Should Tribunal Fees be reintroduced?

The government has said it intends to bring back employment tribunal fees, scrapped last year by the Supreme Court. Ministers have admitted to getting the balance between access and affordability wrong but it says that these discourage “vexatious” claims. In this blog, Chris Wilkinson from Expert HR Solutions Ltd. tries to explain the arguments both for and against.

With the introduction of fees there was a very significant reduce in the number of cases brought to tribunal. Opponents of the fees argue that relatively low value claims were obliterated because if an employer owes you, for instance, £500 employees felt that it was not worth paying £160 to pursue that claim. Supporters of the fees argue that if this was the issue then that is an argument for changing the system such that the tribunal automatically adds the Tribunal fee to any award in the event of the case being heard against the Respondent.

The argument that some people didn’t have the money to spend on Tribunal claims is surely an argument for making the system to help low earners avoid the fees much simpler say supporters.

Supporters of the fees argue that they deterred a large number of frivolous claims. The facts do not appear to support this argument as the number of cases that were unsuccessful dismissed or withdrawn remained broadly the same before during and after the fee structure was in force. Opponents say this simply isn’t true because lawyers see tiny number of cases where there is little if any chance of success, and that there is already a mechanism for weeding out on worthy claims which tribunal is able to impose deposit and cost orders on claimants. They continue that what the fees did do was allow employers who might previously have settled cases to take a harder attitude because they knew employees could not afford to take them to Tribunal.

It is the case that the large fall in caseload following the introduction of fees was followed by an equal and opposite large increase in cases following their withdrawal. This increase has resulted in an increase in waiting times so supporters argue that you need fair and proportionate fees in order to eradicate frivolous cases and reduce waiting times. One suggestion to achieve this is to introduce a sliding scale of fees similar to those charged by County Courts.

As always if you have any questions about this or any other article published by Expert HR Solutions then call us on (01202) 611033, we look forward to hearing from you.

Brexit and EU Workers

If you employ or are intending to employ EU nationals you need to read this says Chris Wilkinson from Expert HR Solutions. Assuming we do not crash out of the EU with no agreement then the introduction of the new settled status will mark the end of freedom of movement for EU citizens in the UK.

From 1st July 2021, EU citizens and their family members in the UK must apply to hold lawful UK immigration status under a new ‘settlement scheme’. An implementation period will run between 29th March 2019 and 31st December 2020, during which time there will be no change to EU citizens’ current rights. At the end of the implementation period in December 2020, settled status will replace permanent residence status.

EU citizens and their family members with settled status will have the right to remain in the UK indefinitely and have access, as they currently do, to healthcare, pensions and other benefits in the UK.

Until the new status has been passed into law, and we don’t currently know whether it will and if it is then when it will become law the rights and status of EU citizens in the UK remain unchanged. This includes the attainment of permanent residence status after five continuous years of exercising Treaty rights, and the requirement for proof of permanent residence as a mandatory prerequisite for EEA nationals applying to naturalise as British citizens.

EU citizens and family members living in the UK for five continuous years by 31st December 2020 will have until 30th June 2021 to make a settled status application to remain in the UK indefinitely. Those who are in the UK by 31st December 2020 but have not attained the requisite five-year qualifying period will be eligible for ‘pre-settled status’. With this, they are permitted to stay in the UK until they have reached the five-year point, when they should apply for full settled status.

Close family members will be able to join an EU citizen relative in the UK after the end of the implementation period, provided the relationship existed on 31st December 2020 and continues to exist when the individual comes to the UK. This includes spouses, children and other dependants, as well as future children.

Applications will cost £65 for those aged 16 or over and £32.50 for children under 16. Those who already hold a valid permanent residence or indefinite leave to remain document will be able to transfer to settled status free of charge.

For UK employers, the new settled status raises a number of considerations. EEA national personnel may have questions about what to do and whether they qualify for the new scheme, or they may wish to secure permanent residence status before the new system comes into force. Ensuring your workforce has access to up-to-date information will help to inform and reassure them of any concerns.

With the new scheme will come an inevitable need to police EU citizens’ immigration status. We expect this will fall to UK employers as part of their Right to Work

document checks, following an update to the Home Office’s lists of acceptable documents.

From an HR compliance perspective, now is a good time for employers to ensure all relevant organisational policies and processes (recruitment, onboarding) are compliant with Right to Work duties and do not discriminate against individuals on the basis of nationality, and that relevant personnel are adequately trained and skilled to perform the document checks correctly.

If you want help with this or any other aspect of employing people then give us a call on 01202 611033.

