Employment Tribunals - Guardian Letter

Abolition of Fees for Claimants

Three weeks ago I did a post Supreme Court Abolishes Employment Tribunal Fees - Thank the Lib Dems, Jo Swinson & Vince Cable for introducing them and also sent a letter into the Guardian.

Unfortunately I must have missed it and it has only just been pointed out to me.  So until I get a hard copy, I will have to make do with a copy from the Internet!

Supreme Court Abolishes Employment Tribunal Fees - Thank the Lib Dems, Jo Swinson & Vince Cable for introducing them

Grenfell Inquiry Judge Moore-Bick Rejected UNISON’s Application at the Court of Appeal 

I must confess that I have a personal interest in the historic judgment of the Supreme Court to overturn the introduction of penalty fees aimed at deterring applications to Employment Tribunals.  Before illness forced me into retirement in 2013 I had spent over a decade representing clients in Employment Tribunals and the Employment Appeal Tribunal on behalf of Brighton Unemployed Workers Centre.  Far from most workers submitting vexatious claims my experience was that most people were loath to go through a tribunal hearing if they could avoid it.  It puts a great strain on most people.  Vexatious claimants can be easily barred but my experience was that rogue employers would and did everything to cheat employees out of their rights.  The Tory Government, with the active collusion of the Lib Dems, sought to prevent people exercising their lawful rights.

The Lib Dems and Jo Swinson now claim that they were taken by surprise at the drop in employment cases.  Only an idiot or a fool could have thought that the level at which fees were set would have no effect on tribunal applications.

If fees had been in existence I would have been unable to have brought a  whistleblowing case concerning corruption in a charity, the Deans Youth Project in Brighton.  Corruption which was covered up by Tory councillor Dee Simson and New Labour's Linda Newman

Although most of my cases succeeded in general it is only a minority of workers who succeed in Employment Tribunal cases.  Most cases are settled out of court.  In discrimination cases in particular, levels of success are as low as 20%.  It is very difficult proving that an employer sacked you because you are a woman or  disabled or pregnant or because you were a member of a trade union.  The employer's argument would be that the person wasn’t good at their job or that they were no longer needed.  Very few people admit to discriminating.  Employers have always had the cards stacked in their favour as very few employees are willing to give evidence against an employer if they are still working for them.  British judges are notorious for twisting the law in favour of the employer.  E.g. the Reverse Burden of Proof Regulations which were intended to make it easier for victims of discrimination have had almost no effect because of the way the judiciary has interpreted them.

A whistleblowing case I won at the EAT - it would have cost £2800 to bring the case if fees had existed

I specialised in Whistleblowing and my last major case involved a woman who was an office manager in a local Brighton charity, the Deans Youth Project, who revealed that the organisation was being systematically defrauded.  When she told the trustees, one of whom Dee Simson was a local Conservative councillor, they decided to sack the whistleblower and protect the person who had raked in thousands of pounds through false invoicing!  It took a 3 day tribunal with 3 other Conservative councillors giving evidence for us before the Tribunal unanimously finding in our favour.  

If an employer had sacked you unfairly or because you were pregnant or failed to pay you holiday pay then before July 2013 you could make an immediate application to an Employment Tribunal and if you failed there you could appeal to the Employment Appeal Tribunal.  In a discrimination cae you could also submit a Questionnaire to the employer asking why they discriminated against you.  The Tories and the Lib Dems abolished this, extended the period before you could claim unfair dismissal to two years and introduced a raft of other provisions that reduced compensation and put other hurdles in employees place.  However the introduction of Tribunal fees by the Business Secretary Vince Cable and Jo Swinson meant that for most people it wasn't worth paying a small fortune to a Tribunal that was likely to find against you on procedural or other grounds.    

The Daily Mail warns of a 'tide of employment tribunal claims' a change from a 'tide' of immigrants

The most simple unfair deduction of wages claims would cost £390 to get into tribunal which meant that the lowest paid simply couldn’t afford to issue a claim especially as they would often be claiming less than that amount.  You therefore had the right to things like 28 days holiday pay, maternity pay etc. but if you can't enforce your rights then they are nugatory.

The reduction in claims since the introduction of fees - it took some effort to say nothing of hostility to  workers rights to ignore the evidence

For most other claims it cost £1,200 pounds to have a Tribunal hearing, a figure which deterred some 80% of people from even putting in claims.  If you didn’t have a trade union backing you or you didn’t get a high salary the chances were you had to forego your rights.  It cost even more, £1600, to put in an appeal to the EAT.  I won five cases at the EAT, which was the High Court for employment cases, but I doubt if any of my clients could have afforded £1,600.

Lib Dems Vince Cable Introduced Tribunal Fees

The Lib Dems are and always have been a right-wing pro-austerity  business party.  It was therefore natural that they should go into coalition with the Tories in 2010.  Whether it was the Bedroom Tax, the Privatisation of the NHS, Student Fees or Austerity, the Lib Dems played the part of the Tories loyal partners from 2010-2015. 

Jo Swinson, Lib-Dem Deputy Leader - introduced fees and now opposes them!

Jo Swinson, who is now the Lib Dems Deputy Leader, issued a press release in 2013 supporting the introduction of tribunal fees and as Under Secretary of State for Employment Relations she spoke in the House of Commons in favour of them!  Ed Davey was another Lib Dem Minister who played his part in the introduction of these fees.

Yet what would you expect from these opportunistic hypocrites after UNISON’s victory in the Supreme Court after four years litigation?  In the Daily Mail we have Jo Swinson, the Lib Dem’s deputy leader quoted as saying that ‘This is a landmark victory for workers and for access to justice.’  Yes it is indeed a landmark victory and a judgment that will be remembered for years for the way in which it embraced broad principles of the right to justice for those without means.  But it was also a judgment against the decisions that she made when she was an employment minister.

Grenfell Tower Judge Moore-Bick headed the Court of Appeal decision to ignore the evidence in favour of their class interests

No doubt if the courts were to strike down the bedroom tax the Lib Dems would welcome that too as a victory!  Only a party without a shred of principle could welcome a judgment which overturns their own previous policies in government.

The fact is that when you scratch a Lib Dem you find a Tory underneath.  Historically the Liberals were as reactionary as the Tories.  It was the Liberals under Asquith who led the opposition to womens’ suffrage and introduced the Cat and Mouse Act.  It was Lloyd George who introduced the Black and Tans into Ireland and threatened a carnival of violence if the Partition of Ireland wasn’t accepted.

Whistleblowing case which unearthed naked corruption in New Labour  inner city regeneration scheme

The victory by UNISON is very welcome especially given that three times in the past four years the High Court and the Court of Appeal have rejected the attempt by UNISON to have the fees declared unlawful.  I have to confess that when I first read the Court of Appeal judgment in the case in 2015 I was quite amazed by the quality of the arguments used in justification of the decision to reject UNISON’s application.  The Judges, including Sir Martin Moor-Bick went out of their way not to have to find in favour of UNISON.  

On the face of it it was clear that with a reduction of the order of 80% in the number of people making claims then the introduction of fees quite clearly were deterring people from putting in claims.  Not only was this an obstacle to obtaining justice but it breached the European legal principle of Effectiveness, that is they made it impossible to enforce one’s legal rights.

Yet the Court of Appeal adopted a miserable nitpicking approach that is typical of the lead judge Lord Underhill, a former President of the EAT and a judicial pedant.  In Para 67 it ruled that:

‘It is quite clear from the comparison between the number of claims brought in the ET before and after 29 July 2013 that the introduction of fees has had the effect of deterring a very large number of potential claimants. However, that by itself does not evidence or constitute a breach of the effectiveness principle. It is inevitable that potential claimants will be more willing to embark on litigation when it is free than when they have to make a payment upfront, which there is no certainty of recovering; and the introduction of fees was accordingly bound to have such an effect.’

What they were saying was that yes, the introduction of fees had deterred people from making claims but it can be put down to the fact that it is inevitable that people will not exercise their rights when it costs them to get into tribunal!  That was precisely the point that UNISON were making, that when a tribunal is not free people don't apply yet the Judges, Moor-Bick among them were happy to find the slightest pretext to avoid the obvious.  In their Poor Law approach they cite the decision of the High Court that:

The mere fact that fees impose a burden on families with limited means and that they may have to use hard-earned savings is not enough. But it is not possible to identify any test for judging when a fee regime is excessive. It will be easier to judge actual examples of those who assert they have been or will be deterred by the level of fees imposed."

When UNISON’s counsel suggested that there was an ‘irresistible inference’ that the tribunal fees were deterring claimants, the Court of Appeal was determined to make it impossible to prove such a case.  Instead of looking at broad overarching principles

Para 68:  I have found this part of the case troubling. Like both Divisional Courts, I have a strong suspicion that so large a decline is unlikely to be accounted for entirely by cases of "won't pay" and that it must also reflect at least some cases of "can't pay"; and I have accordingly been tempted by Ms Monaghan's submission that the figures speak for themselves. But in the end I do not think that that is legitimate. The truth is that, looked at coolly, there is simply no safe basis for an untutored intuition about claimant behaviour or therefore for an inference that the decline cannot consist entirely of cases where potential claimants could realistically have afforded to bring proceedings but have made a choice not to.

What is most interesting about this tortured logic is the almost painful way the Court of Appeal struggled to find a way of avoiding the obvious inference from an 80% drop in claimants.  In essence what they were saying is that claimants chose not to pay tribunal fees because they spent their money on clothes, going out or heaven forbid drinking alcohol.  Working class people are expected to be abstemious and save up for months at a time (despite there being a 3 month limit on making most claims!).

Suffice to say that one of the three judges who were quite happy with this anti-working class clap trap was one Lord Justice Moore-Bick, who happens to be the judge who has been chosen to chair the Inquiry into Grenfell Tower.  Yet again it would appear that when given the choice, Moore-Bick demonstrates no sympathy at all with the poor.  It is yet another reason to campaign to remove this upper class reptile from the Grenfell Tower inquiry.

Tony Greenstein 

Latest Zionist Reactions to Ronnie Fraser’s Shattering ‘anti-Semitism’ Defeat by UCU

A good example of the careful, considered and thoughtful responses we have come to expect from Mark Gardner of the misnamed Community Security Trust.

First the normal idiot Zionist approach to the Employment Tribunal judgment in Fraser v UCU. This is the kind of person who prefers to rest on cliches, standard responses whatever the question or who, if stumped for an answer cries ‘anti-Semitism’.  I’ll let you decide which category best fits Mark Gardner, the world’s most highly paid ‘fighter against anti-Semitism’ (about £130,000 pa).  Gardner is the loquacious spokesman for the Zionist Community Security Trust.  He is never lost for an answer, even if it is the same one.  As per usual, he was articulate and eloquent when giving his well reasoned response to and analysis of the employment tribunal decision.

Gardner may oppose 'anti-Semitism' but here he is, best of friends, with arch-bigot Richard Littlejohn

Not for Gardner any   legal subtleties, case law, knowledge or familiarity with the Equalities Act 2010 still less an explanation of how anti-Zionism is a breach of a protected characteristic.  Good gracious no.  As far as Gardner was concerned the tribunal was a ‘harbinger of hate’ and for good measure ‘sneering bastards’!  It is unlikely that he has ever met them, so whether they sneer or what their parentage is seems a matter of speculation, though having read the closely argued Judgment, it seems anything but sneering or hateful.  Unless telling some home truths is in itself hateful.

In an entirely different vein, an extremely interesting article from a Zionist Adam Wagner.  He will of course be ignored and in fact it is, in many ways, good that he is ignored, since what he is arguing for his both for the Zionists to take a look at themselves and for them to abandon their ‘anti-Semitism = anti-Zionism’ approach to all criticism.

Adam Wagner argues that ‘More importantly, the ‘anti-Zionism equals racism’ argument is plainly bankrupt and has no purchase in wider society. We should move on to something which might actually work.’  Therein lies the problem.  Nothing does work.  How do you justify shooting 16 year old kids dead in a West  Bank where no soldier has died for over a year?  How do you justify the recent death of a 30 year old Palestinian prisoner from torture or the eviction of ‘unrecognised’ villages as part of a Nazi style ‘Judaification’ (the Nazis operated a ‘deJewification’ policy) in the Negev and Galilee and East Jerusalem.  If you can’t shoot the message down try shooting the messenger.  Problem is.  It ain’t working!

Tony Greenstein

Legal Ruling Shines Unflattering Light on the Anti-Zionism Equals Racism Campaign

Adam Wagner - one of the more sensible Zionist lawyers

Adam Wagner" Adam (@adamwagner1) is a barrister specialising in human rights & medical law. He is founding editor of UK Human Rights Blog...."
5th April, 2013

Sometimes we need an outsider’s perspective to bring into focus uncomfortable truths about ourselves. Just before the Passover festivities, the Employment Tribunal released a 45-page judgment full of Biblical fury which did just that.

The judgment was about a legal claim  brought by a maths teacher, Ronnie Fraser, against his teaching union. He claimed that the Union had harassed him in breach of equality laws due to its handling of the Israel-Palestine debate.

The full judgment can be read herehttp://www.judiciary.gov.uk/judgments/fraser-uni-college-union/ (PDF). If you have any interest in Jewish communal politics and in particular how the Israel-Palestine debate is handled, I highly recommend you read it. Perhaps set aside half an hour over a well-earned post-Passover sandwich – it’s worth it, I promise.

Fighting racism has never been well paid - supporting racism and Zionism is very lucrative.  Gardner claims to do the first when being paid for the latter!

I won’t try to summarise Employment Judge Snelson’s findings here, but I would like to draw out a few points. The main one is that the Claimant, represented by solicitor Anthony Julius, lost in a big way. This was a total, unqualified demolition job. As an outcome, it really was ten plagues bad.

The language of the judgment is harsh and at times sarcastic. As a lawyer, you can take it from me that it doesn’t get much worse than this. This was a “sorry saga”, the Tribunal “greatly regret that the case was ever brought”, at its heart the case was “an impermissible attempt to achieve a political end by litigious means”. Perhaps worst of all, the claim showed a “worrying disregard for pluralism, tolerance and freedom of expression.”

Let’s just step back for a moment. Just because a judge rules on something doesn’t mean they are right. Judgments get appealed and overturned. Reading this one, and not having been in court for the weeks of evidence, there are at least two possibilities. First, that the Tribunal has taken an irrational or perverse dislike to the claimant, his lawyers and some of his witnesses – that is a real possibility, given how scathing the judgment is. The second is, however, is that the Tribunal has got it broadly right, having listened to the extensive evidence and nonetheless dismissed the case out of hand.

As I said, I wasn’t there – this is an evidence heavy case so you really have to have sat through it to reach a proper conclusion. But assuming for the purpose of this article that the Tribunal did get it right, there is a lot here to be worried about.

Preposterous

Let’s take just a single paragraph, number 148. Here the Judge is summarising his conclusions on the claimant’s witnesses who included British Jewish luminaries such as the author Howard Jacobson. Some gave “careful, thoughtful, courteous evidence”. Others however, “seemed more disposed to score points or play to the gallery rather than providing straightforward answers to the clear questions put to them.” Again, ouch.

Particular criticism was reserved for Jeremy Newmark, the Chief Executive of the Jewish Leadership Council, a committee of community grandees:

We regret to say that we have rejected as untrue the evidence of Ms Ashworth and Mr Newmark concerning the incident at the 2008 Congress… Evidence given to us about booing, jeering and harassing of Jewish speakers at Congress debates was also false, as truthful witnesses on the Claimant’s side accepted. One painfully ill-judged example of playing to the gallery was Mr Newmark’s preposterous claim, in answer to the suggestion in cross- examination that he had attempted to push his way into the 2008 meeting, that a ‘pushy Jew’ stereotype was being applied to him. The opinions of witnesses were not, of course, our concern and in most instances they were in any event unremarkable and certainly not unreasonable. One exception was a remark of Mr Newmark in the context of the academic boycott controversy in 2007 that the union was “no longer a fit arena for free speech”, a comment which we found not only extraordinarily arrogant but also disturbing.

Wow. Here are some words you never want to hear in litigation: “untrue”, “false”, “preposterous”, “extraordinarily arrogant”, “disturbing”. To recap, this is the Chief Executive of an organisation which is arguably now the main ambassador of the Jewish Community to the wider British community. This may all be unfair and perverse, but if it is not then we should be worried about the implications.

Then came the MPs. Not just any MPs, but Denis MacShane and John Mann, both well known to the Jewish community; Mr MacShane chaired the The All-Party Parliamentary Inquiry into Antisemitism, Mann authored the Football Association Taskforce on Tackling Anti-Semitism and Islamophobia. Again, it’s bad:

We did not derive assistance from the two Members of Parliament who appeared before us. Both gave glib evidence, appearing supremely confident of the rightness of their positions. For Dr MacShane, it seemed that all answers lay in the MacPherson Report (the effect of which he appeared to misunderstand). Mr Mann could manage without even that assistance. He told us that the leaders of the Respondents were at fault for the way in which they conducted debates but did not enlighten us as to what they were doing wrong or what they should be doing differently. He did not claim ever to have witnessed any Congress or other UCU meeting. And when it came to anti- Semitism in the context of debate about the Middle East, he announced, “It’s clear to me where the line is …” but unfortunately eschewed the opportunity to locate it for us. Both parliamentarians clearly enjoyed making speeches. Neither seemed at ease with the idea of being required to answer a question not to his liking.

As I said, wow. These are MPs who have been lionised by the Jewish community, and in particular the Jewish Chronicle (perhaps not incidentally, Anthony Julius chairs the JC board, a point highlighted by the Judge). "And on the topic of that Parliamentary Committee”

    157… The Respondents defended themselves courteously but robustly against treatment by the Parliamentary Committee the fairness of which was, to put it at its very lowest, open to question.

The sarcasm drips off that final sentence, doesn’t it? Ultimately, the Tribunal concluded that contrary to the claimant’s arguments, the Union’s meetings were “well-ordered and balanced” and that almost the entire case was “manifestly unmeritorious”. Most importantly, the Tribunal rejected out of hand the argument that “a belief in the Zionist project or an attachment to Israel or any similar sentiment” can amount to a protected characteristic."

Lessons not learned

Where does this leave us? It is tempting to see this “sorry saga” as no more than an unfortunate and hubristic litigation fail, or an “act of epic folly” as the Jewish Chronicle’s ‘Ask the QC’ QC Jonathan Goldberg commented. But I think there are wider lessons here which we would ignore at our peril.

Anyone who follows Jewish communal politics and reads the JC will recognise many in the cast of characters as well as the arguments. Anti-Zionist or pro-Palestinian campaigners are regularly branded as anti-Semites. Despite the good work of organisations like Yachad, this is still a regular and well-supported narrative at the centre of much of the Jewish communal response to criticism of Israel. But that approach – which really amounts to communal comfort food – has clearly failed. And yet it is still wheeled out: watch, for example, this stirring but flawed recent speech by the Chief Rabbi to AIPAC, an American pro-Israel lobby. They hate us, so they would say that. Etc.

Of course, some criticism of Israel is linked to or motivated by anti-Semitism, but isn’t it time to stop using vast resources to paint legitimate debate as racial hatred? As well as failing miserably as an pro-Israel argument, this approach also risks fatally undermining work against real anti-Semitism. Aren’t we just a little bit ashamed for major communal leaders and organisations to have backed a claim showing a “disregard for pluralism, tolerance and freedom of expression”?

In a prediction of Michael Fish quality, the JC originally said of the case that unless UCU repented its “clear antisemitic behaviour”:

'we could be set for this decade’s version of the Irving trial – a specific case which acts to crystallise broader themes and issues'

Jeremy Newmark -  CEO of Jewish Leadership Council - an arrogant liar as the employment tribunal found

It certainly did crystallise broader themes and issues. But not the  ones the cheerleaders hoped for. As said above, it is possible that this Tribunal reached a perverse decision. No doubt some will say so once the recriminations begin to fly. I imagine some will even accuse the Judge of anti-Semitism. But assuming for a moment that he was right, we should, as a community, be embarrassed by this ruling. It involved not just the looney fringe but central figures in the community, who have been branded exaggerators, manipulators and arrogant liars. More importantly, the ‘anti-Zionism equals racism’ argument is plainly bankrupt and has no purchase in wider society. We should move on to something which might actually work. And that is the lesson of this sorry Passover saga.