Employment Tribunals Research Articles

Flexible working requests and the law: a guide for district nurses

Flexible working provides employees with the ability to make it easier to balance work and caring responsibilities. All qualifying employees, including those who are district nurses, have a right to request an adjustment to their working hours and work patterns. Where the request is refused an appeal can be made to an employment tribunal and further action can be considered on the grounds of discrimination.

Christian who lost crucifix employment tribunal to appeal

Christian who lost crucifix employment tribunal to appeal

Does the Sex Discrimination Act provide a right to work part-time for mothers?

Transitions between full- and part-time work are commonplace for mothers returning to work post-childbirth and can result in downward occupational mobility, particularly for highly skilled employees. This paper examines several sex discrimination cases concerning women employees who, having had children, were refused a request to work part-time. It aims to establish whether the Sex Discrimination Act 1975 is capable of protecting applicants in this situation and whether that law is being applied consistently by Employment Tribunals. The results are considered in the context of selected theories of occupational segregation. The changes to the definition of indirect discrimination have been positive from the applicants' perspective, but the analysis concludes that tribunals can view applicants who are well paid as not being subjected to a detriment by a refusal of a request to work part-time because they can afford childcare.

The Law of Harassment in the UK: A Growing Concern

This article considers recent changes to legal provisions governing harassment at work, in particular sexual harassment, in the UK, in the light of EU Directive 2002/73/EC, and the remedies available in the courts and employment tribunals. This article then provides a statistical profile of a total of 21,335 sex discrimination cases brought to nine employment tribunals in the UK between 2003 and 2008, highlighting the fact that the claims submitted by employees are successful in only a small percentage of cases, due to the fact that many cases are withdrawn or settled out of court, and the fact that many claimants do not have legal representation, whereas nearly all of the defendants have the benefit of legal representation in hearings at the employment tribunal, enabling them to present their evidence in a more effective manner. This is particularly important in cases of this type, where witness credibility is crucial to successful outcomes, as highlighted by the cases cited by the author.

Landmark ruling says NHS pay systemtreats female staff fairly

The Agenda for Change (AfC)pay system does not discriminate against women, an employment tribunal has ruled in a landmark test case.

Age Discrimination and Redundancy: Loxley v BAE Systems (Munitions & Ordnance) Limited * [2008] ICR 1348; [2008] IRLR 853 (EAT) * MacCulloch v Imperial Chemical Industries plc * [2008] ICR 1334; [2008] IRLR 846 (EAT) * Rolls-Royce plc v Unite the Union * [2009] IRLR 49 (QB)

The introduction into the domestic legal framework in 2006 of legislation rendering unlawful direct and indirect discrimination on grounds of age was seen by some as sounding the death knell for, or at least raising serious doubts about the viability and longevity of, the application of age-related criteria in redundancy exercises, for example, in relation to selection or the calculation of enhanced redundancy payments. The decisions which this note analyses throw some light on how, in the particular context of redundancy situations, employment tribunals should approach the defence of justification of what would otherwise be unlawful age discrimination against the background of the inevitably open-textured nature of the concept which is central to that defence—the achievement or fulfilment of a legitimate aim by proportionate means.1 While the relevant EU Directive provides specific examples of situations in which age discrimination may be justified and the Government originally intended to legislate on the basis of an exhaustive list of potentially justifiable age restrictions, the matter was ultimately left ‘open-ended’ to be considered on an ex-post basis2. This approach renders all the more important the provision of guidance to employment tribunals (and therefore by extension employers) on their approach to the issue of the establishment of justification.

A Qualitative Study of Judgments in Race Discrimination Employment Cases

Qualitative methods were used with the aim of identifying any persistent patterns in the written judgments of British employment tribunal cases involving claims of race discrimination that might explain why these claims are relatively unlikely to succeed. The main factors at work appeared to be credibility of the parties and whether the claimant had enough evidence to pass the burden of proof to the respondent. A relatively recent legislative amendment relating to burden of proof appears to be very significant, while other factors highlighted in the literature appear to be less so.

