March 2011 Archives

In the penultimate entry in our series on particular aspects of the Government's employment tribunal proposals, we look at proposed changes to deposit orders.

What are the proposals?

Employment tribunal judges would be able to order claimants at any stage to pay a deposit of up to £1,000 if they believe that weak claims are being pursued. Currently, judges can order deposits to be paid only in pre-hearing reviews and the limit is £500.

Key points of the proposals

• Deposit orders (which can be made only in pre-hearing reviews) require a party (either the claimant or the respondent) to pay a sum of up to £500 as a condition of being permitted to continue to pursue all, or any part, of their respective claim or response.
• The judge can require a deposit to be made if any contentions put forward by a party have "little reasonable prospect of success".
• The cap on deposit orders would be increased from £500 to £1,000.
• Employment judges would have the power to make deposit orders at any stage, not just at pre-hearing reviews.
• The consultation questions whether or not it would be possible to amend the test to be met before deposit orders can be made, either by changing the test itself or introducing clear criteria underneath the "little reasonable prospect of success" test.
• Equivalent powers for the EAT to levy deposit orders would be introduced.

Acas has generally welcomed the Government's proposals for employment tribunal reform in its official response to the consultation (on the Acas website), but has reservations about aspects relating to excluding multiple claims from the conciliation plans; giving Acas a "power" to offer post-claim conciliation; and employment judges sitting alone more often.

General Acas approval for proposals

Not surprisingly, Acas describes its pre-claim conciliation service as "a highly effective way of resolving disputes before they reach an employment tribunal". It supports the proposal that all claims would have to be submitted to Acas in the first instance, rather than the Tribunals Service. Although pre-claim conciliation would not be mandatory, claims could only proceed if they have been with Acas for one month.

Acas gives the average cost of resolving a claim pre-claim conciliation for employers as £475 (compared to £5,685 in an employment tribunal) and for employees as £78 (compared to £2,929 in an employment tribunal).

On the XpertHR Weekly podcast, we are joined by special guest, employment law trainer and XpertHR consultant editor, Darren Newman, who takes us through the positive action provisions in s.159 of the Equality Act 2010. He identifies possible problems with it, and the resulting uncertainties and legal risks for employers taking positive action.

From 6 April 2011, s.159 of the Equality Act 2010 will, in defined circumstances, permit an employer to appoint a person (A) with a protected characteristic in preference to another person (B) who does not have the protected characteristic. Section 159 permits, rather than requires, an employer to take positive action.

A round-up of links to news items on employment tribunal rulings in the week beginning 21 March 2011, including an employment tribunal ruling that senior officers ignored the warnings of three armed policemen that a sergeant's affair with a female colleague was jeopardising the safety of their unit.

In the latest in our series on particular aspects of the Government's employment tribunal proposals, we look at proposed changes to the costs regime.

As well as announcing that the dual discrimination provisions under the Equality Act 2010 will not come into force, the Government has pulled a surprise by using the 2011 Budget to trail a consultation that it is to run on the repeal of provisions covering third-party harassment.

The Equality and Human Rights Commission (EHRC) will retain its important function in bringing, or supporting individuals to bring, test equality cases, but will have to be more transparent and accountable about the cases that it chooses, under proposed reforms to the EHRC's role.

Updated 20/06/11: According to the Bedford Today website, Dr Donoghue has withdrawn his claim, which is a shame, as I was hoping to use the headline above in a case write up in due course.

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A zookeeper claiming constructive dismissal has alleged that he warned his employer that an elephant could escape only weeks before it actually did so, reports the Daily Mail website.

A round-up of links to news items on employment tribunal rulings in the week beginning 14 March 2011, including a ruling that a teacher who helped pupils to read by writing them in to a raunchy novel was not unfairly dismissed.

In our latest look at particular aspects of the Government's employment tribunal proposals, we look at plans to introduce a fee for bringing an employment tribunal claim.

Our round-up of employment tribunal claims involving violence in the workplace [subscription required] show how employers that have to deal with allegations of violence might face unfair dismissal claims.

An office manager has been awarded a "five-figure sum" for sex discrimination after she was made redundant when she got pregnant again while still on maternity leave, reports the Daily Mail website.

A round-up of links to news items on employment tribunal rulings in the week beginning 7 March 2011, including a Belfast care worker found to have been subjected to sex discrimination by her former employer for its failure to provide her with a reference.

In this week's entry in our series on particular aspects of the Government's employment tribunal proposals, we look at planned changes to employment judges' role.

An employment tribunal has found that an animal rights activist's views on fox hunting amount to a philosophical belief under employment legislation prohibiting religion or belief discrimination, reports the Daily Telegraph website.

Only a handful of respondents to the CIPD conflict management survey (on the CIPD website) say that the possibility of having to deal with unfair dismissal claims has discouraged them from recruiting. The CIPD's finding seems to undermine the Government's argument that raising the service qualification for unfair dismissal claims to two years will encourage employers to recruit more freely.

A round-up of links to news items on employment tribunal rulings in the week beginning 28 February 2011, including an unsuccessful unfair dismissal claim by a broker sacked after pulling out of a relocation deal when she discovered that her husband was planning to divorce her as soon as they arrived in America.

In our series on particular aspects of the Government's employment tribunal proposals, we look at the suggestion that witness statements should be "taken as read".

Tim Gilbert, UK managing director of Ambition provides a guest blog post on XpertHR Tribunal Watch on the proposed employment tribunal reforms. Ambition is a leading, specialist London recruitment consultancy offering a wide range of London jobs to professional and experienced candidates.

If you'd be interested in contributing a guest blog post to XpertHR Tribunal Watch on your views of the reforms (or, indeed, anything that you think should have been included, but wasn't), please get in touch, via email, Twitter, or the comments box of this entry.

The most common form of discrimination claim going to the Employment Appeal Tribunal (EAT) is disability discrimination, with the claimed disability most typically taking the form of mental health problems, while age and religion or belief discrimination cases are among the most challenging for the EAT, according to the Senior President of Tribunals' annual report (PDF format, 1.3MB) (on the Tribunals Service website).