Employment Tribunals Research Articles

Place of poetry in employment tribunal: a place of healing

ABSTRACT There is a lack of research that investigates the emotional labour of making a claim to the Employment Tribunal. This article explores the experience of a self-represented claimant. The author’s experience elucidates the lack of understanding of the emotional labour that is involved in going through the Employment Tribunal process. The article has a qualitative design and is based on her autoethnographic poetry. The author used poetry to express her anxiety and psychological pain to prevent emotional dissonance. The article is evocative and analytical, because it offers an inside perspective of how turmoil and loss of control within the employment legal system, can be restored to a sense of order and balance through poetry. The purpose: of the article is to demonstrate how poetry can be used as a therapeutic tool to manage emotional labour and address the lack of presence of claimants’ voices in the debate of access to justice.

The challenges of coeliac disease at work: A contestation of the politics of inclusion.

By focusing on the experiences of employees living with coeliac disease as evidenced in UK employment tribunal cases, this paper interrogates the way practices of exclusion are performed in legal and organisational contexts that purport to promote values of inclusion. In paying attention to how differences are constructed and negotiated, the paper unpacks the way organisational practices mobilise an array of workplace mechanisms to produce complex dynamics of exclusion. Applying Laclau and Mouffe's logics of equivalence and difference, we show how questionable impulses and practices emerge in a workplace environment characterised by unclarity and vagueness. One impulse, for example, involves privatising and individualising the condition of employees with coeliac disease, giving rise to patronising and stigmatising attitudes that can turn them into victims. However, we also identify workplace mechanisms countering these tendencies, which can underpin forms of collective support in the struggle for recognition. Our study thus contributes to the body of sociological literature that pays attention to health-related workplace injustices by challenging the purported promotion of health-based inclusion through a focus on tribunal cases, leading to suggestions for further research into the way medical conditions are theorised and 'lived' at work.

The Right to Request Flexible Working: Evidence from Employment Tribunal Judgments

Abstract This study examines five years of Employment Tribunal judgments on flexible working requests and uses a thematic analysis to identify the issues that have been litigated and to assess how employment tribunals, employees and employers have navigated the Act’s provisions. Whilst the right to request flexible working has been much critiqued because of its limited nature, there is little evidence and discussion of whether it provides a useable and effective process for employees and employers on its own terms. This article identifies three problems with the current legislation: employees can find it difficult to comply with the requirements for a valid statutory request, the difficulty of establishing and complying with the time limits in the legislation and finally the difficulty for tribunals in defining and applying core concepts relating to its power of review over employers’ decisions. These issues will not be resolved through the new Employment Relations (Flexible Working) Act 2023 and in some ways will be made more difficult.

A Systematic Review of Maldivian National Laws to Combat Workplace Bullying

Bullying has been identified as a leading workplace stressor because of its debilitating effects on individual employees, groups of employees, and organizations. A vast literature explores the nature and consequences of workplace bullying and demonstrates the need for the protection of employees in the workplace, such as through laws and policies. While some organizations include policies on workplace bullying and some laws can be applied to address workplace bullying, few seem to use these mechanisms to seek redress. Hence, this systematic review evaluates the complaint procedures, protection, prevention, and effectiveness of the current laws and policies on workplace bullying within the Maldivian context. The paper then discusses why seeking legal recourse from bullying rarely occurs through the legal system. A systematic analysis supplemented with five semi-structured interviews of key informants (members of the employment tribunal, lawyers, court judge, and registrar) was carried out to obtain an in-depth understanding of the current situation in the Maldives. The analyses reveal that the Maldivian legal system has many gaps that result in little or no protection from bullying in the workplace. The current legislative and regulatory framework does not adequately recognise the power that employers have over employees in certain types of bullying, and it mainly focuses on the protection from and prevention of “bullying” in the form of sexual harassment in the workplace. The Maldivian Constitution, which guarantees fundamental rights and freedoms to all persons in Chapter II (Arts.16-69), is vague when it comes to addressing bullying. This study acknowledges that workplace bullying policies are only one range of interventions for addressing bullying. Other methods of prevention are required to deal with bullying in workplaces.

Talking away trouble

Adam Bernstein looks at how mediation can provide a helpful and less expensive alternative to an employment tribunal

Windrush and the NHS: a nurse's perspective.

