(formerly) Compromise Agreements
"From Monday 29
July 2013 entering into a Settlement Agreement enables employers
and employees to explore a mutual and amicable parting - even where
there is no conflict between the two. Where risk is perceived by
either of the parties, this is a common sense approach".
Christine Pratt. Founder of The National Bullying Helpline.
Section 111A of the Employment
Rights Act 1996 introduces the concept of confidential
pre-termination negotiations – previously referred to as Compromise
Agreements or gagging clauses! Simply put,
these negotiations will not be admissible in tribunal proceedings
- the intention being to make it easier for employers to have an
off the record discussion with an aggrieved employee with a view
to reaching an amicable resolution regarding the termination of
that employee’s contract of employment.
So what’s new about that then?
Well, under the Settlement Agreement approach (in contrast to the
existing “without prejudice” rules), section 111A will
not require there to be a pre-existing dispute in order to have
a confidential, off the record conversation. This is, potentially,
quite exciting for employers – and very helpful too –
especially for employers who want to 'test the water' with an employee
before deciding on what formal steps to take.
The Code is not legally binding on employers or tribunals but it
will be taken into account by tribunals when deciding whether a
party is protected by section 111A. The new ACAS Code on Settlement
Agreements goes so far as to make recommendations as to guidance
on the meaning of improper behaviour in this context. Ultimately,
a Tribunal will decide what amounts to improper behaviour in specific
cases but examples given under the Code includes; physical assault,
harassment, victimisation and discrimination, bullying and intimidation.
The concept of ‘undue pressure’ is described as including:
(i) failing to allow a reasonable
time for consideration of a settlement agreement (the Code suggests
10 calendar days will normally be required);
(ii) saying before any process has begun that if a settlement is
not reached then the employee will be dismissed (however, the Code
says it will not be improper to set out in neutral terms the “likely
alternatives” to settlement);
(iii) an employee threatening to damage an employer’s public
reputation if a settlement is not reached.
Disputes over whether an employer’s
frankness amounted to undue pressure or even intimidation are likely.
Would a statement that the employee will get a less favourable reference
unless terms are agreed amount to “improper behaviour”?
It shouldn’t, but context, careful phrasing of any settlement
proposal and taking an accurate note of what is said will be important.
Ten calendar days is a long time to consider
a settlement proposal and employers may want to agree shorter periods
with employees. This should not fall foul of the Code, so long as
there is no suggestion of undue pressure in obtaining the employee’s
Settlement Agreements will be useful
in the most straightforward of cases. Employers will want the wider
security of falling within the “without prejudice” principle
before starting negotiations.
We see this
new approach to be entirely professional and in the very best interests
of conflict resolution. The myth that you need to be a CEO or a
senior director to agree a ‘golden handshake’ no longer
prevails. If the parties are receptive to an amicable parting under
a Settlement Agreement, so be it.
With effect from 29 July 2013 Employment
Tribunal fees are being introduced. It will now cost up to £1,200
for an employee to take their employer to an Employment Tribunal.
Two important points;
1. The fee will be waived in hardship cases.
2. The employee will be refunded if s/he goes on and wins their
case as ‘the other side’ will be charged.
Nevertheless, the Unions are 'up
in arms' and say this is "a great day for Britain's
worst bosses". Employment Law Solicitors predict
widespread chaos for those wishing to seek a fair outcome in discrimination
cases (Race, Sex or Disability cases). Whilst the intention is to
save money for businesses and taxpayers – these changes are
to impact significantly on an employees’ fundamental rights
in the workplace.
Presently, the taxpayer is footing
the entire £74m tribunal dispute bill. You
can almost understand why our Government wishes to address the problem
– but is this the way to do it? "Seeking
redress for unfair dismissal and discrimination and other injustices
in the workplace is a fundamental human right – but now ministers
are putting up insurmountable financial hurdles for working people
in pursuit of justice. We estimate that this will affect 150,000
workers every year" say the Unions.
