Litigation and arbitration

Advances Between European Data Protection Law and U.S. Civil Litigation Duties

By Jessica Jacobi of Kliemt & Vollstadt (the Germany member of Ius Laboris)

LoginPassword.jpgIn a recently published open e-mail of June, 12, 2012, the EU Article 29 Working Party on Data Protection commented on a publication (December 2011) of the Sedona Conference called "International Principles on Discovery, Disclosure & Data Protection" ("International Principles"). The Sedona Conference is a U. S.-based private research initiative which addresses issues related to pre-trial discovery in U.S. civil courts and, in particular, the discovery of electronically stored information (ESI).

As opposed to the courts in civil law countries, U. S. courts operate with a procedure known as pre-trial discovery. In this pre-trial phase, information is gathered, and each party can obtain evidence from the opposing party as well as from non-parties. In litigation involving parties, witnesses, or ESI (Electronically Stored Information) located in the E.U., this "cross-border discovery" often conflicts with European Data Protection Law. The Sedona Conference's International Principles, published in draft form, are aimed at reducing the situations in which a conflict of laws arises and at providing recommendations for resolving conflicts when they do arise.

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Major Employment Tribunal Reforms on the Way

By Bethan Carney

LS Scales of JusticeII.jpgThe Government has confirmed its plans to introduce employment tribunal fees in 2013 and broadly approved the results of an independent, fundamental review of the Employment Tribunal Rules.

Charging Fees for ET Claims

Earlier this year, the Ministry of Justice conducted a public consultation on potential options for charging employment tribunal claimants fees in order to bring a claim. The response to the consultation has now been published, recommending that a regime of fees should be introduced from summer 2013.

Under the proposals, claimants would have to pay fees to in two stages - firstly to issue the claim and secondly to proceed to a tribunal hearing. The amount of the fees will depend upon the type of claim:

  • Level 1 (straightforward claims such as deduction from wages or redundancy pay) will cost £160 to issue and a further £230 for a hearing.
  • Level 2 (more complicated claims such as unfair dismissal, equal pay or discrimination) will have a £250 issue fee and then cost £950 to bring to a hearing.

Claims with multiple claimants will cost more: the fee for proceedings with two to 10 claimants would be twice the individual claim fee. This would increase to four times the individual fee for between 11 and 200 claimants, and six times the individual fee for over 200 claimants.

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Changes to Key UK Equality Provisions Expected Soon

By Carolyn Soakell

DiversityV.jpgThe Government is consulting on some significant revisions to the Equality Act 2010, including abolishing the discrimination questionnaire procedure and the rules on third-party harassment.

The Equality Act 2010, which brought together all UK discrimination laws in one place, was developed under the previous Labour Government and has been in force since October 2010. However, the Conservative/Liberal Democrat Coalition Government which came to power that year decided not to implement certain parts of the Act, including the provisions allowing a claim for discrimination based on a combination of protected characteristics (e.g. sex and race). It also put on hold the requirement for larger companies to report on their gender pay gap.

Now it looks like the Government is planning some substantive changes to discrimination protection under the Act. The aim of the proposed reforms is said to be reducing "bureaucracy" in equality law. But while these changes will no doubt be welcomed by many employers, on a closer look they may not be as helpful as they first appear.

Third-Party Harassment

The first major change is a proposal to abolish the rules on third-party harassment. Employers are currently liable for harassment of their employees by third parties, such as clients and contractors, if they know an employee has already been harassed twice before and fail to take reasonable steps to prevent a third incident. This is known as the "three strikes" rule.

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UK Employment Law Reforms - Latest Developments

By Madeleine Jephcott

Changes SignII.jpgIn the weeks since our previous review, in April, of recent and forthcoming legal changes affecting UK workplaces, the detail of some of the Government's reform plans has become a little clearer and some novel proposals have emerged.

The Queen's Speech

The Queen's Speech on 9 May 2012 heralded two bills that will overhaul significant aspects of employment law - the Children and Families Bill and the Enterprise and Regulatory Reform Bill.

The Children and Families Bill - not yet published - will include some of the reforms mooted in last year's Modern Workplaces consultation, although possibly not all of them. The Government's formal response to the consultation is expected shortly. The most significant proposals were:

  • A new system of flexible parental leave, designed to give parents more choice about sharing childcare responsibilities in the early stages of as child's life. In outline, the scheme is likely to entail the mother taking 18 weeks' leave at or around the birth, with the remainder of the current 52-week maternity leave period being reclassified as "parental leave" to be taken flexibly by either parent.
  • Extending the right to request flexible working to all workers who have been employed for 26 weeks, irrespective of the reason for the request. This would be based on the existing system for requesting flexible working for children/adult carers, retaining the current list of eight business reasons for employers turning down a request.
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What's New in Employment Law This April and Beyond?

