Part ONE: Employers in the firing line

A recent Supreme Court case has opened the floodgates for employees wanting to bring claims against their employers by removing the fees they need to pay

By Adam Bernstein | Published:  08 March, 2018

Before July 2013 individuals were free to bring Employment Tribunal claims. However, in July 2013 the government introduced Employment Tribunal fees for anyone wanting to make a claim or appeal a judgment.

The fee to lodge a claim was £160 or £250 (dependent upon the nature of the claim) and the fee to pursue the matter to a final hearing was a further £230 or £950 (again dependent upon the nature of the claim). If employees won their claim, the tribunal judge could order the employer to pay any fees incurred.

According to Chloe Themistocleous, an associate at Eversheds Sutherland (International) LLP, after the introduction of tribunal fees the number of claims being brought fell by 80%, but the ratio of claims being successful did not change and so the introduction of fees did little to deter spurious claims. “Clearly,” says Chloe, “some individuals were deterred from making claims due to the cost. Whilst a remission system was in place to help the poorest people, by reducing or waiving the fees, those who missed out on a remission had no choice but to pay the fees or not make a claim; many simply did not want to take the risk.”

Supreme Court decision
It appears that while claim numbers were dropping, unrest in trade unions was growing and so Unison decided to challenge the government’s implementation of the fee regime, claiming not only that it was unlawful but that it indirectly discriminated against women.

Chloe says this was not by any means an easy task as both the High Court and Court of Appeal rejected the claim. “However, at the end of July 2017, the Supreme Court quashed the tribunal fee regime giving judgment that it was both unlawful and indirectly discriminatory.” Effectively the Supreme Court decided that the government acted outside its powers when it introduced fees at current levels, because the fees effectively prevent access to justice.

What does this mean?
The ruling means a number of things. Chloe explains: “As a result of the judgment no further fees can be charged by the Employment Tribunal until a replacement scheme is introduced.” This means new claims can now be brought for free again and no hearing fees will be charged claims already lodged.

She adds that as for those who have already paid tribunal fees, the Ministry of Justice has undertaken to reimburse fees already paid.

Of course, without the deterrent effect of fees, employers now face an increased risk of employment-related claims from current and former staff. Worryingly, Chloe says it is also possible that some individuals might now try to claim they should be permitted to bring out-of-time claims in respect of past alleged breaches of their rights, “arguing that the now found to be high and unlawful
fees prevented them from bringing a claim.”

When a replacement system will be debated and passed by parliament is unknown - it could be months or even longer. The Supreme Court ruling gives parliament a lot of ‘food for thought’, but so far, it is unclear
what shape a replacement scheme would take.

As Chloe sees it, while there is a window of opportunity to submit a claim without paying a fee, it is likely that employees will take it. “Claim numbers are expected to rise, but whether they will rise to the levels they were at prior to the introduction of tribunal fees is unknown. If they do, it is unlikely that the current tribunal system, with a reduced number of hearing centres, judges and clerks, could cope.”

With time, if a new fees regime is introduced and once the media attention has died down, the number of claims will level, but, in the meantime, employers must watch and wait.



 

Related Articles

  • part TWO: Employers in the firing line  

    Following a recent Supreme Court case employees wanting to bring claims against their employers can do so without having to pay any fees. So what steps do firms need to take to protect themselves?

  • part ONE: ‘You owe me!’ 

    As an employer, have you ever found yourself in a situation where you need to make a deduction from an employee’s wages? Are you confident that you know the legal rules in this area? Andrew Rayment, a Partner in the employment department of law firm Walker Morris, has seen this question arise many times with employers who have made the wrong decision.
        
    He offers an example to illustrate the point. A worker has had to take three weeks off work because of a bad back. He is paid statutory sick pay but there is no company sick pay scheme to top this up. He has three young children to support and the employer knew he was going to struggle to make ends meet. The employer ‘topped him up’ to his full wages for the three weeks as a ‘loan’ to help him out. It was agreed, however, that the loan was to be repaid when the worker was in a better situation. The payment was through payroll so the money was received as ‘wages’.
      