We are extremely concerned that
these fees will disproportionately hit those suffering discrimination
because of their age, race, disability and/or gender. Women returning
from maternity leave, for example, will be hit hard as they will
be assessed on their final salary rather than their statutory maternity
'Some people will simply
feel unable to challenge an unfair dismissal case, regardless of
how badly they were treated. We tend to forget that the fear and
uncertainty associated with legally challenging an employer in an
open court is an already extremely daunting and stressful prospect
for the average person, without the added worry of funding the initial
tribunal application (ET1). In a high percentage of cases the employee
is already suffering with work related stress – a serious
and often underestimated mental health condition. We also question
what is meant by ‘hardship cases’ and how these will
be assesses by the Tribunal system. Surely, everyone who has lost
their job unlawfully is automatically a hardship case - by simple
virtue of the fact that they are no longer receiving a monthly salary’.
LAW ON UNFAIR DISMISSAL
From 6 April 2012, the qualifying
period to claim unfair dismissal is extended from one year to two
years. This applies only to employees whose qualifying period starts
on or after 6 April 2012 — so anyone employed by the employer
on 5 April remains able to claim unfair dismissal after only one
year. See below for further information.
THE MANCHESTER COLLEGE –
TUPE CASE : It is quite rare but here is proof that a Judge
will occasionally make an order for reinstatement in TUPE cases.
It was decided that there should be re-engagement by way of recognising
the breach of TUPE that has occurred here. For the full case see
ASDA BULLYING CASE
: A stuttering Asda worker who claims he was sacked over his speech
impediment launched a campaign of harassment against a colleague
an employment tribunal heard (12 September 2012). For the full story
click here; http://www.dailymail.co.uk/news/article-2202140/Asda-Worker-Adnan-Malik-claims-sacked-speech-impediment-bullied-colleague-confrontations.html?ito=feeds-newsxml
ROYAL MAIL RACISM
: In August 2012 a bungled racism case cost Royal Mail big tribunal
payout. Employer investigation into complaint ‘shambolic,’
says EHRC . A Royal Mail employee who blew the whistle on racism
at his workplace but was then sacked is believed to have won £100,000
compensation in an employment tribunal. Abdul Musa, a former worker
at a RM depot in Blackburn, reported racist behaviour at the depot
to managers, which resulted in one worker being sacked and others
disciplined. However, following his complaint, Musa was victimised
by remaining colleagues as managers failed to protect or support
him, the tribunal heard. He was then sacked in 2007 and claimed
both race discrimination and unfair dismissal. The tribunal found
failings in the employer’s internal investigation, which it
said had not examined complaints that union representatives from
the Communication Workers Union had backed an unofficial campaign
to have Musa sacked by fabricating evidence. The tribunal judgement
said RM’s managers had viewed Musa as “a problem”
in terms of the negative reaction of other workers, which could
only be solved by dismissing him. The Equality and Human Rights
Commission (EHRC), which funded Musa’s legal representation,
called RM’s internal inquiry into the complaint “shambolic”.
John Wadham, general counsel for
the EHRC, said: “The Equality Act protects people
from being victimised for making complaints about any form of discrimination
in the workplace. It also says employers have a responsibility to
take complaints seriously and to put a stop to discrimination".
