GDPR: Changes are Coming – Are you ready?

Most people will have by now heard the four letters which will change the landscape for data protection in Europe next year – GDPR. The General Data Protection Regulations, or GDPR, will apply automatically within the UK when they come into force on 25 May 2018. While it seems a long time until compliance with GDPR is required, the changes introduced represent a substantial challenge for businesses within the UK and steps should be taken now to limit any issues (or fines) in the future. In the first of several updates on data protection and GDPR, I have set out the main changes for organisations to be aware of (with greater detail to follow on certain key areas in subsequent blogs).

Key Changes

Jurisdiction

GDPR will have extra-territorial application. This means it will apply to all EU organisations processing personal data (whether the processing takes place within the EU or not) and to all organisations processing data of people residing inside the EU (whether the organisation is within Europe or not).

Fines

The current maximum fine which the ICO can impose is £500,000 (although the fines imposed are normally well below this figure). Under GDPR, the fines are substantially increased. Where an organisation has committed a breach of record keeping, contracting or security clauses, the maximum fine will be greater of €10,000,000 or 2% of worldwide turnover. If an organisation has breached one of the basic principles or Data Subject rights, the fine can be up to €20,000,000 or 4% of worldwide turnover.

It is important to note, most ICO fines at present would be subject to the lower fine levels which may signify a change in what is now important in data protection rules.

Individuals also have a right to claim compensation for damages cause by infringement of data protection rules. Going forward, damages will include non-material damages for distress etc (rather than simply proven financial losses).

Data Processors

The current rules generally cover data controllers only (ie those responsible for determining the purposes and means of processing personal data). The GDPR creates specific obligations on data processors (those engaged by a data controller to carry out the processing of personal data). These include (i) maintain adequate documentation, (ii) put appropriate security processes in place, (iii) carry out data protection impact assessments and (iv) comply with rules on international data transfers. Failure to comply with the new obligations could result in fines and potential claims for damages from individuals.

Consent

Going forward, organisations can still rely on consent to process personal data but will need to ensure such consent is freely given, specific and informed. Practically, this means organisations should not rely on opt-out or auto filled consent boxes. Instead, organisations should ensure requests for consent are clear and distinguishable from other matters with options to consent to different types of processing. It is also necessary to highlight consent can be withdrawn at any time in a quick and easy way.

Businesses will need to maintain evidence showing consent has been obtained and have appropriate mechanisms to deal with withdrawal of consent. Given that consent is only one basis for lawful processing of data, organisations may consider if there is another basis for processing which is more appropriate.

Breach Notifications

Under GDPR, any data breach which is likely to risk the rights and freedoms of the individual should be notified to the ICO without undue delay and within 72 hours of first becoming aware of the breach. Where the breach is likely to result in high risk to the individuals affected, the individual should also be notified.

A breach is defined by the ICO as “a breach of security leading to the destruction, loss, alteration, unauthorised disclosure of or access to, personal data”.

Organisations will need to have an appropriate process in place for identifying any breaches and preventing any further breach of data, assessing the potential impact of any breach and thereafter notifying appropriate parties.

Data Subject Rights

A data subject is the individual whose personal data is held by an organisation. The rights that a data subject has under GDPR are broadly similar to the current rules, although some have been expanded. These rights include the right to access information held (or subject access rights), requirement on organisation to rectify incorrect data and the right to be forgotten.

The GDPR has removed the right for organisations to charge a data subject for access to their personal data. If a request is made to an organisation (letter, email and via social media are all acceptable methods), an organisation should provide all information within one month.

Data Portability

A new right created under the GDPR is data portability where an individual can request data held by an organisation is transferred to another organisation. The transfer can be via the individual or between the two organisations directly and must be provided in a commonly used format which is machine readable.

The introduction of this new right will enable individuals to transfer between service providers quickly and easily. It may require organisations to introduce appropriate procedures for transferring data quickly and securely.

Accountability & Privacy By Design

Simply complying with GDPR will not be sufficient for organisations – they should be able to show compliance by having appropriate policies, procedures and training in place.

Organisations should look to keep detailed records of processing operations, perform impact assessments for high risk processing, keep comprehensive records of any breaches and take data protection risks into account from the start of any process, rather than as an afterthought. The key concept is that personal data is only processed where necessary, for a specific purpose and stored for no longer than required.

