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JOHN BOWERS QC ON EMPLOYMENT LAW: OCTOBER BLOG

The following commentary is the latest in a series of Employment Law blog posts by John Bowers QC.

Aftermath of the Supreme Court Fees Judgment

Two consequential aspects of the fees judgment in the Supreme Court invite attention. Firstly the employment tribunal system will need more judges; many employment judges have moved onto other things during the decline in “business” because of the introduction of fees, either as a permanent move (such as to the Immigration judiciary) or for part of their time (including being Deputy District Judges). If this does not happen there is a real risk that the system will slow down as it did before fees were introduced when it took many months for cases to come to a hearing.

The other aspect which the system will have to tackle are the cases where potential claimants can say they would have applied to the tribunal but could not afford the fees. In unfair dismissal cases this means that the claimant will have to say that it was not reasonably practicable for them to present the claim, and this must be determined on a case by case basis. Some respondents also saying they shouldn't have to re pay fees even when there is an order because claimants will get the money back from the MOJ.

The changed judicial landscape in strike cases

As I write the next edition of our book on strikes, I am struck forcibly by the change in judicial approach to those who strike.  When I started at the Bar, there was a real judicial hostility to strikes and a willingness, indeed eagerness, to limit the scope of what are in theory immunities from tort law for primary strike action under the trade dispute formula.  The chief exponent of this trend was Lord Denning MR and the apogee of this trend can be found in Express Newspapers v McShane [1980] ICR 42.  A different generation of judges is now responsible for a radically different approach.  This has been aided by the use of Article 11 ECHR as interpreted by Strasbourg to protect albeit to a limited degree industrial action. 

There are many dicta which illustrate this trend and I merely give a digest of them here:

  • In BA v Unite [2010] IRLR 809 para 19; Smith LJ said that unions must have an effective right to withdraw their labour.
  • In Balfour Beatty v Unite [2012] IRLR 452 Eady J said that sensitive issues of policy arise as to where the balance should be struck between striving for democratic legitimacy and imposing unrealistic burdens in unions and officers.
  • ISS Mediclean v GMB [2015] IRLR 96; Singh J said ‘The law has labyrinthine code of detailed requirements with which unions have to comply. The courts should be loathed to introduce by the backdoor implicitly what may be other further restrictions which are not in the legislation’.

These dicta led the judges to a favourable position for the union defendants.

Public sector equality duty

Employment lawyers need to be familiar with the public sector equality duty but often are not. 

The key enactment is that:

A public authority must, in the exercise of its functions, have due regard to the need to:

  • eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
  • advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
  • foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

This is a somewhat tentative step on the way to more positive action, a form of affirmative action.  It is open textured in scope and required proactivity but the governing principle is that due regard be paid to these virtuous features.  It should not be treated as a mere tick box exercise.  Due regard must have been had by the decision maker: but due regard means conscientious consideration not that it should trump all other aspects of a decision.  It does mean that there is a need to gather information so as to be able to make a proper judgement and have due regard.

Whistleblowing

We held a launch for our Whistleblowing book at the London offices of DLA Piper in late September and the panel of speakers were in unanimity that the provisions are not fit for purpose either because of their complexity or because the coverage is not complete. Some think that we should go over to a penal damages regime such as exists in the USA (until Trump most likely abolishes it). I take a somewhat different view. I think the Act was a major step forward and it is important to grade the protection for different types of whistleblowing, i.e. internal, to regulators and then externally and that will inevitably introduce complexity. I also think that the law has changed the perception of the whistle-blower from a negative stereotype of the snitch to a more positive presentation in the media and public perceptions. I also think the law is only part of the answer. There also has to be a change in culture within organisations to tolerate or in some cases to celebrate whistleblowing as helping to draw attention to difficult situations. Here the Speak up Guardians within the NHS introduced after the report by Sir Robert Francis, one of our panel of speakers, provides an excellent model.

I am struck by what Gareth Salter about this in a PCAW report “Employers…the easiest thing to do with an opponent, whether a political opponent or a whistle blower is to brand them…to blacken their name”. This is often very difficult to pick up and robust inferences often have to be drawn.

A useful passage

In each blog I will include a pithy passage that is useful to keep in the rhetorical cupboard for future use. This will be equally weighted (so far as is possible) between employer and employee interests. This month’s is a helpful one if you are seeking to uphold a decision of the ET in the EAT or Court of Appeal: it comes from Hewage v Grampian Health Bd [2012] ICR 1054 para 26 where the EAT said “one ought not to take too technical a view of the way an et expresses itself, that a generous interpretation ought to be given to its reasoning and that it ought not to be subjected to an unduly critical analysis”.

 

Posted: 16.10.2017 at 17:57
Tags:  Comments  Employment Law  Articles
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