November Roundup

Government launches Employment Tribunal fee reimbursement scheme

Claimants who paid an employment tribunal fee can now start to reclaim their money under a scheme recently launched by the Government.

Also, details on the new right to parental bereavement leave have been published, and the EAT looks at whether a disciplinary investigation can be too wide.

Tribunal fee reimbursement begins

When tribunal fees were introduced in July 2013, the Lord Chancellor announced all fees would be reimbursed if the scheme was found to be unlawful. Following Unison’s successful challenge at the Supreme Court in R (on the application of Unison) v Lord Chancellor, it was confirmed that repayment of fees previously paid, worth £32.5 million, would take place once a process was put in place.

The fee reimbursement process has now commenced on a four week pilot basis with around 1,000 claimants contacted from 20 October 2017. Claimants will be invited to fill in a PDF form and send this off to reclaim any fees paid, with an online application form currently in development. Once the trial period has ended, all claimants, respondents and unions who believe they are entitled to a fee reimbursement will be able to apply to the courts and tribunal service. Those who have not been contacted during the trial period can now pre-register their interest in applying for fee reimbursement.

A second scheme to reinstate struck out claims was also announced as forthcoming. The courts and tribunal service have confirmed this scheme will be available for approximately 7,500 claims which were struck out for non-payment of fees, either at the outset or during the tribunal process. Individuals will receive a letter from the courts and tribunal service asking if they wish for their claim to be reinstated. A similar process is currently ongoing with Employment Appeal Tribunal appeals that did not progress due to non-payment of fees.

New guidance on mental health in the workplace

To coincide with World Mental Health Day, Acas has produced new guidance to help organisations support employees who may be suffering from poor mental health.

Acas earmarks the role of the manager as pivotal when supporting employee wellbeing. Whilst the manager is responsible for monitoring workloads and setting reasonable targets, the guidance suggests that the role should have certain pastoral qualities. Managers should be approachable and encourage their employees to talk if they are experiencing difficulty.

Another report has found that long-term mental health conditions cause up to 300,000 people to leave their jobs each year. The Thriving at Work report seeks to change the culture around mental health to create a more open, understanding and aware society. The Stevenson / Farmer review believes that organisations can have the greatest impact and provide the most support to create this change, with the report setting out a ten year vision. The report contains a number of proposals and “mental health core standards” which can be put in place quickly across all organisations including: producing and implementing a mental health at work plan; developing awareness; and encouraging open conversations. 

Paid parental bereavement leave set to be introduced

By 2020, the government intends to introduce a legal right to paid time off for parents who suffer the death of a child in England, Wales and Scotland.

The Parental Bereavement (Pay and Leave) Bill gives parents the right to take two weeks’ bereavement leave in the event that their child, aged under 18, dies. The employee will have to satisfy conditions specified in regulations as to their relationship with the child.

Statutory parental bereavement pay will be paid where the parent has 26 weeks’ continuous employment with the organisation, although the legislation is silent on whether this will attract full pay or statutory rates of pay similar to other family friendly leave.

Case law

In NHS 24 v Pillar the Employment Appeal Tribunal considered whether a disciplinary investigation could be regarded as unreasonable where it was too thorough. They determined that the test is one of sufficiency of investigation and, only in extreme circumstances, will an investigation be unreasonable because it is too wide.

The EAT reiterated that there remains a distinction between including information in an investigation report and relying on past misconduct when making a decision to dismiss; it will be for the dismissing officer to decide how to treat background information.

Minicab drivers were judged to be workers, rather than self-employed independent contractors, in Lange and ors v Addison LeeThe employment tribunal found, once drivers were logged on, there was a contract to do work for Addison Lee and to perform driving services personally. The tribunal commented that it was not realistic to view the drivers as contracting with Addison Lee as a client or customer of their business; the contracts alone demonstrated the inequality of bargaining power in the relationship.

The Court of Appeal has provided guidance on when the motivation of a person other than the decision maker can be taken in to account when considering the fairness of a dismissal. In Royal Mail Ltd v Jhuti, the Court determined a tribunal is obliged to consider the mental processes of the person, or persons, who were authorised to make and did make the decision to dismiss. This, however, will be different where the manipulator is a manager with some responsibility for the formal process, such as the investigation, or potentially where the manipulator is a manager in a senior position at the top of the company.

« Back to News