British Journal of NursingVol. 32, No. 12 RegularsWindrush and the NHS: a nurse's perspectiveBeverley BrathwaiteBeverley BrathwaiteE-mail Address: [email protected]Senior Lecturer in Nursing, University of RoehamptonSearch for more papers by this authorBeverley BrathwaitePublished Online:21 Jun 2023https://doi.org/10.12968/bjon.2023.32.12.544AboutSectionsView articleView Full TextPDF/EPUB ToolsAdd to favoritesDownload CitationsTrack CitationsPermissions ShareShare onFacebookTwitterLinked InEmail View article References Baker C; House of Commons Library. NHS key statistics: England March 2023. 2023. https://tinyurl.com/29pfvzdc (accessed 13 June 2023) Google ScholarBrathwaite B. Chapter 23. An exploration into Black and Asian healthcare workers in the United Kingdom's National Health Service being disproportionally affected by Covid-19. In: Conley HKoskinen Sandberg P (eds). Handbook on gender and public sector employment. Cheltenham: Edward Elgar Publishing; 2023: 308–320 Crossref, Google ScholarBroadbent P, Thomson R, Kopasker D et al.. The public health implications of the cost-of-living crisis: outlining mechanisms and modelling consequences. Lancet Reg Health Eur. 2023;27:100585. https://doi.org/10.1016/j.lanepe.2023.100585 Crossref, Medline, Google ScholarMs A Cox v NHS Commissioning Board (Operating as NHS England/NHS Improvement): 2415350/2020 and 2401365/2021. Employment tribunal. 2023. https://tinyurl.com/mtjxcazv (accessed 13 June 2023) Google ScholarMarmot M, Allen J, Boyce T, Goldblatt P, Morrison J. Health equity in England: the Marmot review 10 years on. 2020. https://tinyurl.com/5n6tpmp7 (accessed 13 June 2023) Google ScholarPatrick R, Pybus K. Cost of living crisis: we cannot ignore the human cost of living in poverty. BMJ. 2022;377:o925. https://doi.org/10.1136/bmj.o925 Crossref, Google ScholarPeplow S. ‘In 1997 nobody had heard of Windrush’: the rise of the ‘Windrush narrative’ in British newspapers. Immigrants & Minorities. 2020;37(3):211-237. https://doi.org/10.1080/02619288.2020.1781624 Crossref, Google ScholarRazai MS, Majeed A, Esmail A. Structural racism is a fundamental cause and driver of ethnic disparities in health. BMJ. 2021;373:n938. https://doi.org/10.1136/bmj.n938 Crossref, Medline, Google ScholarSaroukhani H, McLeod J. A loss of innocence. Wasafiri. 2023;38(2):1–3 Crossref, Google Scholar FiguresReferencesRelatedDetails 22 June 2023Volume 32Issue 12ISSN (print): 0966-0461ISSN (online): 2052-2819 Metrics History Published online 21 June 2023 Published in print 22 June 2023 Information© MA Healthcare LimitedPDF download

Pay Transparency, Information Access Rights and Data Protection Law: Exploring Viable Alternatives to Disclosure Orders in Equal Pay Litigation

Abstract Equal pay litigation is often highly technical, with a drawn out and costly legal battle for claimants. This is somewhat because of the way equal pay law is constructed, as the requirement to have specific, named comparators can be an area of intense dispute. The complexity and length of cases look set to increase as the parameters of equal pay for work of equal value are explored, and occupational segregation is challenged in the employment tribunals and courts. This article considers one of the largest obstacles to quick and efficient equal pay litigation: the imbalance of access to information between employer and employee. The difficulties of applications for disclosure orders are discussed, alongside pay transparency measures and the recent proposals for a right to direct access to a suspected comparator’s pay data. We consider whether the proposed right is a viable, swifter route to information parity and greater efficiency in equal pay litigation, in light of the experience of freedom of information requests regarding equal pay. Specifically, we note the tension that may arise between the ‘Right to Know’ a comparator’s pay, and the data protection obligations of the employer.

The Challenges of Coeliac Disease at Work: A Research Agenda towards Organisational Inclusion

Over the past decade, organisations have attempted to create more inclusive and open workspaces. Despite this, the understanding of what inclusive workspaces should accommodate and what they should look like are numerous and often contradictory. Terms such as ‘inclusion’ and ‘diversity’ rhetorically seem to become buzzwords in organisational discourse, with an increased employee experience of exclusion. This paper aims to understand how and why organisational practices, behaviours and norms promoted as inclusive reinforce barriers and inexplicit discrimination. In interpreting the experiences of employees living with Coeliac Disease as presented in United Kingdom (UK) employment tribunals, UK Parliamentary debates and in medical journals, we illustrate how ‘inclusive’ organisational practices pose challenges to the employees living with Coeliac Disease. The paper adopts a theoretical perspective as developed by the Essex School of Discourse Analysis to demonstrate that organisational practices mobilise logics of exclusion and inclusion. We contribute to current academic debates in critical management by challenging the discursivity of organisational inclusivity and promote further research into medical conditions at work.

