Yolk Recruitment - HR Insights Presentation, Employment Law Update

Editor's Notes

• #5: All other automatically unfair dismissal claims which need no qualifying service are still the same (e.g. dismissals for reasons relating to pregnancy/maternity, health & safety, whistle-blowing, asserting a statutory right etc)
• #7: Law still doesn’t specify a minimum period of collective consultation but must be “meaningful” and start at least 45 days before the redundancy dismissals take effect.Worth considering termination of fixed-term contracts in redundancy planning as could mean difference between 45 or 30 day minimum consultation periods or not even having to consult collectively at all. NB. Voluntary redundancies will still count towards total number of employees.Protective award is still up to 90 days so failing to comply with consultation obligations can now be much more expensive than simply continuing employment for the 30 or 45 day period.ACAS has produced a guide to collective redundancies which includes 10-point checklist for employers carrying out collective redundancies.
• #8: USDAW v WoolworthsEAT held that there should be a purposive construction of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, so as to delete the words "at one establishment" When Woolworths (and Ethel Austin) became insolvent, there was collective consultation.  Each store was treated as "one establishment", as has been accepted practice in the UK for many years. As a result, there was only collective consultation at the bigger stores, ie those with more than 20 employees. EAT has held that that does not reflect what the relevant EU Directive requires (which does not refer to single establishments, at least not in this context).  There is no ability for an employer to 'opt-out' of collective consultation under the Directive by scattering their employees throughout different establishments around the UK, and the employers should have consulted with all employees, not just those at the larger stores.   TULRCA 1992 is more restrictive that the Directive and, insofar as it fetters rights granted by the Directive, it should be interpreted purposively so as to disapply that restriction.  That purposive construction can be achieved by deleting the words "at one establishment", so that s188 imposes collective redundancy requirements whenever an employer contemplates dismissing 20+ employees within 90 days on grounds of redundancy, irrespective of the number of 'establishments'.The result of the case is that all the employees from the smaller stores (1,210 employees at Ethel Austin, and 3,233 at Woolworths) became entitled to a protective award.  This decision has huge ramifications.  It is unknown as yet whether there will be any attempt to take the case to the C of A.
• #9: OLD POSITION: PIDA 1998 protects “workers” against dismissal and detriment because they make a “protected disclosure”. To be protected, the info disclosed must be made in good faith and in the reasonable belief of the worker, tend to show that one of the following has occurred, is occurring or likely to occur:A criminal offenceBreach of a legal obligationMiscarriage of justiceDanger to health & safetyDamage to environmentDeliberate concealing of information about any of the aboveFollowing Parkins v Sodexho, disclosure didn’t have to be in the public interest in order to be protected. “Breach of legal obligation” construed widely to include breaches of individual’s own contract of employment. Loophole government was keen to close.NEW POSITION: Attempt to re-assert “public interest” nature of disclosures.Reasonably believe disclosure in the public interest. Doesn’t actually have to be in the public interest.“Public interest” not defined but likely to mean something which affects a class of people rather than just an individual. Satellite litigation about meaning of “in the public interest”?Protection now extended to disclosures made in bad faith (i.e. money or spite rather than a desire to put right a wrong). But power to reduce compensation by up to 25%.Victimisation – vicarious liability for detriments by workers on another worker on grounds that a worker made a protected disclosure and personal liability for colleagues who victimise a whistleblower. (In line with position under EqA 2010).Plans to extend definition of “worker” to include job applicants – currently on hold and will go out to consultation (would be same as position under EqA).
