The Ministry of Justice (MoJ) launched a consultation on the re-introduction of fees for employment tribunal claims and appeals for the Employment Appeal Tribunal.

The consultation proposes a “modest” £55 issue fee for all employment tribunal claims. The fee would remain at £55 regardless of the number of complaints raised in the claim or the number of claimants on the claim form.

Under the 2013 fees regime, for claims such as unpaid holiday pay the issue fee was £160 and there was an additional £230 hearing fee. The government identifies that this did not strike a right balance between its competing policy aims of funding the tribunal system and protecting access to justice.

The MoJ believes that a £55 fee would be proportionate and “generally affordable”, for those whose income and savings fall below the threshold.

The Covid 19 pandemic has led to organisations adopting a more remote, flexible approach to working.

Employment tribunal claims concerning remote working have increased by 50% from 2021 to 2022. The data showed that there were 27 claims in 2021 and 42 claims in 2022. Prior to the Covid 19 pandemic there were only 6 remote working claims.

The trend is continuing with the first half of 2023 recording 23 cases relating to remote working. The employment tribunal data shows that remote working requests are something employers will have to deal with going forward.

In June 2021 the Employment Appeal Tribunal (EAT) held that gender critical beliefs (such as the belief that sex is biological and absolute) were philosophical beliefs and were consequently protected under the Equality Act 2021. In the case of Maya Forstater v CGD Europe UKEAT/0105/20/JOJ, CGD Europe was found liable for direct discrimination and harassment as they had failed to renew Forstater’s fellowship due to her gender-critical beliefs.   

In the remedies hearing, the tribunal awarded:

• £25,000 for injury to feelings as the discriminatory acts were significant;
• £2,000 in aggravated damages due to oppressive public statement;
• £14,000 for loss of earnings (regarding the non-renewal of the fellowship);
• £50,000 for the loss of earnings and earning capacity; and
• £14,778.47 in interest.  

This case highlights the difficult position in which employers may find themselves whilst attempting to balance the competing interests of employees with different protected characteristics. It is important that employers faced with such a task take a sensible and balanced approach and seek legal advice.

Please feel free to contact the Employment Team on [email protected] for any assistance.

When instructing solicitors, clients can take comfort from the well-established legal principle that allcommunication between clients and their lawyers is covered by ‘legal advice privilege’. However, this is not the case with regard to advice from HR professionals who are not legally qualified and this was recently confirmed by the Employment Appeal Tribunal (EAT) in the case of Trentside Manor Care Ltd and ors v Raphael [2022].

The facts

In May 2018, Ms Raphael, a full-time care home manager, made a flexible working request to reduce her hours to a four-day week, which was agreed on a trial basis. Shortly after, Ms Raphael shared with colleagues on a WhatsApp group certain actions she had taken about a mattress provided to a resident. The following week, she was suspended, allegedly about the way she had handled the matter, in addition to other alleged conduct issues that had come to light. Ms Raphael was subsequently dismissed following a disciplinary hearing.

She claimed that the misconduct charges were a sham and that the real reason for her dismissal related to her earlier flexible working request which, in turn, related to her disability. She issued proceedings in the tribunal for unfair dismissal, disability and age discrimination .

During tribunal proceedings, Ms Raphael’s solicitors applied for disclosure of all email exchanges and advice between Trentside and their HR advisors, Citation Ltd, that related to Ms Raphael from the date when she made her flexible working request to the date of dismissal. Trentside claimed that these documents were protected by legal advice privilege.

The advisers were not, however, a firm of solicitors. Instead, they had an HR and employment law advice team, headed up by solicitors. Although all but one of the managers was legally qualified, the individual client advisers who had provided Trentside with advice during the relevant period, were not.

Decision

The EAT decided that the documents requested were not covered by legal advice privilege as the advice had been given by non-lawyers and the fact that the advisers were part of a team headed by a solicitor did not extend the principle of legal privilege to the advice that they gave.

Comment

When instructing HR professionals or legal advisors that are not legally qualified, employers should be mindful of the risks of a litigious employee requesting disclosure of correspondence and advice passing between them and their advisers. This will not be covered by legal privilege.