Data Protection Officers

Going forward, certain organisations will need to appoint DPOs to oversee the protection of personal data. The DPO should report to the highest level of management and will advise on all relevant data protection laws, monitor compliance with GDPR, deal with data protection impact assessments and liaise with the ICO. A DPO is required for all public authorities and bodies and where an organisation has core activities requiring (i) regular and systematic monitoring of individuals on a large scale or (ii) processing on a large scale of special categories of data (sensitive personal data) and data relating to criminal convictions.

There is nothing preventing other organisations appointing a DPO but if appointed, a DPO will have to comply with all relevant obligations under GDPR.

It is important that organisations are aware of the new rules coming into force so they can consider what impact these may have on their own policies and procedures and what changes might be required before May 2018. For more information on data protection or to discuss your GDPR requirements in more detail, contact the Corporate Team at Blackadders.

Ruth Weir,  Senior Solicitor – Corporate  :  @CorpLawyerRuth www.blackadders.co.uk

National Minimum Wage – All Night Long

To some people, being paid to sleep might sound like a “dream” job.

However, for others, night-time obligations such as being on call are part and parcel of the job, even if they do get to sleep for part or all of the night. These types of working arrangement throw up some important considerations, not least in relation to pay and in particular National Minimum Wage (“NMW”).

NMW – when payable?

Employees are entitled to be paid NMW when they are working. How does this apply for those who do sleepovers or similar night working arrangements? Are such employees deemed to be working the whole night (even if sleeping), or just when they are awakened to respond to a “call”? Well, surprise surprise, the classic legal answer applies – it depends.

Recent case

The issue of NMW for sleepover/on call work has been the subject of much litigation.   Given the potential financial implications of the topic it is likely that there will be more litigation in the future. The Employment Appeal Tribunal recently heard three such cases reported in a conjoined judgment (Focus Care Agency Ltd) v Roberts.

Relevant factors

The EAT highlighted that every case will turn on its own facts and that a number of factors are relevant to when a person will be regarded as working for NMW purposes. Examples of relevant factors include:-

  • Whether the employer is subject to a contractual or regulatory requirement to have the employee present during a particular period.
  • The extent to which the employee’s activities are restricted by the requirement to be at the employer’s disposal (so can they nip out for fish and chips as they please?).
  • The degree of responsibility taken by the employee (e.g. compare the limited responsibility of being present on premises to call emergency services in the event of an emergency compared with a night sleeper in a care home who might face more personal responsibility in night duties).
  • The immediacy of the requirement to provide services if an emergency occurs (does the employee decide whether and how to intervene in an emergency or is the employee woken as and when required by someone else with immediate responsibility?).

One thing that is certain is that this topic is devoid of certainty. That seems to be the nature of the beast and where the tribunals are clear that a multifactorial approach is required, every case will turn on its own facts. The bullet points above were considered relevant factors in the Roberts case. Needless to say there will be other relevant factors.

If you are in any doubt about payment for sleepover shifts, take advice.

Jack Boyle
Associate Solicitor – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

TUPE – Employee Liability Information

  • X-mas bonuses were wrongly described as non-contractual

  • No breach of the Reg. 11 obligation

Regulation 12 of the TUPE Regulations 2006 gives rise to a rare situation where Employer A can sue Employer B in the employment tribunal.

Employee Liability Information (“ELI”) – the law

Where a TUPE transfer takes place (be that a business transfer or a service provision change – change of contractor), the outgoing employer is obliged to provide the incoming employer with certain pieces of information about the transferring employees. This information must be supplied at least 28 days prior to the transfer and is known as employee liability information. The required information includes “those particulars of employment that an employer is obliged to give to an employee pursuant to section 1 of the 1996 Act.” These duties are imposed by TUPE Regulation 11.

Consequences of non-compliance relating to ELI

TUPE Regulation 12 allows the incoming employer in a TUPE situation to raise a claim against the outgoing employer for any failure by the outgoing employer to comply with Regulation 11. The remedy for such an action can include compensation of up to £500 per employee in respect of whom the failure applies.