Damage-Based Contingency Fees in Employment Cases: A Survey of Practitioners

'American-style' contingency fees are often thought not to exist in the legal system of England and Wales, but in fact have existed for many years in employment tribunals (and other areas defined as 'non-contentious' business). Similarity with the American system is two-fold. Firstly, in employment tribunals there is generally no 'loser-pays' costs rule: each party normally bears their own costs. Secondly, in employment tribunals contingency fees can be 'damages-based': the adviser's fee can be calculated as a percentage of damages. The development of damage-based contingency fees (DBCFs) has been vigorously resisted in civil litigation for fear that American-style fees would open a floodgate of dubious litigation which corrupted the quality and ethics of our legal system. Intriguingly, whilst tacitly permitted, the introduction of DBCFs outside of court-based litigation has escaped regulatory attention. As such, employment tribunals present an interesting example of the apparent Americanisation of a significant element of our justice system. It is also an area that is significantly under-researched. We know very little about how DBCFs operate in England and Wales.This Study aims to go some way in rectifying that absence of knowledge. It provides in-depth data on the use of 'American-style' DBCFs amongst employment practitioners based on a telephone survey of 191 employment specialists working in solicitors firms and claims consultancies. It also reviews existing literature and conducts original analysis of the Survey of Tribunal Applications (SETA) data 2003. It examines levels of access to justice in employment tribunals and the impact of DBCFs on that including the vexed area of equal pay and the issue of weak or spurious cases. It also considers whether DBCF charging exploits consumers and associated consumer potection issues particularly around settlement and 'handcuff' clauses which de facto require clients to accept their lawyer's advice.

A legal analysis of sexual harassment employment tribunal cases 1995‐2005

PurposeThe purpose of this paper is to report on an analysis of court judgments on sexual harassment over the last ten years.Design/methodology/approachThis research has anaylsed a sample of 399 sexual harassment cases.FindingsThe analysis provides information on factors that influence the courts’ decision‐making process.Research limitations/implicationsFurther investigation could be made by interviewing witnesses, claimants, respondents and tribunal members.Practical implicationsThe article provides pertinent learning outcomes for claimants and employers.Originality/valueThe analysis allows us to develop a profile of successful SH claims over the period studied.

Cuts in sick pay at the priory group could lead to employment tribunal

Cuts in sick pay at the priory group could lead to employment tribunal

When It's (Mostly) the Taking Part that Counts: The Post-Application Consequences of Employment Tribunal Claims

This paper uses the 2003 Survey of Employment Tribunal Applications to examine the post-application employment consequences for individuals registering complaints to Employment Tribunals following dismissal or redundancy. In examining this issue, we consider a number of pieces of evidence: (i) the probability of finding another job; (ii) the time taken to get a new job and (iii) the pay/status of the new job. It is found that age plays a significant role in aspects (i) and (iii), whilst those who previously held managerial positions generally took longest to get a new job and found it most difficult to achieve a similar level of pay/status in their current jobs. Long-term health problems/disability is associated with significantly worse outcomes on all three measures. Respondents whose cases were dismissed by the tribunals without hearings fared worst in terms of obtaining a new job and the time it took to do so compared with other outcomes. There were, however, fewer differences by outcome in the relative pay/status of the claimant’s current job.

Proving and Disproving Psychiatric Injury

If a claimant who has been exposed to trauma describes psychiatric symptoms to a psychiatrist accepted by the court as an expert, who then reports that the claimant has, say, post-traumatic stress disorder caused by the litigated event, has the claimant proved the medical aspect of his case? Not necessarily. In this article, I will attempt to set out some of the hidden medical assumptions upon which such psychiatric reports are commonly based. This may offer some hints to lawyers about potential weak spots in psychiatric reports, and how to attack or resist attack upon them. Personal injury and employment tribunal cases are the main legal arenas in which psychiatric injury is important. Personal injury, for example from work or traffic accidents, is associated with more dramatic conditions, such as post traumatic stress disorder. On the other hand, employment cases tend to involve claims of long-term adverse treatment rather than sudden individual events, and so tend to be associated with claims for depression and anxiety. However, both types of case need an expert report from a psychiatrist, or psychologist. I have three main points.

LA TUTELA DE DERECHOS FUNDAMENTALES Y EL DERECHO DEL TRABAJO: DE ERIZO A ZORRO

Clustered around a new Employment Tribunals Procedure, the rules for protecting workers’ fundamental rights are far from being just another procedural reform: they are the clearest sign left on the Chilean Legal System of the attempt to make constitutional rules effective in the labour sphere. At the same time, these rules represent a remarkable political expansion of Labour Law which, becames to be not only concerned with the wages conditions of the employee –as the weaker party– but is also concerned about the exercise of his constitutional rights –as citizen– within the company. FuNdaMeNtal rights oF WorKers – iMMediate eFFectiVeNess oF FuNdaMeNtal rights iN the eMPloYMeNt coNtract – ProtectioN

The Doing and Undoing of Gender: The Importance of Being a Credible Female Victim

