CBI on Employment Law Tribunals

The Confederation of British Industry (CBI) recently prepared a report “The Right Balance – Delivering Effective Employment Tribunals”.  The UK Employment Tribunal System was established to deliver the recommendations of the Donovan Commission which called for a system that would be “easily accessible, speedy, informal and inexpensive”.

According to the Report, today’s employment tribunals are failing to meet these standards with some 570,200 claims waiting to be heard and on average each claim taking around 18 months to process.  These failings, the CBI claims, mean that poor justice is done, employees with valid claims have to wait for compensation while costs soar for employers whether they win or lose the claim.

The root of the problem seems to be that tribunals have become too much like courts.  The CBI suggests that tribunals often deliver for themselves rather than employers and employees and this trend must be reversed.  It is also argued by the CBI that Employment Judges should be more proactive and focus clearly on dispute resolution using Case Management Discussions and Pre-Hearing Reviews to shorten the ultimate Hearings.  Also making available and incentivising the use of alternatives to a tribunal is desperately required.

Importantly, the Report insists that something has to be done to alleviate the problem of the system rewarding those who play it best.  The CBI calls it “gaming the system”.  Firms facing a tribunal claim must decide whether to contest the claim or not.  But contesting even a weak or vexatious claim can involve high costs so it may be cheaper to pay the Claimant off rather than fight the claim.  Further, it appears that when the Claimant is represented then it is not uncommon for their representative to add all possible claims irrespective of merit.

The CBI Report notes that in 2011/12 more than 56% of unfair dismissal claims included an additional claim.  Employers can also “game the system” by not paying compensation when this is awarded in the hope that court action will not be raised by the employee for recovery of the compensation awarded to them.

I would welcome reform.  What do you think?

Our court department can assist in representation at Tribunals across Scotland.  If you require further information please contact Paul Neilly (pdn@mitchells-roberton.co.uk).

Employment Law 2013 – Some Key Developments

Employment law changes quickly and often.  This can make it difficult for employers and employees alike to know their rights and obligations on a given issue at a given time.  Here is a quick summary of some notable changes for this year:

Tribunal Award Limits – from 1 February 2013, the upper limit for an award by the tribunal for unfair dismissal is increased from £72,300 to £74,200.

Parental Leave – from 8 March 2013, this is increased from 13 weeks to 18 weeks.  Employees who are parents to take up to 18 weeks’ unpaid parental leave during the first five years of their child’s life.

Collective Consultation on Redundancy – From 6 April 2013, where employers propose to make 100 or more employees redundant at one establishment (within a period of 90 days), they require to consult collectively with employees or their representatives at least 45 days (down from 90 days) before the first redundancy.

Statutory Sick Pay – from 6 April 2013, the standard rate of statutory sick pay increased from £85.85 to £86.70 per week.

Statutory Maternity, Paternity and Adoption Pay – from 7 April 2013, the standard rate of statutory maternity, paternity and adoption pay increased from £135.45 to £136.78 per week.

The Enterprise and Regulatory Reform Act – passed by Parliament on 25 April 2013, this Act will include, among other things, various reforms to the employment tribunal system such as requiring claimants to send certain information to Acas so they can attempt a settlement before a claim is lodged.  The Act will also permit employers to have “protected conversations” with employees, which cannot later be reported to a Tribunal, with a view to terminating their employment in exchange for (probably modest) compensation.

Charges to Raise Employment Tribunal Claim – from 29 July 2013, employees taking their employer to Tribunal will have to pay an initial fee to issue their claim and a further fee if the matter cannot be settled and proceeds instead to a hearing.  Fees may be waived where claimants cannot afford to pay but otherwise the amount payable will depend on the relevant category of claim:

Category Initial Fee Hearing Fee
Level One (including unlawful deduction from wages and redundancy payment claims) £160 £230
Level Two (more complex matters including discrimination, equal pay and unfair dismissal claims) £250 £950
Appeal £400 £1200

Employee Shareholder Contracts – the subject of considerable debate within Parliament and the media, this new type of employment contract will see employees receive at least £2,000 worth of shares in their employer’s business in exchange for giving up certain employment rights such as being able to claim unfair dismissal (except for automatically unfair reasons) or statutory redundancy pay.  The employer will have to pay for the employee to take independent advice on an employee shareholder agreement.  The enacting legislation is expected to come into effect in Autumn 2013.

