Category Archives: Unfair dismissal

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.

Going Up – Awards for Unfair Dismissal are set to Increase

160307 Unfair Dismissal Awards IncreaseSUMMARY: From 6 April 2016 employers will see a small increase to the limit on tribunal awards and statutory payments.

New limits have been introduced for dismissals which occur on or after 6 April 2016.  The old limits will apply to those dismissals before 6 April 2016.  The changes are summarised as follows:

Compensation Limit Current Figure From 6 April 2016 Comment
Maximum compensatory award for unfair dismissal. £78,335 £78,962 …or 52 weeks’ gross pay, if lower.
Maximum limit on a week’s pay. £475 £479 This figure is used for calculating:

  • the basic award in unfair dismissal claims; and
  • statutory redundancy payments.
Minimum basic award for certain types of unfair dismissal. £5,807 £5,853 This level of award applies to dismissals in relation to:

  • trade union membership or activities;
  • health and safety duties;
  • pension scheme trustees duties; or
  • acting as an employee or workforce representative.

Contact Details

For more details about Employment Tribunal claims and these limits 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.

Misconduct & Punishment in Employment

Punishment at workSummary: Disagreement between employer and employee is as old as the very concept of Master and Servant itself. As a general rule, where disagreement ends with an employer forming the view that an ending of the relationship is the outcome it desires, there are some mandatory steps that will need to be addressed.

An employer seeking to dismiss an employee will generally have to consider 2 key areas of law:

  1. the first answers the question, what if anything is owed to the employee as a result of the ending of the employment? – the contractual question;
  2. the second, is the dismissal fair in all the circumstances? – the protection afforded to the employee by Parliament; the statutory question.

The first question is arguably the one to answer. Consider the case of an employer wishing to terminate the employment of an employee for misconduct who has a contract entitling them to 6 months’ notice. Except for where the misconduct is of such an extreme nature that it amounts to gross misconduct, ending the employment without payment is likely to give rise to a successful breach of contract claim.

In a recent case, the High Court decided that an employee who sent a pornographic e-mail from a work account had committed an act which entitled his employer to dismiss him without paying him the 12 months’ notice to which he was entitled. This was in spite of the fact that the sending of the e-mail was discovered some 5 years after it had been sent and only as part of a fishing exercise conducted by the employer, specifically to find a reason to dismiss.

It is extremely important that an employer intending to dismiss in these circumstances does not, after discovery of the conduct, behave in a way that would lead to a view that it had waived its right to dismiss in these circumstances.

By contrast, whether or not the dismissal was fair, in all the circumstances, would largely depend on the procedure leading up to the decision to dismiss. In short, did the employer have a reasonable belief in the guilt of the employee based on the employer having undertaken a reasonable investigation? Finally, whether the decision to dismiss in those circumstances, as opposed to applying some other sanction, was reasonable.

Tackling the risk of a successful unfair dismissal claim is a juggling act requiring an employer to engage in a fair procedure free from bias, permitting the employee an opportunity to properly understand the allegations, to address them and to be accompanied if requested.

Having managed all of that, dismissing the employee as a result of the allegations must, on an objective view, be action that a reasonable employer would take. Applying this thinking to the case mentioned above, while the age of the offence might not matter, particularly if the employer had no knowledge of it, the decision to go on a fishing expedition to find misconduct that would allow an employer to dismiss for gross misconduct and in so doing avoid the obligation to pay notice, may very well be considered unfair. This is so even if in so doing the employer would not be in breach of contract.

Other considerations:

  • Ensure that if contemplating dismissing for gross misconduct, and your policies define types of conduct that you consider fall within that category, the current offence does not fall outside it. In a recently decided case where a tribunal found the dismissal of an employee to be unfair, one of the factors that influenced the finding that the dismissal was unfair was the fact that the employer’s policy stated that the offence which the employee was facing would be dealt with by a maximum sanction of a written warning.
  • Ensure that you follow your own laid down procedures.
  • Ensure your investigation is thorough, including follow up investigations.
  • Ensure the process is well documented including witness evidence and statements.
  • Wherever possible, ensure that each level of the process is chaired by someone different.
  • Permit an appeal.