Representative bureaucracy and disabled employees in the British public sector

Disabled employees in the British public sector lodge more claims of discrimination at Employment Tribunals than their private sector counterparts, yet their claims are more likely to fail. We argue that this is because disabled employees in the British public sector are more aware of equality issues than their private sector counterparts, subjectively perceiving discrimination. Yet the policies and practices that result from representative bureaucracy and the equality duties found only in the public sector result in judges mostly finding that disability discrimination in the public sector has not occurred, compared to such discrimination in the private sector.

The Worker and the Law Revisited: Conceptualizing Legal Participation Mobilization and Consciousness at Work

Situating legal mobilization within a wide-ranging conceptual framework of worker activity that goes beyond recent interest in ‘strategic litigation’ and related organizing in the gig economy, this contribution explores the fundamental relationship between ‘laypeople’, i.e., the non-professional subjects of law, and labour law. Notwithstanding a growing interest in empirical labour law research, there remains a lack of conceptual clarity and rigorous evidence pertaining to how workers, activists and employers think about law and how this has evolved over time. The idea, often implicit within policy discourses, that we have become increasingly ‘legally minded’, and the implications of this, remain particularly underexplored. This article develops understanding of what legal mobilization is, does, or potentially can do, mapping the range of ways in which ‘laypeople’ may invoke or engage with law at work, distinguishing between activities defined as (1) legal participation; (2) mobilization; and (3) consciousness. This schema goes beyond the more obvious ways in which laypeople engage formal legal institutions, ‘strategically’ or otherwise, towards everyday processes of constructing ‘legalities’. The concept of legalities, meaning taken-forgranted assumptions about what is ‘legal’, provides a lens through which to view the ideological processes involved in the constitution of society and economic institutions through law and vice versa. Revisiting the theme of the worker and the law, this schema focuses as much on how the worker understands and acts upon the conceptions of law as much as how the law characterizes and protects the worker, and how the interrelations between the two may have evolved over time. Legal Participation, Mobilization, Consciousness, Juridification, Individual Employment Rights, Employment Tribunals

The Seychelles Employment Tribunal: The drafting history of the Employment (Amendment) Act of 2008 and its relevancy to understanding the work of the Tribunal

In 1995, the National Assembly of Seychelles passed the Employment Act. However, the 1995 Act did not establish the Employment Tribunal. It is against this background that on 8 September 2008, the Employment (Amendment) Bill, was published in the Official Gazette. The bill was debated and passed in the National Assembly on 30 September 2008. It was assented to by the President a few days thereafter, that is, on 8 October 2008 and published in the official gazette on 13 October 2008 and it became the Employment Amendment Act (No. 21 of 2008). Immediately thereafter, the Employment Tribunal started its work. Since the coming into force of the Employment (Amendment) Act, the Tribunal, the Supreme Court and the Court of Appeal have developed rich jurisprudence on the application and interpretation of the Employment (Amendment) Act. However, in this jurisprudence, none of these institutions rely on the drafting history of the Employment (Amendment) Act although case law shows that there are instances in which Seychellois courts have referred to Hansard in interpreting legislation for the purpose of determining "legislative intent." In this article, the author relies on the drafting history of the Employment (Amendment) Act and in particular the Employment (Amendment) Bill (2008) and the verbatim debates of the National Assembly (Hansard) to argue that the manner in which the Tribunal, the Supreme Court or Court of Appeal have interpreted or applied the sections of the Employment (Amendment) Act dealing with the following issues is debatable: registering a grievance before the competent officer; registering a grievance before the Tribunal; and penalties by the Tribunal (especially compensatory awards).

Domestic Workers, the ‘Family Worker’ Exemption from Minimum Wage, and Gendered Devaluation of Women’s Work

Abstract Domestic workers, who work in private households carrying out tasks such as cooking, cleaning, and care for children and the elderly, are overwhelmingly women and often from migrant and/ or ethnic minority backgrounds. This article examines a stark example of domestic workers’ exclusion from labour law protection, regulation 57(3) of the National Minimum Wage Regulations, which exempts employers from paying the minimum wage where a worker lives in their employer’s family home and is treated ‘as a member of the family’ in relation to accommodation, meals, tasks and leisure activities. Drawing on feminist theory on the divisions between ‘productive’ work outside the home versus ‘reproductive’ work within it, it argues that the exemption’s application has reflected gendered devaluation of domestic labour, stemming from its conflation with work normally performed for free by women in the ‘private sphere’ of the home. Focusing on the December 2020 Employment Tribunal (ET) judgment in Puthenveettil v Alexander & ors, which held that the exemption was unlawful and indirectly discriminatory on the grounds of sex, the article provides timely and in-depth analysis of the prospects for challenging the devaluation of domestic work in light of the limitations of legal protections for domestic workers in the UK.

