Global HR Update: United Kingdom

By Faegre Baker Daniels Jul 2, 2013

New Employment Tribunal Fees

The long-awaited Tribunal fees come into force July 29, 2013. A claimant who submits a claim after this date will be required to pay an “issue fee” on submitting their claim, and a “hearing fee” before a full hearing. The fee will vary depending on the complexity of the claim.

The basic fee structure will be as follows:

Level 1 claims: £160 issue fee and £230 hearing fee. These are the more straightforward, lower value claims, generally for sums due on termination such as unpaid wages, payment in lieu of notice and redundancy payments.

Level 2 claims: £250 issue fee and £950 hearing fee. This will cover all other claims, including those relating to unfair dismissal, discrimination and equal pay. We expect that most claims will fall within this bracket.

The fees will be paid directly to the Tribunal. The judge will have the power to order the respondent to reimburse any fees paid by the claimant if the claimant wins, although this will be at the judge’s discretion rather than automatic. We hope that this will reduce the number of low-level, opportunistic claims coming through the Tribunal system, although it may just end up being an additional cost that the claimant will seek to recover from the respondent as part of any settlement package.

Covert Surveillance Not Always Unfair

The covert surveillance of an employee did not amount to an unreasonable investigation or a breach of the employee’s right to privacy under Article 8 of the European Convention on Human Rights, the Employment Appeal Tribunal has held in City and County of Swansea v Gayle, and accordingly the dismissal was fair.

Gayle was employed by City and County of Swansea. He was seen at a local sports center on a Thursday afternoon by another employee of the Council but had apparently not left work until almost 6 p.m. that day. The Council employed a private investigator who filmed Gayle at the sports center on five subsequent Thursday afternoons, at times during which Gayle claimed to be at work. Gayle was summarily dismissed for gross misconduct. He brought claims of unfair dismissal and race discrimination against the Council. The Employment Tribunal rejected the discrimination claim but held that Gayle had been unfairly dismissed because the use of covert surveillance during the investigation was unnecessarily thorough, unreasonable and breached Gayle’s right to a private life under Article 8 of the European Convention on Human Rights.

The appeal tribunal disagreed and held that covert surveillance was reasonable in these circumstances. Gayle had been filmed in a public place and on his employer’s time, during which the Council was entitled to know where he was and what he was doing. The court also held that Gayle had been acting fraudulently by engaging in his own activities while receiving money from the Council and could therefore have no reasonable expectation that he was entitled to privacy. It therefore overturned the finding of unfair dismissal.

It is encouraging to employers that covert monitoring will not necessarily make a dismissal unfair or be considered unreasonable. However, each case will turn on its own facts and the outcome may have been different had the surveillance been on private premises rather than on public land.

Compulsory Retirement Age of 65 Justified

In Seldon v Clarkson Wright & Jakes, the Employment Tribunal held that a compulsory retirement age of 65 was not in breach of the age discrimination legislation as it was a proportionate means of achieving legitimate aims, and was therefore justified.

In May 2012, the Supreme Court decided that a law firm’s aims in retiring one of its partners (Seldon) at the age of 65 were legitimate. In summary, the aims were to retain associates, plan for the future of the partnership, and contribute to a supportive workplace. The Supreme Court remitted to the Tribunal the question of whether the chosen age of 65 was a proportionate means of achieving these aims.

The Tribunal considered that a compulsory retirement age could only be a means of achieving the firm’s aims if it fell within a narrow range of ages (e.g., 64 to 66) as only then could the necessary balance between the needs of the firm, its partners and associates be struck. In deciding whether the retirement age of 65 was proportionate, the Tribunal took into account a number of factors including that all the partners, including Seldon, had consented to the compulsory retirement age of 65, and at the time of Seldon’s retirement in 2006, the U.K. provided for a default retirement age and a state pension age for men of 65.

This decision is good news for employers but it does not mean that a compulsory retirement age will always be lawful. Whether it is will depend on the facts of each case and, in this case, the Tribunal took into account soci​al policy and demographics in 2006. The outcome might have been different if Seldon had been retired today.

Republished with permission. © 2013 Faegre Baker Daniels. All rights reserved.

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