requirement
Our Government will soon be putting into place legislation that seeks to ensure women aren’t paid less than men in the workplace.

The move to tackle pay inequality follows evidence that suggests that while women are better performing academically, once they reach the workforce, this isn’t reflected in their pay packets.

 

Current figures suggest that 63.6% of girls achieve 5 or more GCSEs at grade A* to C compared to 54.2% of boys, and that 57% is the proportion of first degree graduates that are women.

Subject to parliamentary approval, the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, which set out the detail of the gender pay gap reporting duty, will come into force on 6 April 2017.

This will mean employers with 250 or more employees will be required to publish details of their gender Pay gap and gender Bonus gap. Employers will have 12 months in which to publish the information, meaning that first publication will be required no later than 4 April 2018.

The pay information must be based on data from a snapshot date of 5 April every year, beginning with 5 April 2017.

The Bonus information must be based on the preceding 12-month period, beginning with the 12 months leading up to 5th April 2017. i.e. 5th April 2016.
Under the draft Regulations, employers will be required to publish:
* the difference in mean pay between male and female employees;
* the difference in median pay between male and female employees;
* the difference in mean bonus pay between male and female employees;
* the difference in median bonus pay between male and female employees;
* the proportions of male and female employees who were paid bonus pay; and
* the proportions of male and female employees in each quartile of their pay distribution.

It has been estimated that further bridging the UK gender gap in work has the potential to create an extra £150 billion on top of business as-usual GDP forecasts in 2025.

Was your company adequately prepared for the festive season?

It’s the start of the year, and probably time to reflect on the year gone by for most companies. If you had any questionable experiences during the festive season, here are some tips to plan for 2017 and employee conduct in general.
The office Christmas party is a tradition of most employers. However, employers should ask themselves whether they are properly prepared, particularly because employers have a duty of care to their employees can be vicariously liable for acts of discrimination, harassment and victimization carried out by employees in the course of their employment (which would include the office party) unless the employer can show that reasonable steps had been taken to prevent such actions.
Get a policy in place
It is worth outlining to employees in advance what represents acceptable and unacceptable behavior. Staff should be placed on notice that inappropriate behavior, unwanted conduct, etc. will be dealt with in the same way it would as if it took place during normal work hours.
Remind employees about the risk of excessive alcohol consumption
It is sensible for employers to remind employees of the risks of alcohol consumption to excess. Employers should sensibly limit the amount of alcohol given freely; the free bar approach may be seen to be encouraging excessive alcohol consumption.

Getting home
Employers should also exercise a caring approach with regard to getting employees home safely. Some employers may provide transport, others may simply provide taxi numbers and encourage staff to use them.
Misconduct
Any misconduct that arises at the Christmas party should be dealt with in a timely manner and through the employers’ investigatory and disciplinary procedures. A complaint should never be dismissed as ‘just banter’.
In a very timely recent High Court ruling, Bellman v Northampton Recruitment, it was decided that a company is not vicariously liable for injuries caused by an employee after a work Christmas party had ended.

In this case, after the Christmas party ended, and at a different location, a disagreement between a manager and a director took place. They continued drinking until a serious assault took place at 3.00 a.m., which caused a serious brain injury to the manager. The decision was taken to sue the company. The key question was whether he was acting in the course of his employment when the director struck the manager, so as to make the company vicariously liable.
The Judge determined that if the assault had taken place at the Christmas party itself, the company could have been liable, but because the assault took place after the party and in a different location, during effectively a “private drinking session”, the company was not vicariously liable.
The law provides that employers will be liable for the conduct of their employees where that conduct occurs in the course of their employment and there is sufficient connection between the position the employee was employed in and the wrongful conduct, to make it appropriate for the employer to be held liable.
The advice for employers remains to set clear guidelines as to the conduct expected of employees when attending any functions which are or may be connected to work, and to remember they could be held responsible for improper conduct at work events.

For more information, or assistance on these and other employee related matters, speak to our experienced Employment Law team.