     “The problem in this case was that everything was done on trust, so nothing was written down or confirmed in writing,” and as Andrew continued, “a year later the worker resigned after a disagreement. During the interregnum, the period between handing in his notice and his departure, he didn’t repay the money, so it was simply deducted from his final wages payment.” The agreement for the loan was verbal and there was nothing written into his employment contract for the employer to make deductions from his wages.
        
    As if to inflame the situation, the worker subsequently filed a claim in the Employment Tribunal for unlawful deductions from wages and the employer was ordered to repay the sums deducted.
        
    As Andrew says: “It seems unjust, but these were the actual facts of an Employment Tribunal case. But there is a further sting in the tail. Once an Employment Tribunal has ordered an employer to pay back an amount that has been deducted unlawfully the employer cannot attempt to recover that money later in another way, for example by bringing a civil action in the county court.” This rule, he adds, applies even though the sum may have been properly due from the employee to the employer. The fact that the employer has sought to recover it unlawfully effectively extinguishes the previous debt and the employer does not get a second bite at the cherry.

    What does the law say?
    Section 13 of the Employment Rights Act 1996 sets out the provisions that protect workers from unauthorised deductions (known as unlawful deductions) being made from their wages.
      
     “Quite simply,” says Andrew, “the law says it is unlawful for an employer to make a deduction from a worker's wages unless the deduction is required or authorised by statute or a provision in the worker's contract; or the worker has given their prior written consent to the deduction.”
        
    Worse still for employers, he says that unlike breach of contract claims which can only be brought after the employment has ended, employees can bring unlawful deductions claims in the Employment Tribunal while their employment is ongoing.

    Who is protected?
    The law applies to all workers and includes not only an employee, but an individual who has entered into ‘any other contract... to do or perform personally any work or services’, unless the individual is carrying on a ‘profession or business undertaking’ and the other party to the contract is ‘a client or customer’ of that undertaking. In practice, anyone who is on the payroll regardless of whether they are full-time, part-time, casual, direct agency hire or zero-hours will be protected.
        
    Andrew cautions employers that following a raft of recent cases on worker status many self-employed contractors may be deemed in law to be workers regardless of the parties’ intentions or the contractual paperwork.
        
    In essence, workers are protected from having deductions made from their wages except in certain specific circumstances. Says Andrew: “The law puts the onus firmly on employers to obtain authorisation from the worker to any deductions before they are made. The overriding aim is to protect staff from unscrupulous employers, but employers also need to protect themselves against falling victim to the strict legal rules.”



  • Would you like to diagnose more vehicles first time? 

    As we reach March, 2019 is well and truly underway. In fact by the time you read this one third of the year will have whizzed by never to be seen again. Now, I’m not one for New Year’s Resolutions (they’re so last year), but I am the type of chap that likes constant progress when it comes to developing a technician’s career.
        
    There’s so much to be said for small steps taken everyday that on first look appear don’t appear to make a difference, but when gazed back upon over a 12 month period have a staggering affect on your capability to diagnose a vehicle first time, in a timely manner.

    Pitter-patter of tiny feet
    Small steps are all well and good but where do you start? After all, you don’t know what you don’t know, and you’d like to start your journey to diagnostic success off on the right foot. In this instance I’d start with the end in mind and reverse engineer the outcome you desire. It’s a logical process that works, and can be replicated time and time again in your diagnostic routine.
        
    Your ‘end in mind’ in this instance is a vehicle where the fault no longer exists, that won’t appear back across the threshold of your workshop anytime soon. But how do you guarantee that?

    One test to rule them all
    I love nothing more than when the delegates working through our training programs have a technical epiphany. This happens at many points on their path of learning, but none more than with bypass testing.
        
    Bypass testing is step nine in Johnny’s diagnostic circle of love (our 15 step routine), and often the key element in the first time fix. The good news for you is that it doesn’t require mythical creatures to forge their magical powers into an object that only one technician can possess. It’s something that every tech can learn, and become a diagnostic wizard.

    What is bypass testing?
    Quite simply it’s fixing the vehicle before you fix the vehicle. Let me explain.
        
    Wouldn’t it be great if you suspected that a Mass Air Flow sensor was at fault and you could prove that you were right before you fitted a new part, or spoke to the owner of the vehicle. If you could do that then the positive effect it would have on you and the business you work for would blow you away.
        
