Fees for Employment Tribunals - An Employer's Charter to Dismiss, Discriminate and Subject their Staff to Detriment

The Enterprise and Regulatory Reform Bill received Royal Assent on the 25th of April.

One of the provisions, not commented on widely, is the power for Ministers to prescribe fees for the use of the Employment Tribunal system.

This article explores the implications of such a move and highlights a popular concern; that the law, albeit indirectly, now grants employers permission to dismiss, discriminate and subject employees to detriment without fear of redress.

Background

In bringing forward proposals, the UK Government argued that it was necessary for claimants to share the burden of Employment Tribunal running costs, in much the same way that civil court litigants share the cost of claims in the court system.

The Government has already made cuts to the English legal aid system and the Scottish Government is following suit here. Similarly, all Government departments across the board have been asked to find cost savings.

Taking the general background into account, the question arises - why should the Employment Tribunal system be immune?

The Employment Tribunal System

First of all, it is important to remember that the Employment Tribunal system was created as a distinct mechanism for resolving work place disputes. This was done, almost exclusively, to keep employment related litigation out of the court system.

Another important aspect to recall is the very specialist nature of employment law. This branch of law, unlike its cousins in criminal or family, is largely the preserve of lay practitioners - whether in the form of Human Resources personnel or within the gambit of Trade Union officials.

Employment lawyers, whether Solicitors or Advocates (Barristers in England, Wales and Northern Ireland) are in relative terms latter day participants in this particular field.

The subject itself is also extremely practical. This is why, amongst other things, the constitution of an Employment Tribunal was set up to involve 3 judges; 2 of which were lay persons representing both employer and employee perspectives. The other judge, being the Chairman of the Tribunal, being legally qualified - although not necessarily a lawyer.

Procedure in the Employment Tribunal was to be kept simple and straight forward in order to properly reflect the character of the litigation coming forward.

Employment Tribunal - Bogged down in Procedure

Unfortunately, as legislation developed and more lawyers became involved in the system, procedure and practice evolved - or devolved - depending on your point of view.

There came a point where a typical Tribunal hearing would not actually get into the substantive of any claim before first trawling through procedural arguments such as time bars, qualification periods for certain claims, correctly completed forms with relevant date stamps and so on.

In my view, it was the over emphasis on procedure, that lead to increased costs in using the system.

Indeed, many of the procedural arguments continue to be used as a-typical defences by employer respondents seeking to avoid any litigation on the substantive of a claim.

The Government has placed over emphasis here in blaming claimants for raising claims, rather than on respondents for failing to address the issues that gave rise to the claim initially.

This is why we now face fees from September.

A Free system - Protecting Employees

In effect, one of the barriers preventing an employer from unfairly dismissing an employee, or from discriminating, was the threat of an Employment Tribunal claim.

Employees, who have a number of rights and responsibilities, are protected in law from unfair dismissal, from discrimination and also from detriment for seeking to avail themselves of their employment rights.

It will now cost £160 to raise a claim and an additional £320 to take the claim to a full hearing.

If you are seeking to claim for unlawful deduction from wages, non payment of holiday pay or for breach of contract, it could be cost prohibitive to raise a claim. This means that employers will be able to simply get away with it.

What is the point of having legal rights if they are rendered unenforceable?

Who will pay?

Certain high value claims, such as multiple claims for equal pay for instance, are unlikely to be affected by the introduction of fees. However, as some stage, someone will have to pick up the fee; who will pay this? The Trade Union? The Claimant?

If you are already in low paid work, it is unlikely that you will be in a position to pay the proposed fees. Similarly, if you are in part time work, it is also likely to be cost prohibitive to raise an Employment Tribunal claim.

Fees Discriminate

It is worth pointing out that women and disabled people are often in low paid work and part time work. On this basis, it could be said that the proposed measures indirectly discriminate; whether or grounds of sex, disability or some other protected characteristic.

This is yet another reason why the proposed fee structure is wrong.

Alternative Dispute Resolution

The Government is seeking to encourage would be litigants to resolve disputes through compulsory mediation via ACAS. This approach is not without merit, however is not very pragmatic.

ACAS has been empowered to act as a mediator for some time. Although one party may be willing to settle, any respondent, represented vicariously through their insurance company, always requires the litigation to proceed, at least to an early stage, before agreeing to settle.

In the absence on a free to use system, there will no longer be an incentive for respondents to settle, even with the intervention of ACAS. The employers will simply stand back, go through the motions and know that no claim will proceed on grounds of cost.

Fees in the Courts

One of the arguments used to justify the fee system is that the Employment Tribunal system should now be looked on as as another court, rather than as a Tribunal.

