The Employment Law Pod

Tribunal Fees, Workplace Dismissals, and Employment Law Dilemmas

• Boyes Turner • Season 1 • Episode 2

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Are the scales of justice in the workplace tipped too far one way? We'll help you grapple with that question as, Andy Whiteaker and Helen Goss, dissect the latest proposals on Employment Tribunal and Appeals Tribunal fees. This episode promises a riveting exploration of access to justice and the deterring effect these fees could have on weak claims.

The conversation doesn't stop there, as we also delve into the gripping drama of Gabriela Rodriguez's dismissal over a tuna sandwich, exploring the nuances of workplace theft and gross misconduct. This case serves as a springboard into the murky waters of contract service dynamics, and we examine how employment law intersects with issues of trust, reputation, and potential discrimination.

The episode takes another twist when we scrutinize the contentious 'fire and rehire' practices and the recent proposals targeted at curbing this harsh strategy. As we break down the potential legal outcomes for employees and employers, you'll gain a clearer understanding of what constitutes fair or unfair dismissal in these scenarios. With high-profile cases like the P&O dismissals shedding light on this issue, we explore the diverse political stances and potential legislative changes that could reshape this aspect of employment law. 

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 Andy Whiteaker: 0:04 

Hello and welcome to the Employment Law pod from Boys Turner. My name's Andy Whiteaker, I'm a partner in the employment team and I'm in a good mood. I'm in a good mood because daffodils are in the fields, perhaps spring is on the way. And if that wasn't enough, I'm joined by my colleague and fellow Employment Law partner, Helen Goss. Today we are going to be talking about a few of the Employment Law stories that we have seen and have piqued our interest over the last few weeks since our last podcast. So, Helen, what are we going to be talking about today? 

Helen Goss: 0:35 

Well, we're going to start off with you and some comments in relation to Employment Tribunal and Appeals Tribunal, fees, which is a new subject, and new proposals. Then we're going to talk about Gabriela Rodriguez and her tuna sandwich. 

Andy Whiteaker: 0:52 

Yes. 

Helen Goss: 0:53 

And finally, you're going to touch on the issue of new proposals in relation to fire and rehire which have recently come out, that sort of Armageddon scenario that some employers go for. 

Andy Whiteaker: 1:09 

Okay, so starting off with Tribunal fees, then many of you listening will know that at present it is not necessary to make a payment into the Tribunal in order to issue a claim. 

Helen Goss: 1:22 

And of course, Andy, that's a bit different to other courts, isn't it? So if you're going to bring a claim in the County Court or the High Court, there are quite significant fees. 

Andy Whiteaker: 1:30 

That's right. There's an issue fee, if you like, but many other people listening will remember that back in the 2010s, we did have a regime where fees were introduced for the first time in the Employment Tribunals. 

Helen Goss: 1:43 

Yes, 2013, wasn't it? 

Andy Whiteaker: 1:44 

That's right, and it had a substantial impact upon the claims being issued. There's dispute about the precise figures, but we can roughly say that we saw a broadly about a two-thirds reduction in the number of claims being pursued in the Tribunal. And what the fees looked like at that time was you had to pay a fee in order to issue the claim and then you also had a hearing fee that you also had to pay. Generally speaking, for your average claim you were looking at about £1,200 or so, most expensive ones about £1,600. 

Helen Goss: 2:16 

I think that was the appeal, wasn't it? Yeah, that's right, it went to that level. 

Andy Whiteaker: 2:20 

But typically you were looking at about £1,200 to bring a claim. Now, tribunal fees were struck down following a judicial review and they were struck down on the basis that they were forming a barrier to justice. So at a time when you've lost your job, perhaps you're struggling to find money. It was viewed and challenged brought by the trade unions, that it shouldn't be the case that an individual should have to pay a fee in order to get access to justice and pursue a claim in the tribunal. 

Helen Goss: 2:48 

So in 2013,. Then, Andy, what was the reason given for introducing the fees? 