Employment law affects most of us at one time or another and at Mitchells Roberton we keep tabs on how it changes so we can be there to guide you across the shifting sands.

Tribunal Reforms

Tribunals are central to our Scottish legal system and play a vital role in safeguarding people from potentially unfair treatment.  They hear cases on a range of issues such as support for learning, the compulsory care and treatment of people with mental health disorders and disputes between tenants and landlords.

The following Tribunals exist in Scotland:

  1. The Additional Support Needs Tribunal for Scotland
  2. The Lands Tribunal for Scotland
  3. The Mental Health Tribunal for Scotland
  4. The Pensions Appeal Tribunal Scotland
  5. The Scottish Charity Appeals Panel
  6. The Private Rented Housing Panel
  7. The Homeowner Housing Panel

There are also a number of UK-wide tribunals which operate in Scotland dealing with matters such as employment, immigration and social security.

Despite the important role of Tribunals, the Minister for Legal Affairs, Roseanna Cunningham, has recently stated that “Tribunals are a central part of our justice system, providing access to justice for some of the most vulnerable people in our society.  However the current system is overdue for reform – it has developed over a long time in different ways, with differing leadership structures, appointment processes and ways to appeal”.

Therefore, following a consultation exercise in Spring 2012, the Scottish Parliament has published the Tribunals Bill which is designed to introduce improvements.  There will now be a two tier structure – the First Tier Tribunal for hearing first decision cases and the Upper Tribunal Scotland primarily for appeals from the first tier.  A new appointment has been created, The President of Scottish Tribunals, who will be responsible for  ensuring tribunal business runs efficiently and new independent appointment arrangements have been established.

The Minister for Legal Affairs concluded “By simplifying the tribunals’ structure and standardising some processes the Bill will make the system more user-friendly and effective, saving time and resources while retaining the benefits of the current specialised tribunals.”

Our court department can assist in representation at Tribunals.  If you require further information please contact Paul Neilly (pdn@mitchells-roberton.co.uk).

Cohabitants beware! – Some legal considerations of living together.

Unbeknown to many, as of 4th May 2006, marriage by cohabitation with habit and repute (otherwise referred to as “common law marriage”) was all but abolished. And while it is true that the Family Law (Scotland) Act 2006 rescinding this form of marriage also brought with it some protections for cohabiting couples in certain situations, cohabiting couples are by no means given the same rights as married couples. For this reason it is imperative that when two people decide to move in together, they consider carefully whether they need to set down in writing what is to happen in the event that they either split up (a cohabitation agreement) or one of them dies while they are still a couple (a will). This is particularly important where the couple go on to have children.

Unlike married couples where property acquired during the marriage, regardless of whose name it is in, is considered to be matrimonial property, cohabiting couples do not by law have such a common pot. There are equal rights in certain household goods, money and property which has been used for the purposes of running the household, but otherwise property is not deemed to be shared. However, if one party has been left disadvantaged economically as a result of a couple splitting up, there is a possibility that they will have a claim against their former cohabitant.

The last seven years have seen significant development in how the courts deal with such cases and although there now seems to be some clarity as to how they approach these claims, it is still early days. It can be difficult to predict whether a claim will be successful as each case must be considered on its own merits. A claim must be raised in the court within one year of the couple’s separation otherwise it will not be entertained by the courts at all. This also applies to any counter claim made by the other party. Note a claim will be for a capital sum only and does not include any claim for maintenance which married couples can claim from each other. While it may seem somewhat unromantic, it is worthwhile a couple thinking about entering into a cohabitation agreement when moving in together to avoid any arguments if they separate at a later date. Such an agreement would narrate what each party is bringing into the relationship and what they intend to happen to any property acquired during the relationship regardless of whose name it is taken in.

