February 2012 Archives

The Government has published legislation making a further raft of changes to employment tribunal procedure, covering witness statements, costs and deposit orders, and witnesses' expenses. The changes made in the Employment Tribunals (Constitution and Rules of Procedure)(Amendment) Regulations 2012 (on the UK legislation website) apply to claims submitted to the employment tribunal on or after 6 April 2012. The changes are:

• Witness statements: For claims submitted to the employment tribunal on or after 6 April 2012, witness statements are normally to be "taken as read". Unless an employment judge directs otherwise, a witness statement stands as the evidence-in-chief of the witness concerned and is no longer read out in its entirety.
• Deposit orders: Judges can order deposits to be paid only in pre-hearing reviews, with a £500 limit. For claims submitted to the employment tribunal on or after 6 April 2012, employment tribunal judges are 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.
• Costs orders: The maximum sum that tribunals have the power to award under costs awards and preparation time orders is £10,000. There is no cap for wasted costs orders. For claims submitted to the employment tribunal on or after 6 April 2012, the maximum costs order that can be awarded increases from £10,000 to £20,000.
• Witnesses' expenses: For claims submitted to the employment tribunal on or after 6 April 2012, the option for parties, their witnesses and any voluntary representatives to apply to an employment tribunal to recover some of the travelling costs and other expenses associated with attending a tribunal hearing to give evidence is removed. However, employment tribunals are able to direct that the parties bear the costs of a witness attending a tribunal hearing where his or her attendance is pursuant to a witness order, and that the losing party reimburses the winning party for any such costs that have already been paid out.

A round-up of links to news items on employment tribunal rulings in the week beginning 20 February 2012, including a gay black police officer who has had his allegations of racism and homophobia against the Metropolitan Police upheld.

Gay black police officer wins discrimination case (on the Guardian website) A gay black police officer who accused Scotland Yard discrimination has won his case at an employment tribunal, which also found that another officer deliberately leaked a "distorted account" of the claim to the Sun newspaper.

We round up what caught Tribunal Watch's eye on Twitter in the week beginning 20 February 2012, including suggestions that the Chancellor George Osborne is considering a relaxation of employment protection legislation to stimulate business growth, and is under pressure to do so in the Budget on 21 March 2012.

Chris Grayling, Minister at the DWP, has said that it is his “hope that every employer in the UK, in deciding if they are going to recruit in the next few months, will put young UK unemployed people at the top of their recruitment priority list”.

He was talking about the problems faced by UK candidates, who may “be up against someone…from Eastern Europe, who is five or six years older, who has got work experience already and [is] quite an attractive recruitment option for the employer”.

In case any employers out there are minded to take this advice from (in case you missed it the first time) a Minister at the Department for Work and Pensions, please don’t, or you will be committing unlawful discrimination on the ground of race against non-UK job applicants.

When it was put to Mr Grayling that his proposal might be contrary to discrimination law, he said: “I simply hope that the choices that employers make in this country will be to give young unemployed British people a chance, so it would be bizarre if I didn’t say that…”

I, on the other hand, think that it would be bizarre for a Minister at the DWP to encourage employers to make “choices” that would constitute race discrimination.

Actually, now I think about it further, Grayling’s exoration for employers to put “young UK unemployed people” at the top of their recruitment lists is very suspect…(cough age discrimination cough)…probably best ignore that bit of advice too.

A round-up of links to news items on employment tribunal rulings in the week beginning 13 February 2012, including a £30,000 award for a Cambridge scientist who was involved in designing the world's biggest telescope. He said that he was forced to resign after a heated argument with an astronomer who described him as a "research assistant" during a meeting.

Cambridge scientist awarded damages after "barrage of yelling" from astronomer (on the Daily Telegraph website) Dr Andrew Faulkner, a Cambridge scientist who designed the world's biggest telescope, has been awarded £30,000 damages after he was yelled at by an astronomer.

We round up what caught Tribunal Watch's eye on Twitter in the week beginning 13 February 2012, including the controversial Employment Appeal Tribunal (EAT) decision in University of Stirling v University and College Union EATS/0001/11 (on the BAILII website) suggesting that, when deciding how many employees have been made redundant for collective redundancy consultation purposes, fixed-term employees whose contracts are to expire on the intended date, but not renewed, are not counted.

The Government's controversial increase in the qualifying period for claiming unfair dismissal from one to two years has moved a step closer with the publication of draft legislation that comes into force on 6 April 2012.

A couple of important points to note from the draft Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 (on the UK legislation website) are:

• The change will not be retrospective. Therefore, the current one-year qualifying period will continue to apply to employees who started employment with their employer prior to 6 April 2012.
• A consequence of this change is that the qualifying period that applies to the right to receive a written statement of reasons for dismissal (which applies in most cases) also increases from one year to two years for employees who start work with their employer on or after 6 April 2012.