Above all, obtain proper advice and support.

Contact Details

For more details 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.

Common Employment Myths

Perception v Reality

SUMMARY: Employers have a number of misconceptions about their rights in relation to employees. Read this if you want to know five common reasons employees may bring a claim against their employer when these misconceptions have been held.

Retirement

“I can retire someone when they reach 65”.

This is not the case. Retirement is no longer a fair reason for dismissal and an employer cannot force someone to retire unless it can be objectively justified (employers should seek legal advice if they think that a retirement may be objectively justified). If it cannot be justified, dismissal will be unfair and discriminatory on the grounds of age.

If an employee’s performance is not satisfactory, an employer should go through a performance management process in the normal way. If there are questions to be asked relating to workforce planning, consider incorporating discussions about an employee’s future plans, which would include retirement, into the appraisal system. However, only ask open questions about short, medium and long term goals and not direct questions about retirement. All employees irrespective of their age should be asked these questions.

All employees, irrespective of their age, should be treated consistently, otherwise there is a risk of age discrimination claims in an employment tribunal.

Probationary period

“I don’t need to give anyone an employment contract now, I’ll give it to them when they’ve done a trial”.

Employees should be issued with contracts when (or preferably before) they start employment. Employers should not wait until the “trial” period or any probationary period has expired. If certain key terms and conditions are not provided to them within two months of commencing employment, the employer could be liable to pay additional compensation to them if they bring a claim in an employment tribunal.

Employers should also be aware of the commercial risk. A retained employee could, at some point in the future, argue that they are not bound by the terms and conditions given to them after they have started. This could be an issue particularly if reliance on confidentiality provisions and post terminations restrictions is an important consideration for the employer.

Interviews and record keeping

“When I interview people, I just have a chat with them to see whether I like them or not. I don’t need to do anything more formal than that.”

An employer does not need to have an elaborate assessment regime set up to employ people. It is legitimate to have a short interview, but it is vital to have considered before-hand the skills, experience and personal attributes necessary for the job (which should have been done when creating the job description/person specification). Interview questions should focus on establishing whether the prospective employee meets the criteria for the job; similar questions should be asked of all candidates.

A record should be retained of the questions and candidates’ answers as well as the reason for selecting the successful candidate. Employers should be aware that unsuccessful candidates could make a data subject access request to obtain copies of these documents, particularly if they are unhappy with the decision. Managers when making their notes should be mindful not to incorporate opinions, which could cause embarrassment at a later date or could be used as evidence in an employment tribunal claim for discrimination.

Individuals do not have to be employed in order to bring a claim in an employment tribunal. A prospective employee who believes they have been discriminated against during the selection/recruitment process may bring a claim; any notes an employer has retained of the interview would be essential in the defence of such a claim.

Pregnancy

“She was pregnant at the interview and didn’t tell me. She’s not getting maternity leave – I’ll dismiss her.”

An employee has no obligation to tell a prospective employer that she is pregnant at the interview and the prospective employer should not ask this question because they would risk a sex/pregnancy/maternity discrimination claim. An employer cannot dismiss on these grounds as this would also be discriminatory. Compensation for discrimination in the employment tribunal is unlimited.

Employers should remember that all female employees, no matter how short a time they have been employed, are entitled to take maternity leave of up to 52 weeks and retain the right to return to a suitable job.

Outsourcing

We are going to outsource the cleaning to a cleaning company. We won’t need the cleaners we employ anymore so we will make them redundant.”

If an organisation has an outsourcing situation, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) may apply. This means that in some cases the organisation’s cleaners will automatically transfer on their current terms and conditions to the newly appointed cleaning company if this work is outsourced. If employees are dismissed because there will be an outsourcing, the employer could be in breach of TUPE and the employees could bring a claim for automatic unfair dismissal in the employment tribunal.

If an outsourcing is being considered, employers should seek early advice on whether TUPE may apply. If it does apply, an employer has information and consultation obligations to fulfil before the outsourcing takes place. Non-compliance could lead to an employer being ordered by a tribunal to pay up to 13 weeks’ gross pay per employee.

