Occupational hazards

Employment disputes mirror tensions in wider society, from competing views on free speech, to political hot potatoes such as the transgender debate and the Gaza conflict.

But while such tensions are manifold, resolving those disputes has become complex and time-consuming. Anyone involved in an employment tribunal faces an average wait of around a year for their case to be heard, leaving workers and employers in limbo.

The backlog topped 50,000 cases at the end of 2022, though statistics from the Ministry of Justice show the number is falling as outstanding claims return to pre-pandemic levels. Single employment tribunal receipts, disposals and open cases all decreased in the second quarter of 2023/24, by 1%, 3% and 17% respectively on the same period of the previous year.

And now the government has revived the prospect of fees, which could cut claims further. An eight-week consultation that closes on 25 March proposes ‘modest’ fees that ministers argue will ensure users pay towards tribunal running costs, reducing the burden on taxpayers.

Currently, there are no fees for employment tribunal claims. That follows the unanimous 2017 ruling by the Supreme Court, in a challenge brought by trade union Unison, that fees introduced in 2013 were unlawful because they impeded access to justice.

In a foreword to the new consultation, justice minister Mike Freer said the government had ‘carefully considered’ the Supreme Court’s ruling and endeavoured to ensure that the new proposed fees are proportionate and affordable. As with other court and tribunal jurisdictions, Freer said, there will be financial support or remission for those on a low income or without savings.

The proposed fees are much lower than those introduced under former lord chancellor Chris Grayling in 2013. It will cost £55 to bring a claim and £55 to lodge an appeal. Under the previous regime, fees started at £390 for the simplest claim, rising to £1,200, with appeals pegged at £1,600.

Officials estimate that the new fees will generate between £600,000 and £700,000 in 2024/25, and between £1.3m and £1.7m annually from 2025/26. Employment tribunals currently cost the taxpayer £80m a year.

Even though the new fees are much lower, lawyers and campaigners remain concerned about their potential impact. Some predict another legal challenge.

Andrew Pepper Parsons, head of policy at whistleblowing charity Protect, points to the 67% drop in claims that followed the introduction of fees in 2013. Fees ‘will inevitably make it harder for people who have just been dismissed to seek justice’, he says.

The government insists that fees will put claimants on the same footing as other court users who pay for access. But Jo Moseley, a senior associate in Irwin Mitchell’s employment law team, says this is misleading. She notes that different rules apply in other civil law cases, meaning winning claimants usually recover the court fee and other legal costs from the respondent, on the basis that the loser pays.

In tribunal proceedings, by contrast, costs are not usually recoverable. There is no suggestion in the consultation that successful claimants will automatically be able to recover them from respondents.

Deborah Margolis, a senior associate at GQ Littler, believes a steep decline in claims is unlikely, but says the new charges may deter some on lower incomes from bringing low-value, low-merit, or vexatious claims.

James Townsend, a partner at Payne Hicks Beach, says the tribunals have been under-resourced for years. He believes that making better use of existing case management powers to weed out weak and time-consuming claims would be a better way of saving money than introducing fees.

Townsend also fears that fee levels could creep up once they are introduced, impeding access to justice for those with modest savings who have lost their jobs.

Menopause claims

So what are the current trends manifesting in claims? For women, who still face problems securing equal pay, one workplace taboo (until recently at least) has been the menopause. Research by the Chartered Institute of Personnel and Development found that two-thirds (67%) of working women aged 40-60 with menopausal symptoms experienced a mostly negative impact on their work.

Of those, 79% said they were less able to concentrate, 68% said they experienced more stress, nearly half said they felt less patient with clients and colleagues, and 46% felt less physically able to carry out tasks. More than half endured spells when they were unable to go to work due to menopause symptoms.

Separate research by the Fawcett Society found that one in 10 women surveyed who were employed during the menopause left work due to symptoms.

Lawyers report a rise in enquiries from employers and employees concerning menopause symptoms, with the menopause now being cited in tribunal cases. For example, a former telesales worker at insurer Direct Line was awarded nearly £65,000 last September after her (female) boss ignored her menopause symptoms and penalised her for allegedly underperforming. The tribunal, at Leeds, heard that Maxine Lynskey started to suffer from ‘brain fog’ caused by the onset of the menopause. This affected her work and she resigned after being formally disciplined by the company for poor performance.

Last October, meanwhile, an employment tribunal heard the first claim brought on the basis that menopause symptoms are a disability. Maria Rooney, a former children’s social worker, claimed that she had been bullied, harassed and intimidated by her managers, telling the tribunal she felt ‘colluded against’ by Leicester City Council due to suffering symptoms of menopause.

The city council is contesting her claim.

Judgment in Rooney’s claim, which was supported by the Equality and Human Rights Commission (EHRC), is expected later this year.

Last month the equality watchdog responded to growing concern about women being forced out of a job because of menopause-related symptoms – and the fact many women feel unable to request workplace adjustments – by issuing guidance to help employers understand their obligations.

Depending on the facts, it is possible for those experiencing discriminatory treatment by their employer arising from the menopause to bring claims relating to protected characteristics of age, gender or disability, explains the EHRC’s guidance. If symptoms have a long-term and substantial impact on a woman’s ability to carry out normal day-to-day activities, it says, they could be considered a disability. That puts employers under a legal obligation under the Equality Act 2010 to make reasonable adjustments and not to directly or indirectly discriminate.