Andy Whiteaker: 2:55 

Well, there was a few reasons for it. So, first of all, there was a perception that there were lots of unmeritorious claims being issued and perhaps by introducing a fee you would dissuade those that have less strong claims, weaker claims, from actually pursuing them in the first place. There's also the suggestion that it would encourage settlements. So rather than incurring those fees, parties would be more interested in resolving it before the tribunal process kicks off. And also it would go some way to funding the tribunals as well. The tribunals, you know, there's a cost Expensive. Yeah, exactly that, and there has always been funding issues in the tribunals, or at least over the last 20 years or so. But actually, when the tribunal fees were struck down following the judicial review and in the Supreme Court's judgment, they found that actually it didn't really achieve any of those things because it recovered less in terms of cash than was anticipated. It also found that there were just as many unmeritorious claims being pursued as previously, proportionally. 

Helen Goss: 3:55 

So the claims that weren't being issued were perhaps good claims, but the claimant couldn't afford to incur the cost, but the bad claims the individuals could afford to make the payment. 

Andy Whiteaker: 4:05 

Well, that's right. I mean, we've been in practice long enough to know that sometimes you have people that have terrible claims, really weak claims, but they will just not be convinced of that and they will pursue them until the end, and so the fees were not enough to dissuade them, and also there was no real evidence to suggest that it was encouraging settlements either. So we said goodbye to fees, but earlier on this year the government announced an intention to consult about their reintroduction. Now, interestingly, in the first instance they've pitched the issue fee at £55, which is obviously substantially less than where we were last time and no hearing fee either. So that £1,200 I was talking about earlier, that was the issue fee plus then the fee for the hearing as well. At the moment it's pitched at just £55 for the, you know, just to be able to bring your claim. Now the interesting thing about that is that what does that mean in terms of dissuading people from bringing the claim? Because at the first glance you might think well, £55 is not an enormous sum of money and therefore that might therefore overcome some of the issues that saw the tribunal fees being struck down previously as not representing too great a barrier to justice. But then, of course, it's all very well for you and me to sit here and say well, £55 isn't too much, is it? 

Helen Goss: 5:27 

We can probably find £55, but there are lots of scenarios where people have lost their jobs and they've got to make a very serious decision about what they're going to do with £55. 

Andy Whiteaker: 5:37 

That's right. So will it act as a deterrent? And also, is it going to deter unmeritorious claims? Again, probably not. But will it? Might it prove an access to justice? Well, maybe it would, and certainly those are arguments that are being made by the trade unions, who have unsurprisingly come out, and other interested parties as well. 

Helen Goss: 5:56 

What about the issue, then, of making a contribution towards the cost of the tribunal? Because I read that it takes about £80 million a year to run the tribunal system. So how much are they anticipating they're going to raise with this fee structure? 

Andy Whiteaker: 6:11 

Yeah, that's the figure I've heard as well. So the suggestion is that it might raise between £1.3 to £1.7 million. Now that's really a drop in the ocean in terms of the actual cost of running the tribunal, and there's going to be some administrative costs in actually, you know, processing those fees, making sure that it's all being paid. So to what extent is that actually going to make much of a difference in terms of contributing to funding the tribunals? I don't know. I'm yet to be convinced on that. 

Helen Goss: 6:40 

So that suggests, then, that that's not a major factor. 

Andy Whiteaker: 6:44 

No, and that then raises the question why are we doing this? 

Helen Goss: 6:48 

What's the intention of the government here? 

Andy Whiteaker: 6:50 

Because it may not achieve any of those goals that were set out previously when fees were introduced, namely, you know, deterring unmeritorious claims, contributing to the costs of running the tribunals and encouraging settlement. So why are we doing it? Well, one answer might be just to introduce the principle of if you're a user, you pay. As you said earlier, Helen. If you bring claims in other courts, you have to pay. 

Helen Goss: 7:16 

Yes, I mean a lot, lot, lot more. 

Andy Whiteaker: 7:18 

Yeah, exactly. If that's the case, then this is maybe just about saying well, as a principal, you're going to have to make a contribution. There is also perhaps a perception that this is maybe the thin end of the wedge. There is, as part of the government, consultation around this. They have asked what do you think about fees being higher? So there is maybe a thought process that perhaps we are seeing fees introduced at a low level, but once the principle of paying has been accepted, then that gives you more scope to gradually increase those fees at a time. So what started off at £55 becomes £100, becomes £250, becomes £5. 

Helen Goss: 7:57 

It's a bit like when you subscribe to Netflix or whatever. Whatever, the first year it's quite low, and then the fees start to escalate, don't they? Each month? 