    Picture this: Your customer has reported that the vehicle is low on power. You’ve diligently questioned them, experienced the problem with them on a road test, and the bought the vehicle into the workshop.
        
    You’ve pulled codes and found none present, followed by taking a look through serial data to hunt for diagnostic clues. It doesn’t take you long to identify that the MAF sensor frequency looks a little low at 1.5 Khz and your fuel trim data is incorrect and making a positive corrections. You’ve seen a bunch of these before and know that 1.85 Khz is a suitable value for this vehicle.
        
    You’re keen to prove that the serial data is leading you in the right direction so confirm the sensor output with your oscilloscope. The oscilloscope frequency mirrors that of the serial tool and your starting to get that warm fuzzy feeling that an you’re onto something.

    Steady the buffs
    You’ve been close to success before though, only to be thwarted in the final moments so you’re keen not to be caught out twice. You know that documenting the reasons that the MAF output could be incorrect is the way to go, and duly make a list of tests required to confirm your theories.

  • LAST CHANCE TO ENTER TOP TECHNICIAN 2019  

    Techs wanting to take part in Top Technician 2019 have until 23.59 tomorrow (Friday 4 January) to take the round one quiz, or risk missing out on the competition this year.

  • Do you have a business or a profitable job? 

    It’s a favourite of mine, and one we ask of all garage owners that join the Auto iQ business development programme...
      
    “Do you have a business or a profitable job?” Not sure which one you’ve got? Carry on reading.
        
    That question is a doozie and is often met with a few seconds of silence followed by a mixed range of answers whilst the questionee arranges their thoughts. The question is designed to be thought-provoking and entice the garage owner to work through the differences between the options.

    Different sides of the coin
    What’s the difference between a profitable job and a business? It’s a fine line with a BIG difference.
        
    Quite simply if you have a profitable job the income from your work (where you spend your hours in the day) reduces when you’re not doing that work. You might be able to get away from the business for a week or two but longer than that will have you sweating, you’ll wonder if your techs are efficient without you in the building, concerned that your numbers are going south.
        
    A business on the other hand will run without you being there for a significant length of time. Which one do you have?
        
    I can feel the tension elevating as some of you may be rising from you chair ready to give me a good talking-to. Hang fire though and hear me out. In no way am I saying that having a profitable job is wrong. Quite to the contrary. If that’s what you set out to achieve then who am I to say any different? Here’s the deal though. Most garage owners don’t embark on this amazing journey to be ‘self employed,’ they do it to build a bigger and better future for their families. They did it to have more time with their loved ones, the funds to allow this and probably have early retirement thrown in with the business providing the income. Can a profitable job do this or do you need a business that’ll run without you? I think you know the answer.

    What’s the difference?
    So you’ve decided that a business is preferable to a profitable job. But is there really that much of a difference? Let’s take a look. It often comes down to nothing more than a state of mind that separates these different sides of the same coin.
        
    Let’s compare the owner with a profitable job and the business owner. At first glance I’d challenge you to notice the difference. They’ll both have a business that they’re proud of and rightly so, they’ve worked hard to build it. More often than not they’re both skilled technicians, have the respect of their team as well as their customers. Then how can it be that one earns significantly more than the next. One word, focus.
        
    Our owner with the profitable job will be very focused. He’s focused on his own ability to fix the vehicles in his workshop often working shoulder to shoulder with the technicians. The technicians respect him because of his technical ability and work hard alongside him. All admirable qualities.
        
    Our business owner also has a laser-like focus, his target is a little different though. His gaze is firmly fixed on a vision of the business he’s building and knows that long term success requires not only focus but patience. He’s acutely aware of the one thing that will bring freedom and the time with his family (the reason he started this venture) is the team he builds and trains.
        
    This isn’t to say that he doesn’t roll up his sleeves and lead from the front when required, it’s just that his daily focus is on the strategic functions of the business that drive success, rather than the day-to-day tasks that so many owners get caught up in. There’s a huge benefit to this as well. You get to keep the skin on your knuckles.

    Dominant thoughts
    It’s a proven fact that we all move through our day in the direction of most dominant thoughts. What does your typical business owner ponder?. Now I can’t read minds (how cool would that be?) but I do know that these are the questions that need to be answered:

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