However, in Scotland at least, it does not cost £160 to raise an ordinary cause action (next level above small claims). Similarly, it does not cost £320 to proceed to a Proof (hearing). There are various fees associated with serving documents through sheriff officers etc.

Future Concerns

My concern here is that the very specialist nature of the Employment Tribunal system is eroding.

If it is more cost effective to litigate in the civil courts, then what is the point of having a separate and distinct system to reflect the very practical nature of employment law?

More specifically, is it now fair to expect the local Sheriff Court (Crown / County in England) already struggling under the burden of multiple small claims, criminal and family actions to now take on the mantel of employment law?

There are many challenges ahead for employment law practitioners in future.

Only time will tell, post September, whether or not the new fee bases system, survives the test of judicial intervention.

All things being equal, it looks as though employers have just been granted a Charter to dismiss, discriminate and subject their staff to detriment without fear of redress.

Equality Act to encompass "caste" discrimination but not social or economic "class"

The UK Government has agreed to amend the Equality Act 2010 to include a new definition of Race to include a form of social stratification known as Caste.

The Enterprise and Regulatory Reform Bill is currently being negotiated through both the House of Lords and the House of Commons in the United Kingdom Parliament.

This Bill already contains a number of provisions designed to reform the work of the Equality and Human Rights Commission and also the repeal certain aspects of the Equality Act 2010 already in force.

The inclusion of Caste, as a new form of Race discrimination, was conceded by the Government. Although, according to the BBC report of the Government's position, Caste will not become a new protected characteristic in its own right.

The final position will not be clear until the Bill is agreed in the substantive by both Houses of Parliament.

At the moment, the Bill has been sent back to the House of Lords for consideration. This process is known as legislative "ping pong" whereby the Bill is sent back and forth until agreement is reached.

If agreement cannot be made, the Government reserves the right to utilise the Parliament Act. This is a legal mechanism created to prevent an indefinite period of legislative ping pong whereby the House of Commons "calls time" on the game if no agreement is reached.

The Government can only use the Parliament Act to push through legislation if no agreement is reached between both Houses of Parliament over the period of one year.

It remains to be seen to what extent the new definition of Race will truly embrace the concept of Caste.

No doubt, it will be left to the Courts to tidy up the legislative mess by a process of tactful interpretation of Parliaments's true intention.

It is disappointing, however, that other forms of social stratification have not been considered as part of the proposed reform. For example, social or economic class.

Given the Government's hostility to pro active legislative intervention and their refusal to bring into force the existing socio economic equality protections within the Equality Act, I doubt any further positive amendments will follow in the near future.

Is it a crime to be Transgender - Yes, it is, according to the ScottishHigh Court

In the High Court in Scotland, a transgender man, was sentenced to 3 years probation and 240 hours community service.

The man was charged and convicted of obtaining sexual intimacy by fraud.

The man did not reveal his gender recognition history to two female partners. When it was discovered that he was biologically female a complaint was made to the Police and he was subsequently charged with obtaining sexual intimacy by fraud.

The man was reported to have been 21 at the time and at least one of his partners was believed to be 15.

In Scotland, the Crown Office and Procurator Fiscal Service (COPFS) is the responsible body for prosecuting crime.

The COPFS is meant to act in the public interest and the reasons behind a decision to prosecute or not to prosecute are generally private.

The COPFS in making a decision, is meant to follow what is known as the Prosecution Code.

In this present case, a decision to prosecute on a different charge could have been made. However, this was not done.

Likewise, a decision could have been taken not to prosecute.

Taking this into account the COPFS has left itself open to accusations of transphobia.

The Equality Act 2010 and The Human Rights Act 1998

The COPFS is a public authority and as such, is not meant to discriminate, has to promote equality of opportunity and also to foster good relations between individuals who share protected characteristics.

It is not clear to what extent, if any, these obligations extend to or apply to the particular decision making process concerning whether or not to prosecute or what charge to bring in the event of a decision being made to prosecute.

The Equality Act does not extend to judicial decision making.

The COPFS is a public authority for the purpose of the Human Rights Act and decisions made in respect of prosecutions should be made in accordance with the Convention Rights and other International Law obligations.

Questions that arise

A number of important questions have been raised as a consequence of this particular prosecution.

1.  If the decision to prosecute or not to prosecute, is made in private with no reasons having to be provided, how can we be assured that that decision makers were not influenced by prejudice?

2.  Alternatively, if a decision is not made out of prejudice, could ignorance of this issues be involved - perhaps a series of wrong or false assumptions having been made?