“The fact that his colleagues
were acting unlawfully was not enough to stop them from victimising
Mr Musa. People facing discrimination also need an advocate, such
as the EHRC, to make sure that the law is obeyed.” A spokeswoman
for the union said there were no charges against the CWU or its
representatives in the case. “We have a long-standing record
of successfully representing our members in cases of this nature
and want to see racism stamped out in all workplaces,” she
DISCRIMINATION DUE TO PARTNER’S
DISABILITY: Aug 2012. As this case demonstrates, it is
unlawful for an employer to discriminate against an employee by
treating him or her less favourably than others because of someone
else’s disability. http://www.xperthr.co.uk/article/114101/employee-discriminated-against-because-of-his-wifes-disability.aspx
DEARNE CARRFIELD PRIMARY
SCHOOL V ANNA YERRAKALVA : In April 2012 a Teacher who
lied about an accident at work and took six years off sick on full
pay has been lambasted by an employment judge. The Judge said Anna
Yerrakalva told a ‘series of lies’ that left her credibility
in tatters. An investigation found her injury claim about being
pinned down in the classroom was made up. The widow, 58, then won
her unfair dismissal and victimisation claim – but was denied
compensation. This is an appalling example of poor management. What
happened to the School’s absence management policy? Anna Yerrakalva,
who had brought an unfair dismissal claim in 2010, won the case
on a technicality in April 2012 – but was told she would receive
no compensation because of her lies. The case has cost taxpayers
CENTRAL MANCHESTER UNIVERSITY
NHS TRUST; EX-EMPLOYEE AWARDED £1M COMPENSATION :
A former NHS worker was recently awarded £933,115 in compensation
after an employment tribunal found that he had been subject to racial
discrimination and unfair dismissal. Elliot Browne was a divisional
director at Central Manchester University NHS Foundation Trust until
he was dismissed in 2008. Browne told an employment tribunal that
he had been the victim of “discriminatory treatment”
in the final year of his employment at the trust and had been unfairly
dismissed. The tribunal found that Browne had suffered “systematic
discrimination” and “an intimidating environment”
in his role, and that after Browne had raised a grievance the trust
had failed to take it seriously or investigate it sufficiently.
Browne claimed that the treatment severely affected him and left
him close to a “mental breakdown.” Despite the trust’s
claim that it believed strongly that discrimination was not a factor
in the case. The tribunal awarded Browne £933,115 for unfair
dismissal, aggravated damages and loss of earnings and pension.
Unite, which represented Browne in the tribunal, called for the
trust to “tackle its culture of institutionalised racism“.
The expenditure of almost £1 million of taxpayers’ money
could have been avoided if this employer had just followed its own
policies and procedures – experts say.
DAWSON V CHIEF CONSTABLE
OF NORTHCUMBRIA POLICE : Collusion and Collective Bullying:
Under The Protection from Harassment Act 1997, in light of this
case (Case Ref: 209 EWHC 907 QB), employers are vicariously liable
for harassment caused by the acts of two or more employees, provided
the conduct is linked. Employers. If you are aware of allegations
of bullying within a team, or department, involving more than two
employees, you need to familiarise yourself with this case.
BT LOSE SEX DISCRIMINATION
: September 2011 : A telesales worker who was sexually harassed
by her manager has won a £290,000 payout from British Telecom
– the highest employment tribunal award in the past year.
Petrina Taylor, 36, complained about her ordeal at the hands of
‘dangerous’ sex pest boss Craig Alcock – but BT’s
response was ‘woeful’, a tribunal ruled. Miss Taylor
had to endure boss Mr Alcock ‘thrusting’ himself at
her and female colleagues and was warned by him that if she failed
to land a deal he would perform a sex act over her. When she asked
for time off to see her doctor over her contraception, he replied:
‘What are you telling me for? I’m not shoving it up
you.’ Mr Alcock branded Miss Taylor’s team ‘sheep
shaggers’ and ‘inbreds’ and described pregnant
women as a ‘nuisance’.
Up to ten other women have sued
BT recently for sexual harassment that they allegedly suffered at
the hands of a number of different men while working for its ‘Customer
Street’ telesales operation. The firm has settled several
cases out of court.
What is going on? These cases including;
legal costs, disruption to the business, management time, settlement
fee’s, re-recruitment costs, management training etc etc.,
must have cost BT in excess of £2M.
SWEARING. February 2013.
Heafield v Times Newspaper Ltd  UKEAT 1305_12_1701
- 17/01/13 The appellant, a sub-editor who was a Roman Catholic,
was offended by an editor referring to 'the fuck***
Pope' when chasing a delayed article and brought a
claim for harassment on the grounds of religious belief. The Tribunal
held that the use of bad language was evidently merely an expression
of bad temper and not intended to express hostility to the Pope
or Catholicism and that it did not constitute harassment within
the meaning of the Employment Equality (Religion or Belief) Regulations
We are not sure we agree with this.
