Employment Law Update Anna Denton-Jones May 6 th

Employment Law Update Anna Denton-Jones May 6 th 2014

Rates changed 6 April • • Week’s pay £ 464 Basic Award £ 13, 920 Compensatory award £ 76, 574 Statutory Maternity, Paternity, Adoption Pay to increased from £ 136. 80 to £ 138. 18 • Statutory Sick Pay from £ 86. 70 to £ 87. 55 per week navigating employment law

Cap unfair dismissal compensation • The lower of 1 years’ salary or the cap at £ 76, 574 • Thus if your salary is £ 15, 000 the most you can claim is £ 15, 000 navigating employment law

AVERAGE EMPLOYMENT TRIBUNAL AWARDS 2012 - 2013 CLAIM AMOUNT Unfair Dismissal £ 10, 125 Race Discrimination £ 8, 945 Sex Discrimination £ 10, 552 Disability Discrimination £ 16, 320 Religious Discrimination £ 6, 137 Sexual Orientation Discrimination £ 10, 757 Age Discrimination £ 8, 079 navigating employment law

Early Conciliation 6 April 2014 • Voluntary from 6 th April to 5 th May • Mandatory from 6 th May navigating employment law

Step 1 - Notification • Anyone who wishes to bring a claim has to complete a form setting out their name, address, phone number, email and the employers details • No case details • Lodged online (proof of timing) vs phonecalls • There is a separate form for group claims which can hold up to 50 names. • If more than one Respondent – use multiple forms – one each navigating employment law

• ACAS records receipt – Automatic email receipt – ACAS letter/date stamp for physical documents • ‘stop the clock’ as regards limitation not an extension of time • Clock restarts when certificate issued or after 1 calendar month • That can be extended for a further 14 calendar days by agreement of the parties navigating employment law

Action on receipt of notification • Early Conciliation Support Officer has list of 23 checks to make • Focus on immediate contact with C within 24 hours • Gather case details: jurisdiction, multiple cases etc • Allocate conciliator • NB not contact with Respondent at this stage navigating employment law

Options for Claimant - 1 • Tell ECSO all they want is their certificate – ACAS will try and sell benefits of conciliation (free, avoid tribunal fees, worth a try) but ultimately if C says ‘No’ will proceed to issue certificate without the Respondent ever even finding out there is a potential case. • Once the certificate is issued the clock starts again navigating employment law

Option 2 • C agrees that ACAS can contact Respondent • That contact is with the person named by the Claimant – might not be the right person • ACAS keen to obtain database of contact details for large employers (inform Trudy Davies) navigating employment law

Option 1 for Respondent • Decline involvement in EC – will the C put their money where their mouth is and issue proceedings? • Not mandatory navigating employment law

Option 2 • Explore with conciliator what the case is about? – Find out details of case • Avoid costs of ET 3 preparation later on if likely to settle later navigating employment law

• The certificate that is issued to confirm the end of EC can be issued at any time that conciliator concludes settlement is not possible • If the ECSO cannot get hold of C will be issued after 2 weeks. • Certificate is not an endorsement or validation of a claim but will the Claimant understand this? navigating employment law

The Clock • Day A – receipt of notification • Day after Day A clock stops • Day B – date deemed to have received postal certificate or date of email – clock starts again • The pause is the gap between these • Will be issues over timing navigating employment law

Scenario 1 • • • EDT 10 th Feb. Limitation 9 th May. C notifies ACAS 3 rd March. Clock stops 4 th March. 7 th March ACAS agrees conciliation unlikely to work so posts certificate • Deemed receipt 9 th March and clock restarts • Gap 6 days – Limitation now 15 th May navigating employment la

Scenario 2 • • • EDT 10 th February Limitation 9 th May C notifies ACAS 7 th May ACAS conciliates until 29 th May Certificate posted and deemed receipt 30 th May • C has until 29 th June to issue their claim navigating employment law

Extending time • Where prescribed period of 1 month due to end and conciliator feels there is a likelihood of settlement can extend prescribed period for 14 days • Cannot extend again • At end of period they must issue certificate even if the parties are still in negotiations – conciliation continues navigating employment law

• Same ACAS officer stays with the claim during the period pre ET 1 and then after the claim has been issued for continuity navigating employment law

ET 1 • Amended to include boxes for: – Certificate number – Falling outside jurisdiction – Exemptions • Nothing to prevent C from referring to new claims navigating employment law

• Check jurisdiction and exemptions and timing very carefully • Claimant may have named wrong Respondent navigating employment law