By Richard Lister

BarometerII.jpgIt is official policy in the UK for most changes to employment legislation to take effect in either April or October each year. This article summarises both the reforms coming into force this month and the major Government proposals for the future currently stacked up in the pipeline.

The most noteworthy changes being implemented in April 2012 are as follows:

Unfair Dismissal Qualifying Period

In a highly controversial reform that was confirmed by the Government last October, the period of employment before an employee qualifies for the right to claim unfair dismissal has increased from one to two years. This applies only to employees who start a new job on or after April 6, 2012: employees already in employment on that date retain the one-year qualifying period.

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Supreme Court Extends Ability of Employees Working Overseas to Bring Claims in the UK

By Hazel Oliver

UKwithFlagOverlapII.jpgThe Supreme Court has handed down a significant ruling (PDF) on the ability of an employee who worked overseas to make a claim for unfair dismissal in the UK, in the case of Ravat v Halliburton Manufacturing and Services Ltd.


The Employment Rights Act 1996 currently allows employees with more than one year's service to make a claim for unfair dismissal. This legislation does not contain any specific limit on territorial jurisdiction. However, previous cases have established that there must be some limits on the ability of an employee who works overseas to make a claim in the Employment Tribunal.

In the earlier decision of Lawson v Serco [2006] IRLR 289 in the House of Lords (the predecessor of the Supreme Court), Lord Hoffman identified three categories of employees who would fall within the jurisdiction of the Employment Tribunal:

  • employees working in Great Britain;
  • "peripatetic" employees, where the employee is based in Great Britain;
  • expatriate employees in "exceptional" cases.
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Consultation on Fees in Employment Tribunals

By Hazel Oliver

LS Scales of JusticeII.jpgThe UK's Ministry of Justice has issued a public consultation document on the Government's proposals for introducing fees in the Employment Tribunals and the Employment Appeal Tribunal (EAT). This is not a consultation on whether or not to introduce fees, as that has already been decided. Rather, the consultation is about the proposed structure and arrangements for charging fees. There are two alternative proposals for fee structures, Option 1 and Option 2, which are outlined below.

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Major Employment Law Shake-up Unveiled

By Richard Lister

Changes SignII.jpgThe UK Government has announced wide-ranging plans for what it claims to be "the most radical reform to the employment law system for decades". The proposals were set out by the Secretary of State for Business, Dr Vince Cable, in a speech to the EEF manufacturers' organization. Some of the measures had been previously floated but others were novel, including:

  • amending the UK's whistleblowing legislation so that complaints by employees about a breach of their own employment contract will no longer constitute a protected disclosure;
  • seeking views on introducing compensated no-fault dismissals for "micro employers" with fewer than ten employees;
  • simplifying and "slimming down" the processes required to carry out a fair dismissal, including potentially working with the conciliation service Acas to change their Code of Practice on Disciplinary and Grievance Procedures;
  • consolidating the myriad regulations relating to the national minimum wage; and
  • streamlining the current regulatory regime for the recruitment sector.
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Green Light for Unfair Dismissal Reform and Tribunal Fees

By Richard Lister

LS Scales of JusticeII.jpgThe UK Government has confirmed that it will be increasing the qualifying period for claiming unfair dismissal from one to two years and introducing fees for bringing employment tribunal claims.

These were two of the most significant proposals contained in a consultation document on reforming employment tribunals and the resolution of workplace disputes, published by the Department for Business, Innovation & Skills (BIS) last January. At the Conservative Party conference on 3 October 2011, the Chancellor of the Exchequer, George Osborne, announced that both reforms are to be implemented. This pre-empted the Government's formal response to the consultation, which is expected shortly.

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Employment Newsnotes (Issue 51, Summer 2011)

SurveillanceSign.jpg Employment Newsnotes (PDF) is an occasional publication by Lewis Silkin covering recent UK employment law developments in an accessible, succinct and entertaining way. The latest issue includes articles on:

  • Dangers for employers in relying on surveillance film in disciplinary proceedings
  • Controlling employees' use of social media in the workplace
  • How employers should go about implementing a pay cut lawfully
  • The Government's proposal to introduce financial penalties for employers losing Employment Tribunal claims
  • The latest cases concerning employees claiming discrimination on grounds of their 'philosophical belief'
  • Interns - are they entitled to be paid the national minimum wage?
  • The potential sanctions for businesses employing people who are working in the UK illegally
  • The prospects of former News of the World staff being able to claim stigma damages