At any point, there could arise problems in the contractual relationship between the employer and employees (Du Toit, 2000). Disputes relating to terms of engagement, ill fulfilment of the terms, and other related matters could occur. As such, the employment law should be able to deals with these negative events (Honeyball, 2014).
3.12.1 CURTAILMENT OF LEGAL AID AND THE REMOVAL OF GRANTS
In the face of economic downturn, various cuts were mae to Government expenses. The Legal Aid and Sentencing and Punishment of Offenders Act 2012 (‘‘LASPOA’’),196 which came into force in April 2013, removed legal aid funding for civil law cases including all immigration matters, but allowed exception for mental health, asylum, trafficking, discrimination, domestic violence, debt and housing matters where someone's home is at immediate risk. The funding curtailment also resulted in the Local Government cutting down on expenses and grants, which include grants to the local law centres.197 Law centres that have over the past 40 years been providing quality legal advice,198 casework and representation to vulnerable individuals and groups, including domestic workers have become a victim of double financial cuts and most of the centres around London have now closed. One of such law centres challenged the decision of its local Government to withdraw funding from it, but failed as the Court of Appeal held there is nothing legally wrong in the way the local council has reached its decision to withdraw funding.199 The curtailment makes it difficult for migrants and low skilled workers in particular to access justice (Cookson, 2011).
196 2012 c.10, London: OPSI
197 See https://www.gov.uk/Government/uploads/system/uploads/attachment_data/f last accessed August 17, 2015
198 See House of Common Debates: Virendra Sharma MP, HC Deb, 24.1.2012, c68WH
199 R(Greenwich Community Law Centre) v Greenwich LBC [2012] EWCA Civ 496
108
Although NGOs like Kalayaan continues to provide some financial support to the ODWs, the resources and capability of Kalayaan, a charity, to continue funding ODWs’ ET claim is doubtful. It is acknowledged that some domestic workers who are victim are trafficking have sine 2uly 2011 been receiving some kind of supports from the Salvation Army under a Government contract, the ability of the Salvation Army to fund claims such as non-payment of wages, unlawful deduction in wages, and unfair dismissal that are not entirely linked to trafficking is doubtful. Nonetheles, the good news for those who have been trafficked for domestic servitude is that, if they could argue a refusal to fund their claims would go against their rights under article 6 and/or 8 of the ECHR, or Article 47(3) of the Charter of Fundamental Rights, they could apply for legal aid under the exceptional clause in s.10 (3) LASPOA. In R (Gudanaviciene and Others) v Director of Legal Aid Case Work and Lord Chancellor [2014] EWHC 1840 (Admin), Collins J whose decision was substantially upheld by the Court of Appeal in R (Gudanaviciene and Others) v Director of Legal Aid Case Work and Lord Chancellor [2014] EWCA Civ 1622 held the Lord Chancellor’s Guidance for determination of applications for exceptional funding in civil cases was unlawful and that s.10(3) (a) LASPOA required a grant of legal aid in cases where failure to provide such legal aid would constitute a breach of the ECHR and/or EU law.
3.12.2 NEW RULES ON UNFAIR DISMISSAL CLAIMS
Under a new amendment introduced by s.2 of the Employment Tribunals Act 1996 (Tribunal Composition) Order 2012,200 to s.4(3) ETA 1996 a single judge would hear proceedings in respect of unfair dismissal claims. Although the parties will be able to request a tripartite panel, such request will be accepted or rejected at the judge’s discretion.
200 SI 2012/988, London: OPSI
109
The implication for the ODWs who usually present with complex cases 201 and whose employment contracts are usually down to the word of mouth is that a single Judge alone might not be in a better position to hear and determine their claims on highly contentious facts. Furthermore, before 6th April 2012, Section 108(1) of ERA 1996, which was substituted on 1st June 1999 by article 3 of SI 1999/1436 provided that the qualifying period of employment to bring an unfair dismissal claim is one year from the date of commencement of the employment. But, Article 3 of the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012,202 which came into effect on 6th April 2012 amended the qualifying period for unfair dismissal to the extent that potential Claimants must now show that they have been employed for a minimum period of two years. According to the Government, ‘‘this will lead to a reduction of around 2,000 claims per annum, which brings net direct benefits to employers of around £4.7m per annum’’.203 Whilst the Government position is economically viable, and may sound as a good news to employers, the uncalculated impact on the ODWs is a flagrant disregard for their human rights.
More so, since the new ODWs admitted to the UK from 6th April 2012 are allowed a maximum period of 6 months residency, there is no meaningful way in which they could accrue the 2 years unfair dismissal period. The good news for ODWs whose ET claims often involve disputes on the entitlement to the minimum wage, especially concerning the minimum wage exclusion under Reg. 2(2) NMWR 1999; is that section 104A (1) of ERA 1996 makes it automatically unfair if the principal reason for dismissal is that the ODW asserts or seek to assert a statutory right. In this instance, the 2 years continuous period of employment will be disregarded.
201 See for instance: Nambalat v Taher [2012] EWCA Civ 1249; Onu v Akwiwu [2013] Eq. L.R. 577; Taiwo v Olaigbe [2013] Eq. L.R. 446
202 SI 2012 No. 989, London: OPSI
203 BIS: Employment Law Review Annual Update 2012, page 9, para 2.5, London: Department of Business Innovation and Skills
110
However, the fact that the ODWs would have to return to their home country, cannot change employers in the UK, and might not even know their rights, make the automatic dismissal advantage indifferent to easing their problems.
3.12.3 PAY TO ACCESS LEGAL SERVICES
Since the establishment of the Industrial Tribunal in 1964, it has been free at the point of service such that potential Claimants do not have to pay any charge (CAB, 2013). According to a research conducted by the Ministry of Justice in England and Wales, people are more worried about how stressful or long their court case would be than about the potential costs of the case.204 Perhaps this conclusion led to the changes introduced by Her Majesty’ Courts and Tribunals Services (HMCTS), which is responsible for the ET and the EAT to the extent that fees are payable to the tribunals with effect from 29th July 2013.205 Under the two-level fee structure that was introduced to ET claims,206 claims that are categorised under level one are generally low-level straightforward claims for sums due on termination of employment, e.g.
unpaid wages, payment in lieu of notice, redundancy payments. The Claimant will pay £160 issue fees and a subsequent £230 some 4-6 weeks before the full hearing date. Level two claims include those relating to unfair dismissal, discrimination complaints, equal pay claims and claims arising under the Public Information Disclosure Act. In this category, the Claimant will pay £250 issue fees and a subsequent £950 some 4-6 weeks before the full hearing date. For Appellants intending to bring a claim in the EAT, a fee of £1600 is payable.
£400 would be paid to lodge the appeal whilst the remaining £1200 is payable before the appeal hearing. In addition to claims and appeals, it will cost £100 (level 1 and level 2 claims inclusive) to ask the court to review a default judgment.
204 Ministry of Justice (2007) What’s cost got to do with it? The impact of changing court fees on users, Ministry of Justice Research Series 4/07, Opinion Leader Research, Ministry of Justice, June 2007
205 Ministry of Justice (2012) Charging Fees in Employment Tribunals and the Employment Appeal Tribunal Summary of responses, Response to Consultation CP22/2011, 13 July 2012, p.61
206 See http://www.justice.gov.uk/downloads/tribunals/employment/et-fees-factsheet.pdf. Last accessed August 17, 2015
111
Where a claim has been instituted but the parties managed to reach a settlement before the hearing, the money paid on application will not be reimbursed. In this instance, an application to have the claim dismissed (be it level 1 or level 2) will cost £60. Under the new system, the ET is able to offer judicial mediation on complex cases that is most likely to last 3 days or more. In this instance, if the employer (Respondent) agrees, it will be required to pay the cost of £600. Anyone wishing to raise a counterclaim in a level 1 claim will have to pay £160.
Application for a review of the ET decision in a level one claim will cost £100; whereas a fee of £350 is payable on an application for a review of the level 2 decision. The ET may make a cost order for the unsuccessful party to reimburse the successful party. Whilst the introduction of fees to ET claims could sounds a good news to employers, and in practice reduce the volume of the workload of the ET, it could potentially restrict access to justice for many low pay workers including the ODWs. ODWs visas forbid the bearer from claiming state benefits, which could have entitled them to receive fee waiver status as low income workers. A failed challenge to the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) was mounted by the Unison, a workers union. The trade union applied for permission to apply for judicial review of the Lord Chancellor's decision to introduce the statutory instrument, and applied for an interim injunction staying implementation of the Order. The Order had been brought into force on the date of the instant application. At the initial stage, Lewis, J., granted the application for permission to appeal but the judge refused the application for an interim injunction.207 However, in the judgement delivered on 7th February 2014, Lord Justice Moses and Mr Justice Irwin dismissed the trade union’s appeal. It follows that, as it stands, fees by prospective Claimants would be payable to the Tribunal; a disadvantage to domestic workers who are not allowed to access public fund, and who are unable to instruct paid solicitors.
207 R. (on the application of Unison) v Lord Chancellor Queen's Bench Division [2013] EWHC 2858 (Admin)
112 3.12.4 THE DILEAMMA WITH DEPOSIT ORDER
Within s.21 of the Enterprise and Regulatory Reform Act 2013,208 the ET is empowered to make a deposit order against a specific part of a claim or response. This is not good for the ODWs who are often assisted by voluntary organisations. Further, the Employment Tribunals (Increase of Maximum Deposit) Order 2012209 made under section 9(3) of the Employment Tribunals Act 1996 provides that, when a judge at the ET considers that a claim has a limited chance of success, the judge could increase the maximum limit at which deposit orders can be made from £500 to £1,000. This increment, which is designed to do away with vexatious Claimants, could technically hinder access to justice for the ODWs who often present with few documented facts and whose ET claims usually rely on the word of mouth.