Contact details

If you would like advice on any of the issues raised in this article, 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. 

Employment Law Update Seminar 2016

Employer update seminarDate: Wednesday 13 January 2016

Time: 8:00 – 10:00 am

Cost: Free including breakfast

Venue: FG Solicitors Offices, 2 Deanery Court, Grange Farm, Preston Deanery, Northampton, NN7 2DT

Despite statistics showing a drop in tribunal claims, many cases reported in 2015 have kept us all on our toes.

Start 2016 with a review of key employment law decisions and how these will impact you and your business.

Key cases we will cover include:

Unfair dismissal

  • When can employees involved in an incident be treated differently?
  • Offensive tweets
  • Post-natal depression
  • Is a confession enough?
  • Positive cocaine testing

Working Time

  • Is travelling time working time?
  • Is “on-call” working time?

Whistleblowing

  • When is a disclosure in the public interest?

Equality Act

  • Does this cover caste discrimination?
  • Is obesity a disability?
  • Is an OH report enough?
  • What constitutes associative disability discrimination?

TUPE

  • When is there a transfer?
  • What happens to employees on sick leave at the time of transfer?

And much more…

To book your place at our seminar, please contact us using the details below:

info@fgsolicitors.co.uk

+44 (0) 808 172 93 22

We look forward to seeing you at our next seminar.

If you feel this seminar would benefit other colleagues or companies please feel free to forward the details on.

Discount the Importance of an Appeal Hearing at Your Peril?

Appeals ProcedureSUMMARY: Whilst many employers’ primary aim is to get the investigation and disciplinary hearing out of the way, the importance of the appeal stage should not be underestimated.

Why offer a right of appeal?

The right of appeal is a fundamental step in any disciplinary process. Not only is this right a matter of good HR practice, the ACAS Code of Practice on Disciplinary and Grievance Procedures confirms that an employee should be allowed to appeal any formal decision (ranging from a warning to a dismissal) where they consider it is wrong or unjust.

Whilst not common, employees may have a contractual right to an appeal and, if so, the contract of employment will dictate the process that must be followed. Employers are therefore advised to check the contractual status of the process before deciding how to proceed. If in doubt, it may be preferable to obtain legal advice before starting the process to limit any argument by a disgruntled employee that there has been a breach of contract.

The consequences of not offering a right of appeal

A failure to offer a right of appeal may provide an employee with the basis for a claim. For example:

  • an employee who has been issued with a warning could resign and claim constructive unfair dismissal on the basis there has been a breach of trust and confidence; or
  • any dismissal in the absence of a right of appeal could be an unfair dismissal.

Although there is no statutory obligation to follow the ACAS Code, breaches of the Code can result in an uplift of up to 25% of any compensatory award made by a tribunal.

It is therefore advisable that any disciplinary procedure should include an appeal stage.

A fair appeal process

In order to avoid the mischief that can follow where the right of appeal has not been properly adhered to, employers should bear in mind the following top tips for ensuring a fair appeal process.

1. Arrangements for the appeal

Employers need to provide the employee with the opportunity to appeal and have that appeal heard at a hearing. In this regard, the following arrangements should be put in place:

  • Check if there are any contractual appeal requirements that will need to be followed.
  • The employee should be advised in writing at the end of any disciplinary process that should they want to appeal, they should set the grounds of appeal out in writing.  A general rule of thumb is to allow the employee at least 5 working days to submit their appeal as recommended by the non-statutory ACAS guide.
  • If an appeal is received it should be heard without unreasonable delay.
  • The appeal should be dealt with impartially – see below.
  • Employees must be given the right to be accompanied at appeal hearings by a work colleague or a trade union representative.
  • The manager conducting the appeal should be provided with all the evidence obtained during the investigation as well as the notes from the disciplinary meeting.
  • The appeal outcome should be confirmed in writing as soon as possible after the appeal.

Whilst the process appears to be relatively straightforward, there are some additional matters that an employer may need to consider, which are dealt with below.