• #11: Effective from 29 July but won’t apply to existing claimsIntended to encourage mediation and settlement of disputes thereby reducing burden on tribunals. Annual cost of £84m – transfer from taxpayer to those who use the system. Significant development in the life of ETs, further watering down the original principle that ETs would be an informal and accessible forum for solving employment disputes.UNISON application for Judicial Review of decision because it will make it virtually impossible for workers to enforce their employment rights. Fees breach EU law, which requires national courts not to make it excessively difficult for individuals to exercise their EU rights and also charging fees amounts to indirect discrimination because they will have a disproportionate adverse impact on women. So, 2 levels of claim –explain. “All other claims” includes unfair dismissal, discrimination, whistle-blowing, equal pay etc. Likely to see number of low value level 1 claims reduce (won’t pay £160 to recoup £100 holiday pay).If both level 1 and 2 claims brought by same Claimant, only one level 2 fee payable.Other fees: (a) JM - £600 payable by Respondent, (b) reconsideration of DJ - £100, (c) reconsideration of Judgment (level 1 £100 and level 2 £350), (d) application for dismissal following withdrawal £60, (e) counter-claim £160 (so likely also to see reduction in counter-claims)
• #12: Fees payable by Claimant but ET will have power to make order where Respondent unsuccessful to reimburse the Claimant. At Judge’s discretion.Remissions – Scheme due to be introduced in Autumn 2013. Provide handouts re entitlement to remission of fees. Partner’s income will be taken into account.Proposal to take into account capital as well as limiting remission to those whose disposable capital doesn’t exceed £3,000.Partial remission if you earn just over the threshold - £5 contribution for each additional £10 over the threshold up to cap of £4,000 above the threshold at which point, C has to pay full fee.With the proposed fees for unfair dismissal cases at £250 for issuing the claim and £950 for the hearing, a dismissed employee with only £3,000 in savings and no household income would have to gamble over a third of their savings on tribunal fees at a time when they need the money to live on. With the median unfair dismissal award for last year at only £4,500, many dismissed employees may simply decide that access to justice is an expensive luxury they cannot afford.Claimants will have to make an application to the Lord Chancellor to receive it and provide documentary evidence.Must present fee or remission application with ET1 – online payment. If fee or remission application not with ET1 – ET1 will be rejected. If remission application refused C will be notified and given a deadline for payment – no extension of time limit.There may be increase in withdrawals prior to hearing. However, Claimants may be more reluctant to withdraw claims without reimbursement of fee. May cause problems in discrimination claims – some employers may see reimbursement of fee as an acknowledgement of liability.
• #13: Employment Tribunals (Constitution and Rule of Procedure) Regs 2013 now published.They follow a fundamental review of the rules by former President of EAT, Mr Justice Underhill.No transitional provisions – new rules will apply to existing claims Presidential Guidance on e.g. costs, applications to postpone, default judgments etc to try and encourage consistency of approach between Judges across the country and within the same tribunal! Not binding, only supposed to be guidance and Judges still meant to have flexibility to depart from it. Might a party request a reconsideration of a decision on the basis that a Judge has departed radically from it? Rejection – Tribunal already had power to reject ET1 on basis that ET has no jurisdiction to hear claim (e.g. out of time, not an employee) but will now also have power to reject ET1 that is in a form which “cannot sensibly be responded to or is otherwise a breach of process.” ET1 will be returned to C stating reasons for rejection and how C can apply for a reconsideration. C has to write within 14 days stating why decision to reject was wrong or how defect can be rectified. Will either be accepted by Judge without hearing or go to hearing with just C. Should hopefully reduce number of waffly claims from litigants in person but given they can reject on jurisdictional grounds already and often fail to do so, perhaps not that much will change.Sift process - seeks to ensure that weak cases that should not proceed are identified and dealt with more effectively. (Latest set of ET statistics - of the cases disposed of in 2012/13 the average ‘age’ of a case at disposal was 80 weeks.) Judge can now consider whether claim