Good Riddance to Employment Tribunal Fees

Well, it’s been a long time coming, but the Cameron Government’s decision to charge fees for people to raise claims in the Employment Tribunal has finally been shown to be illegal.

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In a landmark ruling, the Supreme Court has ruled that charging people up to £1200 so they can challenge the legality of their employer’s actions is illegal.

Fees were never introduced in Northern Ireland, and it is notable that there was no drop off in the number of applications to go to their Industrial Tribunal.  Meanwhile, across Great Britain, ET applications plummeted by 70%.  In Scotland, the SNP Government stood for election in 2015 with a pledge that, as soon as they had the power to do so, they would legislate to remove Employment Tribunal fees, justifying this on the premise that someone who has just unfairly lost their employment is unlikely to be able to find the money and will, therefore, be denied access to justice.

Introduced in 2013, fees were initially justified as being to reduce the number of “weak claims”, though a financial incentive later became apparent with the Justice Minister at the time stating

We want people, where they can, to pay a fair contribution for the system they are using, which will encourage them to look for alternatives.

That case was never particularly convincing and the result, inevitably, was that many people with a valid claim were unable to bring it because they couldn’t pay the fee.

Alongside the fees, the Cameron Government also introduced mandatory Early Conciliation.  This is a process whereby the parties, with facilitation by ACAS, can try to reach an out of court settlement and is something applicants have to do before they can complete their ET application.  Although there’s nothing wrong with this in principle, my experience of it wasn’t good.  I have found few employers prepared to negotiate towards a settlement, preferring to gamble on whether or not the applicant could find enough cash for the fee.  Perhaps, with fees now found to be illegal, there will be a greater incentive for all sides to take a more pragmatic, conciliatory approach.

Dave Prentis, the UNISON General Secretary, welcomed the Supreme Court ruling saying:

The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.

In this context, the positive role of trade unions shouldn’t be underestimated, and not just because it is through UNISON’s expertise and persistence that this ruling has been achieved, but more locally and practically as well.  A well-trained union rep can defuse and head off the vast majority of cases referred to them, most often through facilitating a pragmatic solution, sometimes through persuading an individual that their case doesn’t stack up.  As an example, this leads to a significant reduction in the number of cases going to grievance, and those that do proceed tend to be much better presented.  This is something that many employers could easily miss.

That principle also filters through to ET applications.  Unions take great care in presenting cases, cases they support are exceptionally unlikely to be regarded by the Tribunal as “malicious, vexatious or frivolous” or “in bad faith”, and a significant proportion are successful.

Of course, most trade unions opted to pay these fees for their members, but many, many people who weren’t in a union must have been denied access to justice by this ill-conceived policy.  While it is likely that those who applied to the ET will have their fees repaid, at this stage it seems likely that those who couldn’t afford the fee at the time will have missed their opportunity, but it remains to be seen if any pragmatism will be shown in that respect.

 

I’d be interested to know your thoughts on the issues raised in this article, so please leave a comment or, if you’d like to discuss anything more directly, please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

Trade Unions face big new fines

Trade Unions face big new fines

“The number of working days lost are at historically low levels when looking at the long-run monthly time series back to the 1930s.”

Sneaking past the radar, under cover of Brexit, the Government is running a number of consultations, including ones around the Trade Union Act 2016 and Corporate Governance. The Corporate Governance review deadline has passed, so the gathered information is now being collated and interpreted, but other elements are still in play. The consultation that caught my eye was consultation on the Certification Officer’s enforcement powers. This will introduce significantly tighter rules on the election for senior positions, vetting of candidates and the management of political funds, with unions facing fines of up to £20,000 if they breach those rules.

As is often the case, there’s a stick for when things go wrong, but no carrot to encourage a more positive approach to be deployed. The consultation in process doesn’t seem to be leveling the playing field so much as presenting another set of hurdles for unions to jump in order to be effective in representing the voices of their members.

Only last November Theresa May stated “…we will shortly publish our plans to reform corporate governance, including … proposals to ensure the voice of employees is heard in the boardroom.” at the CBI Conference. She backtracked pretty quickly, and the concept that staff have a valid (essential?) voice in the successful governance of businesses and charities was diluted in the document that was published, but it was still there. There is, therefore, an opportunity for employers to provide a channel for that voice.

