UNISON LOSES COURT OF APPEAL CASE CHALLENGING TRIBUNAL FEES

The Court of Appeal has rejected Unison’s challenge of Employment Tribunal and EAT fees.


Since the introduction of Tribunal and EAT fees on 29 July 2013 there has been a steady decline in the number of claims issued.


In July 2013 the trade union Unison sought judicial review and a quashing of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. It argued that the fees regime breached the EU principles of equivalence and effectiveness, had been implemented without due regard to the Government’s public sector equality duty, and gave rise to indirect discrimination.


The High Court first heard the claim in the autumn of 2013, and handed down judgment in February 2014. The High Court was unconvinced by the evidence before it regarding the impact of the Fees Order and preferred to ‘wait and see’ and allow any problems to be addressed by the Lord Chancellor.


Following the rejection of the first claim and statistics supporting a dramatic fall in Employment Tribunal claims Unison brought a second claim, which was heard in October 2014. However, in a judgment handed down in December 2014 the High Court held that the statistics were not enough to show that any individual had been prevented from bringing a claim by the level of fees. It also held that any indirect discrimination in the Fees Order was justified by reference to the Lord Chancellor’s stated aims of transferring a proportion (one third) of the running costs of Employment Tribunals and the EAT to service users who could afford it; improving efficiency by deterring unmeritorious claims and encouraging alternative methods of dispute resolution. Unison appealed both High Court decisions to the Court of Appeal.


Today the Court of Appeal handed down its judgment. The Court acknowledged that it has been a longstanding principle of EU law that, “persons who claim that their rights under EU law have been breached must have access to an effective remedy for that breach otherwise the rights in question would be illusory” but the Court rejected Unison’s argument that this principle had been breached by the Fees Order. Whilst accepting that evidence in respect of notional, rather than actual, Claimants could be relevant it was held that the provision in the remission regime allowing for “exceptional circumstances” meant that it could not be said that the fee system in general was so unaffordable so as to mean that there was no effective remedy under EU law.


The Court also dismissed arguments based on indirect discrimination agreeing with the conclusion that any potential discrimination could be objectively justified. It was also not accepted that the public sector equality duty had not been complied with and found that the Equality Impact Assessment undertaken by the Lord Chancellor had identified the possibility that the Fees Order would have a greater impact on people with a protected characteristic but concluded that this would be cancelled out by the availability of remission.


Unison have said that they will seek permission to appeal to the Supreme Court. The Government also continues with its review of the fees regime. However, for the time being, it looks like Tribunal fees are here to stay.


Fox Whitfield can provide advice and assistance on all types of Employment Tribunal matters (whether bringing / defending a claim) as well as exploring alternative methods of resolving employment disputes.


If you require further advice or assistance you can contact me (Dionne Dury) on 01173305980 or email me at dionned@foxwhitfield.com

CCTV Employment Law: Using CCTV to Monitor Employees

CCTV Employment Law

Employment lawyer Paul Whitfield answers questions on CCTV Employment Law.

As an Employer can I use CCTV to Monitor my Employees?

Q: I want to put CCTV cameras in the office to watch staff. Do I need to tell them?

A: CCTV is covered by the Data Protection Act and as a result you need to tell your employees unless there are “exceptional circumstances”. This means only where there are grounds for suspecting criminal activity or equivalently serious misconduct. It should be targeted and stopped once that investigation is completed.

cctv employment law CCTV Employment Law: Using CCTV to Monitor Employees

Q: I just want to use it to make sure people are working hard.

A: Then you would need to give the employees clear notification that you were going to do and why. You should consider if the adverse impact would justify the benefits.  The Information Commissioner has produced guidance (Deciding whether to use CCTV or continue using CCTV) at http://www.ico.gov.uk. You should refer to that or take legal advice.

Q: Can I use a video recording of an employee walking and carrying shopping when they are off sick with a bad back to dismiss them?

