Category Archives: employee

Banning the Wearing of Muslim Headscarfs by Women in the Workplace Now Lawful!

68416330_lThe power of punctuation is alive and well, and proof if it were needed that the devil is always in the detail!

It would appear that the media have, over the past few days, encouraged a view that banning the wearing of Muslim headscarfs by women in the workplace is now lawful. While this is not quite “Fake news on a Trumpian scale,” it cannot be considered an accurate statement of the law either.

The igniter for these headlines is the recent European Court of Justices’ (“ECJ”) decision in the case of Achbita. In short, the case concerned a Belgian Company’s dress code that prevented employees from wearing any visible religious, political or philosophical symbols. The dress code was used as a basis for preventing a Muslim employee from wearing an Islamic headscarf while at work. The Court decided that, as the dress code applied to all religions, Ms Achbita was not treated less favourably on the grounds of her race.

Before we begin basking in the euphoria of premature conclusions that a blow has been struck for common sense, it is worth noting that the Court, unprovoked, added that it was possible for this position of neutrality adopted by the employer to be indirect discrimination.

By way of example, if Ms Achbita had not been a customer facing employee, preventing her from wearing her headscarf at work may amount to discrimination if the employer could not objectively justify the ban.

Employers need to be alert to the fact that although having a dress code prohibiting the wearing of all religious symbols in the workplace may provide a defence against a claim of direct discrimination, it will not by itself defeat all discrimination claims associated with the wearing of religious symbols. It is also worth noting, although outside the scope of this article, that if the dismissal was because of Ms Achbita’s insistence on wearing her headscarf in a customer facing role, exploring whether she may be placed in a non-customer facing role may affect, under English Law, the fairness of the employer’s decision to dismiss.

Consider for instance the case of Bougnaoui, here the ECJ decided that it was unlawful for an employer to accept a customer’s request not to be served by an employee wearing an Islamic headscarf. The Court did not consider the wishes of a customer to be a “genuine and determining occupational requirement,” which would have justified the discrimination.

There will always be a balance to be struck between the interests of the employer and the detrimental impact on the employee. In the case of Bougnaoui the ban amounted to direct discrimination because it was imposed in response to a customer’s objection rather than being based on any existing dress code designed to achieve neutrality.

As a general approach, employers should treat employees’ requests to circumvent a dress code for religious reasons carefully, sensitively and respectfully; and should consult with the employees with a view to reaching a satisfactory solution. This may very well prevent an employer from having to defend itself against such claims.

Gig Economy?

No FaceThe increase in ‘on demand’ relationships between commercial enterprises and individuals wanting to provide their labour in an informal and flexible way for short-term engagement opportunities poses a significant challenge to employment legislation and Her Majesty’s Revenue & Customs (HMRC).

The emergence of the so called “gig economy” defies traditional definitions of labour relationships as it is based largely around the use of technology platforms, often the mobile phone, to connect suppliers and users.
Prime examples are Uber, Airbnb and City Couriers.

If these engagements can be defined as employer/employee relationships, then current employment and taxation legislation will apply with the inevitable result of increased cost to commercial enterprises and increased protection for those supplying labour. The potential loss of revenue and absence of protection is leading to greater scrutiny of worker relationships in the ‘gig economy’ and in more traditional industries such as logistics, transport and construction where there is a practice of treating labour suppliers as self-employed.

Both Uber and City Couriers have been the subject of successful legal challenges to the self-employed status brought by labourers. There also appears to be an increase in the number of HMRC investigations conducted into employment status. The current uncertainty around a precise definition of “employee” that can be universally adopted by the legislature, commercial enterprises and individuals is certainly a cause for concern. Currently, UK law recognises three broad categories of labour provision; ‘employee’, ‘self-employed’ and ‘worker’ each carrying different rights and obligations

It appears that nowadays one approach that may be adopted by the courts to deal with thorny relationships that defy easy definition is to say, ‘you know it when you see it.’ Arguably such an approach inevitably leads to an increase in cases to determine employment status coming before the courts.

Historically, the courts have endorsed a list of questions, the answers to which assisted in determining whether the person or persons undertaking activities for a business was an employee, a worker or alternatively in business on their own account.

By way of example could an individual send someone else in their place to carry out the work instead of doing it themselves, were they entitled to paid holiday, did they have an opportunity to make a profit or run the risk of making a loss in carrying out the work, and could they turn the work down if it was given or were they legally obliged to do it? The answers to these questions were very often indicative of the type of relationship that existed. It appears that the weight given to these indicators by the courts has lessened if recent decisions are anything to go by. In the meantime, business owners should take heed, the label that the parties attach to the labour supply relationship will carry far less certainty without careful navigation through a number of signposts.

