Practising in suspense
Brexit, the review of employment tribunal fees, and case law on reasonable adjustments are among the things keeping employment lawyers awake at night, says Sean Jones QC
If you know an employment lawyer, they are probably in need of a hug. The first and most obvious issue is Brexit: many employment rights are rooted in European legislation and every time someone calls for the immediate repeal of the European Communities Act 1972, employment lawyers imagine impressive chunks of employment law blinking out of existence.
Any outcome to the negotiations that does
not require us to apply the European employment law ‘acquis’ will likely involve a right-by-right consideration
of what stays and what goes.
With working time and agency worker rules topping the poll of measures least popular with the government, employment lawyers are listening carefully to stray remarks from ministers.
One minister’s vital workers’ right is another’s meddlesome European red tape. The re-introduction of a cap on discrimination compensation could, for instance, instantly
and significantly reduce the effectiveness of the anti-discrimination legislation.
For now nothing has changed; we wait.
We are also waiting for
the government to publish
the review of the effect of employment tribunal fees.
In July the review was going
to be published ‘soon’. October
is here, the review is not.
We are able to keep busy by waiting for several things at once. We multi-task by waiting for the Supreme Court to hear the judicial review of the decision to introduce tribunal fees and the outcome of the Ministry of Justice’s new consultation, in which it is suggested (with an unsettling vagueness) that the ministry is ‘considering whether the new approaches being adopted elsewhere in the justice system could be applied to the employment jurisdiction’.
This seems to be a reference
to the coming focus on online determination of simple claims. The pointed reference to the employment tribunal having
its own appeal tribunal in the consultation paper published this month suggests that the government has reflected on the recent suggestion in Lord Justice Briggs’s ‘Civil Courts Structure Review’ (published in July)
that the employment tribunal might be absorbed into the
civil courts system.Reasonable adjustments
This month’s case of interest is G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15. The claimant worked as an engineer dealing with automatic teller machines. He hurt his back and the resultant disability meant
he could no longer perform his job. He was given a new job: delivering keys. Initially, he had his pay protected. The employer wanted to remove the pay protection and a failure to
agree this change resulted in the termination of the employment.
There were two issues of interest. The first is a point of general application: can an employer impose a reasonable adjustment without the employee’s consent? The Employment Appeal Tribunal (EAT) concludes that it cannot. The second issue was whether the employer had failed to
make a reasonable adjustment by continuing to provide the
The question of the extent
to which an employer may be expected to make an adjustment consisting of paying an employee for work they are not doing has been troublesome.
It arose initially in the context
of pay entitlements during periods of sickness absence. The Court of Appeal in O’Hanlon v Commissioners for HM Revenue and Customs  ICR 1359 rejected an argument that pay had to be maintained where
the absence was a result
of a disability and sick pay entitlement was exhausted.
In Trustees of Swansea University Pension and Assurance Scheme v Williams UKEAT/0415/14, the EAT took the view that a proposition that an employer might be obliged to pay for work not
done was likely to be an ‘uphill struggle’.
The EAT in G4S, however, decided that the employer should have kept pay protection in place. If that resulted in
an advantage to a disabled employee, that was perfectly consistent with what the legislation might require
(see, for example, Archibald v
Fife Council  ICR 954).While we are on the subject
of money, the Billable Hour appeal is running again this year. Lawyers are giving an hour’s fee to help Save the Children’s work rescuing refugee children. Lawyers have donated a quarter of a million pounds since last September. There are 8,760 hours in a year (somehow more if you work
for certain US firms). Work one for refugees and donate it at www.billablehour.org.