A: In a recent case employers did this and the dismissal was held to be unfair. The Tribunal did not say that the video evidence could not be used but said it was not enough on its own to justify a dismissal. A lay persons interpretation of the film was not enough evidence to dismiss the employee. A proper investigation and fair hearing would still be required but the video could be part of that.

 

For more details on CCTV Employment Law Paul can be contacted on 0161 283 1276 or paulw@foxwhitfield.com.

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Fox Whitfield is regulated by the Solicitors Regulation Authority  – Roll Number 524972

Fox Whitfield’s Head Office is based in Manchester with offices throughout the UK to help and advice on CCTV Employment Law.

Rights to Wear a Cross at Work: Christian Employees

Do Christian employees have the rights to wear a cross at work?

In this article we look at recent employment law cases and whether Christians have the rights to wear a cross at work.

rights to wear a cross at work Rights to Wear a Cross at Work: Christian Employees

On 15 January 2013 the European Courts came to a decision on the well known case of the British Airways‘ employee, Mrs Eweida, who was stopped form wearing a visible cross at work.

The Court decided that Mrs Eweida’s insistence on wearing the cross visibly was a manifestation of her religious belief and was therefore protected. The refusal of British Airways to allow her to wear a visible cross at work was an interference with her right to practice her religious beliefs and therefore rights to wear a cross at work.

The Court then had to decide if the refusal to allow her to wear a visible cross could be justified by BA.  On one side of the scales was Mrs Eweida’s right to manifest her religious belief; on the other side was BAs’ right to project a certain corporate image. They took into account that there was no evidence that the wearing of items such as turbans and hijabs, by other employees, had any negative impact on BA’s image.

The Court decided that BA’s desire to protect its corporate image was not sufficiently important to displace her right to practice her religion through wearing a visible cross. She won her case and was awarded her 2,000 Euro in compensation.

At the same time the Court also heard another case. Ms Chaplin was a geriatrics nurse at an NHS hospital. Following a uniform change, a cross she had worn for some time became visible and she was prohibited from wearing it by management for clinical safety reasons. She persisted in wearing the cross and was moved to non-nursing, administrative duties.

Ms Chaplin lost her case as the Court found that the employers clinical safety reasons were enough to justify the restriction on her wearing a visible cross.

The Court also threw out two other cases.  Ms Ladele, a marriage registrar with Islington Borough Council refused to officiate at civil partnerships due to her faith. Mr McFarlane, a counsellor with Relate who refused to provide psycho sexual counselling to homosexual couples on the basis of his religious beliefs. They were both dismissed because of the organisations’ commitment to providing services in a non discriminatory way. The aim of protecting the rights of others not to be discriminated against has been upheld as a valid justification for not accommodating an employee’s religious views, even where the effect on the employee is that of losing their job.

What does this actually mean? The lesson for employers is to just try to be reasonable and as long as you can explain why a particular policy is necessary, you’re probably fine. You should try to accommodate religious beliefs in the workplace if that is reasonable.

rights to wear a cross at work lady Rights to Wear a Cross at Work: Christian Employees

 

Paul can be contacted on 0161 2831276 or paulw@foxwhitfild.com

www.foxwhitfield.com

Employment Law Solicitors – Head Office based in Manchester with offices located throughout the United Kingdom.

Employment Tribunals – The Office Party Hangover

Employment Tribunals Caused At The Office Party

At this time of year employment lawyers are often busy trying to cure legal hangovers and employment tribunals caused at the office Christmas party. Paul Whitfield looks at some of the common causes and cures.

1. Sexual Harassment

Without doubt this is the most common employment tribunals claim brought following office parties. The combination of alcohol and a more relaxed environment can lead to inappropriate comments and behaviour. Many sexual harassment employment tribunal claims are brought following office parties. We have also dealt with a claims arising out of inappropriate secret Santa gifts.

Employers will normally be liable for the conduct of its employees during an office party. This also applies to harassment on the grounds of age, religion, disability, race and sexual orientation.

