10 November 2016

By Roger Jeary

On a cold wet day in London, the Institute welcomed a full house for the 2016 Employment Law Update in the Unite HQ. The chair for the day, Nerys Owen, Labour Research Department, introduced the programme with an overview of the day's speakers and expressed delight that the conference would begin with a presentation from Employment Tribunal (ET) President Judge Brian Doyle, who would outline the latest developments in ET practice and procedure.

Judge Brian Doyle: 'Update on ET practice and procedure'

Judge Brian Doyle began by saying that he wished to reach out to as many audiences as possible to explain what the Tribunals were trying to do in today's world. He referred to the changed circumstances in which the tribunals operate in a fees-led system. He asserted that the introduction of fees has completely changed the rules of the game as far as tribunals are concerned, including a 70% fall in case work. Whilst this has now bottomed out, it demonstrates that the levies have had a significant impact on workers' access to justice. However, he told delegates that this was not necessarily reflected in the number of cases being heard by tribunals. Fee Paid employment judges are not sitting, he explained, but salaried judges are as busy as ever. The fact that the Ministry of Justice is not a protected department as far as expenditure is concerned means efficiency cuts have been extensive. As a result, the service now on offer is worse than five years ago.

Surviving cases are characterised by:

• Trade union-backed or highly paid individuals, or crowd funded cases
• Higher value cases
• Bigger stakes
• Career loss or career ending cases
• Matters of principle

Low-value, high merit claims are now unlikely to be seen. As a result, hearings are lengthier, costlier and more stressful. This alone puts off the unrepresented litigant and creates a particularly challenging environment for litigants in person. So unless claimants are backed by trade unions, they are unlikely to have timely legal advice.

Judge Doyle said there had been a considerable switch in approach as a result, including avoiding trial by substituting Rule 3 powers to promote alternative dispute resolution (ADR). However, this has a number of drawbacks. Claims that are well-founded are at risk of being compromised through the ADR process. The other drawback is that bad employment practices can be swept under the carpet due to the fact there is no public hearing and no tribunal report. Another drawback is the lack of precedent being set through ADR, which means case law cannot be used to develop the way that legislation is implemented. At least from next year, all judgements will be published on the web.

Referring to new Presidential guidance, Judge Doyle said that through early case management hearings the judge will allocate time and set the parties an agenda for case management. The judge may also give a confidential assessment of the merits and demerits of the case if parties agree. In doing so, the judge will be excluded from the final hearing of the case. He is also renewing the emphasis on Judicial Mediation as a means of resolving disputes. This is offered in any case where the final hearing is likely to be three days or longer.

This is against the background of ACAS post-claim conciliation, which it believes resolves 70% of such claims.

Judge Doyle referred to the importance of pro bono advice initiatives, in which an experienced employment lawyer offers assistance short of representation at an actual hearing. A scheme in London and one in Cardiff have both started.

Judges when holding a case management hearing are encouraged to ensure that when cases proceed to hearing they are properly assessed, tribunals know what issues are to be decided, how many witnesses and how much time is needed. There have been criticisms of this process from those highlighting that case management orders are not always followed, or not followed up by judges. Judge Doyle said the judiciary have few sticks or carrots to use to enforce these orders and what is being attempted is a nudging process to get cases over the finishing line. If striking out a claim/response, the ET is almost certainly going to be overturned by the Employment Appeal Tribunal six or 12 months later.

Therefore, case management attempts to make the case as focussed as possible by limiting the number of issues, documents, and witnesses; establishing what is in dispute; and setting a timetable for the hearing. This builds in time for judges to write up decisions.

Judge Doyle finished by saying next time he speaks at the Access to Justice IER conference in the new year, he will address more fully the elephant in the room - fees.

Download Judge Doyle's presentation

Dominique Lauterburg, MMU: 'Developments in redundancy and collective employment law'

Dominique Lauterburg started by referring to redundancy developments. Collective issues are currently suffering from a pincer movement. The fee system in Tribunals coupled with the Trade Union Act restrictions on industrial action has led to a severe undermining of the collective progress.

