Gordons Legal Employment Update – 26 October 2017

Thursday 30th November 2017

Tribunals to Reinstate Cases Struck Out due to Non-Payment of Fees

Following the recent decision in R (on the application of Unison) v Lord Chancellor, which confirmed that the imposition of Employment Tribunal fees was unlawful, HM Courts and Tribunals Service has drawn up a scheme to allow for reinstatement of Employment Tribunal (ET) claims that were struck out due to non-payment of fees.  Such claims are thought to number about 7,500 and constitute those rejected at the outset when a fee was not paid as well as those struck out later in the claim following a non-payment of a fee.

Parties who have had ET claims struck out in these circumstances are being written to and asked whether they would like to proceed with their claim.  A similar scheme is already underway in respect of Employment Appeal Tribunal (EAT) appeals, which has so far resulted in 90% of those who have had their appeals struck out for non-payment of fees electing to resurrect their appeals.  HMCTS expects a similar proportion of ET claimants to choose to continue their claims.

Where a claimant hasn’t retained a copy of their ET1 claim form, they will be invited to reconstruct the original ET1 to the best of their ability; where the content of the ET1 is disputed between the parties it will be for the tribunal to resolve the issue.  It will also be for the tribunal to resolve issues such as where the respondent company has ceased to exist or where there is a dispute between the parties as to whether Acas conciliation requirements were satisfied when the claim was originally lodged.

Comment: Respondents to claims struck out due to non-payment of fees should prepare for and expect those claims to be resurrected.  Where a claim may be reinstated, respondents should expect to receive further information detailing next steps from the ET directly or their legal representative if they have one.

Managing Mental Health in the Workplace

To mark World Mental Health Day earlier this month, Acas have published comprehensive guidance entitled “Promoting Positive Mental Health in the Workplace”.  With mental ill health costing UK employers £30 billion each year in lost production, recruitment and absence, and a reported 70 million workdays lost in the UK each year due to mental illness, it is in the interests of employers to commit to improving mental health at work and to ensure that staff who are experiencing mental ill health are properly managed and supported.

The guidance provides specific advice and offers practical suggestions to employers in the following areas:

  • How to recognise indicators of possible mental ill health;
  • How to educate the workforce about mental health;
  • How best to manage an absence related to mental ill health; and
  • How best to mitigate the effect of mental ill health on the workforce and the business.

Comment:      As mental ill health becomes increasingly widely understood, this guidance from Acas will serve as a particularly useful tool for employers seeking to promote mental health and wellbeing in the workplace and managers seeking practical advice on how to sensitively approach mental health issues and minimise their effects.

The full Acas guidance can be found online at http://www.acas.org.uk/media/pdf/o/7/Promoting-positive-mental-health-in-the-workplace.pdf

Can ‘Separate but Equal’ Treatment Amount to Unlawful Discrimination?

In the recent case of HM Chief Inspector of Education, Children’s Services and Skills v Interim Executive Board of Al-Hijrah School it fell to the Court of Appeal to consider the interesting question of whether segregating boys and girls in a co-educational school fell foul of anti-discrimination legislation.

Al-Hijrah School is a faith school which admits pupils from ages 4 to 16.  From year 5 the school segregates its pupils by gender.  In 2016, following an Ofsted inspection the school was declared inadequate, the Ofsted report concluding that the practice of segregating pupils by gender constituted unlawful discrimination.  In Judicial Review proceedings the High Court disagreed with Ofsted’s conclusion, finding that discrimination had not occurred because the pupils were all treated the same.

In allowing Ofsted’s appeal, the Court of Appeal found that segregation by gender amounted to discrimination because the students could not mix and consequently suffered a detriment due to their gender.  The fact that boys and girls at the school suffered the same detriment didn’t prevent the segregation constituting unlawful discrimination.

Comment: The Judgment in this case increases the scope for claimants to prove they have been a victim of unlawful discrimination and highlights the fact that direct discrimination should be considered from the perspective of the individual.  Employers should note that if an individual employee is treated detrimentally due to a protected characteristic (for example their age, disability, gender, race, religion or sexual orientation), then that could be unlawful discrimination even if other employees were being subjected to similar treatment based on their protected characteristic.

Parental Bereavement (Pay and Leave) Bill Published

The government has this month published the Parental Bereavement (Pay and Leave) Bill setting out the proposed protections for parents who need time off work due to the loss of a child.  The provisions are expected to come into force in 2020.

There is currently no legal requirement for employers to provide paid time off work for parents who have suffered the loss of a child, current legislation only going so far as to oblige employers to allow their employees to take a “reasonable” amount of unpaid leave to deal with a family emergency.   The current bill most notably provides for any employed parent who loses a child under the age of 18 to take two weeks’ paid leave.  Grieving parents with at least 26 weeks’ continuous service will also be entitled to statutory parental bereavement pay, which the employer will be able to claim back from the government.

Comment: Employers may wish to implement a policy on bereavement in line with the provisions of the draft bill before the new law comes into force.   If you would like any assistance in drafting a such a policy or with any other issue then please contact a member of the Employment Team.

If you require any further information on the above developments then please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.