The recent case

Reported cases of this nature are rare. However the recent decision in Born London Limited v Spire Production Services Limited is one such case and one which throws up an “interesting” result/warning for those businesses inheriting employees under TUPE. Very briefly, the outgoing employer (Spire) told the incoming employer (Born) that Christmas bonuses were non-contractual. After the transfer the employees alleged that the bonuses were contractual. Born raised proceedings alleging that this inaccurate disclosure by Spire was in breach of Regulation 11. They were unsuccessful on the basis that while Regulation 11 does require disclosure of the statement of particulars of employment, within that statement of particulars can be contractual and non-contractual matters. Accordingly, it did not follow that referring to something as non-contractual which was in fact contractual amounted to a breach. Essentially, the branding of something as “non-contractual” is additional information beyond the scope of what is required by Regulation 11.

What can we take from this case?

Firstly, the case did not produce a satisfactory result in the sense that the outgoing employer provided, on the face of it, untrue information to the incoming employer but the incoming employer was not protected by Regulation 11. Secondly, and perhaps more importantly, the case emphasises the importance of carrying out thorough due diligence when inheriting employees under TUPE. If there is contractual documentation in place regarding the transfer, the incoming employer should insist on appropriate warranties/indemnities to protect against such anomalies.

If you are acquiring employees from another business, take advice.

Jack Boyle
Associate – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

Blackadders Employment Team Scoops Prestigious “Excellence in Client Care” accolade: GoT Legal Award, GoT Excellent Clients, GoT Game of Thrones trip to plan

Last night, the Scott & Company Legal Awards 2017 took place at the Assembly Rooms, Edinburgh. Over 70 entries made the shortlist in a year which attracted a consistently high number of firms. Blackadders were one of 40 firms named as finalists and were ultimately crowned winners of the Excellence in Client Care Award 2017.

In support of this award, clients had stated that the Blackadders’ employment team are “the best in their field”“highly efficient and very approachable” as well as “cost effective and extremely knowledgeable”.

“Nothing is ever too much trouble for the team and they always go above and beyond what is expected of them. They provide as close to a 24/7 service as I have encountered and we would not consider using anyone else.”

“The team are refreshingly different from their competitors and are forward-thinking, approachable and enthusiastic. The team’s blogs and tweets are always relevant, relatable and entertaining.”

The judging panel stated that the judging process had been very difficult, given the high calibre of entries in all categories. However, ultimately, the panel felt that the Blackadders’ employment team were the best in their category. In addition to dealing with a number of “high value cases” over the past twelve months and giving an excellent client care service, the judges stated that Blackadders’ employment team offered “a fresh and innovative approach to employment law which made them stand out as leaders in their field.

Simon Allison, Head of the Employment Team, stated that he was surprised and extremely honoured to have won the award, given the high standard of the fellow finalists. He dedicated the award to his team on the basis that they had worked exceptionally well together on various projects over the past year and were, in his view, thoroughly deserving of the award.

In addition to this award, Andrew Wallace won the Highly Commended Award for Rising Star of the Year 2017.

Last year, Simon took the team to Dublin to celebrate their success at the Legal Awards. 2016. Prior to the 2017 awards ceremony, Simon had taken a bet with his team that, if they won, he would take them on the Game of Thrones tour in Belfast but that, if they lost, they would be doing the Eight Peaks Challenge with him. Last night’s result spells an expensive month for Simon (who was last seen googling the cheapest means of transport to get to Westeros).

Well done Simon, Jack and Andrew – Excellence in Client Care Award 2017 and Rising Star of the Year Award 2017!

The Replacement: The Cause, The Claws & The Flaws

Did any of you catch the BBC’s latest drama, The Replacement?

It started off as the same old story. Ellen becomes pregnant. Ellen identifies her maternity leave cover post, Paula. Paula commences her duties prior to Ellen finishing up and seems like the perfect hire – enthusiastic, personable, super-competent. In fact, Paula takes to her myriad of duties much like Superwoman.    And that is when Ellen begins to worry that Paula has another agenda.

Ellen begins to suspect that Paula is after her clients, her job, her colleagues, her friends and even her baby. Before long, Paula has sharpened her claws. And before the first episode had even finished, every beat in the female psycho-thriller playbook had been pulled out of the bag.

Without giving too much away, there are accusations of baby-stealing, pill-popping and being “pushed” down a set of stairs. And the expression “hot-wiring airbags” will never seem the same again.   However there are some major flaws with The Replacement.