If you are offended by swearing in the workplace, call us.
Other important changes include;
RESOLVING EMPLOYMENT DISPUTES
(including 2012 updates). We are experts in this area. Call
us on 0845 22 55 787for an initial FREE consultation.
To simplify workplace disputes,
a number of proposals have been made with the objective of reducing
the number of claims going to employment tribunal (and to speed
them up when then get there). Here is an update;
regional mediation networks for small and medium enterprises (SMEs)
have been set up, in Cambridge and Manchester, as pilot schemes.
The Department for Business, Innovation and Skills is funding training
for employees from 24 SMEs in each area, to enable them to provide
mediation to organisations in their network, to help resolve employment
disputes at an early stage in SMEs. The aim is to preserve the employment
relationship wherever possible. More details will follow when results
The Enterprise and Regulatory Reform Bill, which was introduced
in Parliament on 23 May 2012, includes a requirement for details
of all employment claims to be submitted initially to ACAS, before
they can be lodged with the tribunal. Claimants will be offered
pre-claim conciliation, but there will be no obligation on either
party to take up the offer; if the offer is refused or conciliation
is unsuccessful the claim can proceed to the tribunal. Limitation
periods will be extended to allow time for ACAS conciliation.
This is different from the original
proposal, which would have required all claims to go through pre-claim
conciliation with ACAS before they could go to tribunal. The pre-claim
conciliation provision is in ss.7-9 of the bill.
S.10 of the Enterprise and Regulatory Reform Bill allows for regulations
to be made permitting appointed legal officers to make decisions
on behalf of the employment tribunal, if all parties to the dispute
agree in writing, in specified low value, straightforward claims
such as holiday pay. The intention is to be quicker and cheaper,
for example by allowing for non-judicial determination based only
on papers, without an oral hearing.
No-fault dismissals for
micro-employers: This legislation is unlikely to actually
become law but following the government's "red tape challenge"
on employment-related regulations in October 2011, the Department
for Business, Innovation and Skills carried out from 15 March to
8 June 2012 a call for evidence on the implications of compensated
no-fault dismissals for micro-employers with fewer than 10 employees.
Under this proposal, a micro-employer would be able to dismiss an
employee even if there was no fair reason for doing so and without
going through a disciplinary and dismissal procedure, on payment
of a set amount of compensation.
Tel: 01793 338888 for urgent
Under the Equality Act 2010 it is clear that compromise agreements
can be safely used to settle discrimination claims. Vince Cable,
secretary of state for business, innovation and skills, said on
11 June 2012 that the compensated no-fault dismissal proposal would
not be taken forward. Instead, the emphasis will be on settlement
agreements, which can be used by all employers but which cannot
be forced on the employee.
The government consulted from January to April 2011 on proposals
to simplify resolution of workplace disputes and reduce the number
of claims that go to tribunal, and announced its response on 23
November 2011. The consultation documents and response, which included
proposals for protected conversations and compromise/settlement
agreements, are on the BIS website. Further, the provisions can
be found in the; Enterprise and Regulatory Reform Bill, which was
introduced in Parliament on 23 May 2012. Note: Protected conversations
are now referred to as confidential negotiations before termination
of employment. The provision would allow employers to discuss issues
which could lead to dismissal, such as retirement or poor performance,
in an open manner with staff, and offer a no-fault termination package
through a settlement agreement, without these discussions and the
settlement offer being used in any subsequent unfair dismissal tribunal
claims. Unlike "without prejudice" discussions which also
cannot be disclosed in tribunal or court proceedings, the confidential
negotiations provision can be used even if there is no existing
As proposed, the provision for confidential
negotiations would apply only to unfair dismissal claims. For claims
other than unfair dismissal — such as breach of contract,
discrimination, or dismissals that are automatically unfair such
as whistle-blowing — negotiations will continue to be able
to be taken into account unless they are explicitly without prejudice.