Andy Whiteaker: 8:06 

That's right. So there is a fear that that could be the case. 

Helen Goss: 8:10 

What about the suggestion from Labour that they're looking at a day one right in respect of unfair dismissal? 

Andy Whiteaker: 8:19 

Well, so that's interesting because we've seen and we've alluded to it on the previous podcast actually that Labour's got some plans for what it wants to do when it if it gets into power. I should say, of course and a lot of that is around those day one rights. If it were the case that the government were able to get the fees introduced by the autumn by the time an election is anticipated and most commentators are thinking they probably could, they probably could get this done in time would Labour then remove? them and scrap it as soon as they got in. If they did, I'm not sure they necessarily would, because they've got lots of other proposals that they which are much bigger in the general scheme of things Exactly that. So that might be their priority, rather than going back and trying to scrap a £55 fee to issue a claim in the tribunal. Now, I suspect they will be under pressure from interested parties to do so, but it just might not be in their priorities. But again, the cynic in me thinks well, if it is the case that introducing a £55 fee might see a slight reduction in the number of claims being brought and make a contribution to the cost of running the tribunals, if, of course, labour introduces unfair dismissal rights from day one and also, for example, removes worker status and you become an employee, or self-employee, then you can see, there might be quite a substantial increase in the number of claims being pursued. So we will see. That might mean that we don't see any reduction in claims at all, really, but interesting the consultation is still open. 

Helen Goss: 9:52 

When does that end? Is it March, sometime 25th of March? I've got an idea. 

Andy Whiteaker: 9:56 

Yes, I think that's right. So it is relatively short consultation period, but that's clearly with a view to trying to get this done before the end of the current parliament. So if you do have any views on it, then you have the ability to share those and we'll see what comes out obviously something we can discuss in future as and when the consultation comes to an end and we get some proposals from the government. 

Helen Goss: 10:17 

Well, an interesting one to watch. 

Andy Whiteaker: 10:24 

Okay, well, moving on to the second part of the podcast, we are now going to be talking about an issue surrounding this theft of property, or the taking of sandwiches, in particular, in the workplace. 

Helen Goss: 10:35 

Yes, but really we're talking about Gabriella Rodriguez. 

Andy Whiteaker: 10:39 

Can I? 

Helen Goss: 10:39 

just say age 39, from Ecuador, because that's what nearly all of the newspaper stories tell us. So Mrs Rodriguez was a cleaner hired by Total Clean, who were contractors providing cleaning services to a law firm called Devonshares, and what happened is that she was cleaning Devonshares offices and they'd had an internal event where they provided lunch for their lawyers and after all the lawyers had disappeared. There were quite a few sandwiches left, so Mrs Rodriguez took one of the tuna sandwiches and put it in her locker to eat later. And Total Clean, who were her employers, found out about this. I don't know if somebody dubbed her in or what, but they found out that she had done this and went through a disciplinary process and decided that in all the circumstances of the case, it was reasonable for them to terminate her employment for gross misconduct. This caused obviously a huge amount of upset to Mrs Rodriguez and she had a huge amount of support with her colleagues and her union who have been busy making placards and demonstrating outside Devonshares offices. And of course that's created quite a lot of embarrassment for Devonshares, who were the client of Total Clean, because they say no, we don't want her disciplined, we certainly don't want her sacked for taking our sandwiches and wanting it to be down to Total, clean, completely. 

Andy Whiteaker: 12:26 

Yes, there's quite a few sort of interesting legal points here. Over and above the interesting personal story, there's the thing about what represents gross misconduct, about theft, about taking a property that doesn't belong to you, but also the relationship where you have a client and an end user and a service provider as well, and some of the pressures and interactions that are there. 

Helen Goss: 12:47 

Yes, Well, she says she's going to bring a claim for unfair dismissal and race discrimination. So the race discrimination aspect is that English wasn't her first language and so therefore she didn't understand particular rules and regulations or policies in relation to the taking of food. But in relation to the unfair dismissal and of course this hasn't gone to the tribunal- yet no, this is all just based on press stories at the moment, isn't? it Exactly, but it hasn't gone to the tribunal yet. It's about looking, as you say, about the fairness of the sanction and the decision process that the employer actually went through to decide that this was a situation that needed a summary dismissal for gross misconduct. And it did come down to the issue of trust and not, obviously, the value of the sandwich, which has been widely reported as being £1.50. And there are two quite recent cases actually that are very similar. 