Exemptions • Regulation 3(1) a) Joining a claim someone else is bringing- can rely on fact they have complied b) Mixed proceedings – relevant and non-relevant proceedings c) C doesn’t have to comply as R already contacted ACAS d) Where UD claim accompanied by interim relief claim navigating employment law

Scenario 3 • C is exempt from EC as has wages claim but C attempts EC anyway • R is told it is a wages claim • ET 1 then adds in discrimination – R argues the C has not complied with EC • Don’t run this argument: no correlation is required navigating employment law

Scenario 4 • C has claim for unfair dismissal and failure to allow him to be accompanied. • Mixture of exempt and not – all exempt (reg 3(1)b). • C tries EC anyway and is relying on clock being stopped. • R points out that out of time because exemption • Technically R correct but Judges will accept claim late as not reasonably practicable to issue before?

Tactics • C use pause to raise the issue fee? • R start process to keep time ticking? navigating employment law

ASK ANNA navigating employment law

HAVING THOSE DIFFICULT CONVERSATIONS navigating employment law

What are the barriers? • Why don’t managers tackle issues? navigating employment law

Preparation • What is the history? What processes have been followed by either the employee or employer. • What paths to termination are open to you? • What claims might the employee have? • What ‘tactics’ might the employee deploy? navigating employment law

Strengthening your position • Have a plan A, plan B and plan C! • Protect your “open” position (as opposed to ‘off the record’ ‘without prejudice’ discussions) • If you don’t set out true reason for dismissal in open correspondence you could find it difficult to defend a subsequent claim if negotiations fail navigating employment law

Advantages/disadvantages of using settlement agreements Disadvantages Advantages • provide a swift and dignified end to an employment relationship that is not working • avoid the time, cost and stress involved for both parties in a tribunal claim • provide compensation and often a reference for employees. • cost of paying an agreed financial sum to an employee • potential risk to the ongoing employment relationship with the individual if settlement is not agreed • potential risk to employment relations in the wider workforce navigating employment law

Protected Conversations • s 111 A ERA 1996 – ordinary unfair dismissal only • ACAS Code of Practice on Settlement Agreements • ACAS Booklet “Settlement Agreements: a guide” navigating employment law

Procedural steps from Code • Discuss fact discussions expected to be inadmissible in relevant legal proceedings • No statutory right to be accompanied but good practice to allow it • Explain reason behind offer • Reasonable time to respond (minimum 10 calendar days) • Reserve the right to refer to the offer from a costs perspective navigating employment law

Situations where the conversation will not be protected • • • Discrimination Unlawful detriment Breach of contract Automatic unfair dismissal Where the employment relationship is going to continue – Unless covered by the ‘without prejudice’ rule navigating employment law

Statutory exceptions to confidentiality under s 111 A • “Improper behaviour” during settlement discussions – What might it mean? • Where costs are at issue navigating employment law

EXERCISE navigating employment law

Effect on unfair dismissal claims • Harder to bring? • Billington v Michael Hunter & Sons Ltd EAT 2003 navigating employment law

Danger zone • Subject access request – Data Protection Act • If using a HR provider – not covered by legal professional privilege like solicitors are • You may have professional obligations to report misgivings about employees as part of regulatory duties navigating employment law

• You have a legal obligation to give references that are accurate and not misleading • Calling a situation a ‘redundancy’ when it’s not • ‘Shock effect’ of bolt from the blue conversations and effect on morale and settlement levels? navigating employment law

Employee can also use it • Employee can say they want to have a s 111 A conversation • Employer cannot then refer to eg: knowledge they were looking for another job when arguing about UD remedy navigating employment law

Caution • Template letters – Tax treatment • • • PILON – taxed Holiday pay and bonus payments - taxed Unapproved retirement scheme - taxed Ex-gratia payments over £ 30 k – taxed Redundancy pay up to £ 30 k – not taxed Payment connected to a disability – not taxed navigating employment law

• Sending people home – By consent? – Use garden leave provisions? – If forced, argue “improper behaviour”? – What happens if negotiations breakdown? navigating employment law

Tips for letters • Refer to s 111 A and that the conversation you had won’t be admissible in unfair dismissal proceedings • Refer employee to the ACAS Code and Guidance • Give the background as to why the situation has arisen navigating employment law

Equality risk assessment • Public authorities in particular • Review use of settlement agreements – is there a pattern eg: - use to retire off older workers? navigating employment law

Contact us: adenton@refreshinglawltd. co. uk Phone 029 2059 9993 or 07977 545480 www. refreshinglawltd. co. uk