Post Brexit Right to Work


Chris Wilkinson from Expert HR Solutions says that the latest report on the checks employers have to make on the right to work post Brexit could prove problematic for employers who have become accustomed to working with hard copy documents, as the Immigration Minister Caroline Nokes is quoted as saying: “Government services are digital by default. We would prefer that to be the default route and think that it provides a much quicker and seamless service.”

Traditionally employers have asked to see documents such as passports and biometric cards, were understood by employers and the proposed digital-only settled status system’s success depended on businesses embracing a new way of working Chris continues.

Last month, the government pronounced on how EU citizens who had lived in the UK for at least five years could apply for settled status. The proposal makes the settled status process as paperless as possible, issuing successful applicants with digital codes. Employers can then enter these codes into the Home Office website to confirm the applicant’s immigration status. Chris warns employers that there is a risk of a civil penalty for employers employing someone without the correct immigration status.  He continues that far too often he comes across situations where the employer assumes that because the potential employee has been employed in the UK before the correct checks have been done and the right to work established.

More guidance on how employers were expected to keep records of these digital codes would be helpful.  It might also be the case that the codes could allow employers to view sensitive information about employees, such as details of any criminal convictions, names and addresses they would need to keep any record of these codes in accordance with the GDPR.

Meanwhile, the Home Office accounts for the year ended 31 March 2018, which were published last week revealed the number of staff employed by UK Visas and Immigration had risen to 7,680 full-time equivalent workers, up roughly a fifth (18.8 per cent) compared with 6,467 the year before.

However, Office for National Statistics (ONS) figures, released last week, showed the number of EU citizens immigrating to the UK had dropped in the last year, while the number leaving the country had shot up. In particular the number of people moving to the UK from the bloc to look for work fell by 18,000 compared with the previous year to 37,000.

Any employer that wants help with this or any other employment related question can call Expert HR Solutions on 01202 611033 for a FREE 30 minute consultation.

We are delighted…

Expert HR Solutions

At Expert HR Solutions we are proud to say all our staff and associates are qualified and experienced HR professionals so you know the advice you are getting is amongst the best available to you says Managing Director Chris Wilkinson.  Sadly, he goes on, even with our knowledge and experience we can’t remove the right of every employee to take their employer to a Tribunal.

We have been suggesting an insurance policy that provided legal expense cover but only if the insurer decided there was a better than evens chance of winning the case.  We are delighted because Liam Wyatt from Lansdowne Woodward Insurance Brokers Ltd has managed to find us a policy that guarantees up to £100,000 cover for Employment Practices Liability.  Chris thinks that taking out such cover is a bit of a no brainer, after the withdrawal of Tribunal fees the number of cases has risen back to the same sort of numbers as before they were introduced, that is around 225,000 cases per year.  According to government statistics there are 2,668,810 businesses that are registered for PAYE purposes which means if each case was against a different employer then 1 in 11 employers are taken to Tribunal annually. In most cases costs are not awarded to Employers even if they win the case and if you lose then costs will be awarded against you.  For a five-day hearing this could easily amount to around £30,000 and the average Tribunal award for discrimination cases was just over £21,000.  Based on those figures you would have to pay the likely premium for nearly 200 years to be in negative financial territory.

If you want to know more about how Expert HR Solutions can help then give us a call on 01202 611033, we promise we do not go in for pressure sales and you first consultation is FREE so what have you got to lose.


The Supreme Court has handed down its verdict that notice of termination takes effect neither when the termination letter is posted by the employer, nor when it is put through the employee’s front door, but when the employee reads it requires a change to every Contract of Employment says Chris from Expert HR Solutions.

It centred on the timing of her dismissal and whether the official notice fell before or after her 50th birthday, which had a major financial implication on future pension payments.

The ruling means that in the absence of an express clause in a contract outlining when notice is deemed to be given and take effect, it will be implied that notice will take effect from when it has been received and read by the employee, having first had a reasonable opportunity to do so.. The employee’s employment contract stated that she was entitled to a minimum 12-week notice period, but did not state how that notice should be communicated.

During the consultation when her post was placed at risk of redundancy, which she accepted, she requested that a final decision about this should not be made in her absence and explained when she would be on holiday, the Trust knew about and had approved the holiday.. The Trust sent a letter giving written notice of termination by recorded delivery to her home address, aware that she was away on holiday at the time.  A copy was also emailed to her husband’s email address.

As she was on holiday there was no one at home when the recorded delivery letter arrived so it could not be delivered.  It was collected by her father but not seen by the employee until she returned.

The Employer argued that notice was effectively communicated on 20 April, 12 weeks after the letter was sent, meaning her 12-week notice period expired before her 50th birthday.  The Employee maintained that notice of her termination was not effectively communicated until she read the letter on 27 April, meaning her termination date would be after her 50th birthday.