And all of this comes at a time when strikes are at close to their recorded low – to quote from the Office of National Statistics report UK Labour Market: Mar 2017:

“The number of working days lost are at historically low levels when looking at the long-run monthly time series back to the 1930s.”

Yet, while CEOs across the land still proclaim their staff to be their biggest asset, most still decline to draw on staff knowledge of the business, the problems it faces and many possible solutions.

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Trade Union Act looms large…

This extremely useful summary by David Morgan at Burgess Paull of the upcoming changes through the Trade Union Act caught my eye, and brought to mind some of the key issues surrounding the Act.

The existence of this legislation in the first place is a bizarre piece of ideological policy making, since it certainly isn’t/wasn’t responding to an actual need. To quote from the Office of National Statistics:

“The 2015 working days lost total (170,000) is not only lower than the total last year, but is the second lowest annual total since records began in 1891 (the lowest was 157,000 in 2005).”

As well as being of questionable need, the legality of the provisions has been questioned in many quarters, but most notably, perhaps by the Governments own Equality & Human Rights Commission. In January last year, the EHCR warned that the provisions may breach international law, stating:

“As it stands, the Trade Union Bill is in danger of imposing potentially unlawful restrictions on everyone’s basic human right to strike. Joining a trade union and peacefully picketing outside workplaces is a right not a privilege and restrictions have to be properly justified and proportionate.”

Although some changes were made before the Bill passed into law, research compiled by the Industrial Law Society suggests that these did little to address concerns in relation to human rights. If this latter article is correct, although we might have expected to see a number of challenges under Article 11 of the European Convention on Human Rights should employers opt to assert the new laws, these cases will be difficult to build and therefore may not emerge. Most of the large unions seem to be focusing their efforts on getting better organised, while experience shows that they will adapt to the new legal framework in spite of the additional inconvenience.

Interestingly, and in stark contrast to the Whitehall position, the Scottish Government announced in November 2016 that it was creating a Trade Union Modernisation Fund “to support modernisation of trade unions and help mitigate the negative impacts of UK legislation.” In that context, it will be interesting to see if there are differences of approach north and south of the border once the legislation has been enacted.

Of course, I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Disciplinary Penalties: You’ll Have Done Your Time?

This is an interesting one.  An  Employment Appeal Tribunal has recently ruled that an employer acted fairly in dismissing someone while taking into account a number of disciplinary issues that were, according to their procedures, ‘spent’.

The case is an extreme one, with the employer having taken 18 formal actions against the individual over a 12 year period.  The employee then did something that carried a mandatory final written warning.  However, the employer decided that the previous disciplinary record, in spite of all penalties having expired, should be taken alongside the latest misdemeanour, leading to their deciding to dismiss the individual.  Most Disciplinary Procedures are quite clear on how long a warning will remain on an individual’s personal file, and most employees will assume that, once that time has passed, they no longer need to worry about the record. There are, however, policies that say a record can be kept longer (even indefinitely) for a range of purposes – possibly the most common being to use as a deciding factor in a redundancy situation, but there are others.

For years, I’ve advised people to make a Data Subject Access Request for their personal information once they’re clear of the penalty, so anything that should no longer be on their employment record will be removed, just in case they get taken into account in any future situation (e.g. redundancy).

One of the problems is that very few companies have the resources to be meticulous about keeping their staff records (or their other filing) absolutely up to date.  The result is that, even if the policies say nothing, records of things that have happened years ago can remain on the file to be seen by whoever next needs to access it.  If that happens to be for a future disciplinary, is it reasonable to expect an investigating officer to ignore that information once they’ve read it?  They may try hard not to consider it but, subconsciously perhaps, they now know this individual has a history.

Even if that history has no relevance to current circumstances.

 

I’d be interested to know your thoughts on this subject, so please leave a comment. Alternatively, if you’ve been affected by a similar issue and would like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

Anti-Bullying Week highlights a growing problem in UK workplaces

Bullying & harassment is a growing problem in UK workplaces, but we shouldn’t accept that as just a fact of life.  

