In employment law terms 2018 has been another busy year with decisions on whether injury to feelings compensatory awards for detriment in asserting working time claims was payable, the EAT redefining ‘cancer’, gay cakes, Uber ‘employees’, payroll data breaches and after party punch ups triggering vicarious liability, to name but a few; as well as new legislation, usual annual increases, new Presidential Guidance and new ACAS Guidelines on Religion and Belief Discrimination, Overtime and References.
Its not just the changes which have been fast paced. The latest statistics from the MoJ (for the period April- June 2018) show that the number of single claims lodged has increased by 165% compared to same quarter last year; and the number of single claims outstanding rose by 130% compared with the same quarter last year. In March it was reported by ACAS that early Conciliation notifications were up 500 per week since the fees ruling last summer. With the increase in work, the MoJ launched a recruitment exercise for more salaried employment judges.
Taking all of that in to account, I am often asked at the moment what the future holds for us. There are three particulars areas to consider.
The first is whether tribunal fees are coming back? In short answer I say- ‘never say never!’ The Unison decision (R (on the application of unison) v Lord Chancellor [2017] UKSC 51) at the Supreme Court which led to fee abolition was successful because of the level the fees were set at, which was held to be ‘oppressive’ and disproportionate, causing an impediment to access to justice, as well as being discriminatory. The principle of fees itself was not the issue. This leaves open the possibility for a future reintroduction of fees at a more proportionate level. It was reported on Wednesday 7th November in the Law Society Gazette that Employment Tribunal fees may be resurrected. Richard Heaton, permanent secretary at the MoJ was answering questions from the House of Commons Justice Committee, when he said that it was being considered and that: ‘there are no immediate plans to reintroduce a fee scheme. What we are not trying to do, is squeeze as much income as we can out of every litigant’. Watch this space!
With Brexit hogging the news and commanding so much attention at the moment, causing uncertainty and division, you will be reassured to know that in my opinion it is unlikely to mean any real changes for employment law. This is because all major rights, such as Unfair Dismissal, Wrongful Dismissal, right to a redundancy payment etc all flow from our common law and are home grown with no EU dimension whatsoever. In fact our rights here in the UK are quite sophisticated, for example Spain does not even protect against unfair dismissal. Whilst TUPE was an EU inspired instrument, the 2005 Regs were a home-grown measure and the consultation on Service Provision Changes conducted by the Government last year showed no desire from employers to see this go, in fact 80 % were in favour of retaining it. Every year one million people transfer under the TUPE Regs in UK. The Government’s response to that consultation was that even if did change TUPE, they would need as long as a five-year lead in to allow current contracts to end and allow for increased pricing in newly tendered ones.
So if Brexit is not going to see much change in Employment Law here in the UK, what is on the cards for next year? Well, there is at present a consultation paper entitled ‘Reforming Employment Hearings’, issued by the Law Commission which seeks views on extending limitation periods to 6 months (mostly), raising or removing the £25,000 limit for Breach of Contract claims and allowing claims to be heard by the tribunal whilst employees are still employed, whether the tribunal should have power to allow multiple Respondents to seek contributions from each other, giving the Employment Appeal Tribunal jurisdiction to hear appeals from the Central Arbitration Committee on issues of union recognition (removing the need for these cases to be Judicially Reviewed) and, amongst other things, allowing tribunal Judges to sit in civil courts when hearing discrimination claims/creating an ‘employment and equalities’ list of specialist judges. The consultation closes on 11th January 2019 so it’s a case of wait and see, but if some or all of these changes were implemented we would, in my view, see the biggest changes in tribunal jurisdiction for the last 30 years.
What a year 2018 has been; what awaits us in 2019, only time will tell.
If you require specialist employment advice from Sarah Hornblower, please contact her clerk, Josh Warren, on 01392 274898 or email joshuawarren@colletonchambers.co.uk