3.  If the COPFS sought to act in the public interest, and followed the Prosecution Code, did it take into account the effect on the accused and the wider LGBT community? For example, reduced confidence in the judicial system by LGBT people and or more specifically creating a climate of fear amongst transgender people that if they do no reveal their full history to potential partners, they will face prosecution?

 

Scotland’s national transgender equality charity, The Scottish Transgender Alliance (STA), based at the Equality Network, warned that

“the nature of this prosecution has seriously undermined trans people’s trust in the Scottish criminal justice system.”

Nathan Gale, of the STA, has sought an urgent meeting with the Lord Advocate. Gale said:

“I sincerely hope that COPFS will understand the seriousness of trans people’s fears and respond to our call to take urgent steps to address them.”

Prejudice already exists

Transgender people already face a climate of prejudice and a lack of understanding.

It is conceivable, even if it was not intended, that such a high profile prosecution of this sort, will fan the flames of prejudice and actually create a retrograde approach to transgender equality issues in the broadest sense.

It has become too easy for people to read something, such as the BBC reporting of this case - which referred to the man in his birth gender rather than in his chosen gender - to assume that being Transgender is not real or some other form of sexual deviance because of the criminal prosecution in this present case.

Other news reports have also discriminated in this way. In one article, the man was described as a "sex fraud woman...".

The phraseology and use of language here is ignorant and dangerous. 

It creates a public perception that being transgender is not real - where women or men seek to impersonate for sex.

It also creates the false impression that being transgender is criminal. 

If the BBC and other media outlets can openly discriminate in this way, then it will only encourage others to do so as well.

No right to privacy?

Another interesting argument that has been presented by the Equality Network / Scottish Transgender Alliance, is that this prosecution creates a public perception that Transgender people are not entitled to their privacy.

The right to privacy is an important human right.

There can be exceptions and where there is a legal exception it has to be necessary and proportionate.

The exception also has to be applied equally across the board and not single out a particular group for special attention; in other words, any law permitting the exception should not discriminate.

A necessary and proportionate exception would include requiring someone who works with either Children or vulnerable adults to be a member of the Protection of Vulnerable Groups (PVG) scheme and have a Criminal Records Bureaux check. 

The above example of an exception, would apply equally to everyone.  It would not single out transgender people for special attention.

So why has the criminal law singled out a trans man for special attention in this case? 

Consider this hypothetical comparator, would a non transgender heterosexual male face prosecution for failing to reveal to his partner(s) his particular sexual history?

Similarly, would this hypothetical male also face prosecution for failing to reveal intimate details of his personal and private medical history to each and everyone of his partner(s)?

I believe that the answer to both questions is a resounding no!

Taking this into account, why then, should a transgender male, not be afforded the same right to privacy as the hypothetical comparator described above?

Different treatment for transgender people

This Equality Network highlights the differential treatment in this case by using a tangible comparator; 

"As a comparative example, a 31 year old man who had sex with a 14 year old girl who had claimed to be over 16 was prosecuted at the Sheriff Court and also sentenced to 240 hours of community service, whereas Wilson’s case was prosecuted at the High Court, reserved for the most serious offences. This lends weight to the STA’s claim that Wilson’s fraud prosecution was 'a completely inappropriate charge.' "

In my view, this is where the COPFS fails the public interest test.

As the prosecuting authority, it is bound to operate the same standard, whether gay or straight, trans or non trans.

It is not in the public interest to single out one particular group for special attention.

It is also not in the public interest to single out trans men or trans women for prosecution because they expect the same degree of privacy regarding their private lives as anyone else.

The prosecutor should also know, or ought to know that transgender people may feel isolated and marginalised and not know how or where to access support services.

These issues and others, such as the negative impact of the prosecution, should have formed part of the COPFS thinking in applying the Prosecution Code and then in their decision to prosecute. 

Questions - but for an appeal

I was not party to the full details of this particular case.

Hypothetically, if an appeal was raised, the Court could be asked to answer some of the questions posed by this article, for example the privacy issue.

A full analysis of the general law is outside the scope of this particular article, but other commentators have suggested that the offence of obtaining sexual intimacy by fraud may not actually exist as part of the Scottish statutory sexual offenses framework.

Stephen Whittle, Professor of Equalities Law at Manchester Metropolitan University, analyses this point in his blog article entitled "Chris Wilson: Convicted because of his Clothes"

If this is the case, and the COPFS is further challenged, it may offer another avenue for appeal.

If there is no offence, then there cannot be a prosecution.

In this case, one would have to ask, why did both the COPFS and the High Court allow a prosecution? Ignorance of the issues or prejudice?

There are also questions about the cross over between equality / non discrimination law and the criminal law.

