Autumn Legal Update

Head Office Circular: NP/215/15/LA50
The Secretary
ALL BRANCHES
ALL REGIONAL COUNCILS
29th October 2015

Dear Colleague,

Autumn Legal Update

1. New Process for Fee Remissions

HM Courts and Tribunals Service (HMCTS) has made some changes and developed a simpler and faster fee remission process - a process that helps the public with their court, tribunal or probate fees, if they are on benefits or have a low income.

From 28 October 2015, the fees remission process will be called "Help with Fees" and a new and improved Help with Fees form, called the EX160, will be available online from .Gov.uk as well as in courts. The new form was developed in partnership with, and tested extensively, with users.

Applicants will make a self-assessment of their eligibility for help with fees, and there will no longer be a requirement for every applicant to submit paperwork (such as bank statements and payslips) to support their request for help with fees. HMCTS will check directly with the Department for Work and Pensions (DWP) whether an applicant is on the qualifying benefits, and will check whether an applicant's income makes them eligible for help with their fees.

However, some applicants may still be asked to supply paperwork as part of their application process, and so applicants should continue keep records of their pay and benefits documents, as they may be required by HMCTS as part of the application process.

 If you have any questions on the help with fees process please email the help with fees mailbox at helpwithfees.feedback@digital.justice.gov.uk

Note: The new paper form and guidance will still be referred to as the EX160 and EX160a. The process will be called 'Help with Fees'. The links on form finder will remain unchanged, but will now point to the new form and guidance after 28 October 2015."

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex160-eng.pdf

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex160a-eng.pdf

 
2. How long can a worker carry their untaken annual leave?

Plumb v Duncan Print Group Limited UKEAT/OO71/15/DA. Employment Appeals Tribunal decides 18 months.

 Background: Reg 13(9) of the Working Time Regulations 1998 requires a worker to take annual leave within the leave year in respect of which it is due. This may not be replaced by a payment in lieu except where the employment is terminated. . Regulation 13(9) had to be construed to give effect to the Directive. Where a worker was “unable or unwilling” to take their paid annual leave during a period of sickness absence, they were entitled to take their leave at a time when they were not sick. Consequently, a new Regulation 14(5) was added so as to make the Regulations compatible. In this case, Mr Plumb worked as a printer. He had an accident at work in April 2010 and remained absent on certified leave until 10 February 2014 when his employment was terminated. He did not take paid annual leave for the leave years 2010, 2011, and 2012. In August 2013 he asked to take 20 days paid annual leave for each of these earlier years which was refused. He brought a claim for holiday pay in respect of these leave years.

 The ET dismissed his claim. It decided a worker would have to establish that they were actually unable, by reason of their medical condition, to take their leave whilst they were on sick leave. As no medical evidence had been produced on this issue, and because Mr Plumb was able to continue working in another weekend job, his claim failed. Mr Plumb appealed.

Two issues featured in the appeal:

    (1) Whether an employee on sick leave is required to establish that they were unable to take their annual leave by reason of their medical condition,  or was it sufficient that they were absent on sick leave and did not choose to take it during a period of sickness absence?

     (2) Is there any limitation on the period for which an employee may take unused annual leave accrued in one leave year in later years?

 The EAT found that an employee on sick leave has a choice. They may take annual leave during a period of sickness absence, but they are not required to do so. If they do not wish to do so, they may take their annual leave at a later date.

The EAT accepted the point that a person on sick leave cannot be compelled to take leave when they did not wish to take it .The EAT also found that the ET had erred in failing to consider whether Mr Plumb was ever willing to take his paid leave prior to submitting a request in the summer of 2013.

The EAT in Plumb provided clarification that the carry-over period is in fact subject to a temporal limit of 18 months.

 Article 9(1) of ILO Convention 132 expressly provides that paid annual leave must be granted and taken ‘no later than 18 months, from the end of the year in respect of which the holiday entitlement has arisen’. The principles adopted by the ILO therefore recognise that annual leave is something which is not capable of being accrued indefinitely. On that basis Mr Plumb lost his right to paid annual leave for the 2010 and 2011 leave years. He was successful in his claim for the 2012 leave year.