Today is the start of Anti-Bullying week.  Designated by the Anti-Bullying Alliance (ABA), the focus is largely on bullying amongst children, but it also encapsulates issues that arise in the workplace.

What is workplace bullying?

Bully Online define workplace bullying as follows:

Bullying is conduct that cannot be objectively justified by a reasonable code of conduct, and whose likely or actual cumulative effect is to threaten, undermine, constrain, humiliate or harm another person or their property, reputation, self-esteem, self-confidence or ability to perform.

There are loads of other definitions, but they all boil down to very similar messages.

So why bully?

A few of the more commonly reported reasons are:

  • The bully is insecure, possibly because they are being bullied themselves;
  • They feel threatened that someone in their team may be more capable than they are;
  • They’ve been promoted into a management role but have never been properly trained to do it;
  • They are fitting in with the organisational management culture

Experience suggests that many perpetrators are unaware of the longer term emotional impacts of their behaviours.  To someone suffering at the hands of a bully it may seem trite to say so, but challenging the behaviour, and highlighting how it makes you feel as an individual, is often the most effective way to make it stop.  Sadly, the creeping vulnerability that develops when bullying continues unchecked, along with the perceived impossibility of building a case[1], often makes people decide it is easier to either suffer or leave their job.

All too often such behaviour flows from the top, especially from managers who pride themselves on “running a tight ship” or being “robust” in their management – just two of the many terms used to justify behaviour that is actually unacceptable, ones that can flag up the possibility that someone they manage may see their approach as bullying.

Economic Impact

Aside from the human effects, the economic impact is huge.  The performance of those being bullied drops, often they are off sick more frequently, and awareness of what is happening can have a serious impact on wider morale and productivity.  A year ago ACAS published a guide on tackling workplace bullying that referred to 2008 research indicating that workplace bullying costs the UK economy almost £18 billion.  Sadly, their recent evidence is also that bullying is on the rise, something no doubt exacerbated by the continuing economic difficulties facing many companies and organisations.

Let’s hope, for everyone’s sakes, that knowing more about workplace bullying will help to identify it and stop it.

 

 

[1] Of course, there ARE ways of building a case, get in touch if you’d like some advice.

To Mediate or Not to Mediate, That is the Question…

DSCN0199Mediation has been around for a long time, and has been used very successfully in many, many situations.  Despite that, I have found many employers quite slow to adopt mediation as an approach, and often reluctant to put it in place early enough to prevent some situations becoming intractable. In some cases, it seems to be an option of last resort rather than a means to head problems off at the pass.

Part of this seems to come from a lack of understanding of what mediation is and does, part of it from seeing it as an additional expense.  In many cases, those that have tried have done so using internal mediators – while that may work in some situations, staff tend to perceive a mediator employed by their company as having a conflict of interests that means they can’t be impartial.  Whether or not that’s true is irrelevant, the perception is the key to the success of the process, so the results have perhaps not been what might have been hoped.  But the relative costs of employing an external mediator will often pale into insignificance compared to the lost productivity that comes from letting a situation persist or deteriorate.

Interestingly, ACAS research published in 2012 showed that mediation is significantly more successful in workplaces where the employer is genuinely committed to the process, less so where they are reluctant to use it – so the results are, to a large extent, self-fulfilling prophecies.  The paradox is that the statistics also show that mediation is second only to direct communication in successfully resolving issues between employees.

One conclusion from the ACAS research was that one poor result can colour an employer’s view of the value of mediation as a whole.  To a large extent, one of the benefits of mediation is that there is little to be lost in trying it, but please do so with a genuine commitment to find mutually acceptable solutions or it is less likely to succeed.

If you’d like to know more about the mediation and dispute resolution services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.

What Can Strathesk Resolutions Do For You?

Approaching Bass Rock from the south

Strathesk Resolutions specialises in helping businesses to identify, resolve and, ideally, avoid individual or collective problems with their staff through targeted analysis, mediation, training, coaching and mentoring.

We draw on years of experience working collaboratively and constructively to achieve the right outcome to complex industrial relations situations.  We deliver straightforward advice, training and solutions that encourage and develop relationships based on understanding, cooperation and trust.