Prevention is better than cure, try and avoid the need for any employment tribunals. Without being a humbug it is worth reminding employees in advance of party what sort of conduct is acceptable. Many employers have a “Social Events Policy” setting  out acceptable behaviour at events.

2. Alcohol

employment tribunals office parties Employment Tribunals   The Office Party Hangover

The safest but also the most unrealistic policy would be to ban alcohol. Realistically, employers should be aware of the risks involved in providing alcohol to their employees and consider limiting the amount of free drinks. There have been cases in the past where an employer was found liable for facilitating the supply of alcohol to underage employees. Employment tribunals have also found employers partially to blame for the misconduct of their own employees when they have provided a free bar and encouraged excessive drinking.

Good practice would be to always have non-alcoholic drinks available and to have at least one manager present at the party to ensure no one overindulges to excess.

Employers should also consider providing transportation to and from the venue or at least provide taxi firm numbers to avoid the risk of any employees driving under the influence of alcohol.

If the party is a midweek party then it would also be worthwhile reminding employees that they are required to work the following day unless booked as holiday.

3. Social Media

Everybody these days has a camera or a video camera on their mobile phone. Smartphones mean employees can take photographs or video footage at the party and have it uploaded to Facebook or YouTube within minutes. This combined with alcohol can be a dangerous cocktail.  A number of employment tribunals have centred around unflattering pictures and videos and associated comments. We are aware of at least one case this Christmas where an employee’s tweets from the office party has led to their dismissal for gross misconduct.

This is a very difficult area to police and again may be worth covering in either a social media or social events policy.

The key, as with many things is to bear the risks in mind when planning the event and if necessary have a policy in place and remind the employees of that policy in advance.

Fox Whitfield have considerable experience in dealing with these sorts of hangovers but can also help you plan and draft any necessary policies.

Contact us on 0161 283 1276 or Paulw@foxwhitfield.com

Equality Act 2010: Questions and Answers

Equality Act 2010

Paul Whitfield, our top employment law solicitor looks at important changes resulting from the Equality Act 2010

equality act 2010 Equality Act 2010: Questions and Answers

I was told that it is now illegal to ask job applicants about their health during recruitment. Is that right?

In most cases yes. The Equality Act 2010 came into force in October and it limits what an employer can ask applicants about their health. Only in limited cases is it now lawful to ask applicants about their health before they are offered employment. Questions may only be asked if it is necessary to find out if the applicant can carry out basic functions of the role. For example, it would be acceptable to ask applicants for a manual handling role if their health would affect their ability to carry out that aspect of the role. Employers who ask applicants to complete detailed health questionnaires should stop doing so now.

Does the Equality Act 2010 make employers publish information about the rates of pay for men and women?

It was intended that employers with 250 or more staff would be obliged to do this from 2013 but the Collation Government have said that they oppose this legalisation and it is unlikely to be brought into force. If it was to be brought into force it would be likely to be restricted to only employers who have lost equal pay claims and not all employers.

Can we still make our employees’ keep their pay confidential from each other?

Under the Equality Act, pay secrecy clauses will be unenforceable if an employee discusses their pay to see if they are being discriminated against. A woman asking a male colleague in the same role what he earns would be protected but two male colleagues will not be and their pay secrecy clause would remain enforceable. There is nothing in the new laws that would force employees to disclose their pay details if asked by a colleague.

Many employers will carry on including pay secrecy clauses in their contracts but will not enforce them where that would be inappropriate.

Does the Equality Act 2010 create lots of new types of discrimination claims?

Despite some of the media coverage, no. The law on discrimination was very complex and messy as a result of the law for each form of discrimination being different. The Act tries to make the law for each type similar and clarifies the scope of the law to cover ‘protected characteristics’ on which it is ­unlawful to discriminate these being age, disability, race, religion, gender, sexual orientation, ­marriage and maternity. None of which are new.

Paul Whitfield can be contacted on 0161 283 1276 or click here