In collective redundancies, the issues centre around what constitutes an establishment and which employees will be included in the determination of the threshold. The Supreme Court decision in UCU v University of Stirling [2015] UKSC 26 helped by including fixed-term employees, but then the government acted to expressly exclude fixed-term employees in calculating the number of redundancies.

On the issue of establishment, the USDAW case (USDAW v WW Realisation 1 Ltd (C-80/14) EU:C:2015:291 (ECJ) ) failed to persuade the Court of Justice of the European Union (CJEU) to aggregate the number of shops in determining the number of redundancies for collective purposes. In a German case, the CJEU determined that the term 'worker' under the Directive provided an argument that the definition of employee in UK law could be extended to include workers.

Dominique then turned to the Trade Union Act in terms of collective issues. Increasing threshold requirements on turnout in ballots in industrial action was clearly an attempt to prevent individuals acting collectively, she claimed. The "important" public services defined in the Regulations restricts further the ability of public service workers to act collectively. The balloting process adds to the obstacles as do the time limits for maintaining the result of the strike ballot. This prevents suspended action then resuming if talks fail. She placed scorn on the optimistic view that this will encourage more people to vote, but still felt it will be difficult for many unions to reach the balloting thresholds.

She also referred to political funds, facility time and picketing provisions as additional restrictions.

Finally, on Brexit, Dominique anticipated that the most likely changes will occur around the Working Time Regulations, which would have a significant effect on individual workers and on the collective rights of workers. She felt that these are scary times for trade unions and their members.

Brian Wilson, Thompsons Solicitors:'Can gender pay gap information lead to fair pay?'

Brian Wilson began by defining the gender pay gap and the fact that women get paid less than men. The gap for full-time employees has not significantly changed over the past 12 months and regardless of which analysis is used the difference is unacceptable. He said that the government has estimated it will take 44 years before the gap is eradicated. Brian referred to a Office for National Statistics survey that identified segregated occupations, time spent in full-time work, family responsibilities and educational levels as the key issues which bring lead to lower wages among women. Brian added that the 'glass ceiling' is also still a factor, as is discrimination.

In turning to the government's proposals for the 2016 Regulations on Gender Pay Gap Information, Brian told delegates that the Regulations will apply to employers with more than 250 employees and require them to publish both the mean and median gender pay gap; the difference in bonus payments between men and women; the proportion of female and male employees in each quartile of the pay distribution; and a statement confirming the information is accurate. The information will be uploaded onto a government website.

However, as Brian pointed out, these regulations will not identify the main causes of the pay gap nor will it explain why it exists. The Regulations do not require the employer to share the information with employees or trade unions nor develop plans to reduce or remove the gap. Brian was sceptical that the Regulations will make any real difference.

In Scotland, Brian referred to specific duties placed upon public authorities with 20 or more employees to publish data on percentage differences between men and women's average hourly pay and publish such information alongside information on occupational segregation.

Brian argued that trade unions can help by including gender pay gap reporting as part of their negotiating agenda using the provisions under Section 181 TULR(C)A 1992.

Download Brian Wilson's presentation

Paul Scholey, Morrish Solicitors: 'Who Watches the Watchmen: Surveillance in the Workplace'

The next speaker was Paul Scholey of Morrish Solicitors, who addressed the issue of workplace surveillance. This problem is a growing one and Paul outlined the legislative framework which governs the issue. This, as he pointed out, is a growing portfolio of regulations and legislation but time only allowed him to focus on the Employment Practices Code (EPC). This covers what should and should not be asked on recruitment and records of employment that can be kept, distinguishing between times of absence rather than nature of health information. The main issue is monitoring and the types of monitoring that now exist in this digital world. This includes CCTV, social media accounts and electronic monitoring. If any of these methods are to be used then the employer is required to carry out an impact assessment in order to justify the monitoring that they are carrying out.

