Is access to justice really out of reach for most employees?

The Guardian’s article “Access to justice is no longer a worker’s right but a luxury” provides an illustration of the difficulties faced by one individual who faced discrimination at work.

https://www.theguardian.com/commentisfree/2017/mar/28/employment-tribunals-workers-rights

On the face of it the lady concerned did not appear to be very well off but she was unable to obtain help with employment tribunal fees and in the event relied on her trade union together with crowd-funding to cover her legal costs and the tribunal fees.  Her case was settled and she was spared attending a hearing. 

We have blogged about the introduction of employment tribunal fees from time to time and this story serves as a reminder of the need for legal protection for individuals. BTE is more valuable than ever since the introduction of fees.

Following its review of employment tribunal fees the Government has confirmed that they have no intention of reducing the level of fees payable (£1200 for most claims that result in a hearing).

The story, however, does not paint the full picture.  It gives the impression that employment tribunal cases are scarce as fees deter individuals from pursuing their rights. While it’s true that claims against businesses have dropped since the introduction of fees the latest quarterly statistics – Q4 2016, show a 3% increase in the number of single tribunal applications received over the same quarter in 2015.

More importantly around 92,000 notifications of disputes were received by ACAS’s early resolution service in the year to March 2016.  The early conciliation service is free to both employers and employees and ARAG provides legal representation throughout the process for our commercial and family policyholders.  Parties are successful in arriving at an agreement through ACAS Early Conciliation in around one-third of cases and can avoid their claim escalating to tribunal.

Plumbers, pilots and parcel couriers: self-employment in the gig economy

Chancellor Philip Hammond’s first budget may have targeted the so-called gig economy with higher National Insurance contributions (before hastily withdrawing them a week later), but the nature of self-employment could be under the legal microscope for some time to come.

It seems that zero hours contracts and the gig economy just can’t stay out of the headlines, these days. Already this month, analysis of data from the Office for National Statistics has revealed that the number of Britons on zero-hours contracts neared 1 million last year, and more than one courier firm was found to be charging drivers who missed a shift.

A much-publicised Court of Appeal decision in February marked another skirmish in the continuing battle over workers’ rights and, specifically, the circumstances in which individuals engaged by a (third party) company to provide services can be considered self-employed.

That judgment followed a tribunal decision last year, which ruled that two Uber drivers were not self-employed, as the global taxi technology giant had claimed, but qualified as ‘workers’ and were therefore entitled to certain workers’ rights, under UK law. Uber has since appealed that decision.

The February case, Pimlico Plumbers v Gary Smith, dated back to 2011 when Mr Smith was dismissed a few months after suffering a heart attack. It took less than a year for him to get a decision from the original Employment Tribunal, but took almost another five for an Employment Appeal Tribunal in 2014 and then the Court of Appeal to uphold that original decision in his favour.

The dispute was just one of many revolving around the issue of self-employment and whether many in the so-called gig economy should really be considered “workers”” and thus be entitled to benefits such as rest breaks, holiday and sick pay and the minimum wage.

It is estimated that up to 5 million people in the UK, from delivery drivers to video producers, are paid for their work in this way. While many appreciate the flexibility that self-employment offers, such arrangements can, like zero hours contracts, be used to exploit staff and avoid employment obligations such as the minimum wage.

Questions about such arrangements are nothing new. Back in 2010, it was drivers for the delivery firm Hermes whose employment status hit the headlines. In 2013, contracts between Ryanair and pilots working for the airline came under scrutiny. The somewhat fluid definitions of "worker" and "employee" have been taxing employers, employment lawyers and journalists for at least a decade.

The 16,000-word judgment in the Pimlico Plumbers case makes for a long read, but one early line from Master of the Rolls Sir Terence Etherton, stands out:

“The case puts a spotlight on a business model under which operatives are intended to appear… as working for the business, but at the same time the business itself seeks to maintain... a legal relationship of client or customer and independent contractor rather than employer and employee or worker.”

Obviously, the Court was well aware that the issues in the case represent a wider phenomenon in the modern workplace and, while this particular decision might not be appealed, it won’t be long before other courts and tribunals will be asked to consider similar issues.

The legal tests of whether a person is truly self-employed are complex and still far from definitive, but any organisation that depends upon such working arrangements could start by considering whether or not they genuinely offer flexibility and benefit to the person doing the work or solely benefit the business.

The consequences of relying on unqualified representation.

Here's an example of why it's so important for customers to have Family Legal Protection.

In Sterling v United Learning Trust the Employment Appeal Tribunal (EAT) agreed that an employment tribunal had been right to reject a claim that did not have the correct early conciliation number recorded on it. This case should serve as a reminder of the consequences that can follow when individuals do not have access to qualified lawyers.

The employee was represented by an unqualified person. Four days before the deadline for making the claim the tribunal inferred that her employment tribunal claim form (ET1 form) was missing some digits from the EC number. The form was returned to her by the tribunal office two days later, with an accompanying letter. The address cited by the office was neither that of her representative nor her home. It ultimately arrived at a neighbour's house and the employee re-submitted straight away, albeit out of time.

The employee appealed against the rejection however the EAT determined that Employment Tribunal rules oblige the employment tribunal to reject a claim if the EC number is missing, although a party may apply for a reconsideration of such a rejection. In this case the employee's representative did not apply for reconsideration, and even though he was not legally qualified the EAT said the employment tribunal was entitled to conclude that no such application was forthcoming.

The representative also failed to argue that it was not reasonably practicable for the employee to have lodged the claim in time. The EAT dismissed the employee's challenge to this aspect of the judgement, making it clear that the burden was on her to prove that it was not reasonably practicable and that even if the point had not been argued originally there was a duty on the employee to ensure that the EC number was cited correctly.