Reduced Fees Scheme For Claimants

One of the hardest things for anyone contemplating employment litigation is the prospect of paying lots of money to lawyers. The lack of legal aid in the Employment Tribunal can often restrict access to proper redress and so a number of years ago our Team took steps to try and address these issues.

Barristers here will represent claimants with limited means for a fixed rate of £350 plus VAT per day and will also conduct a free conference with the client. Having run this scheme for a number of years we have found that it opens up the prospect of litigation for potential clients and has also given us the the opportunity of increasing the volume of work here whilst exposing our more junior practitioners to the Tribunal system.

As a Clerk it is vitally important, as it is for any business, to identify these gaps in the market and then try to come up with innovative ways to address the problem. As marketing exercises go this was one of the most successful that we have attempted - if anyone has any other ideas we would be very interested indeed.

For further details on this scheme please follow the link below.

http://www.12collegeplace.co.uk/furniture/cms/documents/Low%20Fees%202007.pdf

Mark The Clerk

When I'm gone........

Will I miss the statutory procedures? These procedures have given rise to a large amount of so called pre-litigation. The lawyers have had a field day with their clever arguments on the construction of the rules and what an employer might reasonably understand from the contents of a written grievance. These preliminary points have led to countless appeals with Judges saying how unjust the procedures are and academics debating the finer points of the difference between the modified and ordinary grievance procedures.

So as a lawyer who enjoys the cut and thrust of argument I will miss the passing of the procedures. But believe it or not these procedures were not put in place to keep lawyers happy, the procedures were designed to foster a more collaborative approach to dispute resolution. I do not know whether the procedures actually did this I will leave that to academics who have more time for reflection on these matters. However what in effect happened was that many Claimants with perfectly legitimate claims were defeated by procedures designed, at least in part, to help them.

It will only be after these procedures have gone that we will see just how large an impact they had in restricting the flow of work to the Employment Tribunals. My totally unscientific and allegorical figures would indicate to me that the Tribunals should expect a 10% increase in business after April 2008.

I could end the analysis here but as time has gone by I have noticed a gradual change in the way grievances are handled as well as disciplinary matters. The procedures have changed the attitudes of both employers and employees in dispute situations. Perhaps it is this change that has led the Government down the uplift rather than the prohibition route for the replacement code due to come into force in April 2008. The old procedures did have unfair consequences for Claimant’s but a softening of the sanction away from complete prohibition is I hope the answer even if it does mean less interesting times for lawyers.

For more information on the changes and the new code I suggest a visit to BERR. You might also be interested to compare your experiences of the procedure with the impact analysis carried out by the Government.

http://www.berr.gov.uk/whatwedo/employment/employment-legislation/employment-bill/index.html

Peter D

Employment Team Seminar

Don't forget that there is an afternoon seminar on Wednesday 10th December 2008 in Chambers covering Disability Discrimination, Equal Pay and TUPE. You will get 3 hours CPD and a chance to meet the Team. This seminar is open to solicitors and human resources professionals. Numbers will be limited so book early to avoid disappointment.

For information about this seminar and what we do please go to our website.

http://www.12collegeplace.co.uk/

Dear John

I have always believed in the usefulness of the IDS Brief as a reference tool. It is after all what the Tribunals read and with the recently updated Redundancy handbook they have not disappointed. I have a feeling that I will be using it a lot over the next 12 months.

Redundancy advice is back and the principles are always worth brushing up on. I thought what might be quite useful this week would be to look at a few selection criteria that have probably had their day in their old form.

Length of service and other service related point scoring criteria are likely to give rise to age discrimination issues. The problem with anything that may prove to be age discriminatory is that you need to have worked out what your defence might be should the criteria be challenged. I have no idea how long it takes to become a rocket scientist but the idea that a packer needs more than a few years experience as a general statement of common sense must be correct.

So all those companies who are thinking of using length of service ask yourself why you believe that time counts for the job in question? It is probably not the length of service that you want to count at all but the skills that come with longer service and experience!

The other popular criterion is sickness absence. In the past it was accepted practice that sickness absence was a legitimate objective criterion. Not however in this age of disability discrimination. It is not the direct/reason relating to discrimination that is of concern here (see One Step Forwards Two Steps Back below). It is the duty to make adjustments which would include the possibility of discounting or weighting disability absences.