2. Reviews Vs Re-Hearings

Employees should be asked to state their full grounds for appealing so that a decision can be taken as to whether the appeal will be either:

  • a review of the original decision; or
  • a full re-hearing of the case.

The grounds of appeal will dictate the format of the appeal and the employee should be advised of this in advance of the hearing. In situations where the earlier stages of the disciplinary procedure were flawed or the employee’s ability to continue in their chosen profession is at risk, a re-hearing is likely to be appropriate.

3. The need for impartiality

Wherever possible, it is advisable for the person chairing the appeal hearing to have had no prior involvement with any stage of the procedure leading up to the appeal stage. Ideally, this person should be someone more senior than the person responsible for making the decision to dismiss or imposing the disciplinary penalty. This will avoid allegations that the person responsible for the appeal was biased or was simply supporting their manager’s decision, instead of properly considering the decision.

It is also important that the appeal chair does not confer with the initial decision maker prior to the appeal hearing as this could lead to a biased view, even before they have met with the employee.

Where there has been a failure to provide an impartial appeals process, a dismissal which is upheld could be found to be unfair. Likewise, where the employee remains in employment there may be a breach of the implied terms of trust and confidence which may form the basis of a constructive dismissal claim.

Employers when planning any disciplinary process should be mindful of the appeal stage and give consideration as to who would be available to chair an appeal hearing, ensuring that whomever they choose is going to be sufficiently impartial to deflect any argument of bias. In some instances, this may mean bringing in an independent chair from outside the organisation. Ultimately, the identity of the chair should depend upon the nature of the complaint and the size of the administrative resources of the organisation.

4. What to do if new evidence is submitted

Irrespective of whether the hearing is taking the form of a review or a re-hearing, when new evidence comes to light, the employee must be given an opportunity to comment on it. In certain circumstances new evidence may also be used to justify the upholding of a dismissal on appeal even if the chair is of the view that the evidence relied on at the original dismissal hearing was not sufficient to justify dismissal at that earlier stage – this is provided that the evidence relates to the original reason for dismissal and not a different reason.

Equally, employees should be given adequate opportunity to present their case at the appeal stage. Any new information submitted by the employee at the appeal should therefore be considered by the chair.

5. Varying sanctions on appeal

There are a variety of sanctions available to an employer. For example:

  • Dismiss the appeal and uphold the original sanction.
  • Overturn the original sanction.
  • Substitute a different sanction.

If an appeal process is to be a fair, an employer should be open to all three possible outcomes.

Employers can impose lesser sanctions on appeal when they consider it is appropriate to do so in the light of the matters discussed at the appeal hearing. However, ordinarily, it is inadvisable for employers to increase sanctions on appeal. The ACAS Code of Practice on Disciplinary and Grievance Procedures warns against increasing sanctions on appeal and this advice is supported by case law.

Contact Details

For more details about disciplinary procedures including the handling of the appeal stage, 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.

Investigating Conduct – to what lengths should I go?

Investigations - FactsSUMMARY: Those of you who have had to conduct an investigation into an allegation of misconduct will be familiar with the ACAS Code of Practice on Disciplinary and Grievance Procedures and the requirement for a reasonable investigation. Failure to carry out a reasonable investigation can render any dismissal unfair.

What does ACAS say?

The key legal principle of any disciplinary process is fairness; and, thus, it follows that the investigation, which enables an employer to decide whether dismissal is justified, must be conducted fairly. What is fair will be dependent on the circumstances of each case but, in any investigation, the employee must be given an opportunity to respond to the allegations against him/her.

What lengths do employers need to go to?

Although it is difficult to give any guarantees about the lengths that will render an investigation fair and reasonable a recent Court of Appeal case – Shrestha v Genesis Housing Association Limited has given some guidance on this. In this case the court provided employers with reassurance that, where the employee gives a number of explanations for why the allegations are not true, it is not incumbent on the employer to go to the lengths of investigating each and every explanation.