There is an alternative legal principle on which a non-legally qualified HR advisor can potentially rely in this situation, which is litigation privilege. In fact, Citation Limited sought to rely on litigation privilege, in addition to legal privilege, in the case above. However, litigation privilege also comes with a warning in that its protection only kicks in once litigation is reasonably contemplated, pending or existing. In the employment context, advice is often sought way before there is any prospect of litigation. As such, in the above case, Citation Limited were not permitted to rely on litigation privilege in respect of advice given to Trentside in the period between the date of Ms Raphael’s flexible working request and her dismissal.

At Morgan LaRoche, our Employment Team are all qualified solicitors and in instructing us, you can be confident that any advice you receive, or correspondence passing between us, will not be disclosable in tribunal proceedings brought against you.

In a recent case, Sejpal v Rodericks Dental Ltd the Employment Appeal Tribunal held that an employment tribunal failed to correctly apply the statutory test for worker status when it concluded that a dentist was not a worker.

Mrs Sejpal worked as a dentist in a practice owned by Rodericks Dental Ltd (RDL) from August 2009. Her contract had a substitution clause where Mrs Sejpal was to use her best endeavours to arrange a locum in the event of her failure to “utilise the facilities for a continuous period of more than 14 days”. If she failed to make such arrangements, then RDL had the authority to arrange a locum on her behalf. Any locum had to be acceptable to RDL.

Mrs Sejpal went on maternity leave in 2018, and during this period RDL announced the closure of the practice where Mrs Sejpal worked. Mrs Sejpal alleged that her contract was terminated while others were redeployed and brought a claim in the employment tribunal alleging that the termination of her contract was discrimination because of pregnancy or maternity.

At a preliminary hearing, an employment tribunal decided that Mrs Sejpal was not a “worker” nor an “employee” as she was not a person employed under a contract personally to do work. As a result, the employment tribunal dismissed her claims.

On appeal, it was held that the tribunal had failed to correctly apply the statutory test for worker status when it concluded that Mrs Sejpal was not a worker. It was noted that the starting point when determining such cases should be whether there was a contract, they should then consider the true nature of the agreement.

The locum clause relied upon was not an unfettered right of substitution – due to the requirement that any locum be acceptable to RDL. As a result, the contact required some personal service.

The appeal was therefore allowed.

New regulations have been introduced which permits employment tribunals to award greater sums from April 2022.

The new regulations increase the limit of awards that the tribunal may grant at the end of proceedings by 4.9%, which is in line with the increase of the retail prices index between September 2020 to September 2021.

The regulations also increase the limit on a week’s pay (up to £571), the maximum compensatory award for unfair dismissal (up to £93,878) and the minimum basic award for certain unfair dismissals (up to £6,959).

HM Courts and Tribunals Service (HMCTS) announced earlier this year that they are developing a new online service to allow easier access to court and tribunal hearing lists.

The new online service will be hosted on GOV.UK and will allow the public, lawyers and the media to find court and tribunal hearing lists in a standard format.

HMCTS has confirmed that this service will have a phased-development, meaning that not all lists will be available immediately and more will be added over time. Proposed features for this new service will include a predictive search function so litigants in person and the public can find the hearings they are looking for quickly, as well as a “verification status” for lawyers and the media so that they may be emailed hearing lists.

The new service will be tested throughout the remainder of this year and will be gradually introduced to a select number of courts and tribunals from the Spring.

An actor brought an employment tribunal claim for pregnancy and maternity discrimination. The actor starred in the first series of a television programme but, due to her visible pregnancy, she was not recast to play the same role in the second television series.

The respondent’s defence was that it was a “general occupation requirement” that the character could not be seen to be visibly pregnant as viewers may link this to the plot, and therefore there was a genuine occupational requirement, so the decision to not recast her was permitted by an exception under the Equality Act 2010.

The actor argued that there were methods that the respondent could have adopted to conceal her pregnancy during filming, so she could still take the role without it interfering with the plot.

