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Challenging Unions... 
The Judicial Review granted to Unison to challenge the Governments implementation of Tribunal Fees was heard by the High Court in late October. The Union were granted leave to bring forth this challenge on a number of legal arguments, which can be summarised as: 
In accordance with EU Law, national courts must not make it virtually impossible or excessively difficult to exercise individual rights conferred by European Community Law. When considering litigation a reasonable person will calculate whether the likely costs of proceedings outweigh the benefits and the new fee regime will impose fees which will often be greater than the expected compensation. 
Fees are not payable at all in most claims brought to the first-tier Tribunal; a similar Tribunal at the equivalent level in the judicial hierarchy to the Employment Tribunal. It is a breach of the principle of equivalence to require significant fees to be paid to vindicate EU rights where no fees are required to vindicate similar rights derived from domestic law. 
There has been no proper assessment of the Public Sector Equality Duty. An assessment should then have been made to the potential adverse effect of introducing fees in terms of the numbers and proportions of claims brought by individuals with protected characteristics which would previously have been brought and will now not be pursued. 
Indirect discrimination; charging prohibitively high fees to pursue such claims will have a disproportionate adverse impact on women. Given that women will not, provided they earn an average income, be entitled to any remission of the fees. 
Analysts are predicting that the Union will be unsuccessful with their challenge, but if they do succeed it is predicted that chaos will ensue as the fees which have already been paid to take a claim to the Tribunal will have to be refunded. The outcome is expected to be known later this month and we will report back next month. 
At the same time as this is on-going, the Trades Union Congress (TUC) has lodged a formal complaint with the European Commission; the basis for this complaint is that the Agency Worker Regulations, which have now been in place within the UK since October 2011, which it is alleged by the TUC do not properly implement the EU Temporary Agency Workers Directive. Specifically, the TUC argue that: 
the ‘Swedish Derogation’ goes beyond the Directive 
the definition of pay is too narrow and; 
hypothetical comparators should be allowed 
If the TUC are successful and it is found that the UK has not implemented the Directive correctly, it is likely to result in some changes being made to the Regulations in the coming months. Again, this is another case of ‘watch and see’ and we will report once we have any further information on this. 
Non-Payment of Tribunal Awards 
Research has suggested that over half of those claimants awarded a pay-out by an Employment Tribunal do not actually receive what they have been awarded. As a consequence, the Employment Relations Minister, Jo Swinson is considering a range of measures to take action against those employers who do not make these payments. The measures under consideration include: 
Implementing ‘fixed penalty’ notices where payment is not made 
‘Naming and shaming’ those employers who fail to make the payments 
Making further changes to Employment Tribunal Rules to give Tribunal Judges powers to demand deposits from employers who they believe may ultimately not pay up 
Ensuring that individuals are informed of what enforcement action they are entitled to take if they do not receive the payment they are owed. 
In addition, the Government is also looking at what can be done to ensure claimants receive their payments when their [former]-employer has gone out of business; this will include awareness of an individuals’ right to make an approach to the ‘Redundancy Payments Service’, who are already able to pay certain elements of a Tribunal Award, as well as taking action against those Business Directors who they consider to be deliberately evading their responsibilities. We will continue to monitor how this story progresses. 
Tribunal Fees Remission System 
Whilst we wait to hear the outcome of the Judicial Review, Tribunal Fees will remain in place and alongside these, a system of ‘fee remissions’ has now been put in place and the eligibility for this clarified. This system means that those claimants who are on low incomes will either be exempt from paying the fees entirely or will only have to make a contribution towards the fees. The system will only be available to individuals and not to businesses and other organisations (which presumably means that it will not be applicable to those individuals who are being supported in their claim by Trades Unions or other bodies). 
To demonstrate their eligibility for partial or full remission of Tribunal fees, individuals must pass two tests: 
a disposal capital test 
a gross monthly income test (which will exclude certain benefits) 
In addition, the resources of a claimant’s spouse/partner will also be taken into account, unless it can be shown that they have a contrary interest in the proceedings. Applicants wishing to claim under the remission system should do so at the time that they would ordinarily make the payment of the fee for the Tribunal, although the system does incorporate a 3-month period in which retrospective claims can be submitted. 
For individuals who fail to get through the two tests and who end up paying the fee, there may be provision for them to be awarded a sum to reimburse them for the fee paid if they are ultimately successful in their claim at Tribunal. A summary of the two tests is given below: 
Disposable Capital Test 
This includes every resource of a capital nature belonging to the claimant and their spouse/partner (if applicable) which is held by them on the date that the remission application is made unless it is either income or regarded as excluded disposable capital. Included within this category are savings, investments and redundancy payments; excluded though are any compensatory payments for unfair dismissal or personal injury. 
