Note: a subsequent legal change has affected the accuracy of this material.
What do employment solicitors think of the Acas Early Conciliation procedures?
Claimants now have to contact Acas before bringing a claim, although they don’t have to let Acas actually contact the employer; they can just ask for the process to be closed immediately.
We at Hatton James don’t think that the Early Conciliation procedures provide a real substitute for dealing with claims.
Employment Tribunal claim numbers have been lower since conciliation and fees were introduced. 60% lower, in fact. The reason for the drop was probably the fact that hefty fees were introduced for lodging a claim and taking it to a final hearing – £1,200 for most claims.
We wrote an article after 18 months of their introduction. After a further 6 months, it’s time to spill the beans on our approach to them at Hatton James.
We suspect that many employees have wrongly thought that Acas Early Conciliation would bring about a successful end to their claim. Instead, they have been strung along by the employer who had no intention of settling. Some employees may have even have thought that the process was a formal adjudication of the dispute.
Many who ended their tribunal claim for a small sum at Early Conciliation or were put off by tribunal fees would have won at trial.
Just before the introduction of fees and Early Conciliation, about 10% of unfair dismissal cases that reached a judge were successful at a hearing.
If fees and Early Conciliation had been successful at deterring the weakest claims, we would have expected the success rate to increase as the weakest claims were weeded out. But we find the opposite to be the case. The success rate has dropped to 8% . Weak and strong cases alike are dropping out of the system.
We hasten to say at this point that the success rate of claims handled by employment solicitors is a lot higher than 8%, which includes a huge amount of claims brought by lay claimants who don’t know what they are doing.
Our strategy only includes taking the Acas Early Conciliation process seriously where the employee has a cast-iron case. Our experience is that employers need to be dragged to the negotiating table and shown the strength of the employee’s case. Often this can only be done after the claim is set out formally, the evidence has been presented and the claimant has had the opportunity to show his resolve.
Even where we have presented a cast-iron case to the employer, we have found that often they want to see whether the employee has it in them to issue a claim and put their money where their mouth is.
Acas remain on hand to assist with conciliating the dispute after the claim has gone in, so there is nothing to lose except the lodging fee by bypassing the early conciliation process and, in our experience, everything to gain.
By Jaspreet SanghaRead More
Note: a subsequent legal change has affected the accuracy of this material.
The Labour Party has told the country its position on ensuring that employees have access to employment law rights.
This position is to do with Employment Tribunal fees. Labour has vowed that if they were to form the next government, they will abolish the current employment tribunal fees that were introduced by the Coalition Government in 2013.
Employment Tribunal fees currently stand at £250 to lodge most claims (simpler claims are £160) and £950 for the final hearing, regardless of length (£230 for simpler claims). Our clients often struggle to pay the hearing fee if they are not covered by insurance. Even if the fees are covered by insurance you usually have to pay it up front and claim it back from the insurers at the end of the case. The tribunal does warn you far in advance that the big fee will become due but not everyone budgets for it.
You don’t have to pay Employment Tribunal fees if your income and assets fall below certain levels. See our post on fee remissions here for further details.
If you win an employment tribunal case that you brought, the employer will (usually) be ordered to reimburse your tribunal fees. The judge has a discretion as to who shoulders the fees, and we have never seen a case where the claimant has won but not been reimbursed.
If a claim is settled, any fees paid are not returned, even if the settlement saves the tribunal the cost of the hearing, so our advice is to pay the hearing fee at the very last minute.
Since the introduction of these fees there has been a severe drop in claims made by employees. It has been estimated that two-thirds of would-be claimants are dropping their Employment Tribunal claims.
Employment law commentators say that this has harmed the rights of employees to have access to justice. They say that it is now too expensive to obtain access to justice.
by Jason Harbourne
Image courtesy of Garry Knight, licenced under CC
Birmingham employment lawyers Hatton James legal have issued a record number of tribunal claims in September 2016.
We issued five claims in September 2016, an average of more than one per week.
Managing partner Jaspal Singh said “it’s been a really busy period for us, when the sector as a whole is struggling, because of various government initiatives to reduce the number of claims going through the employment tribunal“.
Hatton James is among the foremost among Solihull and even among Birmingham employment lawyers. Jaspal said “most of our clients come through referrals or having searched online and seen that we are well-reviewed on the internet“.
