It is the festive season so time to beware that potential minefield, the office party.

ACAS report that 30% of UK employees admit to flirting with work colleagues at the office do, while one in five expect they will do or say something embarrassing this year.

Not surprising then that 15% of those questioned said they are going to change their Facebook settings so that they have to approve a ‘tag’ in a status or a picture. A good idea if you work in the property sector where one in five also revealed they have had an argument with their other half because of a picture from the Christmas office party appearing on social media.

But making a fool of yourself aside, real problems can arise when work colleagues and high alcohol consumption are mixed together as two cases this year have highlighted.

The recent 2015 London Zoo Christmas affair ended in acrimony when the meerkat handler got into a fight with a colleague who worked with the monkeys over the affections of a llama keeper. There was conflicting evidence as to how the fight started, but the Zoo decided that one should be dismissed with the other given a final written warning and a ban from future work events.

The employment tribunal however held that the dismissed employee had been unfairly dismissed (although her damages were reduced by 100% because of her contributory fault) because no reasonable employer would have placed the blame primarily on her taking into account the lack of clear evidence as who threw the first punch. The employer could have legitimately dismissed both employees, or given them both final written warnings but the discrepancy in the employer’s actions made the decision to dismiss unreasonable.

A decision which clearly contrasts with the earlier EAT decision in MBNA v Jones.

This claim followed an evening at Chester racecourse held by MBNA bank where two colleagues, Mr Jones and Mr Battersby, became embroiled in a fracas that reportedly other work colleagues regarded as “fun” and “banter” but turned nastier when Mr Jones punched Mr Battersby in the face.

The night continued and whilst Mr Jones and other colleagues went to a nightclub Mr Battersby was left outside sending Mr Jones texts to the effect that he would follow him home and “rip his ***** head off”. Fortunately, Mr Battersby did no such thing but instead finally left the scene and Mr Jones did not receive these texts until the following day.

The result of all of which was that MBNA, considering their behaviour completely unacceptable with the potential of damaging the bank’s reputation, dismissed Mr Jones for gross misconduct and gave Mr Battersby a final written warning.

Mr Jones brought a claim which succeeded at first instance because, like the meerkat keeper, there had been inconsistent treatment of the two protagonists. However the EAT disagreed.

The key question, they said, was “was it reasonable, in all the circumstances, for the employer to treat the reason it relied upon as sufficient for dismissal”.

This needs to be considered for each employee separately and if it is reasonable, then ”the mere fact that the employer was unduly lenient to another employee is neither here nor there”.

It is difficult to see how strictly applying the EATs binding judgment in MBNA v Jones the tribunal who heard the claim brought by the meerkat handler did conclude that treating the two employees separately resulted in the dismissal being unfair. The tribunal stated that London Zoo could have legitimately dismissed both employees, so they clearly concluded the decision to dismiss, based on its merits, was reasonable. The fact that the employer treated the two involved in different ways should, as the EAT stated, have been “neither here nor there”.

In practice, however, it may be that throwing the first punch could be the deciding factor.

Conclusions? Well, all things considered, we should of course continue to enjoy the Christmas season and office party, but maybe best to save the real merriment for when you are with friends and family, or at least the people you can stop yourself from hitting.

Merry Christmas one and all.

There have been a number of stories in the media of late, in which the conduct of employees on various social media accounts have caused repercussions for them, and sometimes even led to dismissal. The case of The British Waterways Board v Mr David Smith (UKEATS/0004/15, 3 August 2015) is a recent example of how the use of information posted on Facebook can lead to the fair dismissal of an employee – http://www.bailii.org/uk/cases/UKEAT/2015/0004_15_0308.html

Social media, emails and texts can all be used as evidence in employment cases, so just how careful should both employees and employers be when leaving a paper trail?

It used to be that evidence given in witness statements, appraisal forms and perhaps the odd email, was the mainstay of evidence submitted to the tribunal. Now however, much of staff communication can be done via text, email and even social media. It’s much easier to misinterpret a meaning in the written form, without the addition of body language, tone and setting to create a background to the conversation.

Similarly, emails sent quickly from phones, or late at night perhaps after a glass of wine or two, can point to the real feelings of a disgruntled employee, which a verbal trail may not have picked up. What is said in email and text messages essentially as a throw away comment, may end up in as evidence in a grievance or disciplinary hearing, or even in front of a tribunal.