He referred to Article 8 of the European Convention on Human Rights - the right to privacy - and reminded delegates that this is a qualified right. Recent cases both in Europe and here in the UK have illustrated that reliance upon the Article is not always successful in cases against employers.

Cases on internet use referred to by Paul demonstrated the importance put on employers ensuring that employees know the policy and that it is clear.

Under the Code, employers should tell employees what their policy is and how and when it can be used. The Code also requires employers to make this policy clear at induction. The Regulatory Investigatory Powers Act (RIPA) 2000, which covers emails and telephone calls, made it illegal to intercept but the Regulations which have followed actually allow interception in most cases that employers would want to do - this has been thanks to the business lobby.

Paul then turned to the power to collect bulk data provided by the Investigatory Powers (IPB) Bill 2016. He pointed out that access to protections appear to be few, that warrants require ministerial authorisation, and that there will be a new information commission.

Finally, Paul turned to the new EU General Data Protection Regulations (GDPR) which come into force in May 2018 and introduce some welcome changes to protection for individuals.

Download Paul Scholey's presentation

Professor Alan Bogg, University of Oxford: 'Trade Union Act 2016 and the Right to Strike?'

Professor Alan Bogg started the afternoon session with an informative talk on the impact of theTrade Union Act 2016 on the right to strike. He began by setting out the main provisions of the Act and emphasising the oppressive nature of the legislation. He focussed on the provisions restricting the right to strike and associated actions such as picketing and protest.

Ballot thresholds and notice requirements, alongside the law on picketing and protest, form the main changes to current law on strikes. Alan told delegates that the option to challenge these thresholds in law is quite limited. It does, however, open up an opportunity for trade unions through the review on electronic balloting to extend participation in industrial action ballots. On the use of the 'important public services' threshold, Alan believes there is a chance to challenge this concept through international labour law, which uses the term 'essential public services', a much narrower definition.

The Act also requires more detailed information to be included on ballot papers. Alan pointed out that this raises opportunities for employers to challenge ballots through the courts. In addition, unions must provide information after the ballot 'as soon as is reasonably practical' about the numbers entitled to vote and whether thresholds were met. Alan pointed to the terminology used, which has continuously been the subject of debate as to actual meaning. He believes this was a deliberate ploy to cause problems for trade unions and create opportunities to challenge for employers.

On the notice changes, the increase to 14 days for notice of a strike provides employers with the chance to threaten employees, leading to a potential Article 11 claim for individuals. The restriction on the period of mandate is, he said, more likely to increase strike action by unions in order to avoid losing their mandate.

He also identified the changes to the role of the Certification Officer as representing a fundamental shift in government control of trade unions. The Act empowers the Certification Officer to initiate and investigate issues on trade unions, adjudicate on issues and determine quasi-criminal penalties in certain circumstances.

On fighting back, Alan highlighted again the e-balloting review as an opportunity for unions. He also encouraged unions to engage with the Joint Committee on Human Rights when it revisits balloting provisions once the Regulations have been finalised. Right-wing think tanks need to be challenged on their proposals to take legislation still further to the right. Finally, he suggested that devolution and human rights strategies should be used to continually challenge the legislation.

Alan warned that the use of agency workers in strikes could come back in the future. The Code of Practice on Picketing could return to the use of social media in industrial disputes. Also, banning strikes in essential services and the introduction of criminal offences to further regulate picketing and protest are potential moves. He warned that the future of liberal democracy is at stake.

Professor Keith Ewing, Kings College London & IER President: 'Labour Law: The kinds of laws unions ought to want'

Professor Keith Ewing was second up in the afternoon session with the intriguing prospect of discussion on those laws we ought to be asking for. Firstly, he argued that we need to preserve the individual rights that currently exist on the statute book. He explained that there are at least 15 provisions which relate back to original EU law and these needed to be protected. Also, there needs to be some realism about the demise of the social model in Europe, pointing out that you have to go back to 2008 to find the last social improvement, (Agency Workers Directive).

