IPC Media Ltd v Millar - Carl Fender

A recent decision of the EAT, demonstrates the difficulties associated with applying the burden of proof provisions in discrimination cases and the often delicate task of distinguishing between the proper drawing of inferences to suppor the reversal of the burden of proof, and more speculative findings which do not.

The C has been an assistant editor at one of R's magazines but developed serious knee problems that occasioned surgery and significant time off work. In 2011, two of R's magazines merged which triggered a redundancy consultation. C was at risk of redundancy and her employment was eventually terminated. At an appeal, C raised her age and health. C was told of alternative positions she could apply for but they had not been confirmed as part of the re-structure. The dismissal was confirmed and claims under ss.13 and 15 EqA 2010 were brought.

At the ET, the claim under s.15 succeeded only. In so finding the ET concluded that s.136 operated against R because it had failed to provide an explanation for the primary facts which cast the burden upon it. The facts were first, the absence of 'persuasive evidence' from R explaining why C had not had the opportunity to apply for the alternative posts and the decision to delay advertising them until after her dismissal, and second, C's absence due to the knee problem.

The EAT allowed the appeal and dismissed the claim. What the ET had failed to do in this case was consider the primary facts in light of the state of knowledge of the person who had made the dismissal decision. The knowledge related to what was known about C's disability and her time off. There was insufficient evidence the decision maker knew anything of C's background and this converted the primary facts into more speculative inferences in the eyes of the EAT. The case perhaps demonstrates the dilema of drawing inferences from facts where at the same time one is trying to divine whether subconsciously a prohibited grould may have operated on the mind of a decision maker.

EMPLOYMENT TRIBUNAL FEES - Carl Fender

The 29th July 2013 is the anticipated date for the introduction of the two tier tribunal fees order. Those wishing to bring claims before the tribunal will have to pay an issue fee, and if the case does not settle, a hearing fee disposal of the case. The level of fees are determined by which category, A or B, the claims fall into. Category A deals typically with 'money' claims for wages, holiday pay and breach of contract. The issue fee here will be £160 and for any hearing £230. Category B relates to claims for unfair dismissal and discrimination. The applicable fees will be £250 and £950. For claims involving more than one element, increased fees and hearings apply; these are dependent on the number of claimants in the group. For category A cases, the issue/hearing fees are £320/£460 (for 2-10 claimants), £640/£920 (11-20) and £960/£1380 (200 plus). For Category B, the issue/hearing fees are £500/£1,900 (2-10), £1000/£3,800 (11-200) and £1,500/£5,700 (200 plus).

There will also be fees for interlocutory applications and counterclaims so this means some fees will also fall on respondents. There are rules also for the remission of fees which is expected to be means assessed.