Our open and honest approach ensures fairness to all sides whilst guaranteeing the needs of both the individual and the organisation are properly considered. Having worked with Trade Unions for years we understand the need for clear and concise communication, whilst influencing and negotiating in an expert manner.

You can expect us to thoroughly explore your problems, ensuring that we properly understand the problem before we start working towards a solution.  We will also keep an open line of communication to ensure that you are fully aware and involved in developing approaches.

Brexit in the workplace – what now?

The long and the short of it is that nothing will change immediately – the impact of European case law remains unchanged, albeit the vast, vast majority of case law originates through the UK’s Employment Tribunal system (primarily at EAT and Court of Appeal).

EU Directives on Employment Law are implemented through enactment into UK Legislation, usually by Regulation, less frequently by primary legislation. In this respect, many of the laws that have originated from the EU have become workplace norms (e.g. protection of fixed-term workers and part-time workers).

There is a risk that more recent and less accepted legislation may be under pressure to be repealed (e.g. Regulations on Agency Workers). There may also be changes over time in relation to the calculation of holiday pay and accrual of annual leave during sickness absence.

No doubt a surprise to many, there are various aspects of Employment Law where the UK provides greater than that stipulated by EU Regulations. This covers holiday rights, protection against discrimination, TUPE (which covers service provision transfer in the UK, unlike elsewhere in Europe), etc.

That said,  companies working throughout Europe and currently depending on UK laws to meet the requirements for a European Works Council may need to review their arrangements.

What about the rights of EU Nationals to work in the UK?  Well, it’s again difficult to say as yet, but special permissions may be needed to work here in future, perhaps with sponsorship, as is the case for non-EU nationals, but in the meantime, EU nationals working here are entitled to stay and continue working. The main protagonists on the Leave side made contradictory statements, so it is difficult to tell what may change, though Theresa May stated a desire to clarify this point quickly, while Nicola Sturgeon has moved to say their position is secure in Scotland.

But what will happen if there are non-UK nationals applying for jobs now? If they are employed, they may be forced to leave in a year or two’s time, but NOT employing them because of that would currently be illegal discrimination.

The UK currently already has a points based system for non-EU nationals which COULD be extended, at least for skilled workers, though Tier 3 (unskilled workers) would need to be reactivated. There hasn’t been a need for non-EU unskilled workers because that gap has been filled from within the EU, but that source is clearly likely to dry up as/when the UK withdraws from the Single Market.  If employers have a need for unskilled workers that they can’t meet from domestic recruitment, this needs to be flagged up with the Government.

The future for Employment Tribunal fees?

Applications to the Employment Tribunal in Great Britain have nose-dived since fees were introduced in 2014. But is it good for 70% more people to bite their lip? And is there an alternative to calling their bluff?

Recent Employment Tribunal figures show that the total number of claims for unfair dismissal in Great Britain fell to 12,652 in 14/15.  Compare this to the 92,000+ unfair dismissal claims in 11/12.  While cause does not necessarily imply effect, the timing of this fall correlates exactly with the introduction of fees for each application to the ET.  The recent figures confirm the trend implied by previous figures since the introduction of the fees, evidence enough to convince the current Scottish Government to announce that, under the new powers in the Scotland Act, and IF they are re-elected in May, that they will withdraw the fees from the Scottish ET (which would bring Scotland into line with Northern Ireland, where the fees were never introduced in the first place).

Few people who take a case to ET return to that employer, even fewer successfully raise a claim and stay employed there. Conversely, the costs of recruiting and training someone new are enormous – the 2015 CIPD/Hay Resource & Management Planning Survey indicates that recruitment costs alone can be up to £10,000, not including training and development.  Compare that to the costs associated with resolving a problem so a member of staff can remain a member of staff.

At the same time, of the unfair dismissal cases that were upheld, the median award was £6,955, a drop in the ocean compared to the legal costs, operational disruption and emotional upheaval involved in a Tribunal – most often, there are no winners.

Far better would be to find a mutually acceptable solution – whether through mediation, developing managers or by introducing more effective processes, or a combination of all three. Invest a little in mechanisms to avoid the ultimate employer/employee conflict, and potentially boost morale and productivity into the bargain, or pay the costs – the choice is yours.