MINUTES OF THE EMPLOYMENT TRIBUNALS (SCOTLAND)
NATIONAL USER GROUP
DATE OF MEETING: Tuesday 14th March 2017
ATTENDEESName / Company
Russell Bradley / Faculty of Advocates
Lindsey Miller / Scottish Engineering
Andrew Munro / Scottish Engineering
B Stern-Gillet / Peninsula
Raymond Farrell / Glasgow City Council
Alan Philp / RBS Mentor
Martin Sinclair / MacKinnons Solicitors
Aileen Irvine / TLT LLP
Rachel Blair / North Lanarkshire Council
Caroline Brodie / Lloyds Banking Group
Carron Lockhart / Scottish Engineering
K Pahulb / HBJ
D Gibson / Morton Fraser
Rachel Bell / Harper Macleod
Katy Docherty / Pinsent Masons
Claire Platts / Scottish Engineering
John Lee / Lindsays
C Gurevitz / Xact
I Meth / Xact
Steven Harte / Morisons
Suzanne Craig / Unison
Mark Patterson / CAS
Steve McCarson / KCLLP
Moina McCarson / P & K Council
Jillian Merchant / Thompsons
David Martyn / Thompsons
Ian Proctor / Acas
Nicola Clarke / Acas
Angela Stryleiska / Just Employment Law
Margaret Gribbon / Bridge Litigation Solicitors
Julie Sabba / Lindsays
Linda Hamilton
APOLOGIES
Nicola Gray / MacKinnons Solicitors
Laurence Anstis
Jonathan Rennie / TLT LLP
David Hoey / BTO Solicitors
Mark Stewart / HMCTS
Abbie McCreath / CMS Cameron McKenna
Stephen Miller / Clyde & Co
BEIS
Also in Attendance
Susan Walker, Vice President
Stephen Toal, Head of Operations (Scotland)
Pauline MacNeil, Acting Senior Operations Manager, HMCTS
Bill Dowse, Ministry of Justice
Pamela McBride, Promoting Fair Work Division, Scottish Government
Elizabeth Potter, Regional Employment Judge (ET(E & W))
Agenda item 1 - Welcome and Introductions
The President (JudgeSimon(SS))introduced the above named individuals, thanked all for attending and welcomed all users to the meeting.
Agenda item 2
General update on devolution of functions of Employment Tribunals (Scotland)– Judge Simon
Slides attached click here
Agenda item 3
Update on proposals contained in the UK Government’s consultation document on Reforming the Employment Tribunal System and the outcome of the Review of Employment Tribunal Fees - Bill Dowse, Ministry of Justice
The response to the Fees review was published on 31st January 2017. The 3 principle objectives Ministers were concerned with were:
- Financial
- Behavioural
- Maintenance of Access to Justice
BD explained the in terms of finance Ministers felt the introduction of fees had met the objective, raising between 8 and 10 million pounds per annum.
The behavioural objective was to encourage parties to pursue alternative avenues of dispute resolution such as conciliation. In the year 2014/15 approximately 92,000 claimants had contacted Acas although it was accepted that, in part, this was because it is normally a requirement for a claimant to contact Acas in connection with early conciliation before presenting a claim to the Employment Tribunal. Ministers considered this behavioural objective had been met.
In terms of maintaining access to justice the Acas review of early conciliation indicated that roughly half of potential claimants who notify Acas of a potential claim but who are unable to resolve it through conciliation go on to tribunal. The review also identified a small group who were unable to resolve their disputes through conciliation but did not go to tribunal because they said they could not afford to pay. The ET fees review estimated that between 3 and 8 thousandclaimants per year could fall into this category and Ministers did find this troubling.
As a result of the review Ministers are consulting on proposals to make adjustments to the Help with Fees scheme to widen access.The further consultation closed 14th March 2017 and it is hoped the response will be published and implemented before the summer recess.
Another outcome of the review is that three types of claim relating to payments from the National Insurance Fund no longer attract a fee. These are all claims which can arise out of an insolvency situation. Ministers recognised that in such circumstances EC was unlikely to be successful and that there was little chance that the insolvent employer would reimburse any fee which had to be paid. The Government had decided to abolish fees in such cases with immediate effect following publication of the review report on 31st January 2017.
Q) SS noted that there was a proposal to change the gross income limit for Help with Fees but asked whether during the review consideration had been given to changing the capital limit, given that ET claimants in particular were more likely than average to have received a termination payment shortly before making a claim which would have increased their savings (treated as capital) albeit the sum was actually meant to tide the person over a period of income loss. It was also likely to have included payment in lieu of income which would otherwise have been received during a notice period and accrued holiday pay (income), both of which are treated as capital under the scheme.
A) Ministers decided that if you have the money in the bank you should pay the fee unless there were exceptional circumstances i.e. if you satisfy the Lord Chancellor that paying would cause exceptional hardship. In those circumstances a hardship application could be made for the Lord Chancellor to exercise her discretion to waive or reduce the fee.
Q) SS mentioned that one of the concerns raised with her by various bodies was that pregnant women who had saved up for items they needed for their new baby (pram, cot etc) were finding that these savings were putting them above the capital threshold for help with fees even although the money was earmarked for necessary spending for the baby.
A) BD suggested this was a good example of the type of circumstances which could give rise to an application to the Lord Chancellor to exercise her discretion to waive or reduce the fees.