As worded, the proposed legislation seems to provide that if an
unfair dismissal claim is brought at the same time as another claim,
the negotiations will be able to be taken into account in the unfair
dismissal claim as well. Negotiations will also be able to be taken
into account in relation to anything said or done which in the tribunal's
opinion was improper, or was connected with improper behaviour.
"Improper behaviour" is not defined, but would presumably
include an employer seeking to coerce an employee into accepting
a settlement agreement. Some say that, ‘in order to decide
whether something improper was said or done’ the tribunal
would have to hear about the negotiations anyway!
The Enterprise and Regulatory
Reform Bill can be accessed on the Parliament website. The confidentiality
provision is clause 12.
Under clause 17 in the Enterprise and Regulatory Reform Bill compromise
agreements will be renamed settlement agreements and the process
will be made more straightforward for both employers and employees.
A compromise/settlement agreement is a legally defined agreement
under which an employee whose working relationship with the employer
has become irretrievable agrees, in return for a negotiated financial
sum, not to bring a tribunal claim against the employer.
See our section on Compromise
Call us on 01793 338888 if you would like assistance in this respect.
Importantly; There is a requirement
for the employee to receive independent advice from a solicitor,
trade union official or qualified advice worker before
entering into a compromise agreement.
If the employee rejects a settlement
agreement and has the necessary period of qualifying service, the
employer will have to have a fair reason for dismissal and go through
a fair dismissal procedure in order to reduce the risk of an unfair
dismissal claim, and regardless of length of service will need to
follow any contractual disciplinary and dismissal procedures to
reduce the risk of a wrongful dismissal claim. Under the Equality
Act 2010 it is clear that compromise agreements can be
safely used to settle discrimination claims.
Whistle-blowing: Under ss.43A-43L
of the Employment Rights Act 1996, inserted by the Public Interest
Disclosure Act 1998 (PIDA), a worker who reveals information about
an employer that would normally be confidential (whistle-blowing)
is protected against victimisation or dismissal, provided the worker
reasonably believes the disclosure tends to show one or more of
six categories, and it is made through a protected route. The categories
are criminal offence, failure to comply with any legal obligation,
miscarriage of justice, danger to an individual's health or safety,
damage to the environment, or deliberate concealment of information
tending to show any of these. Protected routes include the employer,
a legal advisor, or prescribed bodies such the Charity Commission,
Health & Safety Executive, HMRC, Environment Agency etc; there
are other protected routes. Disclosure to a protected body must
be made in good faith.
Disclosure of information that the
worker does not reasonably believe shows or tends to show one of
the six categories or is not made through a protected route
is not protected.
A clause included in the Enterprise
and Regulatory Reform Bill, which was introduced in Parliament on
23 May 2012, would change the definition of whistle-blowing so that
the worker not only has to reasonably believe the disclosed information
tends to show one or more of the six categories, but also reasonably
believes it is made in the public interest. Unlike other employment-related
provisions in the bill, the government did not carry out any consultation
on this. A change in the legislation is necessary, because the employment
appeal tribunal found in Parkins v Sodexho that an employer's breach
of an individual's contract of employment is a failure to comply
with a legal obligation, and therefore disclosure of a contractual
breach could be protected. There have been concerns that since this
2001 decision, PIDA is being abused in particular by City bankers
using it to claim that disclosures about their bonus payments are
Statutory maternity pay (SMP) is
90% of the woman's weekly earnings for the first six weeks of maternity
leave. For the remaining 33 weeks of the 39-week SMP period, SMP
is a flat weekly rate or 90% of average weekly earnings, whichever
is less. For complete pay weeks starting on or after 1 April 2012,
the flat rate is £135.45
(increased from £128.73).