Amounts above identified thresholds will render the individual as ineligible for a remission of fees; however, individuals will not be required to provide evidence of their disposable capital, but will instead be required to sign a ‘statement of truth’ declaration on the application. The thresholds that will be applied are: 
Fees of up to £1,000 – disposable capital should not exceed £3,000 
Fees between £1,001 - £4,000 – disposable capital should not exceed £8,000 
Fees over £4,000 – disposable capital should not exceed £16,000 
For claimants over the age of 61, there is a single threshold of £16,000 irrespective of the level of fee. Once an individual has demonstrated that they pass the disposable capital test, they will then undergo the second test... 
Gross Monthly Income Test 
The second of the two tests is based on the gross monthly income of the claimant and their spouse/partner (if applicable) and determines whether they are entitled to receive a full or partial remission. This test is taken from the total monthly income for the month before that in which the application for remission is made and includes all income into the household, with the exception of certain excluded benefits. 
The range of gross income goes from £1,085 per month for a single person to £1,735 per month for a couple with children. The threshold is increased by £245 for each extra child, though children will only count if they live with the claimant or if the claimant is responsible for paying for their maintenance. Unlike the disposable capital test, applicants will be required to provide evidence for this test and individuals whose income exceeds the relevant threshold will pay a contribution to the relevant fee in the amount of £5 for every £10 of their income which is above the threshold. 
Again, the outcome of the on-going Judicial Review will impact upon this system and we will report back as and when the outcome of that process is known. 
Zero-hours Contracts... An Update 
The frenzy surrounding this issue appears to have died down a little since our report in August; however it has not gone away. We don’t yet know when the Consultation on the use of these contracts will commence, but we have now got from the Business Secretary, Vince Cable, some indication of where the Governments’ thinking is heading. It has been suggested that some of the ideas being floated around include: 
A ban on clauses which require individuals to work exclusively for the employer, enabling them to take up secondary employment elsewhere 
An obligatory code of conduct for employers using zero-hours contracts, to which they must comply 
An automatic transfer onto an open-ended employment contract after a worker has been on a zero-hours contract for a specified period of time. 
It will be interesting to see how these suggestions are greeted by employers and the Trades Unions and we will continue to monitor developments in this area. 
Subject Access Request 
A Code of Practice has been published by the Information Commissioner, which provides Data Controllers working in Organisations, guidance on handling ‘Subject Access Requests’ made under the Data Protection Act by individuals in respect of personal information held about them. The Code is not mandatory for employers, but does go beyond the strict parameters of the Act and keeps Data Controllers legal, as well as enabling them to work within best practice guidelines. 
The maximum fee that can be charged for a Subject Access Request is £10 and once a request is made, the Organisation has a maximum of 40-calendar days to respond to the request. All requests should be made in writing and Organisations cannot ask requester to complete a specified form before they will respond; it is important for employers to note that the request does not have to refer to it being a ‘subject access request’ nor of it being made under the Data Protection Act, it just merely has to be in writing and be a request for information about an individual, made by or on behalf of that individual. 
The Code also provides advice on dealing with bulk requests and how to manage the potential impact on resources of such a request. 
Equality Act Consultation 
Within this Act, there is a provision to include ‘caste’ (or ‘social standing’ within the Hindu and Sikh communities) within the definition of ‘Race’ at some point in the future, thus confirming it will become a ‘protected characteristic’ under the Act. It has been announced by the Government that a consultation document in respect of this will be produced in early 2014; with a view to the legislation being introduced in the summer of 2015. However, any change to this legislation is unlikely to happen before the next General Election; so it seems the progress of this provision will be very much dependent on the outcome of that Election
Although still awaiting Parliamentary approval, the new RIDDOR regulations (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) are expected to come into force on the 1st October 2013. The changes will result in fewer incidents which need to be reported and a simplification of the reporting requirements in the following areas: 
The classification of ‘major injuries’ is replaced with a shorter list of ‘specified injuries’ 
The existing schedule of 47 types of industrial disease will be replaced with eight categories of ‘reportable work-related’ illness and; 
Fewer types of ‘dangerous occurrence’ will need to be reported. 
The Health & Safety Executive has stated that there are no significant changes to the reporting requirements for: 
Fatal accidents 
Accidents for non-workers 
Accidents which result in an absence of more than 7-days. 
Auto-Enrolment - Changes to Regulations 
The Department for Work and Pensions has announced a number of changes that will be made to the auto-enrolment regulations which have been implemented on 1st November 2013, with those on the joining window and registration deadlines coming into force from 1st April 2014. 