Keith spoke about the current Commission process of devolution of employment law to national states. Led by France, which has been instructed by the Commission to devolve their collective bargaining and liberalise their dismissal legislation, it is an overall process designed to devolve and deregulate employment legislation.

The government has said that employment rights will not be undermined by Brexit. However, Keith pointed to the PM’s earlier statements which were less supportive of individual employment rights. He referred to recent government comments that have watered down the protection approach which said it was "committed to workers rights, so far as is practicable", pointing to a potential weakening of provisions. He believes that the consequences of hard Brexit will at best freeze existing rights for the time being; secondly, we will lose the right to go the European Court and lose the right to upgrade legislation in line with the decisions of the European Court. This will create a gap between UK law and the rest of Europe.

A soft Brexit will provide for a Norway-like relationship with the EU, which requires the UK to abide by European law. Keith believes this to be a non-starter, as it would run contrary to the whole concept of the Brexit campaign.

The alternative approach for the UK is the negotiation of trade deals similar to CETA (EU deal with Canada). In these agreements, labour law is addressed. In CETA it refers to health and safety at work, acceptable minimum standards of work, and discrimination in the workplace. However, all it requires is that labour law promotes these principles, but makes no provision for enforcement. Unions need to address how to protect rights and be very sceptical about any free trade agreements.

Keith finally referred to the IER Manifesto for Labour Law, which sets out a plan for future legislation designed to reverse the decline in collective bargaining and sought the support of trade unions for this programme.

Sally Brett, TUC Head of Equalities: 'Equality law: the implications of Brexit and priorities for unions'

Sally Brett elaborated on the previous speaker's contribution, addressing the issues of equality legislation and rights post-Brexit. Sally reminded delegates that even before Brexit, equality rights in the UK were getting more difficult to address in the workplace. The overwhelming reason for this was the focus on finance by employers, which had caused equality to be sidelined. The TUC Equality Audit showed equality grievances were prominent in the workplace, particularly on disability-related absence. The audit also showed that where unions exist and are recognised in the workplace, progress is more likely to be made.

Sally referred to the rise in race hate crime following the referendum campaign but emphasised that these issues were already there and the referendum campaign simply emboldened people to come out with these views. On a more positive note, Sally pointed to the outcome of a TUC post-referendum survey which supported equal rights for people from different cultural backgrounds and that EU guaranteed protections against discrimination were supported by voters.

Sally spoke about the EU influence on UK equality law and listed the many protections that we currently enjoy as a direct result of EU legislation, including the right to equal pay for equal value, uncapped compensation in discrimination cases and protection from pregnancy and maternity discrimination. Many other rights were also mentioned and Sally highlighted that all of these could be under threat as a result of Brexit. The European Court of Justice has been particularly helpful in correcting decisions of domestic courts in discrimination cases. Sally warned that if Britain is no longer required to comply with EU law then UK courts could begin to diverge and settled principles could be re-litigated. She referred back to recent attacks on equality rights through the red tape initiative, and the Beecroft recommendations.

Current commitment to sustain current rights is time limited to the period the PM is in power. The Great Repeal Bill will include powers enabling government to review and revise all EU sources of law. The TUC position is that workers must not be made to pay the price for Brexit through diminution of equality legislation. It is asking government to commit to compliance during the period of negotiations on future trade deals. Sally also pointed out that there are actions that can be taken now. The removal of fees for tribunal cases; increased funding to the Equality and Human Rights Commission, which should be made accountable to Parliament rather than ministers; and improved rights for trade unions, including facility time for equality reps are all vital to secure social rights and access to justice for workers.

Download Sally Brett's presentation

Conclusion

The chair summed up by reminding delegates that in the new year there will be an opportunity for IER members to hear again from Judge Brian Doyle on the subject of Access to Justice and the fee regime.