 Given the importance and complexity of the issues considered in the appeal, the EAT granted both parties permission to appeal to the Court of Appeal.
 
 3. Can time spent by a trade union representative at meetings with his employer at his workplace amount to ‘working time’ for the purposes of the Working Time Regulations 1998?

 Yes, holds the EAT.

The claimants, a trade union health and safety representative and a shop steward claimed that they were entitled to a rest period of 11 hours between the end of trade union meetings they had attended and the beginning of their contractual duties, on the basis that attendance at the meetings was working time.  The claimants were given time off their contractual duties that corresponded to the amount of time that they spent at the meetings which were arranged by the employer.

The ET accepted that the claimants were working whilst at the meetings, so satisfying the first part of the definition of working time, but were neither at the Respondent’s disposal nor carrying out their activities or duties.
 
Accordingly, time spent at the meetings was not working time. The EAT, allowing the appeal, disagreed.  Being at the disposal of the employer did not mean being under its direction and control when it meant something broader.   It was sufficient that the claimants were required to come into the workplace to attend these meetings when the employer had said.   Further, activities or duties did not have to mean the employee’s contractual duties.  The EAT accepted that it was sufficient that the activities were of benefit to the employer and held that the claimants’ attendance at the meetings met this test.  The claimants’ activities were beneficial to the employer in terms of meeting its statutory duties and maintaining good industrial relations.

3. The Presidential Practice Direction

The Presidential Practice Direction issued on 11th December 2014 by Judge Doyle, The President of Employment Tribunals (England and Wales), referred to  six steps for litigants to consider in multiple cases like holiday pay.

i.    A claimant or group of claimants who have previously presented a claim or claims in respect of a complaint of alleged non-payment of holiday pay may, if so advised, apply to amend the claim or claims so presented in order to add a further complaint or complaints of alleged non-payment of holiday pay that have accrued or arisen after the presentation of the original claim and which could not have been included in the original claim or claims.

ii.     They may do that, if so advised, instead of presenting a new claim to the Tribunal.

iii.            Any such application to amend must identify clearly the original claim that is sought to be amended by case number, claimant(s) and respondent(s), and it shall set out the amended particulars of the claim to include the additional dates or periods of alleged non-payment of holiday pay, the basis of the complaint and the amount claimed.

iv.            Any such application shall be copied to the respondent(s) by the claimant(s) at the same time as making the application. The claimant(s) shall invite the respondent(s) to provide any written comments upon the application to the Tribunal within 7 days.

v.            After that period of 7 days the application to amend will then be considered by a judge in accordance with the usual principles for the amendment of a claim

vi.            Any party or representative wishing to make representations for the further conduct of such claims should do so on application to the President.
You will be guided through this by the Unions Legal Team should it apply.

4. Criminal Helpline Number

 I refer to Circular NP/128/15 regarding arrangements during the dispute between our Criminal Legal Aid Lawyers and the Government. I advise that the dispute has been resolved and the arrangements are back to normal. If members require assistance with Criminal enquiries in relation to offences committed in work and outside work they can call 0765 911 8181 OR 0800 328 1014 IN Scotland. The lines are open 24 hours per day 7 days per week. Members will be given advice. Should they require Legal Representation at Court for offences that have arisen in the course of their employment and legal aid has been refused and they wish the Union to assist them then the Branch Secretary as usual must make application to me by email or letter setting out brief details of the case and why the Union should pay for the Representation. Each case is considered on its merits.

5. Free Wills

Members wishing to avail themselves of the free will service can contact Drummond Miller in Scotland on 0800 328 1014.

In England Wales and Ireland members can set off the free will process by one of the following ways:

By phone contact Kate Watson on 0151 326 2189

E mail: katew@bbhlegal.co.uk

Website questionnaire link to BBH website:

http://www.bbhlegal.co.uk/services/will-questionnaire if they go to this they can fill in the questionnaire and submit it it rather than waiting for a questionnaire to be sent to them.

Note the free will service only extends to a basic will anything complex will be charged but at good rates for RMT members.

Please bring the contents of this circular to the attention of all relevant members.

Yours sincerely
 
Mick Cash
General Secretary