Without being a stereotypical, know-it-all employment lawyer, my three key flaws all relate to Ellen’s employer and, more specifically, her creepy boss, David Warnock:

1. An employer is not permitted to allow an employee to work during the two weeks’ (extended to four weeks for some factory/workshop workers) commencing the day on which child birth occurs. An employer who does so is guilty of an offence. How long was Ellen actually on maternity leave for? When Ellen had the fateful first meeting back with the equally creepy client, Vernon, he makes the point that Ellen (who had already returned to work, albeit to hack into Paula’s computer and set up a fictional client with the elusive Georgia) had barely been back for four weeks. Whether or not Ellen was actually permitted to use her statutory two weeks’ leave is probably insignificant given the fact that she was clearly back to work much sooner than was reasonable in the circumstances. Surely an employer with half an ounce of common sense could tell that she came back far too soon.

2. Similarly shortly after the birth, Ellen visits the office to meet with Creepy David. “I don’t want you to put yourself under any pressure to return to work because of Kay”, says David. “No”, assures Ellen, “I want to be here.” Ellen proceeds back to work, albeit again that “work” involves creeping on Paula’s daughter’s Facebook account and spying on her boss and maternity leave cover, Paula. An employee is entitled to work for up to 10 KIT (“keeping in touch”) days during maternity leave, without bringing their maternity leave to an end. Were these KIT days used? Probably not.

3. Lastly, when Ellen returned to work, she was sidelined from her old project, the library. Ellen asked about the library project and was told by her boss, “Paula’s handling it. Vernon has got used to her. That’s all.” This was the same project about which there had been a debate – skylight or no skylight? Do you remember skylight-gate? When Paula first opposed Ellen’s idea about the skylight, she later reinstated the idea (only to discover her colleague’s dead body being shoved through the skylight). The law is clear that an employee who returns to work within 26 weeks of maternity leave is entitled to return to exactly the same job, on the same terms and conditions. Creepy David had obviously never heard of that and Ellen’s request to return to the library project went out of the window (or should that be skylight?).

So basically I can forgive Ellen for turning into MacGuyver and hot-wiring these airbags as I presume that architects must have a basic engineering knowledge and Ellen must have completed her motor electronics course in an earlier episode….

And I can even forgive Paula for pushing her colleague out of the window – let’s face it, line managers can be difficult. After a dramatic showdown involving a kidnapped baby, sleeping pills and smashed window screens, she confessed all and was led away in handcuffs. She got what she deserved.

However it is Creepy David who cannot be forgiven. So he likes group hugs with his female colleagues. And he makes inappropriate remarks about his female colleagues’ appearance. But as far as employment law goes, the flaws are unacceptable.

I am away to watch something more realistic now…. like The X-Files.

Simon Allison
Partner – Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

“Someone’s sitting there, pal…” Reasonable adjustments in the context of disabled bus users

Employment lawyers will be familiar with the concept of reasonable adjustments insofar as they relate to the employment relationship.

The law behind the case

FirstGroup plc v Paulley is a case concerning reasonable adjustments in the context of public service provision. Under the Equality Act 2010, a provider of services to the public is, in certain circumstances, under a duty to make reasonable adjustments for any service users who are disabled.   This duty arises where a provision, criterion or practice of the provider places disabled persons at a substantial disadvantage in relation to a relevant matter when compared with non-disabled service users.

The facts of the case

In this case, Mr Paulley was disabled and attempted to get on a bus operated by FirstGroup (“FG”). The designated disabled seat was already occupied by a passenger with a sleeping child in a pram. The driver asked the passenger to move but she refused, despite clear signage saying “Please give up this space for a wheelchair user”. The signage did not make any threats or reference to enforcement on the basis that FG preferred a more customer friendly approach. The operator’s policy was that people could be asked to move from disabled spaces but if they refused the disabled person would not be permitted to board the bus. That is what happened here and Mr P had to wait 20 minutes for the next bus. The driver was not expected to wrestle the lady and pram out of the seat.

The outcome of the case

Mr P raised a court claim of discrimination alleging failure to make reasonable adjustments. He was initially successful and won £5.5k in damages. FG appealed successfully on the basis that it was not reasonable to expect drivers to force non-disabled users out of a seat. It also acknowledged that a non-disabled person might have reasonable grounds for not vacating the space and drivers could not be expected to assess such reasonableness.

The case went all the way to the Supreme Court which found that while it would not be reasonable to have an absolute policy requiring drivers to force non-disabled users out of disabled seats, FG had not done enough by their policy of simply asking passengers to move from the disabled seat without anything further. The Court held that the policy should have required the driver to use “best endeavours” to encourage the reluctant passenger to move. For example, the driver could rephrase the original polite request as a requirement or even stop the bus to pressure the passenger into moving. Given the tight schedules on which buses operate, one can see the potential for such an approach leading to passenger dissatisfaction. However such peer pressure could well be sufficient to guilt the reluctant person into moving.