The High Court and the Court of Appeal upheld her case that the notice period only commenced after she had read the letter and the Supreme Court has now agreed.

In the absence of an express contractual provision, the court had to determine the implied contractual term as to when notice took effect. The Trust argued that a common law rule, derived from landlord and tenant cases, provided that notice was given when the letter was delivered to the recipient’s address.  The Employee relied on the approach of the Employment Appeal Tribunal (EAT) in employment cases that notice only took effect when it had actually been received by the employee and the employee had either read or had a reasonable opportunity to read it. The Supreme Court majority upheld the EAT approach was correct.

The ruling is important for employers and employees as the termination date can be decisive in determining an employee’s entitlement to a bonus or other contractual payment, insurance or employee benefits, or the statutory right to claim unfair dismissal and/or redundancy pay, and increased pension rights.

Chris says that the decision should prompt employers to review their contracts and, for those who have not already done so, to take advantage of the clear steer from the Supreme Court that careful drafting can provide greater certainty of when the notices they give take effect.

How to become a Criminal

A number of very high profile cases are pushing the government to make wilful or reckless behaviour in the handling of company pension funds a criminal offence in the UK, according to a government white paper that announced new proposals to ‘crack down’ on unscrupulous bosses says Chris Wilkinson of Expert HR Solutions.

Is the Protecting Defined Benefit Pension Schemes White Paper a “giant step in the right direction” as some commentators have asserted or a giant step towards criminalising well intentioned employers?  It certainly looks to provide The Pensions Regulator (TPR) with tougher, more active powers to intervene when employers evade their obligations.

Measures outlined in the white paper include giving TPR the power to punish employers that deliberately put their pension schemes at risk by introducing punitive fines and improving the effectiveness and efficiency of their existing powers which protect member benefits and hold employers to account.

The government said it would legislate to introduce a criminal offence that will punish those found to have committed wilful or grossly reckless behaviour in relation to a pension scheme. It would also build on existing processes to support the disqualification of company directors.

A consultation will be carried out over the coming months to ensure this is delivered effectively. As a policy document, the government’s white paper proposals for future legislation are still subject to change.

The planned improvements to TPR funding, information-gathering and anti-avoidance powers will enable them to be clearer about what we expect from employers in relation to scheme funding, and tougher where a scheme is not getting the funding it needs.”

Kate Smith, head of pensions at Aegon, said the measures to protect against a “small minority” of unscrupulous employers were a “giant step in the right direction”.   “It is sending out a loud and clear message that reckless behaviour from employers that puts defined benefit schemes at risk will no longer be tolerated.  Those employers found guilty of deliberately putting their defined benefit schemes at risk can be heavily fined and risk a criminal record,” she said.

However, other experts felt the measures could be slow to introduce and difficult to enforce. Steve Webb, director of policy at Royal London, said the new laws could be reduced to “gesture legislation”.

“With an Act of parliament likely to have to wait until 2019-20 and further detailed regulations needed after that, it could be a long time before today’s paper has any practical impact.”

Chris urges all Companies to take advantage of the likely delay in legislation to ensure they have a Pension scheme in place and that it is properly funded.  He concludes, if you want advice on current legislation why not call us on 01202 611033.

New Ruling on Working Time

Do you have ‘Workers’ who spend time ‘on call’ asks Chris Wilkinson from Expert HR Solutions.  If so the latest ruling from the Court of Justice of the European Union (CJEU) may affect you.  Read on to find out why and what the consequences could be.

The case involved volunteer firefighters who are involved in operations, standby services and other duties at the fire station, which are arranged by roster at the start of each year.  They are paid an annual allowance for their standby work.  The case was originally heard in 2009 when a firefighter brought legal proceedings against his employer for a failure to pay sufficient remuneration for his services as a volunteer firefighter during his years of service.  In particular, he claimed that his standby services should be categorised as working time.  The case was upheld, but the employer appealed, and although the appeal was partially upheld the CJEU was asked to rule on whether the standby services should be classed as working time.

The CJEU established that the firefighter was a worker.  Although he held a voluntary, rather than a professional, status in his country, this did not affect his definition as a worker according to case law. The nature of an employment relationship under national law cannot determine whether or not the person is a worker under EU law.

The court was also asked to rule on whether Matzak’s standby work should be considered to be working time under the directive, despite his being at home while on call, “given the constraints on the worker at the time preventing him from undertaking other activities”.

