Michael Scutt, Head of Employment and Dispute Resolution with Crane & Staples Solicitors in Hertfordshire, reviews the year’s biggest employment law news stories.
I’m not quite sure what happened to 2013. I was on top of it until the beginning of March and then it just, sort of, ran away, speeding off into the distance. I never quite managed to get back in control and here we are again, at Christmas. Whether this is just me getting older or busier, I’m not sure.
2013 has seen a huge amount of change in UK employment law as the Government continues to “rebalance” the employment law system. Most employment lawyers are probably punch drunk by now with the ongoing change, however here’s my round up of the top employment law stories in 2013.
1. Introduction of Tribunal fees for issuing proceedings and for final hearings.
Initially proposed in an attempt to reduce the number of speculative claims and perhaps cautiously welcomed for that, the idea now seems less popular because of the cost it imposes on less well off Claimants; £160 to start a claim for unlawful deduction of wages, followed by a hearing fee of £230 if it can’t be settled before a final hearing. For unfair dismissal and discrimination claims the figures are higher; £250 and a whopping £950. These are sums of money that people already without a job will have to pay in their attempt to obtain justice when they think they have been wronged. The union UNISON has launched a judicial review challenge against the fee system and it remains to be seen if that is successful.
2. New procedure rules at the Employment Tribunal.
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237) came into force on 29th July (the same day as ET fees) and have also had a similarly mixed reception. Mainly this is because practitioners are unsure about how the rules will be interpreted but also it is because much will depend on how robust ET Judges will be in sifting out speculative or hopeless cases at an early stage. It is predicted that the days of the “throw everything in” ET in the hope that one claim will succeed is over: time will tell.
3. Discrimination law in the spotlight
Towards the end of 2013 the clash of rights between protected characteristics reared its head again. The so-called case of religious freedom vs gay rights in Bull & Bull v Preddy & Hall finally reached the Supreme Court in November and the Christian hotel owners lost: they had unlawfully discriminated against the gay couple who wished to stay with them. Many have said that this case marks the supremacy of gay rights over Christian belief: it doesn’t. If the facts had been reversed the Christian couple would have won. This case is all about ensuring that all those with protected characteristics are protected.
In another high profile case, Celeste Mba, a care worker formerly employed by the London Borough of Merton, argued that her religious rights as a Christian had been infringed by being required to work on Sundays. This case has been billed, inaccurately, as another attack on the rights of Christians to practice their religion. In reality the case was about whether the employer could justify its policy of requiring its employees to work in rotation on Sundays. Merton ran a care home, the occupants required care on Sundays as well as on every other day and the employer needed to rotate all its staff to cover that day. The EAT ruled that Merton had justified its decision, but that does not mean all Christians will be required to work on Sundays as has been suggested in some quarters.
4. Zero Hours contracts – Lots of hot air?
While many newspapers complained about how unfair they were, few considered that for some employees they are a very flexible tool, which allows them to work. Knee jerk calls for zero hours contracts to be replaced with minimum hours contracts overlooked the very real risk that employers would simply state that one hour’s work was the minimum, thus providing employees with well, zero protection.
And for next year? New TUPE rules have been introduced and 2014 we will see all claims having to be filtered through ACAS. Tribunal fees may be ruled unlawful by the High Court. We’ll also start to see case management decisions on the new procedural rules coming through while you can certainly expect more on the clash of rights between minority groups.