If you engage any labour on a self-employed basis and would like assistance in reviewing your current contractual relationships, contact a member of the team at FG Solicitors on 01604 871143.

Protected Conversations Must Remain Secret

SUMMARY: Learn more about protected conversations with your employeesPrivate conversations

In 2013 there was a welcome change, which now enables employers to have what are called protected conversations with their employees about ending the employment relationship.  Previously, employers had been nervous about having such conversations, due to the risk that an employee would later rely on what had been said as evidence in an unfair dismissal claim.

Since then employers in some circumstances have been able to speak more freely with those employees who are not considered to have a future with the organisation, usually because their performance or conduct is substandard. Once the discussions have started, there are likely to be two outcomes:

  1. The employee agrees to leave and their departure is managed with a settlement agreement to remove the risk of any tribunal claim. To learn more about settlement agreements, please click on the following link – http://www.fgsolicitors.co.uk/news/settlement-agreements-a-perfect-ending/
  2. The employee declines the offer of an agreed departure.  If that is the case, the employer can then go back to its internal procedures to manage the situation. If the employee is subsequently dismissed, the following protection arises so that there can be no reference to either:
  • the content of any settlement offer or the pre-termination discussions; and/or
  • the fact an offer has been made or pre-termination discussions have arisen. This level of protection has recently been confirmed by the Employment Appeal Tribunal, which explained that an employee should not be able to refer to the fact discussions have taken place pre-dismissal in an unfair dismissal claim.

Clarification was also provided that the protection extends to any internal discussions between different managers and human resources.

Protected conversations are potentially a safe way of managing straightforward people management issues. Employers however wanting to have such discussions should be aware of the following:

  • The protection is lost if either party engages in improper behaviour including for example, bullying, harassment, discrimination, victimisation, physical assault, or undue pressure.

Telling an employee that the capability or conduct procedure will be invoked if terms cannot be agreed would not be improper behaviour.  Stating that the individual would be dismissed if they do not agree to leave would be improper behaviour.

  • The employee should be given a reasonable period of time to consider any offer and take advice; ten days is usually considered to be reasonable in most cases.  Although there is no statutory right to be accompanied at any meeting where a protected conversation takes place, as a matter of good practice an employee should be entitled to be accompanied by a work colleague or a trade union representative.
  • The protection will only apply in respect of “ordinary” unfair dismissal claims. Where an employee brings proceedings for automatically unfair dismissal (for example, whistleblowing or health and safety), or any other claim such as discrimination or breach of contract, the protection afforded to pre-termination negotiations will not apply.  This does therefore create inherent uncertainty in the effect of initiating a pre-termination negotiation until an employee commences proceedings, or decides not to do so as settlement terms have been agreed.

If you consider that you may want to have a protected conversation with an employee, it is preferable to take legal advice before doing so.  This will ensure that you are confident that a protected conversation is the right way forward and if not, what other ways there are to managing the situation.

Contact Details

To explore how protected conversations and settlement agreements can provide solutions to workplace problems – please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Farewell EU – What Now?

Union Jack-01

“The will of the people must be respected” says Prime Minister David Cameron on the outcome of the UK referendum on membership of the EU. One can’t escape the view that this should read “the will of the people must be interpreted.”

As of 6.00 am today, we as a nation appear to have become victims of unanticipated consequences, and are now at the mercy of outcomes that are not the ones foreseen and intended by our purposeful actions. I fear that full appreciation of the consequences of our actions will not be achieved for some time as predictions indicate that it will take at least 2 years to achieve disentanglement from our European partners.

In the immediate haze of global reaction, currency free-fall, stock exchange hysteria and concern about future trading conditions with the remaining 27 member states of the European Union, there is a risk that UK businesses may defer undertaking a strategic review of the impact on their workforce resulting from Brexit. In the short term, the biggest risk to workforce productivity will be uncertainty, particularly for those members of the workforce that are EU nationals and those that are British nationals working throughout the EU, currently estimated to be around 1 million. The uncertainty could manifest itself in key individual members of the workforce exiting of their own accord to seek greater stability elsewhere. It is essential that individual businesses develop effective operational and communication strategies without delay!

