Firstly, the most welcome decision this year is the Supreme Courts’ ruling that the Fees Order imposed in 2013 (which led to a 70% reduction in claims) is unlawful. Employment Tribunals are intended to provide a forum for the enforcement of employment rights by employees and workers, including the low paid, those who have recently lost their jobs and those who are vulnerable to long term unemployment. The Court ruled that the fees acted as an unjustifiable barrier on workers and employees being able to effectively enforce their rights.
The Supreme Court also made it clear in its judgment that all the fees paid between 2013 and now, which have been estimated to be £29 million will have to be refunded by the Lord Chancellor's Department (and the Lord Chancellor has agreed to do so). This is easier said than done - many successful claims will have had fees ordered to be paid by the Respondent, and there will probably need to be a manual trawl of all decided cases.
The final thought on this issue is what about all those people who chose not to bring a claim because of the fees? Will tribunals be amenable to the argument that it was not reasonably practicable to bring a claim when a Claimant was significantly impeded from doing so by an unlawful fees regime? Alternatively, following the decision it is just and equitable to extend time for bringing a claim? Watch this space!
A second major development is the recent ruling by the Employment Appeal Tribunal (EAT) in Dudley Metropolitan Borough Council v Willetts, that pay for voluntary overtime normally worked, should be treated as 'normal remuneration' when calculating holiday pay.
The EAT rejected the employer’s argument that overtime payments were not 'normal remuneration' because they lacked an intrinsic link to the performance of tasks required under the employment contract. Instead the Tribunal concluded that to exclude such payments from holiday pay would result in a financial disadvantage to workers, which could deter the taking of annual leave.
The implications of this case for both employers and employees who regularly work overtime is significant. Employers will be faced with greater costs whilst employees taking holiday will be entitled to receive holiday pay which actually reflects what they would have earned if they had not taken leave.
Finally, the Taylor Report, or the ‘Good Work’ report as it has now become known has been released following a spate of highly published decisions concerning Employment Status within the Gig Economy e.g. are Uber drivers or Plumbers working for Pimlico Plumbers employees, workers, or genuinely self employed. It makes a number of substantive recommendations concerning the classification of employment status and the allocation of different employment rights to 'employees' and 'workers'.
Some of these proposals are ‘ready to go’ and others would obviously require a great deal of work to turn them into something specific. For example, it’s all very well saying we need a clearer definition of who is an employee and who is a worker – but what would those definitions actually look like? Easier said than done!!
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