should be struck out, either in full or in part, because:Has no reasonable prospects of successComplaints aren’t within the jurisdiction of the ETWill set out Judge’s view with reasons and state that part or all of claim will be struck out on x date unless C writes before then explaining why it shouldn’t be dismissed. If they don’t – dismissal. If they do – Judge will either permit claim or fix date for hearing. Will apply to responses as well.CMD directions will also be set at this point.Likely impact:Fewer unmeritorious claims likely to reach full hearingSatellite litigation on merits of case where one of parties requests a reconsideration of the decision to dismiss claim/response.Remains to be seen whether ET will be robust or sparing in the use of these powers.Strange that jurisdictional point is here and as a reason for rejection – shouldn’t ET1 already have been rejected if no jurisdiction?Potentially additional cost at the outset of a case – front loading of cost Stronger case management powers & CMDs/PHRs - many of case management powers remain same but emphasis of certain points e.g. claims can be struck out at any stage in proceedings – should lead to increased awareness and potentially more consistent use. Combining of CMD and PHR into preliminary hearings. Previously there was a distinction and Judge didn’t have power to do certain things at CMD – e.g. strike out or make a deposit order. Now, one hearing for administrative and substantive issues to be addressed. 14 days notice of hearing but not necessarily what issues it will cover – prejudice to claimants in person? Allocation of sufficient time by ET? Deposit orders - provides that the tribunal can make a deposit order in respect of "any specific allegation or argument in a claim or response" considered to have little reasonable prospects of success. Can now be awarded up to £1,000 per each spurious complaint rather than max of £1,000 for whole claim previously. This seems v sensible – not uncommon to face a “kitchen sink” claim and it would be helpful to have the option of a deposit to encourage claimants to withdraw extremely unmeritorious points and focus on the real heart of the case. Costs – Before, costs in excess of £20,000 – county court. Now ET can determine this. Lay representatives will also be able to recover costs which previously unable to do. Costs are still a rarity – in 2011/12 awards were made in only 612 cases (discounting a single case where £5 awards were made against 800 Claimants) out of 186,300 claims lodged. This was a 25% increase on the year before when costs awards were made in 487 cases. A gradual increase is now expected.Witness statements - taken as read and must therefore be made available for inspection by members of the public. Express rule re timetabling – allocating max time for giving evidence and XX etc. Had power previously but it is hoped that express rule will encourage use of power – good for controlling litigants in person.
• #14: As you know, compensatory award is an amount which the judge considers to be just and equitable in all the circumstances, taking into account the actual loss suffered by the Claimant (including, most significantly, his loss of earnings). In practice, therefore, the compensatory award will be based on the Claimant’s pay pre-dismissal, and will correspond to the length of time he should reasonably take to find a new job of equivalent status and pay. In the recession, this period has typically lengthened and now it is not unheard of for Claimants to be awarded more than 12 months’ salary by way of compensation, provided this remains below the upper statutory limit for the compensatory award, currently set at £74,200.Once the legislation becomes effective, the compensatory award will be the lower of £74,200 (cap which changes each year in accordance with inflation) and 12 months’ pay. Aim is to help manage expectations of employees, create certainty for employers and encourage early resolution of issues.Losing an unfair dismissal claim will potentially be much cheaper for the employer. Bear in mind though that, in most sectors, it is not too onerous for a Claimant to find a new job within a year, even during the recession, and so their compensation will rarely approach or exceed 12 months’ pay. The average unfair dismissal award in 2001/12 was £9,133 and only 2% of awards exceeded £50,000, so it seems unlikely that the extra cap will have much effect to most unfair dismissal claims.Bear in mind also that some unfair dismissals (including ‘whistleblowing’ dismissals) will not be subject to a cap, nor will there be a cap in discrimination cases. In those cases, the actual compensation received by a Claimant may still exceed one year’s salary. Will it encourage people to throw in those types of claims?