As UK businesses grapple with the challenges of negotiating commercial trade agreements in the new post EU membership world of tariffs and barriers to entry, it is a realistic possibility that revenue streams will become less profitable and this may inevitably lead to a rebalancing of profit margins by reducing headcount. A strategic review now, if operational effectiveness is to be maintained, will be well worth the effort.

And what, I hear you cry, of existing EU Legislation? The short answer is that a lot of EU laws are already incorporated into our domestic legislation through Acts of Parliament and Regulations, while there may very well be some tinkering in the medium to long term, it is unlikely, in this employment lawyer’s view, that our exit from the EU will result in any wholesale overhaul of our domestic employment legislation.

When the dust finally settles on the UK’s exit from the EU, the issue of Border controls and immigration status will become a further challenge for UK business whether domiciled in the UK or within the EU and using UK labour. While this may very well be 2 years away, businesses are encouraged to consider the implications now and devise a strategy to deal with potential key skills loss, recruitment and succession planning.

For advice and assistance with any employment law, HR or corporate immigration issue contact FG Solicitors on 01604 871143 or visit our website at www.fgsolicitors.co.uk for further information.

Football Hooliganism – Can You Dismiss?

FG_Soccer-01

Media continue to focus on football hooliganism at Euro 2016 – what’s that got to do with your staff?

Most individuals will support their chosen nation from the comfort of their armchair over the coming weeks, but some will be lucky enough to have time off work to travel to France to indulge their passion for live football.  Whilst in the minority, there will be others whose only goal will be to indulge their passion for football hooliganism.

The French authorities have shown zero tolerance towards to any bad behaviour; the response has been and continues to be swift. Depending on the severity of the offence, guilty fans have been fined or given custodial sentences irrespective of nationality.

What is your response if one of your employees is one of these guilty fans who is incarcerated in France?  

Your immediate reaction may be to dismiss the employee, but is this fair if their imprisonment arose from actions that were completely separate to their employment?

The answer is that where there is misconduct outside of the workplace, it might be fair to dismiss where the misconduct affects (or could affect) the employee when they are doing their work.

Be aware there is no automatic right to dismiss

An employer cannot automatically assume that an employee can be dismissed because they have been convicted of a criminal offence, even where they are given a custodial sentence – see below.  An employer would need to consider:

  • what effect the conviction has on the employee’s suitability to do their job; and
  • their relationship with their employer, work colleagues and customers.

Cases involving violence, such as hooliganism, are more likely to affect the employment relationship either because of:

  • the nature of the work (if an employee’s job is working with children or vulnerable people any form of violence is unlikely to be tolerated); or
  • damage to the employer’s reputation (no employer is likely to want to be associated with football hooliganism and this could cause more damage to some organisations than others.  If there is significant negative publicity in the media, this is more likely to damage an organisation’s reputation).

An employer who dismisses in response to an employee’s criminal conviction without having considered the elements above, should expect swift receipt of an unfair dismissal claim (unless the employee has less than 2 years’ service, and so will not usually be able to bring such a claim).

What if the employee is in prison?

If an employee is in custody, the employer must also consider whether, in light of the needs of the organisation, the employee’s job can be held open.  The longer the period of imprisonment, the more likely it is to be a fair decision that the employee’s job cannot be held open.

In some cases where there is a particularly long duration of imprisonment, employment may end by reason of “frustration”, which mean the contract can no longer be performed.  In theory, no process needs to be followed if frustration applies.  Employers should always seek legal advice on whether this could apply rather than assuming that it will; frustration is a concept employment tribunals often struggle with as a reason for concluding the employment has ended.

Follow a reasonable process

When there is a criminal charge or conviction, a reasonable and fair process should be followed, as with any misconduct dismissal, which should consist of a reasonable investigation followed by a disciplinary hearing where the employee has a reasonable opportunity to respond to the allegations against them.  If, however, the employer cannot contact the employee or the employee will not co-operate, this does not mean the employer cannot continue with the process; an employer could offer to conduct the process in writing or based on the information they have.

Contact Details

For further advice on dismissing employees who have been charged or convicted with a criminal offence – please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Apprentices – Four Reasons and a Risk

160607 Apprenticeship Training CareerSUMMARY: Four reasons to engage an apprentice and how to overcome the main risk

The government has been encouraging employers to engage apprentices and many employers are now seeing the benefits of them.

