A Word from the Editor - December 2018

Alex Lock, DAC Beachcroft LLP
Saturday, December 1, 2018

Although I am writing this in the middle of November, you will be probably be reading it a couple of weeks before Christmas, finding a snatched moment in between rehashing client alerts on the dangers inherent in office parties. Thankfully, we include in this issue, the first of a two-part feature on the development of the law in relation to vicarious liability. Part two comes next month, just in time to deal with those calls regarding suspension and the commencement of disciplinary proceedings.

The past year has been unexceptional in employment law terms. There was little in the way of big pieces of legislation, beyond the excitement of the introduction of the General Data Protection Regulation, which turned many an employment lawyer into a data protection lawyer, if only for a few months.

The ‘gig economy’ cases followed what seemed to be a pre-determined path through the courts and there were lots of warm words spoken about the protection of workers’ rights through the Brexit negotiations. Ahh Brexit … between writing and reading, it may have gone from hard to soft to non-existent and all the way back again.

The one surprise was to hear talk of the re-introduction of employment tribunal fees, less than 18 months after the humiliation for the Government in having the previous policy ruled unlawful. We have not yet got to the end of refunding fees from last time.

We have not seen any firm proposals yet (and when we do our Legislative and Policy Committee will provide its usual detailed, thorough and considered analysis) and so it may be little more than kite-flying at this stage. My view is that we are unlikely to see the re-introduction of fees during the lifetime of this parliament. The reasons are threefold.

First, whatever the outcome of the current negotiations with the EU on the terms of the withdrawal agreement, that is only step two in what will be a long process leading to the negotiation of the future relationship. It is likely – as has proved to be the case over the past two years – that the Government will find it difficult to make the time for anything else. Fees in tribunals cannot be that high up its list of priorities.

Secondly, if one worked on the basis that formulating a scheme for fees was seen as a bit of light relief from Brexit, it will be very difficult to formulate an arrangement that balances the access to justice requirements that sunk the last scheme, with the need to show some return on the time, energy and resources required to introduce something.

Thirdly, it is difficult to see how the Government would be able to make the parliamentary arithmetic work. The SNP, Plaid Cymru and Greens would all be likely to vote against such a move and it is difficult to see that the DUP would vote in favour of introducing fees into England and Wales, where they have no political interest (fees would be devolved in Scotland and were never introduced in Northern Ireland). Labour would be keen to oppose their introduction and would see any such proposal as (a) totemic in their support for union and workers’ rights; and (b) evidence that the Tories really do want Brexit to mean the UK being the Singapore on the fringe of the EU.

All of that is for next year. In the meantime, on behalf of the editorial board and ELA, I wish you a merry Christmas and peaceful New Year.

Alex Lock, DAC Beachcroft LLP

The legal content in this article is believed to be correct and true on this date.