A summary of the changes include: 
Alternative definitions of pay reference periods for both assessing jobholder status and determining whether a scheme is a qualifying scheme e.g. moving to tax weeks or tax months 
The automatic enrolment joining window is extended from one month to six weeks 
Deadlines for postponement notices and providing information to individuals on their opt in and joining rights are extended to six weeks 
Deadlines for registration will be extended from four months to five months 
The extended deadline for passing worker contributions to a pension scheme applies to all new joiners (including contract joiners) 
The opt out notice provisions make clear that schemes can customise notices 
There is greater clarity and consistency concerning the requirements for defined benefit test schemes in relation to the appropriate age, service limits and revaluation that apply in those schemes. 
The Pensions Regulator is currently in the process of updating their detailed guidance in response to these changes and further information can be found here
And finally... 
This month it has been reported that Sharon Shoesmith is in line for a pay-out of £600,000 following the settlement of her judicial review into the OFSTED report, the actions of the Secretary of State and ultimately her dismissal actioned by Haringey Council. Shoesmith was Head of Children’s Services in Haringey at the time of the ‘Baby P’ scandal and was dismissed as a consequence of a report conducted by OFSTED and commissioned by the Education Secretary at that time; the dismissal having taken place just one day after the report was concluded. 
The full details of this settlement will probably never be known as a ‘confidentiality clause’ is in place within the agreement; however it is unlikely that had she brought a straightforward claim for unfair dismissal through the Employment Tribunal, that she would have received anywhere near that amount. 
Irrespective of the finer details of this particular case; it serves as a timely reminder for employers that following a fair and just process when arriving at a decision to dismiss an employee is equally as important as the reason for that dismissal. 
Cases of Interest 1 ~ Corporate Manslaughter 
Murray and Sons, an animal feed mixing company based in Northern Ireland have been fined £110,000 after pleading guilty to a charge brought against them under the Corporate Manslaughter and Corporate Homicide Act 2007 and is the fourth such conviction since the implementation of the legislation. 
In this case, Mr Porter an employee of the Company was killed when he either fell or was dragged into an animal feed mixing machine, having caught his clothing on the machinery. The Health & Safety Executive found that the Company had been operating the machinery without the proper safety guards being in place for a period of three-years at the time of the accident. 
Charges were also initially brought against one of the Directors of the Company, but it was decided not to pursue these. Due to their somewhat unstable financial situation, the Company have been allowed to pay the penalty in instalments of £20,000 so as to avoid the need to make cuts to the numbers of employees. 
Following on from this, in October the Crown Prosecution Service recommended that charges should be brought against a recycling company based in Rotherham under the same Act, following the death of one of their employees. In addition, it seems likely that a number of key operational staff, including; the Maintenance Manager, Operations Manager and Operations Director may also face charges under section 7 of the Health and Safety at Work Act 1974. We will bring you further news on this case as the outcome becomes known. 
Cases of Interest 2 ~ Working Time Regulations - Holiday Pay 
As if calculating holiday pay wasn’t complicated enough already, a recent Employment Tribunal case, may be about to make this process even more complicated... An appeal against this decision has been allowed, so whilst employers would be advised to start thinking about the implications of this decision for them, they are cautioned against making any wholesale changes until the outcome of the appeal is known, lest the position reverts back to current... 
The case is Neal v. Freightliner and the facts of the case are... Mr Neal was contracted to work 35-hours per week and was required to work overtime when this was necessary. In the event, he was regularly rostered by his employer to work up to 9-hours each day and sometimes up to 12. Whilst he was paid enhanced overtime for these additional hours, he believed that as the hours were rostered as opposed to being ‘voluntary’, his holiday pay should be calculated on his actual pay, rather than his basic pay. 
His employer argued that the overtime was voluntary and his holiday pay had been calculated correctly; based on the Working Time Regulations, which state that ‘holiday pay is calculated on the basis of an employees’ normal working hours and a ‘week’s pay’’. The Regulations specifically exclude ‘non-contractual’ hours of work; thus excluding overtime which is not guaranteed or is worked voluntarily. 
The Tribunal determined that that the ‘Working Time Regulations’ did not adequately implement the European Directive on Working Time and that ‘Mr Neal’s hours were ‘intrinsically’ linked to the his performance in the role; it was irrelevant whether or not the overtime was voluntary, it was ‘controlled by the employer’. In reaching this determination, the Tribunal ruled that Mr Neal had been underpaid in respect his holiday pay and that this underpayment went back to 2007, when he was first employed. The parties in this case have now settled out of court, but the judgement is still being appealed and it is hoped that this will clear up the confusion arising out of this case. 
If the decision is allowed to stand; it could open the way for claims going back to 1998, when the Working Time Regulations were introduced. Although claims will be limited to only those who are still employed or those who have recently left employment, as any claim will have to be brought within 3-months of the date of the last underpayment. However, it is possible that the Appeals Courts may throw out the decision or may restrict the scope of the decision or provide different guidance on how holiday pay should be calculated... For now, it’s a case of ‘wait and see’!!! 
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