The criminal jurisdiction of the Seychelles Employment Tribunal

The Seychellois Employment Tribunal was established under s 73A of the Employment Act (the Act). Section 6(3)(1) of Schedule 6 to the Act provides that ‘the Tribunal shall have exclusive jurisdiction to hear and determine employment and labour related matters’. Under the Act, employment and labour matters can be divided into two categories: civil and criminal. Section 76 of the Act provides for employment and labour-related offences. The Tribunal started operation in November 2008. Between 3 December 2008 (when the Tribunal handed down its first decision) and 1 December 2021 (when the research for this article was conducted) the Tribunal received 2,478 civil cases and 172 criminal cases. The author studied the criminal cases/files and on the basis of that study. The aim of the study is to illustrate how the Tribunal has interpreted and/or applied s 76 of the Act when dealing with the following issues: the offences under the Act; the prosecution of the offences under the Act; the right to a fair trial; the burden(s) of proof under s 76 of Act; the prosecution of legal persons/companies before the Tribunal; and penalty and sentencing issues. The author argues, inter alia, that the Tribunal should respect the principle of corporate legal personality when dealing with juristic persons accused of committing offences; the reverse onus under s 76(3) of the Act is not unconstitutional; during sentencing, the Tribunal should clearly distinguish between mitigating factors that are applicable to juristic persons and those applicable to natural persons; and that the Attorney-General does not need the consent of the competent officer before he/she can institute a prosecution before the Tribunal.

Agreement in the platform sector?

Agreement in the platform sector? Daniel Blackburn (bio) In the UK, as in much of the world, the rise of the platform economy has been astonishingly fast. Platforms appeared with various approaches to the contracting of labour, but typically these have manifested as a move away from secure, permanent, full-time, and regulated structures towards more precarious models of work, often relying on the idea that their workforces are 'self-employed'. This notion, of self-employment, has been wrapped up with jazzy slogans about 'independent' work, labour 'freedom', and worker 'autonomy', with the 21st Century worker breaking free from the drudgery and grind of the factory or the office, liberated by technology to set their own pace, choose their own hours, and work their own way. Each 'worker' now styled as an autonomous, self-employed, service-provider; the platform merely a technological facilitator, connecting these hundreds of thousands of independent service-providers with a world of restaurants and would-be travellers, customers and consumers. Platforms say they are thus creating the work boom, but not acting as the 'employer' of those working in it. The platform economy has shaken up the world of work but platforms have fiercely resisted efforts to reclassify their 'contractors' as 'workers' That, sceptics have suggested, is just not an accurate description of what is taking place. But even now, when alternative (and more 'typical') employment vacancies are quite high, people do continue to join the platform workforce. Something about it is appealing for those seeking work. There is some acknowledgement from the union side of a need to adapt, and to find a way to work in this new paradigm. But are workers really choosing self-employment, or is it the flexible working arrangements that they are choosing, and which happen to be offered to them on 'take it or leave it' self-employed terms? With very low barriers to entry, and levels of pay and oversight that are incomparable, these new jobs bear little resemblance to the pay and freedom typically enjoyed by the skilled trades that have long been associated with self-employed status. Are these new workers 'liberated' from drudgery, or have they been offered more freedom at the expense of basic employment rights? Contractors or workers? Responding to a mixture of worker pressure, strikes, changes in the regulatory environment, and court rulings, platforms have resisted pressure to change, though making some concessions in the wake of court rulings. The two big legal cases that have defined the sector in the UK both hinged around whether or not the 'self-employed' people driving cars and delivering food for Uber and Deliveroo respectively were actually 'workers', and therefore entitled to a limited set of statutory worker entitlements (which would include holiday pay, sick pay, the minimum wage, and also access to the statutory trade union recognition framework). In a pivotal case1, Uber attempted to resist a challenge to the self-employed status of drivers, loosing at the employment tribunal, and chasing unsuccessful appeals all the way to the Supreme Court. The platform argued that it was not a party to the contract for hire, and was merely a facilitator helping self-employed drivers and customers find one another and make contracts between themselves. The courts were not persuaded, finding that the platform was contracting directly with passengers and engaging drivers to carry out these bookings for it. On the facts, these drivers were 'workers' within s. 230 of the Employment Rights Act 1996 (with implications for a limited range of workplace entitlements and protection, such as the 'living' (minimum) wage, pension provision, and holiday pay). The ruling did not go so far as to require that the platforms should confer 'employee' status, a more substantial change, which would have unlocked further rights at work, such as unfair dismissal protections. Among the factors influencing the court was an obligation on the specific driver to perform work (they were not free to put forward a substitute driver). A subsequent case2, in which Uber again attempted to push the idea that it was a mere facilitator, and not a party to the contract for bookings made between customers and drivers, was firmly rejected, with...