Four key benefits

1. National Insurance Contributions (“NICs”)

Since 6 April 2016, employers do not have to pay class 1 NICs for apprentices who are earning less than £827 a week (£43,000 a year) and are:

  1. under age 25; and
  2. following an approved UK government statutory apprenticeship framework.

Specific evidence is needed to show that these two requirements are satisfied. For example, an appropriate agreement.

 2. Apprentice rate minimum wage

If the apprentice is in the first year of their apprenticeship or is under the age of 19, employers can pay the apprenticeship rate, which is currently £3.30 per hour.

3. Gain skills in areas your organisation needs to grow

Organisations will be constantly considering and implementing new ways to grow.  Apprentices can be a cost effective way of supporting the larger strategic aim.

4. Funding

There could be funding available from the Skills Funding Agency to your business to support apprenticeship programmes.  Further information can be found at www.gov.uk/government/organisations/skills-funding-agency

Risks

The intention is for the apprenticeship relationship to be a positive and beneficial one for the organisation and the individual. However, not all working relationships will be harmonious.  If things do not work out, employers need to be able to address problems and ultimately dismiss individuals both fairly and lawfully if problems subsist; this is often where the risk lies.  Why?  Apprentices can have enhanced rights on dismissal, which limits the ability to terminate the agreement without potentially a significant financial liability.

Having the right agreement in place lowers the risk by ensuring an apprentice can be dismissed in the same way as an employee.

More Information

For more information on apprenticeships and how you can make them work for you, please visit: http://www.fgsolicitors.co.uk/news/apprenticeships-make-them-work-for-you/

Alternatively, if you would like more information on other contract essentials, please visit: http://www.fgsolicitors.co.uk/news/contract-essentials/

Contact Details

If you are considering recruiting an apprentice and want to benefit from the above advantages, without worrying about the risk, please contact us:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Working Out Working Time

working-timeSUMMARY: Are your working practices in line with the Working Time Regulations?

Any organisation will want to manage its hours to meet the needs of the business.  In doing so it will, however, always be important to ensure that the statutory requirements under the Working Time Regulations are satisfied.  Our quick guide below will help you to check if you are doing what you need to do.  It is important to remember these rights apply to both employees and workers.

Holiday

Workers are entitled to take 5.6 weeks (28 days) of paid holiday each year – this entitlement is calculated on a pro-rata basis for those working part-time.

For a more details on holiday entitlements please click here for our fact sheet on holiday entitlements.

Rest periods

Workers are usually allowed the following rest periods:

  • 11 hours’ uninterrupted rest per day;
  • 24 hours’ uninterrupted rest per week (or 48 hours’ uninterrupted rest per fortnight); and
  • an unpaid rest break of 20 minutes when working more than 6 hours per day.

In some cases it may be possible to require a worker to work during a rest period; compensatory rest will usually have to be given.

Average working time

Average working time should not exceed 48 hours per week, unless the worker has opted out.

Night workers

  • Night workers’ normal hours of work should not exceed 8 hours per day on average.
  • No night worker doing work involving special hazards or heavy physical or mental strain should work for more than 8 hours in any day.
  • All night workers should have the opportunity of a free health assessment when starting night work and at regular intervals when working nights.
  • If a doctor advises that the night work is causing health problems, transfer a night worker to day work where possible.

Young workers

Young workers (those under 18 but over compulsory school age) have additional protection.  They:

  • are entitled to a 30 minute unpaid rest break if they have worked for more than 4 hours 30 minutes,
  • must not work more than 8 hours per day,
  • must not work more than 40 hours per week; and
  • must not generally undertake night work.

Opt-outs/agreements

A worker can agree to work more than 48 hours each week by signing an opt-out agreement; young workers cannot opt out.

Other limits, for example relating to night working, rest breaks and rest periods can be modified by agreement.  Usually, this must be done with a collective agreement or workforce agreement.  If such modifications are required, we would recommend you take legal advice.  There are some strict rules which must be complied with to ensure the workers’ rights are validly modified.

Records

Record keeping is important as it will show workers’ rights are being complied with.  Equally, it is a strong indicator of good health and safety practices.

Special rules

Note that there are special rules in relation to certain groups of workers, such as the armed forces, which we have not covered here.

Contact Details

If you would like more information on working time obligations, including how to modify them – please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Settlement Agreements – A Perfect Ending!

160519 Settlement AgreementSUMMARY: Learn more about settlement agreements with the answers to some of the most frequently asked questions.  

Q: When can we use a settlement agreement?