For complete pay weeks starting
on or after 1 April 2012 statutory paternity pay (SPP) and statutory
adoption pay (SAP) are £135.45 per week (increased from £128.73)
, or 90% of the employee's average weekly earnings, whichever is
less. The earnings threshold for eligibility for SMP, SPP and SAP
is £107 per week (increased from £102). An employer
who paid, or was liable to pay, gross class 1 national insurance
contributions of £45,000 or less in the individual employee's
qualifying tax year can recover 100% of the SMP, SPP or SAP, plus
3% compensation. Employers who do not qualify for this small employer
relief can recover 92%.
Proposals to increase SMP and SAP
from 39 to 52 weeks have been put on hold indefinitely, but additional
paternity leave and pay were introduced where the child is due or
is matched for adoption on or after 3 April 2011.
The Additional Paternity Leave Regulations
2010 gave a new right to additional paternity leave in relation
to babies expected on or after 3 April 2011 or children placed for
adoption on or after that date.
TIME OFF FOR DEPENDENTS
A case in April 2011, Clarke v Credit
Resource Solutions, illustrates the importance of understanding
the statutory right of all employees, regardless of length of service,
to take reasonable time off to deal with unexpected or sudden situations
relating to dependants, or to make necessary longer-term arrangements
for dealing with the situation. There is no right to pay for the
time off unless the contract says it is paid, but it is unlawful
to subject an employee to a detriment for exercising their right.
Employers need to have a
clear policy to ensure managers and staff know about this and understand
£ Tribunal Awards:
From 1 February 2012 the maximum compensatory award for unfair dismissal
is increased from £68,400 to £72,300.
The compensatory award is intended to compensate employees for loss
of earnings. The maximum basic award is increased from £12,000
The maximum "weekly pay"
for calculating certain statutory entitlements, including statutory
redundancy pay for redundancies taking effect on or after 1 February
2012, is increased from £400 to £430.
The limit on guarantee payments
when an employee is not provided with work is increased from £22.20
The minimum basic award for unfair
dismissal on grounds of health and safety, trade union involvement,
serving as an employee representative or occupational pension scheme
trustee, or other reasons that are automatically unfair is increased
to £5,300, and the minimum compensation for a worker excluded
or expelled from a trade union goes up from £7,600 to £8,100.
From 1 October 2012 the national
minimum wage for workers aged 21 and over will go up 11p, from £6.08
to £6.19 per hour.
It will remain £4.98 for 18-20 year olds and £3.68 for
16 and 17 year olds who are above school leaving age and are not
apprentices. The government's justification for freezing the youth
rates is that in the current economic climate, an increase would
make it harder for them to get a job in the long run. The apprentice
minimum wage of £2.60 per hour will go up to £2.65 for
apprentices aged under 19, or over 19 and in the first year of their
apprenticeship. This applies to apprentices on traditional contracts
of apprenticeship, and employed apprentices on government-supported
level 2 and 3 schemes. The apprentice minimum wage came into effect
on 1 October 2010, replacing the £95 per week minimum rate
of pay for apprentices.
The accommodation offset rate (the
amount that can be taken into account for living accommodation)
will be increased from £4.73 per day (£33.11 per week)
to £4.82 per day (£33.74 per week). Since 1 October
2011 the accommodation offset has not applied to students in full-time
higher education and further education who are employed by the institution
at which they are students.
Information may be found via the
Governments website (The Department for Business, Innovation and
Skills), via Business Link and/or via HM Revenue & Customs.
RIGHTS FOR TEMPORARY WORKERS:
The rights of temporary workers: From 1 October 2011, when
the Agency Workers Regulations 2010 came into effect, agency workers
(often referred to as temps) in England, Wales and Scotland, who
are placed on assignment by a temporary work agency (TWA), are entitled
to the same basic employment rights as a comparable employee or
worker (the comparator) directly employed by the receiving organisation
FLEXIBLE WORKING: The
Right to request flexible working: The government proposes that
the right to request flexible working be extended to all employees
who have been with their employer for 26 consecutive weeks, not
just those who are parents or carers as at present. The current
statutory procedure for flexible working requests would be replaced
by a statutory code of practice for employers and a duty to consider
requests reasonably, but there are no plans to alter the current
eight business reasons for an employer to turn down a request. At
present employees can request flexible leave only once in a 12-month
period. Under new proposals they would be able to make a further
request within 12 months where the initial request was for a temporary
The government's response was expected
in early 2012 but has been delayed.