The claims issued this month include:
- A new trainee dental nurse who resigned because of her manager’s nastiness after she pointed out problems with infection control
- An HGV driver sacked after 12 years when his licence was suspended for two weeks on medical grounds
- Two jewellers, one who was dismissed because she needed time off to recover from an old shoulder injury …
- and the other, who resigned because of rudeness when a new manager took over
- A factory manager whose employer wanted him to slow down more than he did, as he reached retirement and ranted at him in frustration
These are a typical mix of the claims that Birmingham employment lawyers see; unfair dismissal, age and disability discrimination and whistleblowing. A couple are what we consider to be open-and-shut cases; others are more risky, perhaps because the depend on what the witnesses or the paperwork will say. One of these tribunal claims is funded by a no-win, no-fee agreement, one is paid for privately and in the other cases the client has legal expenses insurance. In each case we feel that the employee really needs to issue a claim in order to protect their legal rights and obtain a settlement or compensation.
These claims come on top of our bread-and-butter work of guiding employees and employers through grievances and disciplinaries and advising on the terms and effect of settlement agreements.
In a future blog post, we’ll take one of these cases as a worked example and explain what happens from when the client walks in through the door.
By Jason HarbourneRead More
Birmingham employment solicitors recently won a victory for a mother of one whose employer refused to allow her to return to work part-time after a pregnancy (we read in the Post).
Emma Seville was a cabin crew manager for Flybe at Birmingham Airport for over a decade. She worked full-time on fully flexible working hours. After she had a baby in August 2015 she wanted to return to work on fixed part-time hours to fit around childcare arrangements. She made a flexible working request. Her employer would only offer hours that they would choose to fit in with their needs. This meant that every time the rotas came out she would need to make new childcare arrangements. It meant that she couldn’t juggle her job and her childcare responsibilities effectively.
She took her employer to the employment tribunal. The employment tribunal found she had been the victim of indirect sex discrimination against.
Indirect sex discrimination (see our page on sex discrimination) is poor treatment because of something that tends to come with being a woman or that women mainly experience. For example, women have greater childcare responsibilities.
The practice of requiring full-time working or long hours that affects women more acutely (as they have the most childcare responsibilities).
Such practices are fine if they are justified, which is a legal term meaning they are no more discriminatory than they have to be in order to reach some legitimate aim. But in our experience, it is a rare case when part-time working or job-sharing cannot be made to succeed, with the right will.
This sort of case is familiar to employment solicitors up and down the country. Recently, our firm settled a similar case, where an employee resigned after not being allowed to change her hours or work as part of a job-share when her nursery’s opening times changed.
Emma didn’t resign and her employer will likely agree compensation and discuss working hours with her. They probably fought the case because they were hoping for a precedent that they could use with other employees in the country. Their bill for employment solicitors to fight the case is probably several times the compensation payment.
Image by Eddie, licenced under CCRead More
Deliveroo, an online food courier, has come under criticism by employment law commentators due to its controversial contracts with delivery drivers. They seek to prevent their (self-employed) staff from being able to take court or tribunal action so as to be recognised as employees of the company.
The clause reportedly states that the driver promises not to bring any tribunal or court claims in which they contend that they are a worker.
Another clause adds that if such legal action is taken, the individual must pay Deliveroo’s legal costs of defending the claim.
Why is this a problem?
Deliveroo sees its couriers not as staff of the company but instead as independent contractors who are offering their services via Deliveroo’s IT platform. If this is what they are, they have fewer rights than employed staff and cannot bring tribunal claims or organise industrial action. Nor can they collectively negotiate better pay and conditions than the £7 an hour, and then £1 per delivery they receive.
In fact, they may actually be employees – until a case gets to a tribunal, it is often unclear what is the employment status of an individual who provides their services personally. Also, the exact definition of ‘employee’ can differ a little according to the exact claim being brought. Someone can be an employee for employment law purposes but not for tax purposes. Finally, even if they are not employees, they could be ‘workers’, who have some, but not all, employment rights (including working time protection).
It is clear that these clauses are not compatible with employment law, employment solicitors agree. A clause providing for reimbursement of legal expenses is of little or no legal effect, because penalty clauses are rarely enforceable and clauses barring access to an employment tribunal are never enforceable. Statutory employment rights can’t be waived outside an employment tribunal unless through a settlement agreement, on legal advice or through ACAS. A clause indemnifying an employer against the costs of defending a claim would likely be void for being contrary to public policy.
However that is no reason not to include such a clause in an employment contract as it will still discourage claims from employees, both those represented by employment solicitors and those acting alone.
By Stephanie Stevens
Some important caselaw from the Employment Appeal Tribunal has arrived in 2016, with important implications for how settlement agreements work (you may want to see our article on settlement agreements for an explanation of this term).
This case is a good springboard to examine the ‘without prejudice’ rule and look at s111A of the Employment Rights Act 1996 on protected conversations.
Be warned! This article discusses intricate details of what you are and are not allowed to tell a judge about “fireside chat” conversations that can lead to an employee resigning because they no longer feel welcome at a company.
“Fireside chat” is not a term used by employment solicitors. We use the phrase “settlement discussion” to refer to discussions, emails and documents where an employer puts to an employee the suggestion that they part company amicably and agree a price and other terms (confidentiality, a reference etc) for doing so.
Suggesting this to an employee can sever the employment relationship, because it effectively says “we don’t want you here any more”. This is constructive dismissal, if the employee resigns.
Before David Cameron and the coalition government took office, there was (and still is) a helpful piece of law to employers in the form of the ‘without prejudice’ rule. This rule allows a party to proceedings (not just employment tribunal cases) to keep from the judge’s eyes any communication aimed at reaching an amicable settlement of a dispute.
Once the chain of communication benefits from the ‘without prejudice’ rule, the employer can rest safe in the knowledge that the employee can’t bring an employment tribunal case because he wouldn’t have the smoking gun (the communication) as evidence.
So an employer would create a phoney dispute and then put the suggestion. It could start a disciplinary process and wait for the employee to reject the allegations by defending himself. Then start a ‘fireside chat’, with the ‘carrot and stick’ approach. Either the employee takes the carrot of the settlement agreement or faces the disciplinary stick. Depending on the amount offered, most employees take the carrot.
But this approach has problems. What if the employee plays the ‘contrite apology’ card? What if the employee defends himself but accepts that the employer was within its rights to start the process? There would be no dispute and the offer is not ‘without prejudice’. Employers could leave themselves vulnerable when they only wanted to see what price the employee would accept in order to go. They don’t see why just asking the question should effectively increase the price.
The big 2013 change – s111A
The change brought in by David Cameron was to allow employers to ask an employee if they would depart in return for a sum of money, when there was no dispute, without the employee being able to tell a judge about it in an unfair dismissal case.
The change is enshrined in s111A Employment Rights Act and uses the term ‘protected conversation’.
The 2016 case – Faithorn Farrell Timms LLP v Bailey
What does this case say?
It’s about the details. Until now, lots of questions have been unclear.
- Does s111A protection mean that an employee facing a carrot/stick disciplinary can string out a settlement discussion then resign because the disciplinary took too long?
After all, s111A prevents the judge being told about the existence of the carrot but not the existence of the stick. Maybe a judge can say that s111A only protects a genuine negotiation and that a dragged-out process is not a genuine negotiation.
- Can the parties agree to tell the judge about the settlement discussions? That is, can they waive the benefit of the s111A rule?
Sometimes both sides think it will help their case if the judge knows what was discussed at a meeting. Eg if a manager said “you’re a good performer, but you can’t work with others”, the employee may want to tell the judge about the first part and the employer may want to use the second .
- For that matter, there is a long history of parties waiving the protection of ‘without prejudice’ protection by accidentally referring to negotiations in letters and litigation documents. Can that happen with s111A?
- Does s111A stop a judge being told that a protected conversation took place or (as with the without prejudice rule) does it just stop the judge being told what was discussed in it?
- In what circumstances does an employer lose the benefit of the s111A protection?
For example if he gives a choice between signing a settlement agreement or a punch in the face, surely the law shouldn’t stop the employee resigning and referring to the Hobson’s choice? What about non-violent conduct, eg wanting to part company with an employee because of his skin colour?
The protection of the ‘without prejudice’ rule is lost where there is unambiguous impropriety”. The protection of s111 is lost where there is “improper behaviour”. So do these two terms mean the same thing?
- What if the employer has no intention of negotiating a departure but is just using the rule to be nasty to the employee? Should the employer be allowed to get away with that?
- Does s111A protection protect internal employer discussions or only discussions with the employee?
- For both types of protection, where is the line between negotiations (which are protected both under s111A and the ‘without prejudice’ rule) and stating your legal position (not protected by either rule)?
Typically, in a ‘fireside chat’ letter the employer may write something like this: “You have messed up six times and cost us a lot of money. Two clients refuse to work with you. In our fireside chat conversation you admitted setting fire accidentally to the kitchen. We want to offer you £10,000 to leave.”
It would suit the employer nicely to have everything except the last line before the judge. It would suit the employee to have only the last line before the judge. A compromise would be to keep the whole document from the judge. Are the allegations in this example a background part of the negotiation or separate from it? If background, then they get the protection of s111A and the without prejudice rule. If separate, they don’t.
So, those were the burning questions! This case answered them like this
- No, a party is not allowed to mislead the tribunal. If they claim wrongly that they resigned constructively because a disciplinary process was strung out, the employer is allowed to point to the fact that a settlement discussion was happening to overcome the constructive dismissal claim. This will not open the gate for the employee to rely on the settlement discussion for his constructive dismissal claim; he would now be shown to have tried to mislead the tribunal and probably would lose their credibility and the case with it.
- No, the parties can’t agree to dispense with s111A and tell the tribunal about the settlement talks. This is because the Employment Rights Act says that parties may not contract out of any statutory protections in the Act.
- As parties can’t waive s111A protection deliberately, they certainly can’t do it by accident. In this case, the employer made a mistake and accidentally waived the ‘without prejudice’ protection by referring to settlement discussions in its response to the employment tribunal claim. This didn’t matter to the unfair dismissal claim, which is also covered by s111A, but it still mattered to the discrimination part of the claim.
- s111A stops a judge being told that a protected conversation even took place, not just what was discussed or how much was offered. The ‘without prejudice’ rule only stops the parties telling the judge what was discussed, not that a discussion took place.
- An employer may lose the benefit of the s111A protection if there is “improper behaviour” and may lose the benefit of ‘without prejudice’ protection if there is “unambiguous impropriety”. The case says that lies, violence and “blatant discrimination” will probably be both.
Conduct that is not serious enough to be “unambiguous impropriety” may still be “improper behaviour”. There are no examples of this yet. But it makes it easier for the protection under s.111A to be lifted compared to “without prejudice” privilege.
- If an employer has no intention of negotiating a departure but is just using the rule to be nasty to the employee then this case says that s111A would no longer apply. So that matches the situation with the ‘without prejudice’ rule. But good luck to any employee who tries to prove that – it would be hard!
- Does s111A protection protect internal employer discussions? Yes. Just like the ‘without prejudice’ rule. So managers can discuss the situation with HR without fear that an employee will be able to show their emails to a judge at a later date.
- Where is the line between negotiations and stating your legal position? Unhelpfully, the case says it’s a decision for the judge on the day. But this has always been the case for the ‘without prejudice’ rule anyway so it wasn’t a surprise to employment solicitors. We think that letters containing the usual “background, carrot and stick” will usually be held to be completely covered by s111A.
Case report: Faithorn Farrell Timms LLP v Bailey
By Gareth Davies, with additional reporting by Jeffrey YipRead More
A recent case has held that employers will not get into trouble with employment law if they don’t follow the Acas Code of Practice on Disciplinary and Grievance Procedures.
Mr Holmes was a security guard who was dismissed after eight years on the grounds of his ill health. He had long-term pain in pain his back, legs and hips. The employer had to accept that the dismissal was unfair – presumably acting without the assistance of employment solicitors, it hadn’t obtained a recent occupational health report. So this case was all about the amount of compensation Mr Holmes should get.
We have an article about maximising compensation in tribunal claims.
One of the parts to an unfair dismissal compensation claim is the employment law rule that if either party unreasonably fails to follow the Code of Practice, the compensation can be increased or reduced by up to a quarter. This encourages employers and employees to do everything possible to ensure a fair dismissal or avoid one entirely. For example, it provides for proper investigations, warnings and an appeal process.
The employee complained that the employer had failed to observe the employment law rule enshrined in the Code that a proper investigation should take place into the illness. To be clear, this mistake had already made the dismissal unfair. After all, Mr Holmes had had an operation that cured the pain and he shouldn’t have been dismissed. The question in employment law was whether the compensation should be increased by up to 25% or not.
The Code is called the Code on Disciplinary and Grievance Procedures. Are absence dismissals a disciplinary procedure?
The Code itself says:
- “This Code is designed to help employers, employees and their representatives deal with disciplinary and grievance situations.
- Disciplinary situations include misconduct and/or poor performance.
- This Code does not apply to redundancy dismissals or the non-renewal of fixed term contracts on their expiry.”
Absence is not in the list of things that are included and not in the list of things that are excluded. It is surprising that the matter hasn’t come up in the employment tribunals before now.
The EAT (employment appeal tribunal) decided that the Code did not apply because illness is not misconduct or poor performance. There is nothing “culpable” about being ill. Although illness can be cured, it is through the work of doctors, not the work of the employee.
Until this case employment solicitors had advised that the Code should be followed just in case. Now, there is one fewer thing to trip up HR professionals.
Case report: Holmes v QinetiQRead More
A new scheme came into force on 6 April 2016 that penalises employers who lose employment employment tribunal claims, employment solicitors Hatton James write.
If the employer does not pay an employment tribunal award or COT3 settlement the employee can contact the ET Penalties Team, who will liaise with the employer for payment.
A warning notice gets issued to the employer informing them that they may have to pay a financial penalty to the government if the employment tribunal claim award is not paid within 28 days. If the employer does not pay the award in this time, it costs them an additional 50% of the award by way of a fine (subject to a maximum of £5,000).
This system was brought in to deal with the problem of 35% of employment awards and settlements going completely unpaid and a further 16% being partly-paid. We have to say that our first advice looks into the chances of this and as a result we have only seen a couple of underpaid awards in our combined 15 years of practice of employment tribunal claims.
One such employment tribunal claim involved a hairdresser whose employer suffered financial problems and couldn’t pay staff on time. She resigned and brought a claim successfully but only recovered half of the award. Sadly, this is far from typical, though not so common with employees who are advised by employment solicitors.
Unpaid employment tribunal claims are difficult to deal with because they push up the cost of taking action against an employer for breaches of employment law. Solicitors’ fees can be high even without enforcement problems. You don’t know at the start of a claim whether you need to take enforcement action into account.
Enforcement action includes sending in the bailiffs, seizing bank accounts and forcing the employer to account for their income in a court. This process has been simplified in recent times but it is still far from straightforward.
We saw yet another news story recently about a female employee who was told by her employers what to wear in the office, which employment solicitors warn breaches sex discrimination laws.
Liberté Chan is a meteorologist (‘weather girl’ is considered demeaning these days) who was handed a cardigan live on air after viewers complained that it was too showy or revealing.
This is an American news story but it has gained international attention and is relevant to several recent news stories in the UK touching on work uniforms including this one and another that we reported on in our blog.
It may well give grounds for resigning and claiming constructive dismissal if your employer embarrasses you in front of colleagues / customers (or viewers in this case). Although the fact that live tv brings a very wide audience, publicity and little time to give properly-weighed consideration probably lowers the bar for the employer.
Employment solicitors have noted that it is overwhelmingly women who feature in these stories about what to wear at work. Men’s clothing appears never to be policed. This on the face of it is ‘institutionalised sex discrimination’ but to win a tribunal claim on this you would need to show that you in particular were treated that way because of your sex. It is a different thing altogether to show this in an individual case.
As we’ve said before, sex discrimination law recognises that the sexes have different bodies and that there are different cultural norms (it is normal for men to wear ties but unusual for women, who can show leg but men do not). The law allows employers to impose different dress codes on men and women for this reason.
This is odd from a conceptual point of view. The whole point of laws against direct sex discrimination (about treating men and women differently because of their sex) is to change cultural norms where necessary. That is why employers can no longer pay married women less or refuse to employ people of colour, which used to be common and even socially acceptable. So it is peculiar that a form of direct discrimination is permitted because it is socially acceptable.
However the law will step in if a certain boundary is crossed, it’s just that no-one knows where that is because so few cases come to tribunal. Our experience is that judges are very interested in picking on women for their clothing at work and will give the employee the benefit of the doubt when it comes to showing that it was different treatment; then the question becomes whether it was on the ground of their sex and the employer tends to get the benefit of the doubt about this issue of what is the cultural norm.Read More
An employment tribunals case involving the meaning of the Working Time Directive at the European Court of Justice (ECJ) has held that mobile workers’ travel between their homes and the premises of their first and last customers constitutes ‘working time’.
The rationale of the decision is that as the workers are acting ‘at the employer’s disposal’ for the time of the journeys and they can’t use that time to pursue their own interests, such journeys should count as ‘working time’. Although this case was referred by the Spanish Court, it is binding on UK employment tribunals.
Therefore, this ruling will have an impact on British employers who employ mobile workers. If the first and last journeys take an employee over the 48 hour a week limit, there will be a breach of the Working Time Directive. This could be a costly mistake for them if claims are brought in the employment tribunals.
The effect of this ruling could be a sharp rise in employers requesting mobile workers to opt out of the 48 hour Working Time Directive working week. Employers will want to ensure that mobile workers’ last assignments are closer to home or reduce their working hours.
Particular sectors that are likely effected include delivery drivers, aviation workers, sales reps and care workers.
This ruling leaves open questions for the employment tribunals. The term ‘home’ has not been defined for these purposes. For example, if the worker has more than one home, which one will count as his ‘home’ for these purposes? What if they are not going home but visiting family or friends at the end of their shift and this is further from or nearer to home? This will provide scope for negotiation for the employer until further clarification is made.
If the employer pays near to the minimum wage, this extra time could lead to breaches of the National Minimum Wage Act. Also, holiday time/pay is calculated based on working hours and employers who give the minimum holiday allowance could find themselves in breach of the Working Time Regulations and in front of the employment tribunal.
Case report: Tyco Integrated Security SLRead More