UK: Law Commission consultation on employment tribunals

The Law Commission has launched a consultation on the jurisdictions of the employment tribunal, Employment Appeal Tribunal and the civil courts in employment and discrimination matters. The consultation seeks views by 11 January 2019 on a wide range of proposals, including extending time limits for claims and extending the tribunal jurisdiction over breach of contract claims.

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: New Resources

New presidential guidance has been issued in relation to how employment tribunals should calculate pensions loss and awards for injury to feelings in discrimination cases, available here. There are three bands for injury to feelings, with a usual minimum of £800 and maximum of £42,000 (save for exceptional cases); these will be reviewed in March 2018 and annually thereafter.

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UK: Discrimination – burden of proof ruling highlights need for employers to present positive case

In Efobi v Royal Mail the EAT has ruled that it is not incumbent on the claimant in a discrimination claim to prove a prima facie case: it is for the tribunal at the end of the hearing to consider all the evidence from all sources in determining whether there are facts from which it can conclude that discrimination has occurred. If so, the tribunal must then consider if the employer has offered an explanation for its actions proving that it did not discriminate.

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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: 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: New resources on human rights, terminal illness, database of tribunal decisions

  • The EHRC has published guidance for board directors on business and human rights.
  • The TUC has launched a Dying to Work campaign, seeking better employment law rights for those with terminal illness and asking employers to sign up to a voluntary charter. 
  • Plans have been announced to introduce a new online database of employment tribunal rulings from Autumn 2016 (although this timetable may prove ambitious), available to all to search on the internet – see here.  The wider availability of decisions may be a factor to be taken into account when considering settlement.

UK: April 2016 changes – tribunal compensation limits, national minimum wage, and tribunal rules

  • From 6 April 2016, the cap on the unfair dismissal compensatory award will increase from £78,335 to £78,962 and the cap on weekly pay (used to calculate the unfair dismissal basic award and statutory redundancy pay) will increase from £475 to £479. This gives a maximum unfair dismissal award of £93,332. Note that since 29 July 2013 there has been an additional cap on the compensatory award of 12 months’ pay.
  • The weekly rate of statutory sick pay will remain at £88.45 and the weekly flat rate of statutory maternity, paternity, adoption and shared parental pay will remain at £139.58 for 2016-17.

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