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SEP
05

Abolition of Employment Tribunal fees: what is it likely to mean for employers and employees alike?

The Supreme Court decision in R (on application of Unison) v Lord Chancellor (2017) UK SC 51 (26/07/2017) ruled unanimously that the Employment Tribunal fees brought in by government in 2013 are unlawful, deny the fundamental right of access to justice and contrary to both common and EU law. Additionally, the Supreme Court also ruled that these fees discriminate against women.

Unison persisted with their claim despite numerous rejections and set backs from the lower courts.

This has to be one of the most momentous recent decisions in Employment law and the ramifications of this ruling are going to be enormous and complex.

The number of claims in the Employment Tribunal dropped from 7,000 to 1,000 (a reduction of nearly 70%) after the imposition of those fees, and it's highly unlikely that future numbers of claims will reach 7,000 again. This is largely because of the mandatory ACAC early conciliation process.

Apparently, government are considering whether or not to reintroduce fees at lower levels and in a lawful manner, but even if they decide to do this it will take a great deal of time.

In the first instance, the most likely effect is to cause further strain and delays within the severely underfunded Employment Tribunal system.

Fees paid by claimants since 2013 will fave to be refunded, and those employers who settled or paid compensation (including the tribunal fee element) will also have to be refunded.

It may be possible for employees now to bring claims out if time, but this very much depends upon the type of claim (i.e. unfair dismissal or discrimination). Each of these claims have individual tests that must be satisfied, e.g. Whether it was 'not reasonably practicable' or if it is 'just and equitable' to bring a claim, respectively.

This could lead to huge difficulties for those seeking to bring or defend older claims, particularly if documentation and records have been destroyed or lost.

The Employment Tribunal has made a recent case management order dealing with the consequences of this Supreme Court ruling:

1) The stay on those claims relying upon this judegement is to be lifted immediately;

2) Reimbursement of fees are to be made, following administrative arrangements made by both the MOJ and HMCTS;

3) Reinstatement of claims rejected on the basis of non payment of fees shall be made pursuant to administrative arrangements produced by the MOJ and HMCTS;

4) Remainder of claims brought upon reliance of the Unison judgement should be brought in the usual way to the regional Employment Judge for each ET region.

 

If as an employer, GC, HR professional or employee, you require advice on any of this information or any aspect of employment law, contact our highly skilled and experienced specialist lawyers.

Call us on 0207 387 2032 or use our enquiry facility on www.lewisnedas.co.uk.

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MAY
25

Commercial and Litigation Department; May 2017

london solicitorsTo all our commercial clients and prospective commercial clients,

April is always a busy month in the legal world, as Bills receive Royal Assent to become Acts of Parliament, and this year was no different as twenty new Acts came into force, making a total of thirty in 2017 so far. In addition, what would appear to be the last Spring budget for the foreseeable future has meant that both companies and individuals alike will no doubt be feeling the effects of these new socio-political/socio-economic changes fairly soon, and with an election just around the corner and Brexit negotiations becoming a “brutal reality” (according to The Economist), who knows what the future holds!

At Lewis Nedas Law we always strive to stay on top of our game, and now that some of these changes have started to come into effect, we thought that now would be the time to give a little snapshot of just some of the areas that we know about that might interest you. We’ve also thrown in some recent cases for good measure.

 

Employment

1) Statutory payments

From April 2017:

  1. Family; the weekly rate for statutory maternity, paternity and shared parental pay has increased to £140.98 from 2 April 2017 onwards.
  2. Statutory Sick Pay (SSP); has increased to £89.35.
  3. Statutory Redundancy Pay (SRP); For the purposes of calculating a redundancy payment (age, weekly pay, length of service), 'weekly pay' has increased to £489.00.

 

2) Employment Tribunal Cases

The Employment Appeal Tribunal has held that a second ACAS “early conciliation certificate” (EC) issued for the same matter as the first will not extend a claimant's time limit for instituting tribunal proceedings (Commissioners for HM Revenue and Customs v Serra Garau UKEAT/0348/16).

 

3) Employer requirements:

All organisations with a headcount of 250 or more must publish annual figures about its “gender pay gap”, which means the difference between the average earnings (including bonuses) of men and women.

In addition, The Pensions Regulator (TPR) has just issued a penalty of £40,000 against an employer for failing to comply with automatic enrolment. It is also threatening criminal prosecutions against employers and has started a “name and shame” campaign. Employers are therefore strongly advised to check their compliance in relation to pension schemes.

 

Corporate and Commercial

Commercial contracts

1) In Wood v Capita Insurance Services Limited, the Supreme Court has clarified the correct approach to be taken when interpreting commercial contracts and finding a balance between “textual analysis” and “commercial good sense” (as per the tests in Arnold v Britton and Sky v Kookmin Bank respectively).

The correct interpretation will depend on a range of factors, such as:

  1. words used in the contract;
  2. the context in which the words are used;
  3. business commercial sense.

The Supreme Court also added in its judgement that it is “not for the court to remedy a bad bargain” and that the tools for interpretation listed at a) - c) will be used depending on the facts of the case.

 

Corporate considerations

2.We posted an article last year about the PSC (Persons with Significant Control) regime affecting companies in the UK.  In light of the crackdown on organised financial crime, the Government has posted new information on the changes to be made in respect of UK money-laundering measures to help prevent money-laundering and terrorist financing.  The legislation, effective 26 June 2017, will change the current requirements concerning PSC information to be registered at Companies House and can be found here: https://www.gov.uk/government/news/changes-to-uk-anti-money-laundering-measures.

 

Judgements

3. In the High Court, only 35 judgments have been registered against consumers 2017, which is the lowest total number for a single quarter since records began. The average value of a High Court Judgment against a consumer also fell 44 percent year on year to £446,308. 

Comparatively, County Court judgments (CCJs) are on the rise, with 298,901 debt judgments registered against consumers in England and Wales in 2017 (an increase of 35%). This is the highest figure for a single quarter in over a decade. This means that, for every 1,000 consumers in the UK, 5.16 now have a CCJ against their name, as opposed to 3.85 in 2016.

Does this mean that consumers and businesses are not being deterred by rising court fees, or is there another reason for the dramatic change in these figures? Watch this space…

Source: The Registry Trust Limited

 

Professional Negligence and Litigation

Professionals: breathe a (small) sigh of relief when dealing with impulsive clients

1. In a classic example of the UK Legal System Hierarchy at work, the Supreme Court has upheld the Court of Appeal’s decision to overturn a lower court judge in BPE Solicitors and another (Respondents) v Hughes-Holland (in substitution for Gabriel) (Appellant) [2017] UKSC 21 on appeal from [2013] EWCA Civ 1513.  A link to the judgment can be found at the following address: https://www.supremecourt.uk/cases/docs/uksc-2014-0026a-press-summary.pdf.

In summary, the highest court in the land found that a professional advisor cannot be liable for a person’s poor commercial decisions.  We hope that this gives some reassurance to our professional clients!

 

 

Blog by Adam Creasey, Associate Solicitor.

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