It found that, if the standby period, in the form of physical presence at the place of work were excluded from the concept of working time, it would seriously undermine the objective to ensure workers’ safety and health by granting them adequate rest periods and breaks.

While the firefighter spent his standby duties working at home, he was obliged to respond to calls from his employer within eight minutes, and to be physically present in the place determined by his employer.  Under such circumstances, it was impossible for the worker to choose where they wanted to be at that time, rendering the working hours within the worker’s normal working duties, the CJEU said.

The obligation to remain physically present at the place the employer determined and the geographical and temporal constraints resulting from the need to reach his place of work within eight minutes objectively limited the opportunities that a worker in his circumstances had for his own personal interests, the court found.  This differed from a worker who must simply be at his employer’s disposal to ensure it is possible to contact him during standby duty.

In effect this ruling means that the greater the restrictions on a worker when on call but not working the more likely it is that the on-call period will be regarded as working time.  This may then have implications in relation to compliance with rest periods, working hours and the national minimum wage.”

Chris advises Employers to consider carefully whether they need to place significant restrictions upon employees’ activities when they are on-call.  If you want help on this or any other employee issue why not give Expert HR Solutions a call on 01202 611033, the first 15-minute consultation is free.

To be a Worker or not to be

We have seen a series of Tribunal cases of late that have challenged where the line between worker and contractor should be drawn.  So, to try and help Employers know where that line is drawn we have tried to clarify the current situation says Chris Wilkinson from Expert HR Solutions.  He cautions however that as several cases are still awaiting final rulings the situation is fluid and suggests professional advice should always be sought as the cost of getting it wrong are significant.

The recent tribunal and court decisions have each found that some ‘self-employed contractors’ may be ‘workers’ for employment law purposes, even if they retain their self-employed status for tax purposes.  The Uber drivers’ case has been all over the news.  The Tribunal held that the two drivers were workers, at least whenever they had Uber’s app switched on. Uber still maintains that the drivers were self-employed contractors. The Employment Appeal Tribunal agreed that the drivers were workers. Uber are taking the case to the Court of Appeal later this year.  There have been several other cases with similar rulings including CitySprint, Excel and Addison Lee cases and the Pimlico Plumbers case, which is currently before the Supreme Court.

The distinction between worker and contractor is financially important says Chris. Unlike self-employed contractors ’Workers’ are entitled to basic rights including holiday pay and the national living or minimum wage.  ‘Employee status’ brings with it further rights and protections.  These include the right to claim for unfair dismissal and the protection of TUPE.  Now that the barrier of employment tribunal fees has been removed, workers may seek to challenge the line between ‘worker’ and ‘employee’ status too.

All of the above is just the employment law situation. If we were to add tax law to the mix, the waters would get muddier still.  The Taylor review of modern working practices favoured retention of the three-tiered employee, worker, self-employed contractor approach, though it found the word ‘worker’ confusing and it proposed that those with worker status should be reclassified as ‘dependent contractors’.  The review went further, despite its scope, suggesting that the distinctions drawn in tax and employment law should be aligned.

So, what are the key considerations for business asks Chris.   If you engage people to work for you, you should think carefully about their status before they do.  Make sure the paperwork and the reality tell the same story.  Saying that someone is one thing when they are clearly another is grit for the conflict mill.  Does the contract clearly define the worker’s status; for example, are they employed, a worker or self-employed?  Are the terms clear and user-friendly?  Do they make objective sense? Is there clear guidance on how the worker will report for work, and account for the time spent working under the contract?  Do the terms set out how tax and national insurance will be dealt with?

Overall, do you feel confident that the terms accurately reflect the true relationship with the worker?  Importantly, do you know what this status means for each of you?  If you don’t, then why not give us a call on 01202 611033, your initial consultation is FREE.

Disability Discrimination and Dismissal

The London Employment Appeal Tribunal (EAT) has overturned an employment tribunal’s finding that a former charity worker dismissed for ill-health capability suffered disability discrimination.

According to the EAT’s judgement there was no proven link between the disability of the claimant and her dismissal.  The Judge said that the employee had not presented her former employer with the disability discrimination claim and “it therefore did not respond to it”, and said the previous Tribunal judgment in favour of the employee “must be set aside”.

During a holiday to Ghana in August 2014, she became seriously ill with muscular tumors known as fibroids on her uterus, and anaemia. On her return home, she was immediately signed off work. She never returned to work.  In November 2014, a meeting took place between the employee, her line manager and a HR manager, regarding her condition.  It was left that matters would be reviewed in due course.

A first stage long-term sickness absence review took place on 22 January 2015 under the employers sickness absence policy, followed by an occupational health assessment on 6 February 2015.  This found it was unrealistic for the employee to attempt to return to work, and it was impossible to predict when she may return.