Q) A user asked if consideration had been given to removing the fee for protective award claims where the employer was insolvent?
A) BD explained that there was a specific question in the consultation attached to the review outcome document regarding whether there were any other claims similar in type to those in connection with which fees had already been abolished.
Q) A user asked why fees were not proportionate to the amount claimed.
A) BD explained that setting the fee in accordance with the value of the claim would make the system very complicated for those administering the system and for the user.
SS thanked BD for his contribution and in particular for his willingness to come to Scotland from London to speak directly to system users.
Agenda item 4
Update on the Scottish Government’s ET Stakeholders Forum - Pamela McBride – Promoting Fair Work Division, Scottish Government
Slides attached click here
Q) Pauline MacNeil asked if there was any representation on the group from HMCTS as she thought it would be beneficial.
A) P McB said there was only representation from SCTS at this time although minutes are published so anyone can have a look.
SS thanked P McB for her contribution and indicated she was sure the user group would look forward to an update at its next meeting.
Agenda item 5
Update in connection with ET performance and judicial case management issues -Judge Simon
SS explained that currently there were a number of salaried judges absent with health issues but thanks to the support of Stephen Toal and his management team they had managed to find more fee-paid resource enabling us to continue to provide the level of service that users had come to expect.
Q) A user asked whether there was any intention in Scotland to amend the Preliminary hearing agenda as they had done in England and Wales to include Judicial Assessment.
A) SS explained that she had discussed the introduction of Judicial Assessment (which she understood to be akin to early neutral evaluation)
with Judge Doyle, the President in England and Wales. The initiative is still at a fairly early stage and Judge Doyle has agreed to keep SS informed
of the pros and cons in practice so that SS, in consultation with the VP and EJ s, can then consider whether there might be value in introducing the same type of initiative in Scotland. If consideration was being given to introducing this in Scotland that would be discussed with the user group in advance. SS asked if Regional Employment Judge Potter wished to add anything about experience in practice to date – REJ Potter indicated that the initiative could be described as being at an early exploratory stage. It was being tried against the backdrop of the ET judiciary being mindful of the impact of fees.
Agenda item 6 - AOB
Security
SS informed system users that HMCTS is responsible for putting systems in place to ensure those who work in and use its buildings are kept as safe as possible. There were national security standards that required to be implemented and which were kept under review. She invited Stephen Toal (ST),Head of Operations (Scotland) to provide more details.
ST informed the users that currently the Glasgow Employment Tribunals in the EagleBuilding did not have the level of security which was required under the HMCTS policy and that was now being introduced. This would include wanding and bag searches being introduced. The details of how and exactly where this will be done are still to be finalised. Every effort would be made to ensure minimal disruption and delay on entry. Once more details are available a letter will be sent to system users to provide further information, including in connection with the start date of the new procedures.
Q) A user asked if they would be searched on each occasion they came into the ET office even if they were a regular user of the tribunal. It was mentioned that in SCTS buildings solicitors and advocates can obtain passes which mean they do not need to go through the search procedure.
A) ST indicated that regardless of how often a user attends they will be searched on each occasion. (SS gave the example of Judges without passes being searched in other HMCTS premises even although they were known to the guards.) HMCTS and SCTS are separate organisations so an SCTS pass would not be valid in HMCTS buildings. However on devolution of reserved tribunal functions responsibility for security will pass to SCTS.
Pension Loss
SS raised the issue of calculating pension loss. For many years practitioners and Employment Judges benefited greatly from the guidance given in the booklet entitled “Compensation for loss of pension rights: Employment Tribunals” but that guidance booklet has not been updated since 2003. It
was with withdrawn from use in 2015. For various reasons it has not proved possible for the booklet to be updated. That left both the ET Presidents with something of a problem – a lack of guidance for Judges and parties when it came to calculating pension loss in Employment Tribunal cases. What they decided to do was set up a cross border judicial pensions working group to consider the matter and the group has done that most effectively and thoroughly. The work carried out by the judicial pensions group included a consultation with Employment Tribunal users in 2016. Both ET Presidents will be issuing Presidential Guidance (hopefully in June) in connection with calculating pension loss in Employment Tribunals. That Presidential Guidance will be accompanied by a very detailed document which has been prepared by the judicial pensions working group offering further guidance and explanation.
Questions received from users
Q)Following the recent decision from the Supreme Court in the holiday pay case of Lock v British Gas a user asked about whether standard directions were going to be issued in these multiples.
A)SS explained that the vast majority of cases were sisted at the moment pending certain appeal decisions, including Amey Services Ltd and Enterprise Managed Services Ltd Aldridge and OrUKEATS/0007/16/JW, which has now been issued. Also it should be noted that one ofthe lead judges for the holiday pay claims in Scotland was one of the judges affected by ill-health [N.B. Post meeting – that judge (P Cape) has now retired] but the matter would now be progressed by the two remaining lead judges [N.B. Those EJ s are EJ Gall and EJ Wiseman] with whom SS would be meeting shortly to discuss future strategy for management of these cases.
Useful Contact details
President’s Private Office:
Vice President’s PrivateOffice:
Stephen Toal, Head of Tribunal Operations (Scotland):
Sandra Martin, Delivery Manager:
Date of next meeting - to be confirmed
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