STATUTORY SICK: Statutory
Sick Pay: For sickness absence on or after 6 April 2012, the earnings
threshold is £107 per week
(increased from £102) and the statutory sick pay rate is £85.85
per week (increased from £81.60). Employees earning less than
£107 p.w. or not eligible for SSP for other reasons may be
entitled to employment and support allowance.
From 6 April 2012 a number of changes
in employment tribunal procedure kicked in to reduce the complexity
and perceived inefficiency of the system. For further details refer
to the Employment Tribunals Act 1996 via the Parliament website.
Judges: For example,
from 6 April 2012 employment judges will hear unfair dismissal cases
alone in the employment tribunal, unless the judge directs otherwise.
Some concern has been expressed about Judges sitting alone for unfair
dismissal cases in the ET. See EAT decision in McCafferty v Royal
The maximum amount for a deposit order is increased from £500
to £1,000. The employment judge or tribunal can order any
party to pay a deposit as a condition of being allowed to proceed
if it considers its case has no reasonable prospect of success.
Costs cap: The
maximum amount for a costs order, requiring the employer or employee
to contribute to the other's costs, is increased from £10,000
to £20,000. The tribunal or employment judge has a duty to
consider awarding costs where the case had no reasonable prospect
of success or where one of the parties or its representative has
acted vexatiously, abusively, disruptively or unreasonably, but
can award them even if this is not the case. Practical Lawyer magazine
suggests that tribunals are likely to move away from a general "no
costs" presumption towards the county court system of "loser
pays", which could make the consequences of losing more serious
for both employers and employees.
If a claimant persists with a claim
after being ordered to pay a deposit at a pre-hearing review and
then loses, the deposit may be awarded as costs to the other party.
Witnesses' written statements will be "taken as read"
and witnesses will no longer need to read them aloud, unless the
tribunal or employment judge orders otherwise.
The tribunal or employment judge has power to order the parties
to a dispute to pay witnesses' expenses, and to require the party
who loses the case to reimburse the successful party for any such
witness costs they have already paid.
See: The Employment Tribunals
(Constitution and Rules of Procedure)(Amendment) Regulations 2012.
Maximum awards: The
method of calculating the basic award in unfair dismissal claims,
and the maximum compensatory award, are both being changed.
The government has concerns about the high level of compensation
awarded by employment tribunals in some discrimination cases, and
whether this leads some workers to take weak, speculative or vexatious
cases in the hope of a large award and/or leads employers to settle
such cases before they reach the tribunal. In the BIS employment
law review annual update in March 2012, the government said that
because discrimination law derives from EU law, it would not be
possible to put a cap on awards. However, information on median
awards will be included in tribunal claim forms, so workers and
employers realise that large awards are not the norm.
Judges Discretion: ref
financial penalties for employers. Under clause 14 of the Enterprise
and Regulatory Reform Bill, which was introduced in Parliament on
23 May 2012, employment judges will have discretion to serve a penalty
on employers who breach employment rights where there are "aggravating
features". So as well as paying compensation to the employee,
an employer could be required to pay a penalty (a fine) to the Exchequer
of up to 50% of the tribunal award, subject to a lower limit of
£100 and an upper limit of £5,000. The penalty will
be reduced by 50% if it is paid within 21 days.
QUALIFYING FOR UNFAIR DISMISSAL
Qualifying Period to Claim
Unfair Dismissal: From 6 April 2012, the qualifying period
to claim unfair dismissal is extended from one year to two years.
