Category Archives: ACAS

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.

Can I bring a friend?

16229690_m - CopySUMMARY: Employers are increasingly expected to be flexible when allowing employees/workers to be accompanied.

The right to be accompanied at a disciplinary hearing

Given the recent decision of the High Court (Stevens v University of Birmingham) which indicated that an employee should have been permitted to have a professional representative present at an investigation hearing and changes to the ACAS Code of Practice on Disciplinary and Grievance Procedures and the non-statutory guidance, employers are often left bewildered as to who the employee/worker should be permitted to bring with them to a disciplinary hearing.

The statutory right to be accompanied applies where the employee/worker is invited to attend a disciplinary hearing.  Disciplinary hearings for the purpose of this right are those hearings that could result in:

  • a formal warning being issued;
  • the taking of some other disciplinary action.  For example, suspension without pay, demotion or dismissal; or
  • the confirmation of a warning or some other disciplinary action.  For example, an appeal hearing.

The right applies to capability as well as misconduct hearings.  It does not apply to investigatory meetings.

Choice of companion

The following is a summary of who can be a companion:

1. An individual employed by the trade union of which they are an official

The employee/worker does not have to be a member of the trade union to which the official belongs.

2. Any other official of a trade union

See immediately above.  This person has to be certified by the trade union as having the experience/training to act as the companion.

3. A work colleague

  • The work colleague will have the right to paid time off during working hours.
  • The work colleague must not be subject to any detriment or dismissed because they have acted as a companion.
  • The choice of the work colleague does not have to reasonable – the employee/worker can choose whoever they wish.  It used to be thought that if the work colleague was at a remote geographical location, an employer could veto the employee’s/worker’s choice, but this is no longer the case.

4. A person to support the employee in difficult circumstances

These difficult circumstances are limited and are likely to include:

  • a companion who can translate where English is not the employee’s/worker’s first language; and
  • a companion to assist where the employee/worker has a disability or has mental health issues.

5. A lawyer

There is no general right to bring a lawyer to a disciplinary hearing.  There may however be:

  • a right under the contract of employment; or
  • a right as a result of the Human Rights Act 1998 where the outcome of the disciplinary proceedings would have a “substantial influence” on a decision of a regulatory body (or similar) that could bar someone from their profession.  For example, the medical, legal or accountancy profession.

6. Any person specifically identified in a policy/procedure/contract of employment

Employers should always check to establish whether their own policies/procedures/contracts of employment provide for different types of companion.  For example: a family member, a legal representative or a friend.

A flexible approach

Employers should also note that an employee has a statutory right to ask for a meeting to be rescheduled if necessary in order for his or her chosen companion to attend as long as the alternative date suggested is within five working days of that proposed by the employer.

Employers are increasingly being called upon to permit employees and workers to bring along individuals who do not fall within the traditional companion category.  Whilst employers can reject an employee’s/worker’s choice of companion in some cases, employers should be aware that tribunals appear to be expecting employers to take an increasingly flexible approach to the persons permitted as companions.

Employers should take advice if they are unsure as to whether they should permit the person an employee/worker has asked to be accompanied by and should ensure their own policies are clear on this point.

Cases

Stevens v University of Birmingham [2015] EWHC 2300

Contact details

For more details about permitted companions for employees/workers at meetings please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

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. 

Extending Flexible Working – A Free For All!

Flexibility

SUMMARY: The Children and Families Act 2014 is extending the right to request flexible working.

Current position

Until June 2014 only parents of children under 17, or 18 in the case of parents of disabled children, and those caring for an adult can apply to work flexibly under the statutory flexible working regime.

The Children and Families Act 2014

On 30 June 2014, the Children and Families Act 2014 will extend the right to request flexible working to all employees who have 26 weeks’ continuous service. This means that all employees who satisfy the continuous service requirement will have a statutory right to ask their employer for a change to their terms and conditions of employment to work flexibly. This could for example include homeworking, part time working, flexi time, job sharing or shift work.

A new duty to deal with requests in a “reasonable” manner

Those employers who have managed flexible working requests before will be aware that there is a prescriptive statutory procedure with defined deadlines, which has to be followed. This procedure will be replaced with a duty to deal with requests in a “reasonable” manner.

To support employers in ensuring that requests are dealt with reasonably,   there will be an ACAS Code of Practice (Handling in a reasonable manner requests to work flexibly) and guidance. In summary, the draft Code and guidance suggests as follows:

  • An employer should arrange to meet with the employee to discuss their request once received unless it is happy to accept the proposal.
  • Consideration should be given to allowing the employee to be accompanied by a trade union representative or a work colleague.
  • Employers should weigh up the benefits of the request against any adverse impact on the business. Possible outcomes could be:
    • compromise agreed; or 
    • request rejected, on one of the eight specified “business reasons”.

If the request is rejected employees should be advised of the “business reason” for this:

  1. the burden of additional costs;
  2. an inability to reorganise work amongst existing staff;
  3. an inability to recruit additional staff;
  4. a detrimental impact on performance;
  5. a detrimental impact on quality;
  6. detrimental effect on ability to meet customer demand;
  7. insufficient work for the period the employee proposes to work; and
  8. a planned structural change to the business.

(Notably, these are the eight business reasons provided for under current legislation.)

  • Employees should be advised of the decision in writing together with any right of appeal.
  • The consideration process including the right of appeal must be completed within 3 months. If it is going to take longer any extension should be agreed with the employee.
  • Employers must ensure that in coming to their decision they do not inadvertently discriminate against an employee.

Employees can only make the request once in a 12 month period.

Possibility of a trial period

Usefully the ACAS guidance suggests that where an employer is unsure about the arrangement requested, instead of rejecting the application, it could agree a temporary arrangement or a trial period. So that there is certainty, this must be communicated in writing.

Competing requests

Employers will be required to consider each application on its own merits. One area of concern is that there is no guidance on how employers will deal with competing applications and accusations of unlawful discrimination when an application is rejected. There is also no provision for prioritisation for those who have caring responsibilities.

Next step for employers

The forthcoming changes provide a useful opportunity for employers to refresh their knowledge and reflect on how they will respond to flexible working applications. A good place to start is to introduce a flexible working policy or review of an existing policy, to ensure that there is clear current guidance for both employees and manager employers. Broader operational issues should also not be overlooked. For example, if home working is introduced there should be a health and safety risk assessment and consideration needs to be given to the issue of data security.

The prospect of more employees seeking a different way of working may appear daunting, particularly for smaller organisations.  Employers when deciding how to respond should however not overlook the benefits of allowing staff a better work life balance, which can have a significant and positive effect on attendance, productivity and retention.

Contact Details

For more details about an employee’s right to work flexibly and introducing a Flexible Working Policy please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

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

Follow the ACAS Code

Yellow Brick Road

SUMMARY: A recent case has emphasised that if in doubt, employers should follow the ACAS Code of Practice, even if the dismissal is for “some other substantial reason”. Continue reading