UK: The UNISON tribunal fees ruling – has Lord Reed opened the floodgates?

There has been considerable speculation as to the likely effects of the Supreme Court’s decision in R (on the application of UNISON) v Lord Chancellor to declare invalid the Government’s system of tribunal fees. Given the cogent evidence presented by UNISON that this system of fees had resulted in a marked fall in the number of claims, logically the abolition of this system should lead to a marked rise in the number of claims. Anecdotally there is some evidence of a rise in the number of claims in various tribunals but it might perhaps be doubted whether the number of claims will rise to the levels that appertained prior to the introduction of fees.

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UK: Supreme Court rules tribunal fee regime is unlawful

The Supreme Court has this morning handed down its judgment that the fee regime introduced for Employment Tribunal and Employment Appeal Tribunal claims in July 2013 is unlawful under both domestic and EU law as it has the effect of preventing access to justice.  The relevant Fees Order is quashed and fees will cease to be payable from today, meaning that the tribunal rules and online claim forms will need immediate amendment.  In accordance with an undertaking given by the Lord Chancellor at an earlier stage of the proceedings, all fees paid in the past will have to be refunded (whether paid by the respondent employer, as is usual where the claim is successful, or by the claimant).  The judgment in R (on the application of UNISON) v Lord Chancellor is here; the summary for the press is here.

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UK: Gig economy- Taylor Review released

The Taylor Review of Modern Working Practices “Good Work” was published yesterday. It considers how technology platforms have impacted working practices and the rights of workers, and examines whether our current legislative and regulatory framework is fit for purpose. The Review focuses on the importance of quality work: “fair and decent work with realistic scope for development and fulfilment” and recommends to the government certain employment and tax reforms.

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UK: Legislation – Employment law reform proposals during the Summer 2017 General Election

The main parties' manifestos for the general election all contained numerous proposed employment law reforms, the Conservatives promising "the greatest expansion in workers' rights by any Conservative government in history" while Labour included a 20 point "plan for security and equality at work" proposing radical changes to the rights of individuals and strengthening the position of unions. The political uncertainty resulting from the outcome of the election means that it is now unclear which, if any, of these proposals will see the light of day.  However, it may be helpful to those planning HR strategy to note the key areas featuring in all the main party manifestos, as these can perhaps be seen as the most likely to see change at some point.  They include:

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UK: Legislative developments – tribunal fees

The Ministry of Justice has finally published its post-implementation review of the introduction of fees in the employment tribunals and EAT. The review concludes that the fees regime is working well and that some individuals may have been discouraged but not prevented from bringing claims. It will be interesting to see whether the Supreme Court agrees when it hears the UNISON judicial review case at the end of March 2017. The only changes proposed by the Ministry are minor changes to the regime for remission of fees (for consultation until 14 March 2017), and the exemption from fees for certain claims under the national insurance fund (with immediate effect).

UK: Summer consultations – minimum wage, posted workers, apprenticeships, tribunal fees

  • The Low Pay Commission is consulting until 25 September seeking views on the government’s proposed changes to the national minimum wage and the introduction of the new National Living Wage; see here for details.
  • BIS is consulting until 24 September on its proposals to implement the Posted Workers Enforcement Directive, required by 18 June 2016. The main impact for UK law is a new right for a construction worker posted to the UK to bring a wages claim for any unpaid national minimum wage against the contractor immediately above their employer, if their employer has defaulted. The contractor would have a defence if they had exercised due diligence in their choice of subcontractor. Click here for the consultation document.
  • The Government is consulting until 19 August on prohibiting training providers using the terms “apprentice” or “apprenticeship” in relation to any course or training in England unless it is in relation to a government funded apprenticeship. The consultation document is here.
  • The Government’s decision to carry out an internal review of tribunal fees only, and not a public consultation, has been much criticised. The parliamentary Justice Committee has now sought to remedy this, seeking views by 30 September on the impact of the introduction of employment tribunal fees and increases to court fees; more details are available here.

UK: Government announcements – consultation on gender pay gap reporting imminent, tribunal fee review and delay to new tax-free childcare scheme

  • The Government has committed in legislation to make regulations by March 2016 for mandatory gender pay reporting for larger employers, but the relevant legislation has not yet been commenced. Minister for Women and Equalities, Nicky Morgan, has now confirmed to parliament that she intends "to launch a consultation imminently, with a view to making regulations at the earliest opportunity. … The consultation will not focus solely on the regulations, but will look at the full range of actions needed to close the pay gap and consign it to history. " She noted that "some employers have concerns about publishing gender pay information" and commented that, although she believes these concerns largely unfounded, these issues would be considered carefully in the consultation and that a business reference group has been established to inform the proposals. The Minister stressed that the proposals concern gender pay gap, namely the difference between men and women's average salaries, rather than solely equal pay for equal work. In her view, unlawful pay discrimination is not the most significant driver of the gender pay gap, more important factors being the different careers women tend to enter and the levels of seniority they attain.The comments were made in an Opposition Day debate at which it was also mentioned that the Equality Act is up for its five year review. The Parliamentary Under-Secretary of State for Women and Equalities and Family Justice Caroline Dinenage noted that she expects shortly to publish a post-legislative scrutiny memorandum on the Equality Act 2010 as a Command Paper, to be considered by the Women and Equalities Committee.  This will look at whether the Act has achieved its stated aims.

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