Andy Whiteaker: 13:50 

Because it's the sort of thing, isn't it, that you read it in the paper and you think, oh my word, really, someone's getting fired over taking a sandwich. That seems like a massive overreaction. That can't possibly be right. But, as you said, there are some interesting principles. 

Helen Goss: 14:05 

Yeah, and total clean, the employer for Mrs Rodriguez, have actually said that theft is theft, and I think that that's probably what it comes down to in this case. So, just to bring a little bit of context, there have been two recent cases which are similar and, of course, you're never going to get a case that is exactly the same, and that's why it's always really important to say that every case turns on the particular facts of that case, but there are some broad principles. So Galloway and Rento Kill is a case that came through last year, in 2023, where Mr Galloway was at the premises of a client of Rento Kill and he is diabetic and I think he was feeling a little bit unwell. So he took a chocolate bar that belonged to the customer from their customer premises, but he didn't pay, and he had two opportunities to replace the chocolate bar at the customer premises, but he didn't. And after he had been suspended, he realised, I think perhaps, the severity of the situation because his employer, rento Kill, took the view that he had stolen it that he'd stolen the chocolate Because even though he'd had two opportunities to replace the chocolate or pay for the chocolate, he chose not to do that. Bizarrely, once he'd been suspended for the investigation and then the disciplinary purposes, he did go to the customer premises and he paid for the chocolate. And of course then the customer said oh, we don't want anything to happen to Mr Galloway, we withdraw our complaint. But at that point it was too late, because then the employer had taken the view. You had this opportunity on two occasions to make good the fact that you took that. So the issue of value is not the main point and it was the issue of our company reputation, in that our Rento Kill employees are on site with an employer and one of our employees has taken some property that belongs to the customer. 

Andy Whiteaker: 16:20 

Yeah, and it is an important principle, isn't it? Because if you are a cleaner or you're a service provider in some other way, shape or form, you will find yourself on clients premises and you will have access to all kinds of things, potentially, and so your client needs to have absolute trust that the people that come onto its site will act in a trustworthy and honest fashion and won't take things that don't belong to them. So you can understand why the employer of these individuals, so the service provider, will be particularly sensitive and hot on it. 

Helen Goss: 16:51 

Yeah, well, you know a lot of our clients. They provide their employees who work in customer sites and these sorts of issues. Whilst they may in some ways seem a little trivial taking a bottle of water or eating food that's left over after an event but to them it's really, really important that individuals follow very clearly laid out procedures to determine whether they can take the leftover food or a bottle of water or they can't. Yeah, and the general rule is that no, you can't unless you have very, very specific authority and permission from someone in a very senior position. 

Andy Whiteaker: 17:36 

So what was the other case then? 

Helen Goss: 17:37 

So the other case and the gentleman's name I don't know if I'm going to pronounce it correctly, but it was Mr Fekert, and he worked for Citibank. He was sacked. He was a bank analyst who tried to expense not only his own lunch when he was on a business trip in Amsterdam, but his partners and there we're talking about his partner in life and so he was asked about his expenses and he had eaten. He said two sandwiches, drunk two coffees and eaten two pasta dishes when he was on his work trip to Amsterdam, in one sitting. And his argument was well, I was hungry and also it's within the £100 allowance that I had, so therefore I was entitled to eat that much. I wanted two pasta dishes and two sandwiches. So there was an investigation, because the investigating people thought this doesn't have the ring of truth about it. It really, really doesn't. And several times he denied that he had fed his partner as well as himself and kept saying no, it was me, I ate it, I ate it. And it was in breach of a very clear policy with Citibank that you can't expense your partner's food. And also he lied, and so that really was his downfall. So he breached policy. But I think the bigger thing was that he lied and he kept lying and kept lying and when he finally came clean he brought various issues in mitigation, in that he had very recently lost his grandmother, to whom he was very close, and that had caused him to be very unwell because he was suffering from that bereavement. But he lost the case and it wasn't about the sums that were involved, it was about the breacher policy. And because he didn't own up at the first opportunity, I think that perhaps if he had owned up at the first opportunity, he would have had a slap across the back of his hand. 