A:   Settlement agreements are often used to resolve workplace disputes, and to give the employer the certainty that once the agreement is signed there will be no subsequent employment tribunal claim from a disgruntled employee.  More often than not, the employment relationship will have broken down. The focus then is usually on avoiding unfair dismissal and discrimination claims. A whole raft of statutory employment rights and breach of contract claims can also be compromised.

There does not necessarily need to be a dispute as settlement agreements can be used in a variety of other circumstances where the employment will end.  For example, where there are performance or ill health issues, a voluntary exit or a restructure.

Settlement agreements are not however always about the employment relationship ending, as they can be used at any time during the employment relationship to resolve workplace disputes. For example, if there has been a complaint about how holiday pay has been calculated.

We would recommend that where a settlement agreement is being contemplated, legal advice is taken before any discussions take place with the employee so that any legal risks are identified and then can be properly managed.

Q: What are the benefits of using a settlement agreement?

A:  A settlement agreement allows an employer to manage legal, commercial and reputational risks all in one go in the knowledge that there will be no tribunal claim.  Significant management time, stress and expense can be saved.

Terms can also be agreed on issues that a tribunal would be unable to address. For example, the offer of a positive reference; or the introduction of post termination restrictions, where the existing contract is silent on the employee’s activities once they have left.

Settlement can also keep a dispute out of the public eye and be subject to strict confidentiality provisions.

These benefits need to be balanced with the fact the employee will want something in return, no matter how at fault they may be. Money is usually the main consideration but the circumstances may dictate an entirely different exit package.  There are also restrictions on an employer’s ability to compromise personal injury and accrued pension rights claims.

Q: Are there any essential requirements which need to be complied with to make the deal binding?

A: The following are essential to ensure that the employee is not able to bring an employment tribunal claim:

  • The settlement agreement must:
    - be in writing;
    - identify the complaints to be compromised; and
    - state that it satisfies certain legal requirements.
  • The employee must also have received independent legal advice.

A poorly drafted agreement or one which has been incorrectly signed may leave the door open for an employee to bring a tribunal claim, even if they have already been paid a sum of money.

Q: How long should we give an employee to consider a settlement agreement?

A: An employee should generally have at least 10 days to consider the settlement agreement and obtain legal advice. A shorter period could lead to allegations of undue pressure, permitting reference to the settlement offer in a subsequent tribunal claim, if settlement is not reached.

If there is a commercial imperative requiring a shorter period, legal advice should be taken.

Q: Do we have to pay for the employee’s legal advice?

A: An employer is not obliged to pay the employee’s legal costs.  To get the job done, an employer will often choose to make a contribution.  A good starting point is £250 plus VAT. The following factors may demand a higher contribution: locality, seniority of the employee and the complexity of the case.

Q: Can we recycle a settlement agreement used in the past for a different employee?

A: We would caution against recycling for two reasons:

  • Each employee’s circumstances are different; and these circumstances need to be taken into account in the agreement. A one size fits all approach will not provide the employer with the best possible protection; and may give no protection at all.
  • Any changes to the law may require amendments being made to the agreement.

Contact Details

If you would like to explore whether a settlement agreement may be the best option for your business where you have a workplace problem – please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

FG Solicitors’ quick guide to key payments by employers

As part of our popular “quick guides” series, our team of employment law experts has produced an easy to use guide to key payments by employers. For more comprehensive advice on payments which should be made as well as when employees qualify for them, please contact a member of our team using the details below.

STATUTORY WEEKLY PAYMENTS DURING ABSENCES FROM WORK

April 16

Maternity/adoption pay prescribed rate (max)

£139.58

Paternity pay (max)

£139.58

Shared parental pay (max)

£139.58

Sick pay

£88.45

Lower earnings limit  (a)

£112.00

 

NATIONAL MINIMUM WAGE RATES (HOURLY)

April 16

October 16

Apprentices  (b)

£3.30

£3.40

Age 16-17

£3.87

£4.00

Age 18-20

£5.30

£5.55

Age 21-24

£6.70

£6.95

National Living Wage (Age 25+)

£7.20

£7.20

 

KEY COMPENSATION LIMITS

April 16

Week’s pay

£479

Statutory redundancy payment: up to 30 weeks’ pay

£14,370

Unfair dismissal basic award: up to 30 weeks’ pay

£14,370

Unfair dismissal compensatory award  (c)

£78,962

Breach of right to be accompanied: up to 2 weeks’ pay

£958

Breach of flexible working regulations: up to 8 weeks’ pay

£3,832

Failure to give written particulars of employment: 2 or 4 weeks’ pay  (d)

£958 or £1,916

Breach of contract claim in employment tribunal

£25,000

Failure to inform or consult: collective redundancy  (e)

90 days’ pay

Failure to inform or consult: TUPE transfer  (e)

13 weeks’ pay

…….