As one of the Lords put it, there was no ideal solution in this case, merely a number of unsatisfactory ones. Those with faith in the goodness of humanity would hope that cases of this nature will be few and far between, though perhaps that is wishful thinking.

What can we learn from this case?

The case does highlight a useful example of the application of the Equality Act beyond the employment law sphere in which it is most commonly quoted.

Please do not treat this as an invitation to occupy a disabled seat on the bus and see what the driver does about it!

Otherwise the wheels on the bus may not go round and round…

Jack Boyle
Associate – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

“Lost” with SOSR dismissals? 5 TV examples “Breaking Bad” SOSR habits

Lawyers love a catch-all clause.

Whilst employers will be relatively familiar with the more standard forms of dismissal on the basis of misconduct, capability and redundancy, occasionally an employer will face a situation which does not fall squarely within these more-familiar settings. However fear not. The law provides for a “catch all” type of dismissal on the basis of “some other substantial reason”. This type of dismissal is often referred to as SOSR and covers the type of situation which is infrequently seen by employers.

Despite the fact that this wording appears to be “Limitless”, in reality an employer will often struggle to use this catch-all clause correctly. It is traditionally a very difficult reason to succeed with in an employment tribunal. Because it provides such a grey area, it can cost employers significant sums defending their reasons.

Here however are 5 examples of working relationships you may recognise which highlight when SOSR may be appropriate.

1. Prison Break – Michael Scofield – being sent to prison

The first example is fairly obvious although hopefully infrequent for employers. If you think way back to the beginning of Prison Break where structural engineer Michael Scofield walks into a bank, armed with a gun, framing himself for a crime that would send him to prison. Clearly while he is in prison, Scofield could not work and his employer could be entitled to dismiss him. In theory this could amount to a conduct issue, but bearing in mind that this happened outwith the workplace, and if there is no mention of such situations in any disciplinary policy, the employer will likely have to dismiss under the ground of SOSR.

When faced with this situation, do not assume the employee’s employment automatically comes to an end. Various considerations should be made and if you intend to dismiss in this situation, you would be wise to seek legal advice first.

2. Billions – Bobby Axlerod/Wendy Roades/Chuck Roades – conflict of interest

If you haven’t been watching Damian Lewis in Billions before now, then I would definitely recommend it. The programme focuses on the high life, the fame, the money, the glamour, the ruthlessness and the conflicts, the programme entertains with a number of different dynamics. One such dynamic, without giving any spoilers away, is the fact that the billionaire business owner’s most trusted adviser is married to the US Attorney investigating the legality of his business’s conduct. Although Bobby Axlerod does not wish to dismiss his most trusted adviser in the show, he probably could under the grounds of SOSR and the fear that she would be feeding information to her husband.

3. Suits – Harvey Specter/Donna Paulsen – dismissal to avoid having an affair with an employee

Those that watch Suits will be aware that there is a constant sexual tension between Harvey and Donna, and to be fair to Harvey, who can blame him. Surely it’s a matter of time before they both cave and commit to each other? There was a case in America a few years ago where a dentist dismissed his assistant on the basis that if she remained an employee, the temptation to have an affair with her would be too great. The dentist wanted to protect his family and this was found to be a fair dismissal. Although American law is different to UK law, it would be interesting to see how a similar situation would be determined by an Employment Judge. Such a dismissal would definitely come under the bracket of SOSR.

Again this highlights the rare kind of situation where an employer may want to utilise an SOSR dismissal. Rather than taking Harvey and Mike on at their own game, you should seek clarification from your own legal advisers.

4. Mad Men – Don Draper/Salvatore Romano – Third party pressure 

Do you remember when Don Draper fired Salvatore Romano by request of a major client who threatened to take his business elsewhere unless he was dismissed? This happened after Sal had made advances on the closeted art director the night before. Well this kind of situation has led to fair dismissals under SOSR in the UK. When such a request does come in, an employer must show that they have considered if it is reasonable to dismiss in the circumstances and that such a dismissal would not result in a disproportionate injustice to the employee.