The tribunal rejected the respondent’s argument, and found that it would have been possible to conceal the actor’s pregnancy through the use of costume, camera angle, props, the positioning of other actors and make up if appropriate. The tribunal concluded that the decision to not recast the actor due to her pregnancy was not a proportionate means of achieving a legitimate aim, and as a result, the actor’s claim was upheld and she was awarded £4,370.75 (and £336.73 interest) for financial loss and £6,000 (and £924.49 interest) for injury to feelings.

The quarterly statistics for the employment tribunal between January and March 2021 has been published and includes the following data:

• There have been 13% less single claims in this quarter (totalling 9,100 claims) compared with the same quarterly period in 2020.
• Due to the impact of COVID-19 on unemployment and changing working practices, there are 44,000 unresolved cases (and rising) which has surpassed the peak from 2009-2010.
• The number of multiple claims increased by 14% compared with the same quarterly period in 2020, and there were 13% more unresolved cases. This rise is expected to continue, especially once the furlough scheme ends on 30 September 2021.
• 22% less claims (11,000) were disposed of by the tribunals, compared with the same quarterly period in 2020. Almost a quarter of these disposals (24%) were due to Acas conciliated settlements, while 18% were withdrawn by claimants and 17% were thereafter dismissed. 11% of these claims succeeded at hearing and only 9% were struck out not at hearing. Of the disposals, most were for unfair dismissal claims, compared with the same quarterly period in 2020, when unauthorised deductions from wages was the most common claim to be disposed of.

The Employment Appeal Tribunal has held that an employment tribunal failed to take notice of the “childcare disparity” in a recent indirect sex discrimination claim. The disparity is when female colleagues with childcare responsibilities are less likely to be able to conform with certain working practices compared with their male colleagues.

Whilst appreciating times have changed since some judicial decisions on childcare disparity were made, the assumptions previously made and relied upon were routed in the same evidence that was presented to the EAT.

That said, the childcare disparity will not automatically result a finding that any form of flexible working will put women at a particular disadvantage it will always depend on the particular provision, criterion or practice (PCP) in question. In this case, the relevant PCP involved flexible working at the employer’s discretion, including at weekends. Since this prevented the employee from have the freedom to decide when she could work within a certain timeframe, the link between the childcare disparity and the particular PCP in this case was strong enough to establish group disadvantage being made out.

The backlog in outstanding ET claim grows with little prospect of improvements without stronger government action. Increasing claim costs and the unknown cost of those claims already in the pipeline causes a knock- on effect for legal expenses insurance. Straight Solutions continues to successfully navigate the trouble waters.

We are not alone in having our highest ever number of ET claims outstanding as the influx of new tribunal claims and the backlog of cases, which already reached record highs in February, is unlikely to have peaked.

Two sets of data released by HM Courts and Tribunal Service (HMCTS) last month showed both a big increase in the number of claims accepted by the tribunal in the last three months of 2020 and a backlog of outstanding claims continuing to grow with many listed well into 2022.

• HMCTS weekly management information during coronavirus shows over 51,000 outstanding employment claims, up 45% on ‘pre-Covid baseline’ figures at the end of February
• HMCTS tribunal statistics reveals Q3 (Oct-Dec) saw 37% more claims accepted than in Q2 and 66% more than in Q1

It’s clear that the tribunal system does not have the capacity to cope and steps the government proposed to address the backlog last year, by increasing use of virtual hearings and trying to deploy underutilised and non-specialist judges, clearly haven’t worked. There is no doubt that stronger action is urgently needed to bring the backlog under control.

The end to the furlough scheme is likely to bring another spike in redundancies and yet more tribunal claims, so it is hard to see the situation improving anytime soon. The situation is difficult for businesses facing a claim and for those employees who may have been unfairly treated, as it is clear many will have to wait significant periods of time, potentially years, before getting any sort of resolution to their dispute.

This has an obvious knock-on effect for legal expenses insurance with increased total claim costs and the problem of understanding, with any certainty, the cost of the claims that are already in the pipeline.

As of 6 April 2021, Parliament have revised compensation limits for certain tribunal awards and other statutory payments.

In cases involving dismissal, the new figures will apply where the termination date of the employee falls after 6 April 2021.