There is a formality attached to letters, minutes from meeting or appraisal feedback, which can create a certain mind-set. And it’s usually one which is careful to avoid any discrimination or repercussions. However, the casual and instant nature of emails and text messages can all influence the writer, and can sometimes allow a lapse in judgment to be documented for all to see.

Email correspondence, text messages and posting on social media can be used to build a picture of the working relationships of colleagues, or any discriminatory attitude which may not have come to light in previous, more guarded conversations.

Employers and employees should be mindful and apply caution when tempted to send a quick one line email or text message, this is still a document and the paper trail that the document leaves could be used as evidence at some point in the future.

Perhaps one piece of advice is to approach all texts, emails and social media as though they are formal documents, which one day could be used in evidence.

With all of the difficulties claimant employment lawyers have faced over the past year it might come as a surprise, but there could be some good news on the horizon.

How to fund tribunal fees has been the big question on the minds of both claimants and their legal advisors and the answer could have been provided in a recent personal injury claim (Jeffrey Jones and Others v Sec of State for the Dept for Energy and Climate Change).

In this group action the Claimants succeeded in their claim for personal injuries and as well as claiming the usual costs and disbursements, they claimed interest incurred on disbursement funding offered by their solicitors. Each claimant had an agreement with their solicitor which gave them credit to spend on disbursements on the understanding that it would be recovered from the defendant if the case was successful or paid by an ATE policy if the case was lost.

The rate of interest at 4% was challenged on the basis that with their being little risk that the funding would not be repaid then a lower rate of interest which applies to business lending should be recoverable rather than a higher rate usually applied to individual borrowers.

However it was held that the claim for interest was actual rather than notional and the rate of 4% was approved as being reasonable.

After the event legal expense insurance is new to employment tribunal claims, but there is now a substantial risk of the claimant being out of pocket should their case fail so there is need for a policy.

Our Feesafe ATE insurance policies cover tribunal fees and other incidental disbursements. We also offer a loan for the hearing fee and the policy combined with a loan means that the claimant pays nothing and either the claim succeeds and the fees are recovered from the respondent or they are paid by the policy if the claim is unsuccessful.

We will need to see the full transcript before we can be sure the Jeffery Jones ruling will apply to disbursement funding for employment tribunal claims, but if it does then we seem to have an ATE product and hearing fee loan facility which can offer claimants cost free employment litigation once more.

In March 2014, the Ministry of Justice published the latest figures from the Employment Tribunal.  The figures make shocking reading.  Applications to the Tribunal were down 79% from October to December 2013, when compared with the figures from the same period in the previous year.

It’s no surprise that this significant fall in applications, coincides with the introduction of the Employment Tribunal Fees in July 2013.  From July, Applicants to the tribunal are now faced with both a fee to issue their claim (normally £250) and a fee for the hearing (normally £950).  In times of difficulty, particularly if there is a possibility that you are not earning, it’s not surprising that potential Applicants are having difficulty in funding these fees, and submitting a claim to the tribunal.  Although these fees are recoverable from the Respondent if the claim is successful, the fact remains that the money for these fees has to initially be met by the Applicant.

Wouldn’t it be wonderful, if there was a way that Applicants could insure themselves against the risk of losing a claim and therefore not being able to recover these fees, and gain access to a loan facility so that Applicants can borrow the £950 required for the hearing fee?  There is, I hear you say?!

Our ‘FeeSafe’ policy does just that.  As well as the above, it also provides cover for experts fees (and Counsel’s fees if chosen), if the Applicant is unsuccessful.  The loan taken out for the hearing fee is repaid either by recovering the fee from the losing respondent, or by the FeeSafe policy if the claim is unsuccessful.

So, it seems that there is a way for Applicants reduce their risk and obtain the funds necessary to bring their claim to the Employment Tribunal.   Let’s hope that the figures released for the next quarter, do not prove to be as depressing reading as the last.

See our main website for more details about our FeeSafe product.

