New Employment Appeal Tribunal Practice Direction

by Laurie Anstis on January 2, 2019

After what had been a quiet year in employment law there were a number of significant developments which took place in the last two weeks of December, including the government’s response to the Taylor Review, the Court of Appeal’s decisions on employment status in Uber and on age discrimination and other matters in the judicial and firefighters’ pension cases.

Somewhat lost amongst those developments was a new Practice Direction from the Employment Appeal Tribunal, to take effect from 19 December 2018 and containing some substantial changes in EAT practice.

Helpfully the html version of the new Practice Direction (though not the .pdf version) sets out the most significant changes, which are as follows:

  • Allowing appeals to be made within 42 days of receipt of written reasons (rather than the written judgment) where the employment tribunal had accepted a request for written reasons made outside the usual 14-day time limit.
  • An end to the ability of individuals to check public EAT documents by calling in person at the EAT office (but still allowing them to request a copy of certain documents).
  • Extending the standard time allowed for the respondent to file an answer to an appeal from 14 days to 28 days.
  • Requiring skeleton arguments to be lodged 14 days before a hearing in all cases (previously only full hearings required skeleton arguments 14 days beforehand, with 10 days being sufficient in other cases).
  • A new section setting out the procedure for a ‘leapfrog’ appeal direct from the EAT to the Supreme Court.

A number of other changes are described simply as ‘documenting existing practice’ but are still significant, such as a suggestion that where an appellant is unrepresented but the respondent is represented that the respondent could prepare the bundle (“a represented Respondent may be willing to take this responsibility from an unrepresented Appellant”), along with a formal option in the sift process for further consideration on receipt of a submission from the respondent.

Government announces reform in response to the Taylor Review

by Laurie Anstis on December 17, 2018

The government has today published its “good work plan“, which is said to implement 50 out of the 53 recommendations of the Taylor Review. 

It seems a long time since we have had any new employment law proposals, but this brings with it a wide range of proposed changes – mostly points of detail rather than major new initiatives, but even the points of detail are likely to be significant. For instance, a proposal to move the length of time needed to break continuous service from one week to four weeks, so that someone who works for an employer on a casual basis only once a month may be able to acquire the necessary length of service to claim unfair dismissal.

Other proposals including removing the Swedish derogation from the Agency Worker Regulations, along with an enhanced entitlement to written particulars of employment starting from the first day of work and a right for casual workers to request a fixed working pattern. There will also be greater regulation of “umbrella” companies.

Almost every kind of employment relationship will be affected by these changes, if implemented. There are provisions for strengthening the enforcement of employment tribunal awards, including the possibility of penalties of up to £20,000 (rather than £5,000) and naming and shaming employers who do not pay employment tribunal awards.

The document is short on any timetable for implementing these proposed reforms, or when they may come into effect, and in the current political climate there may be issues with whether all or any these changes will make it through Parliament before an election.

The government is notably making the point in the document that these new proposals go further than required by EU law.

Law Commission consultation on employment law hearing structures

by Laurie Anstis on September 28, 2018

As anticipated, the Law Commission has now set out its full consultation on ’employment law hearing structures’.

This consultation looks at the way in which the employment law jurisdiction (and also discrimination claims outside the employment field) is split between the employment tribunal, EAT and civil courts.

The Law Commission says ‘the scope of this project should … be to propose the removal of discrepancies in the light of several decades of experience of the employment tribunals system‘, but rules out consideration of an ‘Employment and Equalities Court’ as being outside its remit. Read the rest of this entry »

Law Commission to consider ‘Employment Law Hearing Structures’

by Laurie Anstis on December 18, 2017

The Law Commission has set out its 13th programme of law reform, to be developed over the next three years.

One of the areas of review is ’employment law hearing structures’, in respect of which the report says (paras 2.14-16):

The Civil Courts Structure Review led by Briggs LJ noted that there is an “awkward
area” of shared and exclusive jurisdiction in the fields of discrimination and employment law, which has generated boundary issues between the courts and the Employment Tribunal System (the Employment Tribunal and the Employment Appeals Tribunal). As sui generis entities, both employment tribunals sit “uncomfortably stranded between the Civil Courts and the main Tribunal Service”. These issues are well known amongst employment law experts, judges and practitioners; they can cause delay and can also prevent cases being determined by the judges best equipped to handle them. Read the rest of this entry »

New presidential case management order lifts stay on post-Unison cases

by Laurie Anstis on August 18, 2017

On 9 August 2017 the President of the Employment Tribunals (England and Wales) issued a case management order staying any claims or applications relying on the outcome of the Unison employment tribunal fees judicial review case in the Supreme Court. A similar order was issued in Scotland.

This was always said to be a temporary stay (a point confirmed in subsequent correspondence) and today a further case management order has been issued lifting the stay.

The order and explanatory notes say that reimbursement of fees and, importantly, applications for reinstatement of claims will be dealt with (where necessary) according to administrative procedures to be announced shortly.