Andy Whiteaker: 19:48 

And I think another factor here as well is the sector, because we're talking about finance essentially here. This is about money and it's about trustworthiness. 

Helen Goss: 19:56 

It's important, isn't it? 

Andy Whiteaker: 19:57 

Absolutely it is, and so you can absolutely see why an employer, in those circumstances, would say well look, particularly because of the role that you undertake, we need to have complete trust in your honesty and integrity, and you've not demonstrated that. 

Helen Goss: 20:11 

Exactly, and that behavior during and before the investigation I think formed part of that decision that this was not a person that was completely trustworthy in the business that they were in. 

Andy Whiteaker: 20:25 

If there's any morals from these stories, I guess it's that it's not about the value of what's taken. Absolutely not, it's the principles that are more important. Frankly, yes exactly. 

Helen Goss: 20:36 

So just a few takeaways. Really. We don't know what's going to happen to Mrs Rodriguez. I don't even know if her claims have been lodged, although they may have notified ACAS is. As an employer, you've got to make sure that you've got a policy about such things as leftover food, particularly if you're in that sort of environment. Or, for example, with Citibank, they had a very clear policy about their expenses, so you cannot expense your partner's food when you're away on work trips. You've also, then, got to make sure that everybody understands the policy, so it's got to be in clear English, and if you have a workforce where English is perhaps not the first language, then you do need to make sure that it is properly communicated to them in a way that they can understand. The policy's got to be properly communicated because, as we all know, with every single policy that you can ever have in HR, if it just sits in a folder and gathers dust or props open the door, it's of absolutely no use whatsoever. So a policy like this would have to really be part of the induction process, I think. Wouldn't it so that people knew at the very beginning what they could and couldn't do? I think there also, if you are a company that provides services to clients that there's an element of discussion and communication between you and your client as to what it's going to be acceptable for staff to do with leftover food. Because in Mrs Rodriguez's case, the law firm was saying that they didn't want her sacked and they didn't want her to suffer or even be subject to disciplinary proceedings because she had taken a leftover sandwich. So I think it is important that you, the employer, do listen and hear what your client is saying in relation to this particular situation. And then, of course, you've got to work out, given the particular circumstances of the individual, is your decision to dismiss too harsh and is it not a reasonable response to the particular circumstances? Which is where I think I started, in that you've always, always got to look at every individual case on the particular circumstances. So I think Mrs Rodriguez, 39 from Ecuador, is one for us to watch. 

Andy Whiteaker: 23:04 

To finish off today. 

Helen Goss: 23:06 

Fire and rehire. 

Andy Whiteaker: 23:08 

Fire and rehire. That's right. So we're talking about this because the government has announced an intention to publish a code of practice. It's going to be published in the summer of this year. And what do we mean by fire and rehire? Well, there are limited ways in which an employer can potentially vary an individual's contract of employment and we generally say you've got to consent, yes, unless you've got an express provision in the contract that allows you to vary a particular term, like a mobility clause or something like that. Yes, yeah, if you don't have that and you're seeking to change the contract, generally speaking, you need the employee's consent to change that contract, your term Absent that. There is an Armageddon process that's available to an employer whereby they can, after consultation, advise the individual that well, we still need to change your contract and therefore we are going to give you notice that your current contract is being terminated. But we are going to offer you new terms of employment to commence the day after your current contract expires, and would very much like you to accept those terms, please. And that process is known as fire and rehire and such a dismissal because it is a dismissal, you are terminating a contract, even though you're offering new terms may potentially be fair. It's a potentially some other substantial reason dismissal, but it does depend, as you've been talking about, helen, on the particular circumstances. So what's happening? What are the changes? What consultation process has been followed? 

Helen Goss: 24:44 

And I suppose Andy does it also then reflect, even if you were to succeed in the tribunal and prove that you had been unfairly dismissed, that your economic loss would potentially be a lot less if you had accepted the new role going forward. 