• #16: In conjunction with new fees and requirement for ACAS early conciliation, this is another attempt by govt to encourage settlement and reduce number of disputes which end up in the ET.Envisaged for difficult situations – performance management, misconduct short of dismissal etc“Pre termination negotiations” - any offer or discussion of proposed settlement terms “Improper behaviour” - what is currently regarded as ‘unambiguous impropriety’ in ‘without prejudice’ cases would also be regarded as improper behaviour in settlement agreement discussions. Threshold for unambiguous propriety currently is high –covering matters such as discrimination, blackmail, criminal activity. The ‘illustrative’ list of what constitutes improper behaviour has also been expanded to include all forms of victimisation and harassment.  The effect, broadly speaking, would be to extend the "without prejudice" rule to a limited category of situations in which there is currently no "genuine dispute". According to the government, the section is designed to give employers greater protection when offering settlement agreements outside the context of litigation.ACAS has created a Code of Practice (statutory) with accompanying guidance (not yet published). The guidance includes template letters to use in different pre-termination settlement situations. The Code includes the following information on what parties must do to make a settlement agreement legally valid (e.g. final offer in writing, independent legal advice for employee, minimum 10 calendar days to consider offer)flexibility by not specifying how settlement offers should be made a reference to allowing employees to be accompanied at settlement agreement discussions whilst recognising that there is no statutory right to accompanimentfurther detail regarding “improper behaviour”  The non-statutory guidance will apparently contain advice on the interaction between settlement agreements and other workplace procedures (i.e. the open performance management process and the WP process); the tax and National Insurance implications of settlement agreements; how settlement agreements can be negotiated; and worked-up scenarios to illustrate improper behaviour and template letters. Only applies to UD claims. So content of discussions could be used in other claims (e.g. auto UD, discrimination, breach of contract). Can you really ring-fence what is said, from its consequences?E.g. Take the case of an employee who is deeply offended by the matters put to him in a settlement discussion (for example, he may feel that his professionalism has been called into question or that others have levelled unfair allegations at him). What is to stop him from bringing a grievance in relation to what was said in the meeting? If the employer fails to address the grievance, the employee could potentially bring a claim for constructive unfair dismissal in relation to the failure to address the grievance. Any grievance arising out of the settlement discussion would be part of the factual matrix; is the employee to be allowed to refer to the grievance in evidence, but not tell the tribunal what the grievance was about?Also, whilst anything "improper" will still be admissible in evidence the legislation is silent about whether the manner in which the discussions are carried out, or what is said during them, may form the basis of a claim for constructive dismissal. There may be a spectrum of behaviour falling short of "improper" conduct by the employer which could arguably constitute a breach of trust and confidence, such as:Insisting on meetings with the employee on a regular and frequent basis, perhaps even where the employee has made clear that they are not willing to leave under a settlement agreement.Telling the employee in such meetings that management has lost confidence in them and that they do not have future prospects (for example, there is no chance of them getting promotion) with the employer.Making allegations of serious misconduct which are unfounded. Will anything really change? It is likely to remain the case that employers will in many cases continue to operate in this informal way, without matters ever being litigated. However, the existence of new rules with unpredictable consequences may give rise to greater recourse to lawyers, rather than less.
