Employment Law Update Anna Denton-Jones May 6 th 2014

1. Employment Law UpdateAnna Denton-JonesMay 6th 2014

2. 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

3. 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

4. CLAIM Unfair Dismissal Race Discrimination Sex Discrimination Disability Discrimination Religious Discrimination Sexual Orientation Discrimination Age Discrimination AMOUNT £10,125 £8,945 £10,552 £16,320 £6,137 £10,757 £8,079 Average Employment Tribunal Awards 2012 - 2013 navigating employment law

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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. Option 2 • Explore with conciliator what the case is about? • Find out details of case • Avoid costs of ET3 preparation later on if likely to settle later navigating employment law

13. 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

14. 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

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

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

17. 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

18. Same ACAS officer stays with the claim during the period pre ET1 and then after the claim has been issued for continuity navigating employment law

19. ET1 • Amended to include boxes for: • Certificate number • Falling outside jurisdiction • Exemptions • Nothing to prevent C from referring to new claims navigating employment law

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

21. 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

22. Scenario 3 • C is exempt from EC as has wages claim but C attempts EC anyway • R is told it is a wages claim • ET1 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

23. 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?

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

25. ASK ANNA navigating employment law

26. Having those difficult conversations navigating employment law

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

28. 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

29. 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

30. Advantages/disadvantages of using settlement agreements Advantages Disadvantages 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 • 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. navigating employment law

31. Protected Conversations • s111A ERA 1996 – ordinary unfair dismissal only • ACAS Code of Practice on Settlement Agreements • ACAS Booklet “Settlement Agreements: a guide” navigating employment law

32. 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

33. 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

34. Statutory exceptions to confidentiality under s111A • “Improper behaviour” during settlement discussions • What might it mean? • Where costs are at issue navigating employment law

35. exercise navigating employment law

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

37. 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

38. 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

39. Employee can also use it • Employee can say they want to have a s111A conversation • Employer cannot then refer to eg:- knowledge they were looking for another job when arguing about UD remedy navigating employment law

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

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

42. Tips for letters • Refer to s111A 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

43. 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

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