Key:

(a). To qualify for these payments, in addition to other criteria such as length of service, the employee must earn the same or more than the weekly lower earnings limit (“LEL”), which is set by the government. The LEL from April 2016 is £112.00 before tax.

(b). Only applicable to those under 19 or in the first year of their apprenticeship. For all other apprentices, refer to age bands.

(c). Maximum compensatory award is lower of statutory limit or 52 weeks’ actual gross pay at the time of dismissal. Limit does not apply where reason for dismissal or redundancy selection is carrying out health and safety activities or making a protected disclosure.

(d). Please see our guide to essential contracts.

(e). Calculated by reference to employee’s actual gross pay – the limit on a week’s pay does not apply.

Contact Details

For more details about amending handbooks or contracts of employment or consulting with your workforce please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Resolving Employment Disputes

10032845_mSUMMARY: What do you do when a tribunal claim is brewing…. Fight or Flight?

Whilst the number of tribunal claims are down, claims are still happening; unfair dismissal claims still prevail but often more complex issues such as discrimination and whistleblowing are involved.

Being on the receiving end of a tribunal claim can feel acutely painful from both a time and costs perspective. The following are a few simple do’s and don’ts to help manage a dispute which is brewing.

DO consider all the options for dealing with a dispute or a tribunal claim.

For example:

  • Acas Early Conciliation

Before a claim can be started an employee must contact Acas; Acas will then establish if the employee and employer can resolve the dispute without the tribunal’s intervention. Neither party has to participate in the process and if settlement cannot be reached, the employee is then free to claim.

Even if there is no interest in settlement, this process may serve as a reconnaissance exercise to understand more about the employee’s complaint in preparation for defending any subsequent claim.

  • Defend the case

Some employers may prefer not to shy away from the gaze of the tribunal because the complaint requires a robust response.  For example:

  • there is no case to answer;
  • the employee’s settlement expectations are unrealistic; or
  • there may be important financial and commercial considerations. Disabusing staff of a settlement culture may be one reason. Broader issues may also be at stake, which relate to pay, hours and holidays.
  • Judicial Mediation

Mediation has the advantage of taking place in a less formal setting in comparison with a full tribunal hearing. The mediator, an employment judge, will work with the parties on a confidential and without prejudice basis to explore if there is a way of resolving the dispute.  The parties are free to discuss their differences and consider the options for resolving the dispute, without the fear of their discussions being repeated if the mediation fails.

Agreement can be reached on matters which a tribunal would not be able to address. For example, the employee leaving, an apology or a reference being issued, or the employee being provided with assistance to find another job.

From an employer’s perspective a satisfactory commercial outcome, without having to concede its position can often be achieved.

  • Settle the case before the hearing

Once a tribunal claim has been issued, the Acas conciliation service will still be available to consider with the parties whether there is a solution. Settlement agreements can also be used.

DON’T ignore a tribunal claim once received.

Employers only have 28 days from the date when the claim is sent to respond to the tribunal setting out why the claim is disputed.  A response will usually be rejected if received after the expiry of the 28-day time limit.  Possible consequences are that a judgment could be issued without the employer being able to defend its position. This could be costly as compensation for discrimination claims is uncapped, and the maximum compensatory award for unfair dismissal from 6 April 2016 is the lower of £78,962, or one year’s pay.

Until and unless settlement is properly concluded, a response must always be filed.

DO consider ways to limit an employee’s opportunity to bring a claim in the first place.

Effective ways to reduce the risk include:

  • having legally compliant contracts of employment and policies and procedures;
  • introducing a robust appraisal system and ensuring current job descriptions exist;
  • communicating to staff the expected workplace standard of behaviour to reduce the risk of harassment and discrimination claims; and
  • dealing promptly and fairly with grievances and whistleblowing complaints.

DON’T forget …..

…. if a dispute arises, a sound strategy, which acknowledges the needs of your organisation and the merits of the complaint, will go a long way towards finding the right solution, whether that be a hard fight in the tribunal or a quick exit via the settlement route.

Contact Details

If you would like to identify the right strategy for your employment disputes, please contact a member of our Employment Law team:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.