It is increasingly argued that gender is something we ‘do’ (or ‘undo’) rather than ‘are’. The doing of gender, or the accomplishment of gender, becomes credible when it conforms (in broad terms) to certain normative conceptions of gender. Resistance to, or subversions of these norms, or the failure to appear credible, deny the individual a gendered authenticity. Attempts to unshackle notions of gender — to ‘undo gender’ and to accept the outcome as authentic, open and fluid — have been matched with concerns that this theoretically empowering process may result in the loss of political power — the notion of woman (or man) in whose name we can act being lost as the binary is eliminated. These tensions are explored in the context of the UK Sex Discrimination Act 1975 (rev. 1986). This article demonstrates how the doing and undoing of gender in an employment tribunal accomplishes or negates the ‘authenticity’ of gender.

Rediscovering the collective application of the Equal Pay Act

PurposeThe purpose of this article is to examine the proposal adopted by the Equal Opportunities Commission (EOC) that employers undertaking an equal pay review should be permitted a “protected period” during which its employees would be prohibited from taking equal pay claims to law. This proposal is considered against recent collective agreements in local government and National Health Service, and where equal pay claims have been made by employees either with the support of the unions that are party to the collective agreement or more critically with external legal support.Design/methodology/approachInformation is drawn from the EOC, from employer and trade union sources, and decisions of the employment tribunals and courts.FindingsThe outcome of the unstructured mix of collective bargaining and litigation shows a pattern of delay, uncertainty, added conflict between involved parties and pressure, making resource adjustments that initially were to be avoided.Research limitations/implicationsThe research has been undertaken as the collective agreements are being implemented. As the initial hearings of claims are not complete and there are opportunities for appeals against initial judgments, the descriptions here are unlikely to provide a settled account.Originality/valueThe EOC proposal is given support but shown to need further institutional support. In that regard the opportunity is taken to consider a possible alternative form of adjudication of “collective” equal pay issues. It is proposed to facilitate an extended version of a former jurisdiction of the Central Arbitration Committee.

Avoid an employment tribunal

Avoid an employment tribunal

Employment tribunals and occupational health practitioners

Employment tribunals and occupational health practitioners

Employee voice regimes and the characteristics of conflict: an analysis of the 2003 survey of employment tribunal applications

This article investigates the extent to which the characteristics and outcomes of Employment Tribunal Applications (ETAs) differ according to whether (1) unions have a role in workplace voice and whether (2) HR departments have a role in workplace voice. We find that ETAs from workplaces with a union presence are less likely to result in an adverse ruling against the employer. Interpreting the judgement of employment tribunals as an evaluation of the effectiveness of workplace voice regime, this finding suggests that Employment Tribunals (and the employment legislation they consider) provide unions with a framework within which they contribute to workplace performance.

Employment Tribunals and Acas: evidence from a survey of representatives

ABSTRACTWe report findings from a survey of representatives in Employment Tribunal cases, focusing on their views regarding the Advisory, Conciliation and Arbitration Service (Acas). As in the earlier, smaller survey of lawyers by White (1989), Acas officers are found to be influential and effective in promoting settlement, and high levels of satisfaction are reported.

Britain and Individual Employment Rights: ‘Paper Tigers, Fierce in Appearance but Missing in Tooth and Claw’

There is much evidence that the ‘European social model’ is under threat, with neoliberalism increasingly dominating policy both at EU and national levels. Within this trend, Britain stands out as already having a long-established free market tradition-Anglo-American in both industrial relations and corporate governance systems. This article seeks to illustrate how British state allegiance to a ‘flexible’ labour market has brought new restrictions to accessing statutory employment protection, the chief defence for ‘unorganized’ workers those who are neither unionized nor covered by collective agreements and who now comprise the majority of workers in Britain. The New Labour government, committed to voluntarism and fiexibility, has used the very instrument it avers to avoid legal regulation to limit access to employment tribunals, the final resort for legal enforcement of employment rights. The government has thus constrained its concessions to the European social model, which comprise a range of laws since 1997 enhancing individual employment rights, in its overarching neoliberal policy, by ensuring legal regulation remains difflcult to achieve and does not ‘burden’ business. This article, based on research both on legal developments, and on the social support mechanisms for non-unionized workers, seeks to demonstrate the extreme vulnerability of the unorganized worker in an increasingly free market Britain. How far this portrait has relevance to the rightward drift of Europe depends on the degree to which it can be exported, how far continental European systems are sufflciently institutionally embedded to resist this, and how successfully the European social model is defended.