The Government has also published the draft legislation to enable employment judges to hear unfair dismissal cases sitting alone. The draft Employment Tribunals Act 1996 (Tribunal Composition) Order 2012 (on the UK legislation website) take effect on 6 April 2012.

Photo: planeta

A round-up of links to news items on employment tribunal rulings in the week beginning 6 February 2012, including 1,100 women winning an equal pay dispute against Sunderland City Council, which faces a £30 million payout.

Women win £30million equal pay fight (on the Sunderland Echo website) A multimillion-pound bill is set to be handed to Sunderland City Council after 1,100 women won an equal pay dispute.

We round up what caught Tribunal Watch's eye on Twitter in the week beginning 6 February 2012, with decisions in several appeal cases putting religious and sexual orientation discrimination in the news again. These include:

• an Employment appeal tribunal decision that a gay lawyer who discovered a homophobic comment in case file was discriminated against;
• a Court of Appeal judgment that Christian B&B owners discriminated against a gay couple by turning them away; (on the Guardian website); and
• a High Court ruling that councils have no statutory rights to hold prayers at meetings (on the Guardian website).

XpertHR has also published a new good practice guide on sexual orientation [subscription required] to help employers to identify the actions that they can take to build an inclusive workplace for lesbian, gay and bisexual (LGB) employees, while supporting the needs of the business. We also discuss sexual orientation discrimination on our XpertHR Weekly podcast.

BIS has confirmed to XpertHR that some of the Government’s radical proposals for tribunal reform will come into force on 6 April 2012.

The changes are:

• an increase in the maximum amount of a deposit order from £500 to £1,000;
• an increase in the maximum amount of a costs order from £10,000 to £20,000;
• witness statements to be taken as read unless the tribunal directs otherwise; and
• employment judges hearing unfair dismissal cases alone unless they direct otherwise.

On 8 February 2012, Fabio Capello’s reign as England manager came to an end when he resigned from his position with the FA over the John Terry affair (for my blog about the employment issues relating to Terry’s charge of using racist language, see here). Although some England players on Twitter, such as the outstanding Kyle Walker and the injured Jack Wilshere, expressed sadness about Capello’s departure, the general reaction in the media - and around the water cooler here at XpertHR - seems to be less sympathetic (“I don’t care”, remarked one non-football fan).

Attention has swiftly turned to the identity of Capello’s successor, with Harry Redknapp the odds-on favourite, particularly after he was cleared yesterday of charges of tax evasion.

If Redknapp’s the person that the FA think is best for the job, then that’s fine (although as a Spurs fan, I hope they don’t). But there has been a longstanding perception that, regardless of the identity of the successful candidate, the FA wants an English manager this time around. This sentiment is expressed in many places by many commentators, but most notably by Adrian Bevington, the FA’s director of communications.

Way back in August 2010, when the pathetic debacle that was England’s World Cup campaign was still a fresh and horrifying memory, Bevington said: “I think the English team should be managed by an English manager in the future”, and that this “is the view in the discussions I have been involved in”.

Unless you go out of your way to avoid all things football related, you’ll know that John Terry (defensive bulwark and captain of both Chelsea and England) faces a criminal charge of using racist language towards a fellow professional (Anton Ferdinand, defensive bulwark of Queen’s Park Rangers and, formerly, England Under-21s).

Dealing with an employee who has been charged with a work related criminal offence is a tricky area for employers. Although the nature of Terry’s job complicates matters, as with any other employer in this type of situation, Chelsea must still deal with the employment law aspects. Where an employee is charged with a work related criminal offence, the employer must decide whether to begin its own investigation or await the outcome of the criminal proceedings.

A round-up of links to news items on employment tribunal rulings in the week beginning 30 January 2012, including the former head of legal services at Stafford Hospital being awarded more than £100,000 for unfair and wrongful dismissal.

Sacked Stafford Hospital lawyer awarded £100,000 payout (on the BBC website) The former head of legal services at Stafford Hospital has been awarded more than £100,000 for unfair and wrongful dismissal.

We round up what caught Tribunal Watch's eye on Twitter in the week beginning 30 January 2012, including an HR manager who is seeking £800,000 in damages from her former employer for stress she claims was brought on by overwork (on the Metro website).

Find out more about the the typical ratio of HR practitioners to employees [subscription required] in XpertHR's 2011 research on HR roles and responsibilities.

The limit on the amount of the compensatory award for unfair dismissal increases from £68,400 to £72,300 on 1 February 2012.

Other changes coming into force on the same date through the Employment Rights (Increase of Limits) Order 2011 (2011/3006) include:

• an increase in the maximum amount of a "week's pay" for the purposes of calculating a basic or additional award of compensation for unfair dismissal or redundancy payment from £400 to £430; and
• an increase in the maximum amount of guarantee payment payable to an employee in respect of any day from £22.20 to £23.50.

The new limits are applicable where the event that gives rise to the award or payment occurs on or after 1 February 2012.

Photo: Christina Welsh