Usually, in these cases, the Scottish Parliament has passed new legislation to rectify problems as and when they do arise. This has been the case with sexual offences to date, for example, making them gender neutral.

This does not mean that all of Scots criminal law has been updated; just the more obvious examples.

The majority of the criminal common law predates our non discrimination law and therefore it could be argued that existing criminal law - at common law at least - has to be reviewed again.

However, these are mute points.

There is one major stumbling block to any appeal here - the accused pled guilty.

The guilty plea has provided the COPFS and the Court with the perfect cover, even if mistakes have been made in this case.

Unless an exception can be made, and it is not beyond the realm of possibility, there will be no appeal and the questions posed concerning the legitimacy of the charge and a Transgender man's right to sexual privacy will go unanswered.

Other legal options available

It is still possible for the matter to return to Court. 

The Lord Advocate, could ask the Court to determine to true application of the criminal law in relation to a transgender people's right to privacy, taking into account the now developed jurisprudence of both Human Rights and Equality Law. 

This procedure, is known as a Lord Advocate's Reference.   

As a matter of Civil Law, anyone who now feels that the law discriminates against them, is entitled to seek as judicial review. 

In these circumstances, it may be possible, to ask the Court of Session - Scotland's Civil Supreme Court - to issue a special order known as a "declarator of incompatibility". 

If such an order were issued, the Scottish Government and possibly the Lord Advocate, would be required to act. 

Lessons for the future

Whatever happens in the future, the COPFS and Police will have lessons to learn from this case.

The Equality Network has been vocal in its criticism of the COPFS in this case and rightly so.

A petition has also been presented to the COPFS and a meeting sought with the Lord Advocate about the issues raised as a consequence of this prosecution.

In my view, this prosecution has set a dangerous precedent - in effect making it a crime to be Transgender.

Secularism and religious intolerance

In today's guest Blog, Gordon Ellis writes about secularism, religion and Scotland.  

A former leader of the Anglican community’s 80 million adherents worldwide thinks that the government is "aiding and abetting" aggressive secularisation.

Lord Carey, a former Archbishop of Canterbury, also drew attention to a recent ComRes poll, which suggested "more than two-thirds of Christians feel that they are part of a 'persecuted minority'".

Secularisation of Scotland

A 2008 report on secularisation in Scotland highlighted that Western countries are going through a process of cultural change driven by growing wealth over the last decades, which has spurred economic independence for individuals.

Their overall dependence on other people and institutions, including the church and religion has, it is stated, accordingly, diminished. The report went on to state that not only the increase in wealth, but also increased mobility and the global information network have opened new doors to regular members of society. As a result, society is less influenced by the traditional ties and values that once shaped society. These trends are thought by the authors to have contributed to a substantial increase in secularisation in the west, including in Scotland.

Global events: Islam and the west

At the same time, global events such as the emergence of Al Qaida, the Taliban influence in Afghanistan and elsewhere, and terrorist attacks of 9/11 and 7/7, have focused very much on Islam in the negative sense.

There is as a result a feeling amongst many Muslims that Islamophobia is not taken very seriously and that because of their history as Muslims, terrorist atrocities and such, people feel like they deserve the abuse.

Despite all the negativity, Islam is stated to be the fastest growing religion with over 1.5 billion followers or 23% of the world’s population, and second only in size to Christianity. So, from Christianity and Islam alone, religion is a major influence on almost half of the world’s population, and, in that context, still very much a force to be reckoned with.

Personal experience

In 2005 I was helping the Muslim Community in the Highlands organise a summer school for young Muslims, to assist them in developing their cultural identity within the wider Highland diaspora. It was scheduled to start on 25 July, and 7/7 intervened.

My first discussion with the teacher from Birmingham who was to come to Scotland some three weeks later, was to convince him not to cancel the summer school, as the timing was not right for “moderate” Muslims to be potentially in the public eye.

I am glad to say that the summer school went ahead and was an unqualified success, culminating in the awarding by the Provost of Inverness of certificates of achievement to the participants in the splendour of the Inverness Town House, and wide positive publicity in the media for “moderate” Islam.
Hate crime against Muslims

A UK wide government-backed project set up in 2012 to monitor anti-Muslim hate has recorded 632 incidents in its first year.

Three-quarters of the incidents recorded by Tell Mama occurred online, with Twitter particularly highlighted as a source of abuse. In cases of verbal or street-based abuse those behind the project say it is Islamic clothing, like hijabs, that singles people out.

In January a pig's head was left in the garden of an Afghan family in London. There have been a number of incidents involving pork-based items being left at mosques and in December a cross wrapped in ham was left outside the home of a Muslim family in Bingham, Nottinghamshire.