Andy Whiteaker: 25:00 

Well, maybe. So it's an interesting point that actually you can accept the new role and still bring a claim from fair dismissal. So you can still say I've mitigated my losses by accepting the new contract, but you have still dismissed me and, of course, if you've been unfairly dismissed, you're entitled to a basic award that's equivalent to a redundancy payment. So if you've got someone who's been with a business for a long time, that's a more substantial sum, isn't it Exactly? So they can bring a claim not only for unfair dismissal if there is a financial loss. So let's say they're taking away a financial benefit, for example, and you're going to lose financially, you could potentially seek to recover that loss. But you could also bring a claim for basic award as well and try to recover some money that way. Or, of course, you could say, no, I can't take that contract because it's such a detriment to me. I'm gonna go and try and find alternative employment, but now my losses would obviously be much, much larger. So this is very much a doomsday scenario. It's not something that we encourage clients to do as a general rule, because it's very antagonistic, it's high risk, it's not great for employee relations, but there are circumstances where it is used. Now, interestingly, one of the proposals we've been talking already today about what labor proposals do if it gets in power, one of the things they are talking about is a prohibition of fire and rehiring as a practice. What the Conservative party are proposing in there is penalties, isn't? 

Helen Goss: 26:28 

it Is penalties, exactly so. Neither government like it, but one is potentially going to go much further than the other. 

Andy Whiteaker: 26:35 

That's right. So what the again? We haven't seen the code as yet. It's not published, but the trail for it, if you like, that we've been told about in the last couple of weeks or so has indicated an intention to impose a 25% uplift on any compensation that's awarded if the employer fails to follow the code. So there's a process that there's going to be an expectation an employer will follow. If they're going to go through this process and if they don't follow that code, then there can be a compensation uplift. So it's similar to the code of practice on dismissals and grievances In grievances. 

Helen Goss: 27:10 

yes, it is. It's very similar, but I don't know how often we see the uplift. 

Andy Whiteaker: 27:15 

That is true, but I think what the government is saying that they're trying to do is to find a balance between allowing flexibility to employers where they need to impose changes to contracts of employment versus a requirement for them to behave and conduct themselves reasonably in that consultation exercise. So they're talking about it being unreasonable to threaten dismissal as a way of trying to coerce employees into accepting, to consenting. 

Helen Goss: 27:45 

Well, we saw that, didn't we, with P&O and the seafarers. Was that last year? 

Andy Whiteaker: 27:49 

Yeah, and that's so. As you can imagine, again there's been pushed back to this and a suggestion that this is not really resolving the problem. Bad employers are still going to carry on doing what they do. P&o and the P&O matter was slightly different and of course, there they just dismissed and replaced with agency workers, but what they failed to do is to go through the collective consultation process. 

Helen Goss: 28:12 

Yes, so they didn't follow the proper process. Even if you were allowed to do this, they didn't follow that process Because if you are following a fire and a rehire process. 

Andy Whiteaker: 28:20 

If there's more than 20 people involved it's going to require collective consultation, but you're quite right, the pushback from the unions and other interested parties are saying well, would this dissuade someone like P&O from doing the same thing again? 

Helen Goss: 28:35 

No, it wouldn't, Probably not because it didn't stop them. 

Andy Whiteaker: 28:37 

Didn't just stop them last time. Why would this stop? 

Helen Goss: 28:39 

them. 

Andy Whiteaker: 28:39 

So we wait to see what the code says when it is published and again, if we do see a change of government, we might see quite a radical approach and a different attitude taken to the ability to fire and rehire. 

Helen Goss: 28:53 

It's another watch this space, it's another. Watch this space Perfect. 

Andy Whiteaker: 28:56 

Great stuff. Well, look, that is our agenda concluded for today. 

Helen Goss: 28:59 

It is, andy, it is. 

Andy Whiteaker: 29:00 

All that remains is to thank you very much for your time. Thank, you. And also to remind everyone to like and subscribe this podcast wherever you found it on your usual podcast channels. Also a reminder, too, that although Helen and I are here every month with our thoughts, it's also the case that there are other podcasts being put out on the Employment Pod channel from our colleagues Katie Harris and Natalie Wood, who are talking about those are great actually. 

Helen Goss: 29:29 

Yeah, there's a really good podcast? 

Andy Whiteaker: 29:31 

Absolutely. You're talking about the intricacies of providing employment support in corporate transactions, yeah, and so those will be going out interspersed with ours. So do make sure you watch out for those and listen to those too. So that is all for today. Thank you again, helen, and thank you everyone for listening. Thank you.