The investigation into Mr Shrestha’s mileage expense claims

Genesis Housing Association Limited (Genesis) employed Mr Shrestha as a “floating” support worker, which meant that he was regularly travelling by car to see clients at various locations. Accordingly Mr Shrestha submitted mileage expense claims to Genesis for those journeys. In 2011, due to increasingly high mileage expense claims submitted by Mr Shrestha, Genesis conducted an audit of those claims. The audit included a comparison of the miles Mr Shrestha claimed he travelled for each journey against the miles given by an on-line AA route finder. This comparison established that Mr Shrestha’s claims appeared excessive. For example, in July 2011 he claimed that his journeys undertaken that month totalled 197 miles whereas, the AA’s suggested mileage for those same journeys totalled 99 miles.

Genesis therefore conducted an investigation into the allegation that Mr Shrestha had falsified his expense claims. At the investigatory meeting Mr Shrestha was asked about some of the journeys he had claimed for. He gave a number of explanations for the discrepancy between the miles he claimed he had driven and the AA’s suggested miles for those journeys. These explanations included.

  • diversions travelled due to road closures;
  • difficulties with parking; and
  • one way road systems.

Despite his explanations, Mr Shrestha was subsequently dismissed for gross misconduct. He claimed unfair dismissal on the basis that Genesis had not put every mileage discrepancy to him nor had it investigated every explanation Mr Shrestha put forward for those discrepancies, which were discussed during the disciplinary process.

The Court’s decision

The court decided that it was not necessary to put every journey to Mr Shrestha, nor was it necessary to investigate each of the explanations he gave as to why he was claiming for far more miles than the AA suggested for each of those journeys. This was because the audit had identified that each journey he claimed for significantly exceeded the AA’s suggested mileage for that journey, and it was therefore unrealistic that there could be a credible explanation for Mr Shrestha’s claims to exceed the AA’s suggested mileage in each and every instance. The court also paid attention to the fact that Mr Shrestha had claimed fewer miles for the same journey some 12 months or so ago and that the AA mileage took account of one way systems.

The court therefore concluded that it is not necessary for an employer to extensively investigate each line of defence advanced by an employee and that, ultimately, the key to deciding whether it is reasonable is to look at the investigation as a whole.

What does this mean for employers?

Although this case is to be welcomed by employers it is imperative that investigations are carefully planned in terms of what they should encompass to ensure reasonableness. This is particularly so in cases where dismissal as the outcome is a real possibility.

Case

Shrestha v Genesis Housing Association

Contact Details

For more details about conducting investigations and, more generally, disciplinary procedures 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.

Early Conciliation – A New Era – Q&A

Handshake (123rf ref 9932791)We think we have underpaid ten of our employees. Someone mentioned early conciliation – what’s that all about?

Early conciliation (EC) is a new process and is intended to give parties the opportunity of settling disputes through ACAS to avoid tribunal claims. EC for most types of claim became mandatory from 6 May 2014. It covers, for example; the following types of claim; unfair dismissal, breach of contract, discrimination and equal pay, protection from a detriment and in the situation you describe, unlawful deduction of wages.

How will we know if conciliation has started?

There are five stages to the EC process:

  • Stage 1: The claimant must contact ACAS to provide notification of their intention to bring a claim and will provide your details.
  • Stage 2: The ACAS EC officer (CO) will contact the claimant to clarify the complaint.
  • Stage 3: The CO will then contact you to see if you would like to participate in conciliation.
  • Stage 4: If both parties are willing to discuss settlement there will be a period of conciliation for up to a period of one month. This period can be extended for up to 14 days with both parties’ agreement, where there is a prospect of settlement occurring. The CO will explore the options for resolution without the need for a tribunal hearing. This could include the claimant withdrawing the claim or conversely, you paying compensation or in dismissal cases, considering reinstatement or re-engagement. ACAS cannot make any judgment or provide you with legal advice.
  • Stage 5: The CO will end the EC process and issue a certificate where at any time it appears that there is no reasonable prospect of achieving settlement. If settlement is reached the CO will prepare a COT3 setting out the terms of the settlement.

Do we get a choice?

Yes. Each party can choose whether or not to participate. If either party refuses to enter into conciliation an EC certificate will be issued to confirm this is the case. You can also withdraw from the process at any time. A claimant is not prevented from bringing a claim if they choose not to participate in the EC process so long as they initially contact ACAS.