From this a more sophisticated analysis of absence has arisen. No longer the scoring of 1 – 10 on how many days off in the last 2 years, now absence requires proper analysis with due care being taken over someone who has had time off in respect of a disability. There are no hard and fast rules on this but it would be a very brave employer who counted a disability absence where it was unlikely to recur in the future as a means of deciding who should stay and who should go.

As always there is a wealth of information on the Internet. I would suggest that you start at the ACAS website where you can download useful guidance as well as find links to other government websites for more information.

http://www.acas.org.uk/index.aspx?articleid=1611

Peter D

Update 09/12/08

In Rolls Royce plc v Unite the Union [2008] EWHC 2420 the High Court looked at LIFO as one of a number of criteria for selection. The Court held that although discriminatory the use of the criteria was justified. Note this is a first instance decision and leave has been given to appeal to the Court of Appeal. Best practice must still be to avoid reliance on age as a selection criteria to avoid expensive legal challenges.

http://www.bailii.org/ew/cases/EWHC/QB/2008/2420.html

Religion, belief and early mornings.

For most of us, particularly if based outside of London, traipsing into the city on a cold wet Saturday in November is no one's idea of fun. Lets face it, it requires a healthy dose of CPD point motivation to convince us that it is worth the train fare and the early morning.

I am pleased to say that this year's Bar Conference was worth it, and the Employment Law Bar Association and the Discrimination Law Association are to be thanked and applauded for putting together a lively discussion entitled 'Religion and Belief – what is it all about?'. The question for the whole panel was, what are we protecting and should we be protecting it?

Robin Allen QC opened the talk and questioned whether we could really reconcile cases such as R. (on the application of Playfoot) v. Governing Body of Millais School [2007] EWHC 1698 (Admin) and R. (on the application of Watkins-Singh) v. Aberdare Girls' High School Governors [2008] EWHC 1865 (Admin). In the later case the school's uniform policy which prohibited the wearing of the Sikh religious bangle, the Kara, was held to be unlawful. Whereas in the earlier case, the act of wearing a purity ring was not found to be intimately linked to a believe in chastity before marriage and therefore not a manifestation of a belief.

These cases also raise the issue of distinguishing between the religion or belief itself and manifestations of it. The distinction is of course important as it may answer the question of whether the discrimination is considered direct or indirect and therefore whether it can be justified. Maqbool Javaid, solicitor and Human Rights Advocate, questioned whether the case law drew the correct line in this respect or whether certain manifestations should in fact be regarded as the religion itself.

Hanne Stinson, executive director of the British Humanist Association, took the opportunity to remind the audience that those who do not have a religion are also protected by the legislation and this should be reflected in the practice of employers and policy makers.

Finally, John Wadham from the Commission for Equality and Human Rights queried whether the underlining approach to religious discrimination was correct. The dawning of the Equality Bill offers the opportunity to reconsider our approach to discrimination law. Are we in fact carrying out a balancing exercise between conflicting rights and should this be reflected in the legislation?

Certainly, the talk raised many more questions than it answered, but they are questions worth asking. They are also questions that justified the train fare and the early morning.

A change is as good as.........

This week I thought I would continue with the Disability Discrimination theme having just got back from an all day conference on the DDA in London.

The speakers certainly backed up the view that until the law is amended the scope for ‘reason relating to’ discrimination is going to be very narrow. It is now important for employees and employers alike to concentrate on the question of reasonable adjustments because the Tribunals certainly will be.

As always the temptation to leave these all day seminars a little early is very high! If I had gone off to do some shopping I would have missed Dr Margaret Samuel’s very good presentation on stress management. Dr Samuel is the Chief Medical Officer at EDF Energy.

I certainly can’t cover all she said in this blog. Her talk focussed on prevention rather than cure. EDF had put in place an action plan to deal with stress including a self referral scheme for those persons who felt stressed. Prior to the plan being implemented in 2003 over half of their employees identified their stress as being work related. Four years later this had been halved with only 24% of the employees identifying work as being work related.

Of most concern to employers should be the fact that EDF identified change and change management as a major cause of work related issues. Having identified change as a problem EDF then set about doing something about it. Part of their strategy was what was described as a resilience enhancement program. This better equipped the workers and managers to deal with change and lead to a fall in change related stress.

In these times of change it would serve employers well to take a closer look at what can be done in relation to stress management. A good starting point is the HSE website (see link below).

http://www.hse.gov.uk/stress/index.htm

Peter D