Support from the Jewish community

What is encouraging is the support, which is apparent from the Jewish community, on whose monitoring model the Muslim initiative is based. The Community Safety Trust (CST), which has for almost 30 years been recording incidents of anti-Semitism in the UK has indicated:

"CST is glad that our work countering anti-Semitism has helped Tell Mama provide the Muslim community with a proper mechanism for reporting and understanding anti-Muslim hate crimes. It has taken CST nearly 30 years of focus and professionalism to get to where we are today, so what Tell Mama has achieved in just one year is very impressive.…. if our joint co-operation helps break down barriers between British Muslims and Jews, then all the better."

Muslims in Scotland

The Scottish Muslim population is dwarfed by the much larger 2.7 million in England and Wales. Immigration of Muslims to Scotland is relatively recent, the bulk of Muslims in Scotland come from families who immigrated during the late 20th century.

The 2011 census analysis published by the Scottish government, indicates that In Scotland Muslims represent 0.9% of the population (42,557), with 30,000 in Glasgow (there are 10 times this number in Birmingham alone). Many Scottish Muslims are of South Asian descent primarily hailing from Pakistan, whose well documented political turmoil is rightly or wrongly associated with the more “extreme” adherents of Islam.

Islam misrepresented

In 2006, the Scottish Communities Minister opined that Islam is often "misunderstood, misinterpreted and misrepresented" and that anti Islam comments or abuse would not be tolerated in a Scotland which values religious diversity.

Notwithstanding, I am aware that many Muslims still feel vulnerable.

Indeed, there appears to be an increasing groundswell of opinion in the Muslim community in England, that the government does not offer the level of support that is justified by the vast majority of “moderate” Muslims, but chooses to focus on the radicalised minority and their excesses, both in the UK and abroad, for purely political ends. This would seem to accord to a considerable extent with what is being said by Lord Carey in respect of the government attitude to Christianity and the Christians’ feelings of persecution.

Religion: challenges from change

Like society at large, religion is looking to address change and challenges which are now on a global scale. The new Pope Francis has focussed very much on social justice, and a simpler “back to basics” approach. Included in the group that prayed with Pope Francis at the crypt of St Peter at his inauguration was the Ecumenical Patriarch of Constantinople, Bartholomew. It was the first time since the split between the Eastern and Western churches in 1054 that the leader of the Eastern Orthodox churches has attended a papal inauguration.

Different denominations, and different religions, share many of the same challenges - scepticism and indifference for example - in the increasingly secular Western world.

In order to move with the times, and contribute to the development of a society which does not tolerate inequality or discrimination, as well as having the mechanisms in place to deal with it, churches, I would suggest, have a potentially pivotal role to play, but need to work smarter, and of equal, perhaps greater importance, together.

Positive change

On a positive note, with particular reference to Scotland, I am reminded of an Aberdeen Episcopal Church which recently opened its doors to local Muslims whose adjacent mosque was too small to accommodate them.

Despite unwarranted, primarily online, criticism from some, Muslims and Christian worshippers at St John's Church hope their special relationship could serve as a model for the rest of the country. Indeed, the Episcopal Bishop of Aberdeen and Orkney, Dr Robert Gillies, said the arrangement at St John's could serve as a lesson for the rest of the world.

''What we are doing here, is something local that has global significance,'' he said.

''We have demonstrated that Christians and Muslims do not have to agree with one another. But they can learn to respect each other's different beliefs and actually come to get along and even like one another." Take note, please, the religious persecutors of Indonesia, Southern India and Sri Lanka and Burma.

Religious tolerance in Scotland

In Scotland, religious tolerance even within the various Christian communities has proved challenging enough, the West of Scotland catholic protestant anxieties, and the splits within the Free Church, for example.

To add to the mix the impact of globalization and the influence of an increasingly diverse ethnic community, including Islam, contributes considerably to the difficulties of applying the requirement to “the fostering of good relations between individuals who share protected characteristics”, in this case religion and belief, of which the Aberdeen initiative is an excellent example. As if that is not enough, one must add the complicating dimensions of same sex marriage, women priests, celibacy and historical allegations of abuse.

Fostering good relations - Equality Act 2010

Interesting times lie ahead for religion, within and outside Scotland. In that context, the government, which is subject to the equality duty to foster good relations between individuals who share protected characteristics and for removing or minimising disadvantages suffered by people due to their protected characteristics, needs to play a more proactive part in addressing the legitimate concerns of both Christians and Muslims that they are being increasingly subject to persecution.

GORDON ELLIS, APRIL 2013