Although the employee suggested she could return to work within weeks during the first review meeting on 20 February 2015, another occupational health assessment in April 2015 revealed she could not return within four to six weeks.  By the time the employee’s entitlement to sick pay came to an end in April 2015, she was invited to a second sickness absence review on 29 April 2015.  The only reference made in the meeting to dismissal was by the employee.  However, the employee was dismissed on the grounds of ill-health capability by letter dated 1 May 2015. She appealed 10 days later.

During the appeal hearing on 29 May 2015, the employee said the meeting on 29 April had been unfair and that she would have explored other options with her doctor had she known the seriousness of the meeting.  By a letter dated 17 June 2015, her appeal was dismissed.

She brought her claim to the employment tribunal.  Looking at the process as a whole, the tribunal held that the employer’s conclusion in the appeal that the employee remained unfit for work for the foreseeable future was open to her on the evidence, and that accordingly the dismissal was substantively fair.

As to the question of fairness, however, the tribunal concluded that the dismissal stage was procedurally unfair, because the employer, both in the 29 April meeting and in its letter inviting her to it, failed to explicitly tell the employee in clear terms that the process had reached the second stage formal meeting under its policy and that one of the options was dismissal.

Acknowledging that the fairness of a dismissal must be considered in the light of the procedure as a whole, the tribunal considered the appeal process.  It found that the procedural unfairness at the dismissal stage was not cured by the employer’s appeal process.  It found that the employee’s claim of discrimination arising from disability was established but it needed “to make it clear that we have no doubt that the claimant would have been dismissed within a very short while had a fair process been followed”.

The employer appealed and the Judge allowed the appeal and concluded that the claim of unfair dismissal should be dismissed because the employer had adopted a fair procedure.  In addition: “As the employee was no longer in receipt of company sick pay at the point of her dismissal, she has suffered no out of pocket loss because of this omission.”

The employers appeal against the discrimination the Judge said that such a claim required proof of the causal link between her disability and treatment, which the employee had failed to provide.

Chris Wilkinson of Expert HR Solutions said that the employer could have saved themselves a lot of money and time had it been explicit about the potential outcome of the hearings and given the employee the opportunity to explore other opportunities at an earlier stage.

If you want pragmatic advice on any matter concerning your employees or potential employees why not give Expert HR Solutions a call on 01202 611033, your initial consultation will be FREE.

Ouch or Insure?


There has been a lot in the Press of late about Employment Tribunals not least because of the Supreme Court Ruling that had the immediate effect of stopping Tribunal Fees says Chris Wilkinson from Expert HR Solutions.  We therefore felt it would be good to follow up our Blog on the removal Fees with a more detailed picture of what it means to employers to be taken to Tribunal.

Before you stop reading please bear in mind the number of Tribunal cases has risen by 36% in the last year.  There are 5.5 million businesses in the UK of which 99% are classed as SME’s and 5.3 million of them employ fewer than 10 people.  This means that about 1.5% of all businesses are taken to Tribunal each year.

Here at Expert HR Solutions we pride ourselves at keeping our clients out of Tribunals.  We do that in two ways, firstly our clients have access to our helpline which is staffed by very experienced, qualified HR Professionals all of whom are Chartered Fellows of the HR Professional Institute, and therefore hold Masters level qualifications in HR.  For the majority of our clients seeking our advice and then following it is enough.  However, we can’t stop employees taking you to Tribunal, so we offer the option of insuring our advice against the cost of being taken to Tribunal.

Please sit down before you read on, this is frightening.  Costs are very rarely awarded to the winning side in Tribunals, so even if you win you are likely to have to bear your own legal costs.  A good Employment law Solicitor is likely to cost between £150 to £200 per hour, including preparation time we believe your legal costs are likely to be in the order of £15,000.

Now comes the really scary bit, the average Tribunal award for unfair dismissal was £13,851 and the average award in any discrimination case was £28,400.  Add in your legal costs and you could be facing costs of between £28,851 and £43,400.  That is why we really believe our services represent fantastic value for money, in five years of trading we have never had a client taken to Tribunal as a micro business you could pay for our Gold standard service for about 40 years.  Take out the optional insurance, take and follow our advice and those scary legal and award costs disappear too.

Need some more persuading?  Well, the number of costs awards made by the Tribunal in 2015/16 followed the trend and fell to 658.  More awards were made to Claimants (employees) than Respondents (employers).  The median award remained at £1,000 for the third year in a row so would not have completely reimbursed you legal costs.

Give us a call on 01202 611033 to find out more about our services, costs and insurance costs and details.