5. Breaking Bad – Walter White/Jesse Pinkman – breakdown in working relationship

Although not strictly and employer/employee relationship, Walt and Jesse provide a clear example of a breakdown of a working relationship. A fundamental and irretrievable breakdown in work relations between two employees can give sufficient grounds for an SOSR dismissal. This would be appropriate where the individual conduct does not give sufficient grounds for a conduct dismissal, but the business cannot continue to function with a particular broken working relationship in place. Care needs to be taken if using this as a reason for SOSR. Whether it is fair is very much fact specific, and an employer must be able to show that there has been a fundamental and irretrievable breakdown. This is not as easy as many employers may think and before dismissing on this basis, you’d better call Saul (or any other lawyer of your choice).

So what do these examples show?

Firstly these examples strongly suggest that I need to engage in a more active social life.

However secondly these examples demonstrate that SOSR dismissals cover a wide breadth of situations. From employees going to prison, to employees trying to kill each other (or slightly less extreme examples of a breakdown in the working relationship), this is a slightly obscure (and sometimes interesting) area of law. One size does not fit all.

If an employer does intend to rely on an SOSR argument, it is generally always wise to show that they have generally considered matters and have applied a reasonable mindset. As every case is judged on the individual facts, it can be a complicated area of the law.

To avoid too many SOSR “Damages” or to avoid any SOSR unfair dismissal tribunal claims going down to “The Wire”, contact the employment team at Blackadders when considering SOSR as a dismissal option. Although it might not save you “Billions”, it is definitely more cost efficient speaking to us before pulling the trigger rather than defending a claim retrospectively.

Andrew Wallace
Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

Step 8: How To Handle A Disciplinary Appeal Hearing? | Employment Lawyer In Your Pocket

blackadders logoEpisode 8: In the final episode of this podcast series Jack and Andrew discuss the essential steps for handling an appeal hearing. How significant are these hearings? Who should hear them? Can appeal hearings be used to the employer’s advantage? What led to a witness breaking into a Black Eyed Peas track whilst giving evidence in a tribunal? Listen to find out more on how to conduct a disciplinary process to an end.

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page or by responding to this e-mail. Thanks for listening!

You can also download this podcast free on iTunes.

You can listen to all of the previous episodes in this series here:

Step 7: What Happens If An Employee Fails To Attend A Disciplinary Hearing?
Step 6: How Do I Communicate A Fair Dismissal?

Step 5: What Is The Role Of HR In A Formal Meeting?

Step 4: How To Conduct A Disciplinary Meeting

Step 3: How To Prepare For A Disciplinary Meeting
Step 2: How To Conduct An Investigation At Work
Step 1: Where Do I Start When Managing Employees?

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerAndy

Step 7: What Happens If An Employee Fails To Attend A Disciplinary Hearing? | Employment Lawyer In Your Pocket

blackadders logoEpisode 7: What happens if an employee fails to attend a disciplinary hearing? Jack and Andrew discuss how to handle to problematic situation of an employee failing to attend a disciplinary hearing. Is that the end of the process? Can you assume the employee does not want to face the inevitable?  How many chances do you have to give them?  And what is the best excuse you have ever heard for someone failing to attend a disciplinary hearing?  Listen to find out more on how to handle this type of scenario.

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page or by responding to this e-mail.

You can also download this podcast free on iTunes.

You can listen to previous episodes in this series here:

Step 6: How Do I Communicate A Fair Dismissal?
Step 5: What Is The Role Of HR In A Formal Meeting?

Step 4: How To Conduct A Disciplinary Meeting

Step 3: How To Prepare For A Disciplinary Meeting
Step 2: How To Conduct An Investigation At Work
Step 1: Where Do I Start When Managing Employees?

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich

What does the future have in store for Employment Tribunal Fees?

After launching their review in June 2015, the Ministry of Justice (MoJ) finally published their review on employment tribunal fees at the end of January. With so many uncertainties in the fold, it is not going to be easy balancing the many competing interests. On the one hand you have the undeniable fact that the number of tribunals has dropped significantly since the introduction of fees, suggesting that there is a potential issue with access to justice. This is combined with the fact that most employees requiring to use the service have been made unemployed and are likely to want to be careful with their finances. On the other hand you have the employers’ legal fees for dealing with spurious employment law claims caused by a lack of deterrent to raise such claims. An employee is rarely going to agree with an employer’s decision to dismiss, no matter how fair it is. Why should an employer have to pay more to an employee for a claim with no merit? This argument is combined with the fact that each claim places a burden on the tax payers’ money.