• #18: Removal of third party harassment provisions - which make employers liable for harassment of their employees by third parties such as customers or visitors where it has failed to take such steps as are reasonable to prevent it and the employer knew that the employee had been harassed on at least 2 other previous occasions (even if not by the same person). To be repealed on the basis that they place an additional liabilities on employers which goes against govt’s commitment to "support growth and economic recovery". This is despite fact that 71% of respondents to consultation disagreed with repeal of these provisions.Removal of these provisions may not relieve employers in the way that the government has anticipated. Employees might still be able to argue under section 26 of the Equality Act 2010 that an employer's inaction in the face of third-party harassment amounts to unwanted conduct "related to" a protected characteristic (under EqA it’s “related to” not “on grounds of”) that violated their dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for them. This argument can be run regardless of whether or not the employer “knew” that the employee had been harassed by a third party before. Abolition of discrimination questionnaires(April 2014) New "informal approach" to fill the gap left when the statutory questionnaire procedure is abolished. The government considers that this non-legislative approach, which will be set out in Acas guidance, will be "fairer for all". Caste to be included as element of race discrimination (April 2015)
• #19: Claimants will have to submit details of their dispute to ACAS before bringing a claim, at which point they will be offered pre-claim conciliation (PCC). ACAS must try to promote a settlement within a month. If at the end of the month settlement is close, ACAS can, with the parties’ agreement extend the conciliation period for a further 2 weeks in order to facilitate a settlement. If a settlement is not reached, either because settlement is not possible in the conciliation officer's view (one or both parties are not interested) or the prescribed period expires, the officer must issue a certificate to that effect. A claimant may not submit a claim without this certificate. If the parties enter into PCC this will "stop the clock" on the limitation period to present the claim to the tribunal. The claimant will have one month after the conclusion of PCC to present their claim to the tribunal. – April 2014Details on the EC form will be limited to the parties' names, addresses and contact numbers. It is not proposed that the Claimant will have to set out details of their potential claim(s). ACAS conciliators will make "reasonable efforts" to contact the Claimant to obtain basic information and outline the conciliation process. If unable to contact the Claimant, it will issue the ECC. Once the claimant has the ECC they will be able to present a claim to a tribunal, including a unique EC reference number in their ET1 to confirm compliance.Effect on time limits:Contacting ACAS for EC will "stop the clock" on the tribunal time limit. The period which is ignored is the period starting the day after ACAS receives the Claimant’s EC form and ends the day after they are deemed to have received EC certificate from ACAS marking the end of the EC process (by email the day it was sent and by post, 2 days after it was sent). In order for ET to consider limitation periods, the certificate will state the day the EC form was received by Acas, the date the certificate was issued and how it was issued (ie electronically or by post) Question what appetite parties will have to settle before litigation has been issued. More likely Cs will want to avoid issue fee and may therefore settle for lower amount, but most Rs will want to “wait and see” if C puts their money where their mouth is. Also satellite litigation about whether time limits have been complied with. May be dealt with at preliminary hearings – which will go against government’s aim of reducing burden on ETs.Unclear who ACAS contacts when Respondent is disputed, e.g. TUPE claim.2 tiers of conciliator- ECSO and Conciliator – question efficiency and workloads (contact C by COB day after form received and conciliator to contact parties within 2 working days where interested in settlement)
• #20: The employer's breach must have "one or more aggravating features” (lack of clarity – not defined in the legislation). In consultation, the govt suggested that it would be where "the breach involves unreasonable behaviour, for example where there has been negligence or malice involved". Suggestion that genuine mistakes will not be penalised.Whatever the aggravating features, a further question is why it is the government and not the claimant (who has been subject to the employer's conduct) who will benefit from the fine?Penalty can be ordered even where no award has been made to the Claimant. If an award has been made to the Claimant, the penalty must be 50% of the amount of the award. Employer doesn’t have to pay full award if pays 50% of award within 21 days.In multiple claims it can be up to £5,000 per Claimant.Tribunals must take account of employer’s ability to pay.
• #21: The aim is to give greater choice and freedom to both workers and businesses, by removing cultural expectations that flexible working benefits only parents and carers. This would open up the possibility of grandparents applying for flexible working to help with the care of their grandchildren.Govt has indicated that it intends to remove the current statutory procedure. Instead, employers will be under a duty to consider all requests in a reasonable manner. This should be greeted with more enthusiasm by employers.The govt’s eagerness to promote these measures is in marked contrast with the generally deregulatory trend in its policy towards employment law.