Whether or not menopause symptoms amount to a disability will depend on the individual circumstances and their severity, effect and duration, explains Townsend.

Emmanuelle Ries, an employment partner at Kingsley Napley, notes that ‘reasonable adjustments’ could include changing an individual’s start and finish times, providing desk fans or ventilation, and providing access to a quiet space and cold water. Inclusive employers should also educate their workforce about menopause-related issues, she says.

Natasha Adom, partner and head of client training at GQ Littler, cautions against automatically categorising as a disability a condition which is, after all, a natural occurrence in a woman’s life. This could effectively stigmatise older women and act as a disincentive to employers from hiring them in the first place, she says.

Brexit bump

In the broader political arena, meanwhile, the work of the tribunals is certain to be further affected by Brexit. UK courts are no longer bound by the principles of EU jurisprudence, which is generating uncertainty and likely to result in litigation.

Trade unions have warned that workers’ rights are at risk after the government unveiled plans to scrap EU rules on working hours as part of the drive to cut ‘red tape’, notes Laura Thompson, a senior associate at Slater and Gordon. The removal of time-recording requirements, she says, could lead to many working too long, including at night when accidents may be more likely.

There are also many legislative changes to be assimilated this year, notes Philip Cameron, a partner at GQ Littler – though it is unclear how many will prove transitory should a Labour government be elected at the next election (see box, above). Speculation is growing that Labour will dilute its ‘New Deal’ amid fierce lobbying from employers.

One such area relates to carrying over holiday and holiday pay, he explains, under a move to codify case law arising from EU law so that certain rights are retained. The legislation, suggests Cameron, is a missed opportunity to overhaul the ‘notoriously complex’ law. For example, he says, the government could have legislated to ensure that all holiday is treated in the same way and that there is no difference between statutory leave and contractual leave.

The government is also consulting on the use of agency workers to replace striking workers, which is very controversial. Yet even that is not even the biggest change in the industrial relations landscape. That was the introduction last summer of the Strikes (Minimum Service Levels) Act 2023, under which a ‘work notice’ is issued by an employer in response to a union’s strike plans.

‘In that work notice, the employer sets out what work needs to be done and by whom to ensure that minimum service levels are maintained during strike action,’ Cameron explains.

A trade union is required to take reasonable steps to ensure that a work notice for minimum service levels is maintained. Otherwise, the strike will lose its ‘protected status’ and employees may be fairly dismissed for taking part.

Critics view the move as a fundamental assault on human rights. ‘There is no justification for the introduction of minimum service levels in the UK. The government is relying on false comparisons with other countries like France and Spain, where the right to strike is constitutionally protected,’ says Richard Arthur, head of trade union law at Thompsons Solicitors.

‘Fire and rehire’

Elsewhere, in April, the Supreme Court will hear a landmark claim against Tesco in relation to the controversial issue of dismissal and re-engagement, otherwise known as ‘fire and rehire’.

Another growing trend is cases concerning religious or belief discrimination, in particular where employees allege they have been treated unfairly for expressing so-called ‘gender-critical’ beliefs – that individuals cannot change their sex.

Earlier this year, Professor Jo Phoenix won a discrimination case against the Open University after she was forced to resign following a campaign of harassment due to her gender-critical beliefs. Similar claims against other institutions are pending.

In February, in Miller v University of Bristol, a tribunal held that an academic’s anti-Zionist views were a protected belief under the Equality Act 2010 and that his dismissal for expressing them was discriminatory.

Employers, says Lewis Silkin partner James Davies, are increasingly stuck in the middle, dealing with conflicts between protecting vulnerable groups and free speech. These disputes are only likely to increase, he says.

The conflict in Gaza, he adds, is also creating problems, with employers having to deal with allegations of antisemitic or Islamophobic behaviour.

Remote control

As workplaces adjust from being fully remote during Covid to a more hybrid environment, Raoul Parekh, a partner at GQ Littler, says the firm is seeing employers seeking to enforce in-office requirements. He predicts challenges to denials of flexible working requests or unfair dismissal claims.

Another consequence of remote working, notes Davies, is the proliferation of remote hearings at the tribunal itself. He believes one downside is their impact on decision-making: it can be harder to cross-examine and assess the credibility of witnesses.

Disability and sickness absence, he adds, continue to be a challenging topic for employers and employees, especially with an increased trend for the self-diagnosis of neurodiverse conditions leading to requests for adjustments.

Pepper Parsons wants to see reform that would widen the scope of whistleblowing protection – the framework for which is currently being reviewed by the government – in particular, to introduce a duty on employers to investigate whistleblowing concerns.

Reform here, as with so much else in employment law, is contingent on the result of the next election. An early bellwether will be whether a Labour government will retain tribunal fees if they are introduced before polling day. One thing is certain, given the tribunal and other courts are dangerously overstretched, any government failing to end their era of austerity puts at risk the resolution of the multiple tensions that have employment law at their heart.

 

Catherine Baksi is a freelance journalist