 

The SNP have indicated a clear desire to abolish these fees north of the border, but currently appear to be somewhat distracted, and there are ongoing wide ranging court and tribunal reform consultations bubbling away in the background. With so many uncertainties and differing opinions, the government is never going to please everyone.

What the MoJ have found 

  • The government has found that the fees paid by claimants have contributed between £8.5 million and £9 million a year in income. This is in line with what was expected when the fees were introduced and is money that would otherwise be required to be paid by the taxpayer.
  • They have found that 48% of people who engage in the free ACAS Conciliation Period avoid the need to go the tribunal.
  • Of those that do need to proceed to an employment tribunal after the ACAS Conciliation Period, between 3000-8000 people did not go on to the tribunal because they could not afford to pay. As well as genuinely not being able to afford to pay these fees, this group of people may not have continued with their claim as a result of not being aware of the ‘Help with fees’ scheme, nor the Lord Chancellor’s exceptional power to remit fees or simply a general unwillingness to reduce areas of non-essential spending.

What the MoJ are proposing

Amount of the fee

It has been proposed that, despite the drop in the number of tribunals, the current financial amounts for tribunal fees will remain. The MoJ’s reasoning behind this is that the fees, as they stand, have contributed an expected amount to the fee income pot, but more importantly the MoJ believes that any such fee must be significant in size. The MoJ argues that a significant fee is required to make a claimant seriously consider their options. It makes claimants assess whether they should explore other avenues such as ACAS Conciliation. It requires them to seriously consider the strengths and weaknesses of their case before continuing to the tribunal. The MoJ was also keen to point out that a successful claimant at the tribunal is normally refunded any tribunal fee.

The fee structure 

Although other fee structures were discussed, the MoJ has decided that the current 2 tier fee structure should continue. The MoJ supports the philosophy that those who have more complicated cases, and who therefore use more tribunal time, should pay more for the service.

Increase in people qualifying for “help with fees”

Currently claimants with either low capital or low monthly income can qualify for the “help with fees” scheme. This can result, for a claimant who cannot afford to pay the fees, in the fee being waived or reduced. The area that the MoJ intends to develop is the use of these fee exemptions. The philosophy of creating a greater awareness of the support available to claimants unable to afford the fees was exemplified last year. The previously over-complicated “fees remission” (a term often associated with illness) scheme was renamed “help with fees” which does exactly as it says on the tin. A simplified structure was also introduced. A consultation on how to progress this scheme further has been launched and will close in March 2017. It has been suggested that the minimum gross monthly income threshold increase from £1,085 to £1,250. This is in line with the National Living Wage. This increase, and an intended increase in publicity and awareness of the scheme, is aimed at helping those who genuinely cannot afford to progress a claim.

The review highlights the exceptional powers of the Lord Chancellor to remit fees. Currently these are not publicised much at all, but can be very useful for a claimant. Take for example a situation where a claimant is over the capital threshold allowing them entitlement to “help with fees”, but can show that their essential expenditure means that they cannot afford to progress with the claim, then the Lord Chancellor must remit the fee. It is submitted in the review that not enough claimants are aware of these powers and this is likely to change going forward.

Insolvency matters

Lastly, as a result of the review, the government has also already removed fees for cases where the claimant would be paid an award from the National Insurance Fund. This means, among other situations, that there will not be a fee for any redundancy payment claims where the company has become insolvent.

What’s the answer?

It would take a brave person to go against a government review that has taken 18 months to complete. For me, some kind of fee is necessary to avoid relentless, spurious claims being made by disgruntled employees. Defining how much claimants are required to pay will always be problematic. It may be that the current £1,200 is too much for a recently unemployed claimant to contribute, but I agree with the MoJ that a substantial fee is required to make a claimant seriously consider his or her options.

For now, whilst the government’s review of fees has concluded, this is not the end of the matter on tribunal fees. As has been mentioned above, the SNP’s desire to abolish fees seems evident. It seems a matter of time before this chapter unfolds. Similarly UNISON’s appeal to the Supreme Court is expected to be heard on 27 & 28 March 2017. A further judgment on tribunal fees can be expected in the fullness of time.

So two things in the chapter are certain:

Firstly this is not the last we’ve heard on tribunal fees.

Secondly you can expect more change going forward.

Andrew Wallace
Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk