Tuesday, 24 January 2012

Transitional arrangements for UD

The Department for Business, Innovation and Skills (BIS) has confirmed to IDS Brief that the increase in the qualifying period for unfair dismissal claims to two years will only apply to those starting a new job on or after 6 April 2012. Employees whose employment started before 6 April will remain subject to the one-year qualifying period. Thus, someone with 18 months' continuous employment on 6 April will not lose their right to claim unfair dismissal, and an employee with 11 months' service on that date will still only have to wait one month before being able to claim.

DAC Beachcroft welcomes any reduction in consultation period

While most organisations report that the prospect of having to conduct collective consultation does not mean they would put off large scale restructures / redundancies, the majority state that a shortening of the 90-day consultation period would be beneficial to UK business and organisations, according to leading international law firm, DAC Beachcroft LLP. It is likely however that there will be many who believe that the 90 day limit is essential for useful consultation.

DAC Beachcroft LLP will be responding to the latest Government call for views on the rules governing large scale redundancy consultations and the effectiveness of the 2006 changes to the TUPE Regulations. In a move designed to validate its response the firm has canvassed the opinion of approximately 2800 of its client contacts on effects ‘at the sharp end’ in a recent survey.

The responses received to date indicate that:

· A shortening of the 90-day consultation period for 100 or more redundancies would be beneficial to UK businesses and organisations.

· The current 90-day period gives rise to consultation fatigue, additional costs, uncertainty for employees and unprofitable delays.

· A period of between 30 to 45 days would be more appropriate/workable (80 per cent).

· More clarity is required on the formal definition of an ‘establishment’ for the purposes of collective redundancy consultation (respondents were divided as to whether this referred to ‘company’, ‘location’, ‘role’ or a combination of these and other criteria).

· On balance the 2006 changes to TUPE made the question of whether TUPE applies clearer, however, a specific time period for TUPE consultation would be welcomed rather than the current requirement to consult for “long enough” prior to the transfer, and the current time limit to submit “employee liability information” of 14 days prior to transfer is considered to be far too short.

· There is uncertainty at the moment as to whether employers can effectively start the collective redundancy consultation process in advance of any TUPE transfer. The majority of respondents (82%) would like it to be clear that they could do this without running any legal risk.

Overall, it appears that the 2006 TUPE changes, while welcome, need further clarification and simplification to reflect changes in the trading environment and contemporary working practices.

Commenting on the survey findings, Chris Syder, Partner said: “The Government’s two calls for evidence gave the firm a clear opportunity to represent the views of our clients and those who are affected by having to implement these legal requirements at the sharp end. There is a clear message to Government that UK business is finding the collective redundancy process cumbersome and confusing in practice.

“We would call upon the Government to listen carefully to these employer views and consider them when formulating future revisions to the existing regulations. 80% of those responding to our survey feel that the 90 day consultation requirement should be reduced to between 30 and 45 days. In the current economic climate, every effort should be made to help businesses in their attempts to adapt commercially to challenging market conditions. Employers clearly desire less rigid consultation period requirements”

The Department for Business Innovation & Skills published a call for evidence on the effectiveness of collective redundancy consultation rules [insert link] and separately the TUPE Regulations 2006 http://tinyurl.com/72rx4sg at the end of November 2011. The deadline for responses is 31 January 2012.

Monday, 16 January 2012

How to minimize compensation claims

For many employment lawyers this post will be old news but there are tactics which may be adopted when you know that a settlement is far off and the writing is on the wall for your defence in an unfair dismissal claim.

The Claimant obviously has a duty to mitigate his/her loss or in other words to look for other employment after their resignation/dismissal. The role although relevant can be at a lower level and with a slightly different skill set.

One really useful tactic is to send the Claimant job ads from a local paper or website prior to the tribunal hearing. Make sure that they are relevant to the individual's skill set and geographically possible. You can then ask the Claimant at the compo hearing why didn't they apply for the roles posted to them?

Additionally, very few people wish to return to their former workplace after a parting and so a good tactic is to offer the individual a different role at their own workplace.

Also conduct. If you can argue that the Claimant contributed in some way to their dismissal then you can ask for a percentage reduction in the compensation awarded.

Try and keep the award below 30k - anything above will be grossed up for tax reasons.

Of course obtain legal advice before taking them on.

Charles Price is a Direct Access Barrister, which means that you do not need a Solicitor before contacting him.

Sunday, 8 January 2012

Facebook uses in employment tribunals

Just a few reasons I have seen as to how the dreaded fbook has featured in employment tribunals:

1) To prove that a dismissed employee has a new job
2) To show that a dismissed employee was searching for a new job way before she actually resigned for a different given reason.
3) To show that she used swear words regularly and thus showing that the use of similar words could not have violated her dignity in a harassment claim.

For Solicitors and Barristers there are risks in joining clients on social media sites - see the following:

Joining clients on facebook 'could be contrary to ethical obligations'

The Law Society has issued a practice note addressing conduct in relation to social media. Engaging in 'social media' could present challenges to the core duties of professionals...
A vital passage from the guidance is as follows:

Wednesday, 4 January 2012

What to expect in 2012

What does 2012 have in store employment law wise?

Increase In Employment Tribunal Award Limits

As of 1 February 2012 the position will be as follows:-

maximum unfair dismissal compensatory award £72,300 (increased from £68,400)
maximum week's pay £430 (increased from £400 - this figure is used for calculating statutory redundancy payments and the basic award in an employment tribunal)
This now means that the maximum unfair dismissal award will be £85,200 (maximum basic award plus maximum compensatory award).

Bear in mind that there will still be no limit to the amount that can be awarded for unfair dismissal for certain health and safety and whistleblowing reasons. In addition, there is no limit to the amount that can be awarded for discrimination claims.

Pension Changes

October 2012 sees the implementation of auto enrolment for pensions. Although auto enrolment commences on 1 October 2012, duties upon employers will be staggered over four years, starting with large organisations. Once auto enrolment is implemented, all employers will require to automatically enrol eligible job holders into an appropriate pension scheme.

Family Friendly & Sick Pay Rates

From 9 April 2012, statutory sick pay will increase to £85.85 from £81.60 and statutory maternity, paternity, additional paternity and adoption pay will increase to £135.45 from £128.73.

Increase In National Minimum Wage

Not yet announced but, as per previous years, I would expect this to increase with effect from 1 October 2012.

Qualifying Period for Unfair Dismissal Claims

The qualifying period for raising a claim of unfair dismissal is set to increase from 1 to 2 years from April 2012. However, it is important to note that some claims for unfair dismissal do not require a year’s continuous service and certain claims will still be capable of being brought from day one of the employment relationship. Dismissals relating to discrimination, whistleblowing, exercising certain statutory rights, and health & safety-related reasons are not covered by the qualifying period and claims can be brought from the outset of the relationship. This will not change from April.

Employment Law Reform

The main changes proposed include increasing the qualifying period for unfair dismissal claims from one to two years, allowing, or certainly making it easier for, employers and employees to have frank discussions about any employment issues, and a revamp of the Employment Tribunals system.


Consultation has begun on proposals to introduce a fee structure in the Employment and Employment Appeal Tribunals.

Currently, Claimants are not required to pay to raise a claim or an appeal with the Employment Tribunals or the Employment Appeal Tribunals Office. The current consultation seeks views on two proposed fee charging schemes:

Firstly, that the level of fees charged will depend upon the nature of the claim and the stage proceedings reach. Two fees would be payable by the Claimant, one at the time the claim is lodged and the second for claims proceeding to hearing. For single claims, the initial fee would be between £150 and £250 and the hearing fee would be between £250 and £1250 depending on the type of claim. Once a claim has been accepted, six further fees would be charged for certain specified applications, for example a request for written reasons or a counterclaim.

The second proposal is that one main fee would be paid by the Claimant when the claim is raised, regardless of whether or not the claim progresses to a hearing. For a single claim, it is proposed that the fee would range between £200 and £1,750 depending on the amount being claimed. As above, six further fees for certain applications would be payable. It is proposed that for those Claimants seeking an award of over £30,000, the fee would be substantially higher than for Claimants who were seeking a significantly lesser sum.

For the Employment Appeals Tribunal the fee structure proposed is similar to option one, above, the proposed initial fee being £400 with a hearing fee of £1,200.

The consultation, which closes on 6 March 2012, seeks views on the proposal that the fees could be reimbursed by the unsuccessful party to the successful party should the Tribunal consider this to be appropriate.

Costs Awards and Deposits

Currently Employment Tribunals may award up to £10,000 in costs (or expenses in Scotland) against the unsuccessful party at a hearing, although this is rarely exercised in practice. It is proposed that, from April, the maximum amount of costs which could be awarded by the Tribunal will increase to £20,000.

If an Employment Judge considers that all or part of a claim (or a response) has little reasonable prospect of success, he or she may make an order requiring that party to pay a deposit of £500 or less as a condition of being permitted to continue to take part in the proceedings. As part of the reform, from April the amount of deposit a Tribunal can order a party to pay will increase to £1,000.


Currently, witnesses can apply to the Employment Tribunals Office to be reimbursed for the expenses incurred in attending a hearing. From April, this procedure will be withdrawn and the Tribunal will be able to direct parties to bear the cost of witness attendance, including the cost of witnesses called by the successful party.

Another change to come into force in April is in relation to witness statements. This will apply to Tribunals in England & Wales where it is standard practice to use witness statements at hearings. From April, witness statements will be taken as read at the Employment Tribunal unless directed otherwise by a Judge. The position in Scotland will remain unchanged as witnesses are usually required to give oral evidence without the use of witness statements.

Panel Members

Unfair dismissal hearings are heard by an Employment Judge and two lay members. From 1 April 2012 an Employment Judge will hear unfair dismissal cases alone. This change will be reviewed after a year in order to see how successful this is in practice.

ACAS Conciliation

It is also proposed that prior to submitting a Tribunal claim, a Claimant will require to submit details of their complaint to ACAS. Parties would then be offered pre-claim conciliation for a period of one month. In terms of time limits, if both parties agree to enter into pre-claim conciliation then effectively the 3 month time limit for submitting claims will be paused and the Claimant will have a month after the conclusion of pre-claim conciliation to present their claim to the Tribunal.

Flexible Working

It was hotly anticipated that an extension to the right to request flexible working would come into force in April 2011 for all parents with children under 18. However, this proposal was shelved but further proposals have now been outlined which introduce flexible parental leave and flexible working.

Flexible parental leave would allow unpaid leave for fathers to attend antenatal appointments and an 18 week period of maternity leave for mothers, followed by a new 34 week period of shared parental leave.

The right to request flexible working would be extended to all employees who have 26 weeks’ continuous employment, regardless of whether or not they have children. There would also be an introduction of a new requirement for employers to consider requests “reasonably”.

A time frame has not been suggested in relation to the flexible working changes, and these are key proposals only.

Protected Conversations

Consultation is underway on introducing a system of ‘protected conversations’ to allow employers to raise issues such as poor performance or retirement plans in an open way, free from the worry that it will be used as evidence in a subsequent tribunal claim.

Simplifying Compromise Agreements

Consultation on simplifying compromise arrangements, to enable two sides to reach a no-fault settlement in exchange for an agreement not to bring future claims. A standard text “settlement agreement” is proposed. In addition, the Government intends to rectify the issue relating to the wording of section 147 of the Equality Act which has caused some confusion as to whether discrimination claims can be compromised.