Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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The plums in this year's Christmas Employment News pudding are brought to you by Jane Wallenstein and include: today's announcement on employment tribunal fees, plus the latest developments on holiday pay and EAT fees; changes at HMRC; and shared parental leave regulations – they are in force, so we provide a checklist of key actions.
The outcome of the application for Judicial Review into the legality of the introduction of employment tribunal fees has been published today and has been unsuccessful. The full judgment is available here. The rejection of the application means that a fee structure for use of the employment tribunal system will remain in place, at least for the foreseeable future. However, Unison have issued a statement confirming that they will appeal.
As you may be aware, in July 2013, fees for the use of the employment tribunal service were introduced for the first time in its history. Earlier this year, the union, Unison, launched a challenge to the legality of the decision to introduce fees, on the basis that they were discriminatory and prevented access to justice. For the background to the February 2014 application, please see our Alert. Since then, statistics have shown that the number of claims lodged in employment tribunals have dramatically declined since fees were introduced. It had, therefore, been thought that the second Judicial Review lodged by Unison, which concluded today, had better prospects of success; but that has not proved to be the case. The reason that the application for judicial review was unsuccessful was the lack of real life examples of claimants being prevented from bringing claims because of the cost involved.
The union, Unite, has announced that the claimants in two of three three joined holiday pay cases (Hertel (UK) Ltd v Woods and AMEC Group Ltd v Law) will not be appealing the Employment Appeal Tribunal's (EAT) decision Please click here to read our analysis of the decision, in which the EAT caused headlines last month when it held that non-guaranteed overtime, which is normally worked, must be included in holiday pay. The effect of this decision on backpay was regarded as the most controversial aspect and likely to be appealed. Before the EAT's decision, there had been widespread concern that claims for historic underpayment of holiday pay could stretch back as far as 1998, when the Working Time Regulations came into force. However, as this point will not be appealed, in most cases (and subject to any appeal by the employers), underpaid holiday pay cannot be claimed more than three months from the most recent underpayment.
Unite was not involved in the case of Bear Scotland Ltd v Fulton, which was heard together with Hertel and AMEC. However, that case has been remitted to the employment tribunal and the parties were not granted permission to appeal.
This is not, however, necessarily the end of the story, as employees may take the opportunity to appeal this point in any fresh proceedings that are brought in respect of underpaid holiday. It is also possible that the employers in the case may appeal.
A Practice Direction has been issued to employment tribunals in England and Wales (and a similar direction has been issued in Scotland) setting out that claimants bringing claims for underpaid holiday have the option to amend existing claims to encompass later payments of holiday pay, rather than having to submit fresh claims (and go through early conciliation and pay a tribunal fee) each time. The Practice Direction sets out the procedural requirements and contents of any such applications – for example, claimants must identify the original claim that is sought to be amended and include the amount and basis of the additional complaint. Full details of what is required of claimants are set out in the Practice Direction, which can be viewed by clicking here. However, even if claimants comply with all the requirements in the Practice Direction, there is no guarantee that their amendment will be allowed; this is left to the discretion of individual Employment Judges to whom any applications to amend are made.
According to the EAT in Old v Palace Fields Primary Academy, it cannot be automatically assumed that a successful appellant to the EAT will recover their £400 issue and £1200 hearing fee. In this case, the appellant was only 'partially successful', in that the EAT only identified two minor faults in the employment tribunal's decision and the case was sent back to the tribunal to be re-heard. In those circumstances, the EAT declined to order recovery of the £400 fee and only ordered that half of the £1200 hearing fee be repaid.
After a long gestation period (ho ho), the Shared Parental Leave (SPL) regime is now in force, and applies to babies due or born on or after 6 April 2015. If you have not got your arrangements in hand already, you need to,
Anecdotally, we understand that the early indications are that uptake of SPL is likely to be greater than expected.
HMRC has stated that the migration of the majority of its customer facing content to GOV.UK will be completed by the end of the year. Less well publicised is the news that HMRC's "what's new" page will be scrapped, although users can sign up to GOV.UK alerts. Work continues on the format for HMRC manuals on GOV.UK but an early version will be available "soon".