• #22: Recent survey has revealed the following:Sickness absence levels no longer falling;Long-term absence is on the increase;Stress-related conditions, which remain the most difficult to manage, are by far the largest reported cause of sickness absence; and 30% of employers saying they haven’t received any fit notes indicating the employee “may be fit” for work or giving advice re conditions for RTW.Health and Work Assessment Advisory Service is due to launch in 2014. This will require or encourage referrals of all those who’ve been absent from work for more 4 weeks or more. Intention is that HWAAS will ensure re-entry to the workplace asap. We don’t yet know how HWAAS will interact with GPS, OH or employers and what sanctions/incentives will be applied to changes current rates of sickness absence.Govt has recently published new guidance on fit notes for employers, employees and GPs – www.dwp.gov.uk/fitnessGovt wants better use of fit notes and more focus on what employee can do to assist RTW process.Key messages:GP assessment should be general not job-specific. Concentrate on patient’s functional capacity and limitations rather than GP saying not fit to work out of concern that they lack the knowledge and skills to assess specific work-related activities.If GP considers fitness for work isn’t impaired by a health condition then he/she is fit for work and should not be issued with a fit note. This responds to concern expressed about “medicalisation” of issues of workplace conflict. Unsatisfactory interplay between disciplinary/grievance processes and “work-related stress”. Resolution of such cases sometimes impeded by comments on fit notes. Guidance now suggests that where such cases do not manifest a “mental illness” there is no health condition and the GP “cannot” issue a fit note.Where fit note says individual “may be fit” for work but he/she and employer can’t agree on appropriate changes to work, employer may treat fit note as if it says “not fit for work”.Employee is free to return to work at any time, including before end of fit note. Won’t breach employer’s liability insurance provided a suitable risk assessment has taken place if required.Fit note not binding on employer – employer can make its own decision about whether or not the employee is fit for work. Employer may gather its own evidence and give it precedence in respect of any decision, including re pay.Guidance helpfully indicates govt’s approach, but will only get full picture once we know scope of HWAAS and the incentives/sanctions that might be applied to both employers and employees.
• #23: Under the reforms, a mother will still be required to take a compulsory 2 week period of leave after the birth of a child, but at any time following that, the parents will be able to ‘opt in’ to the new flexible parental leave system, and to share what remains of the maternity leave period.It will be up to both parents to decide how they share the remaining period of leave – they may choose to split the leave between them, take it in turns, or take some time off together.A new statutory payment for parents on flexible parental leave will be introduced, with the same qualifying requirements that currently apply to maternity and paternity pay.Fathers will gain the right to take unpaid leave to attend 2 antenatal appointments, though statutory paternity leave will remain at 2 weeks for now (the Government has suggested that this may be extended once the economy is “in a stronger position”).Parental leave increased in April this year from 13 to 18 weeks in respect of employees’ children up until their 5th birthday. That right will extend to parents of children up until their 18th birthday as part of this suite of changes.Statutory rates for people who take adoption leave will also finally come into line with those who take maternity leave (to include the first 6 weeks at 90%).The response from employers, however, has been to express some concern. The British Chamber of Commerce have stated that the plans create uncertainty and lack of stability for employers, and could cause friction between parents and employers. However, BIS’s case is that the proposals support growth (a net benefit of £222.5 m annually is estimated). If parents are allowed to decide between them who should take up the greater part of the childcare, the logic for many will be for the highest-earning parent to stay in work, even if that is the woman – should produce a net benefit to GDP.However, no point introducing legislation if it’s not successful in encouraging uptake by dads and the SMP pay levels could be the fatal flaw. Also, fact that proposals for additional paid paternity leave were dropped.So are we really going to see the rise of the Swedish “Latte Papa”? So many dads as primary child-carers in Sweden that they often outnumber mums at playgroups and coffee mornings – hence the name! Sweden’s had shared parental leave since 1974. It’s available for 13 months at 80% of pay up to £2,600 a month with a gender equality bonus to encourage both parents to share childcare responsibilities. Encouragingly, Sweden’s economy is in better shape than ours.Expect govt will have to introduce more of a financial incentive before our dads start dominating coffee mornings but we should acknowledge how far we’ve come and whilst this is a small step, it ;s significant and in the right direction!