Local Authority View #27
Feb 24 2021
February 2021 #27 Your round-up of local authority related news and viewsRead More
Jane Wallenstein looks at some of the big employment stories of July 2012, including the announced decision to charge fees in the Employment Tribunal and Employment Appeal Tribunal; the most recent statistics in employment litigation; an update on the position regarding maternity leave and surrogacy and, finally, a recent case which has further clarified the difference between the definitions of worker and employee.
Following on from their ‘Charging Fees in Employment Tribunals and the Employment Appeal Tribunal consultation’, the government has now published their response and confirmed that, as of summer 2013, fees will be charged in Employment Tribunals and the Employment Appeal Tribunal.
There will be two fees payable by claimants; an initial “issue fee” when they lodge a claim and a “hearing fee” prior to a listed hearing. These will be based on the type of claim; with level 1 indicating the more straightforward claims and the remainder being allocated to level 2.
Therefore the fees will be as follows:
These figures will vary in the event there are multiple claims.
In addition, there will also be fees for specific types of application, namely:
A remission system will be established (as used in the civil courts) which will excuse those on low incomes from having to pay the fees. This has been included so as to protect access to justice for claimants who cannot afford to pay any or part of the fees. In essence, the system will permit claimants to provide proof of their financial eligibility for either a full or partial remission, based on their receipt of certain benefits, or their (and their partner's) gross annual income, or their (and their partner's) monthly disposable income. Interestingly, the current system does not take into account savings or redundancy payments, albeit there is some discussion about reviewing this.
In addition, tribunals will be given a discretionary power to order the losing party to pay any costs of the successful party incurred by way of fees.
The annual ET statistics were published at the end of last month.
Some of the key statistics include:
As some of you may recall, we touched on the issue of maternity leave for mothers of children born by
surrogates earlier this year and how the tribunal had referred
to the ECJ, the question of whether a mother expecting a baby
through surrogacy is entitled to maternity leave and various
benefits including paid leave (in C-D v S-T).
By way of an update, it has been recently announced by the government that it is considering the possibility of granting leave and pay for mothers of children born by surrogates in statute. BIS is looking into this and, in addition, it is the subject of a Private Member's bill, Surrogate Parents (Leave, Pay and Allowance Arrangements) Bill 2010-12.
Although little more than this is known at this stage, it does look promising that there may be a change in this area of law so as to ensure greater clarity and fairness for all mothers; we shall, of course, keep you posted on the outcomes of the above, when these are known.
The recent Court of Appeal case of The Hospital Medical Group Ltd v Westwood has helped further clarify what can distinguish an employee from a worker.
Dr Westwood was a GP with his own practice. He was also engaged by the Hospital Medical Group Ltd (HMG) to carry out hair restoration surgery on a self-employed basis. By way of background, HMG engages surgeons with practices in their own right and none are engaged on contracts of employment. Upon termination of this agreement, Dr Westwood brought claims for unlawful deductions from wages and holiday pay.
The ET held that he was a worker (under section 230(3)(b) of the Employment Rights Act 1996) and based this decision on the fact that he had a contract to perform services personally for Hospital Medical Group Ltd and this organisation was neither his "client or customer".
An appeal was lodged at the EAT (who upheld the ET’s decision) and then the Court of Appeal.
HMG was primarily arguing that the definition of worker in s.230(3)(b) excludes a person who provides services to a 'client or customer' of any profession or business carried on by him.
The Court of Appeal therefore sought to distinguish between;
Dr Westwood fell into the second category. The Hospital Medical
Group Ltd was neither Dr Westwood's "client or customer" and had
recruited him to undertake procedures on its behalf. This was
further clarified by the fact that when he worked for them he was
clearly referred to as "one of our surgeons". They held that, even
though he was in business on his own account, he was clearly an
integral part of The Hospital Medical Group Ltd's undertaking and
was providing services. On that basis he was, therefore, a worker
and was not someone carrying on a business undertaking, who was
excluded from the worker status definition.