The Order includes the following new figures:

• The limit on a week’s pay increases from £538 to £544.
• The maximum compensatory award for unfair dismissal increases from £88,519 to £89,493.
• The minimum basic award for certain unfair dismissals (including health and safety dismissals) increases from £6,562 to £6,634.

Employment tribunal statistics for the quarter October to December 2020 have been published. Accelerating the trend shown in the previous quarter’s statistics, claim receipts increased by 82% and single claim receipts increased by 25% compared with the same quarter in the previous year. Indeed, the continued increase in claims was most likely due to the rise in unemployment, redundancies and changes in working conditions caused by the COVID-19 pandemic.  However, the tribunals expect to see a slowdown in receipts following the announcement that the furlough scheme will continue until 30 September 2021.

Clearly, the continuing COVID-19 related pressures on the tribunals were reflected in its outstanding caseload rising to 51,000, a 12% increase for multiple claims and 36% for single claims (up to 44,000). However, disposals of single claims remained stable, and multiple claim disposals increased by 66%. 27% of disposals were due to Acas conciliated settlements, 9% were struck out before final hearing, and 7% were successful at final hearing. The remainder were withdrawn.

During July to September 2020, single claim receipts rose to 11,000 and multiple claim receipts rose to 19,000 (a respective 13% and 24% increase compared with the same quarter in 2019).  The rise is likely to be in response to the rise of unemployment as a result of COVID-19, in addition to the strain on the ET resources due to social distancing guidelines. Indeed, it is anticipated that the number of receipts is likely to continue to rise and could be further accelerated when the furlough scheme ends.

The sharp increase in the backlog of cases has come to light as a result of COVID-19.  A significant 13% rise in single claim receipts was met with a 7% decrease in disposals of such claims, resulting in a 22% increase in outstanding caseload and a mean age at disposal of 39 weeks, five weeks more than during the same quarter in 2019.  For multiple claims, disposals fell by 61% and the mean age at disposal fell from 112 weeks to 95 weeks over the same period. Overall, the ET disposed of 9,200 claims during July to September 2020 (39% down on the same period in 2019).

During the period from July to September 2020, 29% of disposals were withdrawn (22% of which were ACAS conciliated settlements), 18% were dismissed upon withdrawal, 10% were struck out and 7% were successful at hearing.

Ministry of Justice: Tribunal Statistics Quarterly, July to September 2020 (10 December 2020)

In a claim ongoing since 2016, three homecare service providers have agreed to pay ten care workers the national minimum wage (NMW) for travelling and waiting time between care appointments.  Approximately £100,000 is the amount of the backdated payments in total.

The agreement between the parties is recorded by the employment tribunal in a short judgment by consent. This does not give any opinion on whether the NMW is legally due to the claimants in respect of travelling and waiting time based on the specific facts of the case.

The judgment states that the claimants asked for the methodology they used to calculate the value of their claims to be appended as a “useful guide” for similar claims.

Key aspects of the claimants’ methodology are as follows:

• A sample reference period was chosen.
• To calculate waiting time, the case of Whittlestone v BJP Home Support Ltd [2014] ICR 275 was used as a yardstick. Two issues not explicitly addressed in this case were raised: first, that care workers should not be penalised if the employer rosters them inefficiently; and second, that they should be paid for gaps between appointments that are not sufficient to allow them to return home and relax. Gaps exceeding 60 minutes were disregarded for the purpose of the calculation.
• Google Maps and Citymapper were used to estimate travel times between postcodes, based on off-peak journeys.
• To calculate the total value of their claims, the claimants added together travelling time between appointments during the day for gaps of 60 minutes or less, waiting time between appointments where travel was undertaken and there was an additional gap after travel and before the next appointment (but where the overall gap between appointments was less than 60 minutes), and the total duration of an appointment.

This methodology is not binding on future cases. Although suggested by the claimants, there are aspects of it which potentially underestimate the value of their claims (for example, disregarding gaps between appointments exceeding 60 minutes, and using off-peak travelling times when a number of claimants allegedly travelled at peak). It therefore remains to be seen whether the methodology is useful enough to be relied upon by claimants going forward.