Do we have to pay for the service?

No. It’s free.

Will there be ten separate EC periods in this case?

Not necessarily. If one of the employees in the group of ten has already complied with the EC requirements in relation to the same dispute and the claims are similar, the others will not need to comply with this obligation.

When can the employee bring the claim?

The claim cannot be brought until the CO has provided a unique EC reference number. The EC period can give the claimant a longer time period in which to bring a claim of up to one extra month, with a possibility of a two-week extension.

As we have lots of minor tribunal claims each year, do you have any tips for managing early conciliation?

We would recommend that you have one point of contact in your HR Department or at a senior management level for dealing with ACAS. This should be publicised as it is possible employees may give their line manager’s details to ACAS.

You can of course nominate your legal representatives to deal with the CO. This may be advisable where the claim is likely to be complex or the amount of money involved is high. In any event, legal advice may assist at any stage of the EC process to help you understand the merits of the potential claim and decide whether settlement is the right way to proceed bearing in mind ACAS cannot advise you. Not all cases will be suitable for settlement but where they are, EC provides an early cost free mechanism for doing so on a confidential basis.

Contact Details

For more details about Early Conciliation please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

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

Right to be Accompanied – ACAS Code to be amended

FG Solicitors - Right to be accompaniedSUMMARY: An Employment Appeal Tribunal has held that the choice of companion is absolute when an employee has the right to be accompanied and, subject to the companion being a fellow worker or trade union official, does not need to be reasonable.  The ACAS Code will be amended accordingly.

Legal Background

Most employers are aware that employees have the right to be accompanied by a fellow worker or trade union official at a disciplinary or grievance meeting.

The ACAS Code currently suggests that it would not be reasonable for an employee to be accompanied by a companion whose presence would compromise the hearing or who was based in a remote geographical location.

However, the ACAS Code does not have statutory force.  It is the wording of the legislation that should always take precedence as can be seen by this case.

Facts of this case

The employees requested to be accompanied by Mr L, a union official, at a grievance meeting.  The employer refused the request, so they were accompanied by a different companion at the meeting.

The employees subsequently brought claims that their right to be accompanied had been breached.

The Employment Appeal Tribunal’s (EAT) decision

The EAT, overturning the Employment Tribunal’s decision, held that the employees could not waive their right to be accompanied and that they had an absolute right to choose their companion, so long as the companion was a trade union official or fellow worker.  By not permitting the employees to be accompanied by their choice of companion, the employer had breached their rights which were set out in legislation.  This was the case even though the employees had agreed to be accompanied by a different companion and despite the ACAS Code indicating that there were circumstances in which an employer could reject an employee’s choice of companion due to unreasonableness.

The EAT however considered that the effect of the breach was minimal and that compensation should reflect this; it suggested that the employees could be awarded a nominal sum of around £2.  The legislation states that a failure to allow a worker to be accompanied attracts an award of compensation of up to 2 weeks’ pay (which is currently capped at £450 per week).  It will be for the Employment Tribunal to decide the exact amount of compensation on the above facts.

Subsequently, ACAS has announced that it intends to amend the ACAS Code to reflect the EAT’s decision.

What does this mean for employers?

Employers should always ensure that they permit employees to be accompanied at grievance or disciplinary meetings by their choice of companion, so long as the companion is a trade union official or fellow worker.  If the companion may prejudice the hearing, employers should not generally insist on the employee having a different companion.

Employees have a free-standing right to bring a claim for a breach of their right to be accompanied.  However, given that the compensation for such claims is likely to be low, and that a tribunal fee will need to be paid before such a claim can be brought, such claims are likely to be an unattractive for most employees.  Employees may take their chances in rolling such a breach into a decision to bring a claim for unfair dismissal or constructive unfair dismissal instead, where the potential compensation awards are significantly higher.

We would therefore always advise taking legal advice if an employer is considering rejecting an employee’s choice of companion.

Case: Toal and another v GB Oils Ltd UKEAT/0569/12, 22 May 2013.

Contact Details

For more details about this case or the right to be accompanied please contact:

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

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