Which is probably why April of this year will see the introduction of compulsory “Early Conciliation” for those intending to make an Employment Tribunal claim. Presumably, after having introduced punitive Employment Tribunal fees, the government felt that claimants should have the chance of avoiding those fees by having conciliation discussions before Tribunal proceedings are issued. As ever however, there is a fair bit of complexity to the arrangements.

It will be compulsory for claimants to contact ACAS before issuing Tribunal proceedings (you will need to quote an ACAS conciliation reference number on your Tribunal claim form). The good news however is that contacting ACAS (by completing their Early Conciliation form) will stop the claimant’s limitation period running. Once ACAS has been contacted, it will have a month to try to broker a settlement (this can be extended by a further two weeks if necessary). If settlement negotiations break down for any reason, then ACAS will issue a certificate confirming that the conciliation process has taken place. The certificate will contain the all-important reference number to put on your Tribunal claim form, and the claimant’s limitation period will start to run again. As an added bonus, when that time does run again, the claimant will always have a minimum of one month in which to issue Tribunal proceedings.

On the negative side, all of these new time limits and rules are likely to cause errors to be made, and some issues will require clarification in the Employment Appeal Tribunal. On the positive side, there may be some occasions when the new rule provides an extra breathing space. At present, solicitors are often faced with difficult and hurried decisions when claimants consult them just before limitation expires. Under the new rules however, simply completing an Early Conciliation form will provide an extra 6-8 weeks in which to advise a claimant more fully, gather all the facts, and if necessary prepare a comprehensive claim form.

And that will of course also leave plenty of time to apply for a FeeSafe policy to protect against the risk of paying Employment Tribunal fees and Counsel’s fees!

Costs awards in the Employment Tribunal are similar to lightening – rare, but nasty when it hits and you never see it coming. Last year costs awards were in keeping with the pattern in previous years – awarded in only 1 in 400 cases. This is a relatively low rate, but is this about to change?

The Employment Tribunal does appear to be taking a more robust attitude to costs awards. In Vaughan v London Borough of Lewisham & Ors [2013] UKEAT/0533/12/0606 costs of £87,000 were awarded against the claimant and approved by the EAT. Poor Ms Vaughan (who was unemployed and not wealthy) hadn’t even received a costs warning or deposit order. It was probably small comfort to her that the £87,000 she was ordered to pay was only a third of the respondent’s costs!

In Howman v The Queen Elizabeth Hospital Kings Lynn UKEAT/0509/12/JOJ the unlucky claimant was ordered to pay £43,000 although he had at least received a costs warning. The EAT confirmed the order, with costs on the indemnity basis, but at least asked the original Tribunal to re-consider the fact that the order would wipe him out financially, and cause him to lose his family home.

Financial rigor and less tolerance of poor claims seems to be the order of the day. The only good news is that our FeeSafe insurance policy covers claimants against the risk of adverse costs. Quite a coincidence I should mention it really.

At this time of year there are fireworks everywhere, especially in the High Court, as the union’s wrath against the government has been ignited.

Unison, the trade union has been in the High Court this week seeking Judicial Review of the government’s decision to charge fees in the Employment Tribunal. The fees were of course introduced in August this year. At the time, the government argued that charging Tribunal fees would offset the cost of providing the service but it also admitted that its aim was also to deter Employment Tribunal claims, and Unison claims that already, fewer claims are being brought.

The Judicial Review proceedings centre around the argument that the fees may prevent access to the Employment Tribunal for those who cannot afford them, and this therefore unilaterally deprives people of an effective remedy. This is turn involves an examination of the fee remission system ie. are there those who cannot afford the fees but still cannot benefit from the fee remission arrangements currently in place?

At the very least, no-one would deny that the remission system is cumbersome – not least because a separate application must be made for each fee, rather than only once to cover the whole claim. If a remission application is rejected, the fee must then be paid immediately to avoid the proceedings being struck out.

Most people believe that the current fee regime is unlikely to be held unlawful, although the outcome may be some minor modifications – nevertheless, watch this space. We haven’t the heart however, to point out to the government that the FeeSafe scheme, completely thwarts the aim of the legislation, because it lends claimants the hearing fee, and covers the risk that the fees may not be recovered!

In any event it is a brave new world, where clients must be carefully advised of the risks they face and the market solutions available. Some older employment practitioners must be wishing they could just light the blue touchpaper and retire.