Another situation where a cohabitant might find themselves left out in the cold financially is where their partner dies without making some provision for them in a will. Section 29 of the 2006 Act allows a cohabitant who was still living with the deceased party up until their death to apply to the court for an order for payment or a transfer of property, provided they apply to the court within six months of the deceased’s death. This however only applies where there is no will. If, on the other hand, the deceased has made a will and simply left their surviving partner out of it, no claim can be made.

I am a family law solicitor and would be delighted to help prepare any cohabitation agreement. It could save a lot of heartache and expense in the event of a split. To find out more please contact me, at fhw@mitchells-roberton.co.uk

Book Review – The Hundred Year Old Man Who Climbed Out The Window and Disappeared by Jonas Jonasson.

Book Review April

Our choice of book for April was The Hundred Year Old Man Who Climbed OutThe Window and Disappeared by Jonas Jonasson.

How can you describe this novel?  Farce, satire and black comedy all rolled up into one.  Ageing is not the most uplifting of conditions but the main character of the book gives us hope.  At the age of 100, fed up with life in a nursing home and anxious for a stiff drink,  Allan Karlsson, donned his slippers,  hoists his creaking knees over the window sill and escapes from the old age home and mayoral birthday party into the flowerbed and towards Malmkoping’s bus station where a very unusual journey across Sweden begins.

Arriving at the bus station before he even boards a bus he is asked to keep an eye on a young man’s suitcase.  Deciding he does not like the young man he steals the suitcase which unbeknown to Allan contains a fortune of money that belongs to a criminal gang.  His destination at this time is determined by the route of Bus 202 which he boards.

Along the way Allan gathers new friends like the proverbial rolling stone, including a master thief who lives in isolation, a hot dog vendor, a hot headed red haired woman, an elephant called Sonya and a dog called Buster.  Naturally the criminal gang are chasing Allan and his unlikely allies as they move across Sweden as are the police as their worry for Allan’s safety grows.

The story of Allan’s extraordinary 100 year life develops alongside his escape from the nursing home as we hear of his past life as an explosives expert and his meetings with Joseph Stalin, Mao Tse Tung, Winston Churchill, Robert Oppenheimer, Sigvard Eklund, Charles de Gaulle and Presidents Truman Johnson and Nixon.

Much of the interactions including starting and stopping wars, climbing mountains, crossing desserts, being thrown in jail and Gulags, razing an entire town,  and languishing in the Siberian snows.  All accompanied with Allan drinking copious quantities of vodka at every opportunity.

We agreed the novel was quirky, amusing, intelligent and charming, having  an absurd plot with more twists and turns than a Bond movie which brings me to the one criticism a few of us had of the novel.  It would make an excellent movie and we wonder if the plot was subject to a faint element of connivance regarding that.  That said it is a novel with an undecidedly unglamorous hero which proves to be a great testimonial to the achievements and moments in a person’s life.  I wish I had met Allan Karlsson in real life and shared a vodka with him.  I have also had the lesson reinforced that within every old person there will be a story worthy of acknowledging.

The next book our Club will be reading is History of the World in Ten and a Half Chapters by Julian Barnes.  Review to follow here.

Divorces, Deaths and House Moves…

Apparently the three most stressful situations in life are death, divorce and moving house. Now I don’t fancy the first one much and have already endured the awfulness of the second but at the moment I am watching my sister and nieces upping sticks and moving house. They have lived in the same house for over 25 years so it is a big job. I was visiting at the week end and I have never seen so many boxes in my life. I swear that if I had stood still long enough my sister would have bubble wrapped me and stuffed me in a box. While helping to pack I did politely remind her that this massive change she was making was self imposed. Change happens all the time. Sometimes we chose to make changes ourselves but at other times change can be imposed on us by others. I would reckon that chances are, the changes we chose will be the least stressful and the ones we will get the most out of.  I certainly hope so for my sister and nieces.  And of course having a good solicitor and estate agent helping you along every step of the way when you are moving house certainly helps !