Fairly and Justly? Are Employment Tribunals Able to Even Out Whistleblowing Power Imbalances?

In Britain, Employment Tribunals (ET) adjudicate on whistleblowing legislation. They do so with the overriding aim to adjudicate cases fairly and justly, by hearing parties on an equal footing. This paper presents research questioning this rule-of-law assumption vis-a-vis power imbalances that relate to whistleblowing. Using multinomial logistic regression analysis, we analyse all cases at ET in England and Wales between 2015 and 2018, that included a whistleblowing claim and that went to preliminary hearing or beyond. We find that several variables have an effect on the relative representational strength (RRS) at ET, but not on the outcome of the whistleblowing claim. However, whistleblowing claims brought in combination of discrimination claims (41%) have lower RRS and less favourable outcomes for the whistleblowing claim.

Efobi v Royal Mail Group: Much Ado About Nothing?

Following the Supreme Court's recent decision in Efobi v Royal Mail Group, claimants in employment tribunals must first prove a prima facie case of discrimination before the burden of proof falls on the respondent to provide a non‐discriminatory explanation for the impugned conduct. The two stages are separate. Tribunals cannot draw any inferences from a respondent's explanation (or lack of explanation) when deciding whether there is a prima facie case of discrimination. We argue that, in reaching this decision, the Supreme Court failed to tackle squarely the important normative question at the heart of the dispute: whether there should be constraints on the evidence courts may consider when adjudicating whether there is a prima facie case of discrimination. Had the Supreme Court confronted this normative question, the outcome of the case might have been different.

Witness Statements for Employment Tribunals in England and Wales: What are the ‘Issues’?

In England and Wales, Employment Tribunals (ETs) hear claims from persons who believe that an employer, or potential employer, has treated them unlawfully. Witness statements form part of the evidence considered by ETs, but research is lacking with regard to the methods used to produce ET witness statements. This study presents the findings from 40 semi-structured interviews with ET judges, panel members, employment lawyers (solicitors, barristers, advisers) and litigants. Our data revealed six themes: professional processes, enabling through case management, presentation preferences, challenges for litigants in person, availability and quality of resources, and lack of training. Participants felt that the quality of witness statements varied amongst those prepared by professional advisors and by litigants in person. Our interviews revealed almost no evidence of practitioner training on how best to prepare a witness statement. We make recommendations about guidance and training for those tasked with drafting witness statements.

Ethical veganism as nonreligion in Mr J Casamitjana Costa v the League Against Cruel Sports

In January 2020, an employment tribunal in the United Kingdom decided that ethical veganism qualified for protection from discrimination as a philosophical belief under the UK’s Equality Act 2010. This article explores the reasoning behind this judgement, as presented in the preliminary hearing decision for Mr J Casamitjana Costa v The League Against Cruel Sports, to argue that ethical veganism in this context can be conceptualized as a form of nonreligion. This article uses a relational theory of nonreligion to demonstrate how ethical veganism in this case is constructed to be distinct from religious belief while also being conceptually entangled with religion. It contributes to emergent scholarship on nonreligion, and veganism and (non)religion, by demonstrating how a relational framework allows connections among these phenomena to be articulated and explored with greater depth. In addition, this article considers the diversity of ethical veganism as an identity and practice in relation to its legal construction as a philosophical belief. Attention is paid to the ways in which veganism as lived can intersect with religion, nonreligion and areligion.

Unfair dismissal?

Sarah Buxton considers how a fear of Covid-19 is viewed by employment tribunals

Enforcing rights in employment tribunals: insights from age discrimination claims in a new ‘dataset’

AbstractThe online publication of employment tribunal (ET) decisions in England, Wales and Scotland marks a watershed moment, opening up new innovative avenues for legal research, and promoting transparency in labour law decision-making. Drawing on this ‘dataset’, and using age discrimination decisions as a lens to facilitate analysis, this paper reflects on the advantages and limitations of using online ET decisions as a data source to support labour law research. By considering matters of time in age discrimination decisions – both in relation to time limits for bringing a claim, and ET delays – this paper uses innovative empirical findings to map the limits of the individual enforcement model adopted by discrimination laws, and illustrates some of the barriers to successfully bringing a claim for discrimination.