This applies only to employees whose qualifying period starts on
or after 6 April 2012 — so anyone employed by the employer
on 5 April remains able to claim unfair dismissal after only one
The right to request a written statement
of reasons for dismissal is also extended from one year to two years
for employees who start on or after 6 April 2012. Claims for unfair
dismissal where there is no qualifying period, for example where
the dismissal is for a reason based on unlawful discrimination,
continue to be able to be made from day one.
CONFLICT IN THE WORKPLACE
DEALING WITH ISSUES: Whenever
a disciplinary or grievance process is being followed it is important
to deal with issues fairly. In summary:-
• Employers and employees
should raise and deal with issues promptly and should not
unreasonably delay meetings, decisions or confirmation
of those decisions.
• Employers and employees should act consistently.
• Employers should carry out any necessary investigations
to establish the facts of the case.
• Employers should inform employees of the basis of
the problem and
• Employers should give the employee an opportunity
to put their case in response before any decisions are
• Employers should allow employees to be accompanied
at any formal disciplinary or grievance meeting.
• Employers should allow an employee to appeal
against any formal decision made.
The ACAS Code of Practice is cleaer.
Employers are advised to have separate policies on Capability,
Bullying and Harassment, Redundancy and should have 'a
Collective Agreement Policy' for dealing with overlapping
The key changes in the ACAS Code
are simply that :
1. Employers can make decisions in the absence of employee’s
where the employee is persistently unable, or unwilling, to attend
2. Employee’s no longer need to be accompanied at investigatory
meetings. Follow in-house policies as a ‘rule of thumb’.
3. Employee’s need to advise the employer in writing where
they wish to be accompanied at formal meetings and witnesses may
be called but must be given ‘notice’.
4. There is no ‘automatically unfair dismissal’ for
failure to follow the code.
5. Disciplinaries and Grievances should be raised in writing, in
advance of meetings.
6. There is no longer ‘a right’ for ex-employees to
have grievances heard (although it is recommended that employers
take such complaints seriously).
7. Failure to follow the Code may result in an uplift, or reduction,
in tribunal awards of up to 25%.
The employers in house policy should
always be followed.
The abolishment of The Employment
Act started with The Michael Gibbons Report which recommended a
complete repeal of the statutory dispute procedures. The Report
proposed an alternative dispute resolution approach (at an early
stage to nip contentious issues in the bud), to help bring Tribunal
statistics down. Subsequently, it was agreed, we should to abolish
The Employment Act 2002 and Dispute Resolution Reforms 2004 and
encouraged greater use of helplines and mediators. During 2007 over
230,000 claims were made to the Employment Tribunal.
The Government believes, after careful consideration of the issues,
that tribunals should be permitted to adjust awards to reflect non-compliance
with the statutory Code - this (it is believed) will "encourage
the right behaviors and resolve disputes in the workplace"
as recommended by Gibbons.
MEDIATION: But, who pays
for the mediation, Employee or Employer? ACAS have concerns
and believe this needs to be explicitly clear in the legislation.
Tribunals do not award costs - so if an employee pays will he/she
recover the costs? If the employer pays, is the mediator 'impartial'.
If there is an issue of trust this may become a barrier to mediation.
At NBH we do not see this as a problem. For decades
now independent mediators have managed to engage the parties at
the outset. A good mediator will involve both parties at the point
when the Terms of Reference are drawn up and it is 'at that point'
that it should become clear whether mediation is viable or not.
The parties need to be mutually
agreeable to the approach if mediation stands a chance. If an employer
'begrudgingly' feels that the employee has behaved unreasonably
so should pay - the employer should have managed
the issues better! Conversely, if an employee feels that the mediators
hands are tied if the employer pays; they can always offer to share
the cost. It shows good-will. "It takes two hands
to clap" afterall. If there is no trust - mediation
is a non-starter.
Last but by no means least - it
is in the employers best interest to 'nip it in the bud'. However,
if one of the parties is willing and the other is not, a well documented
attempt at the process will form part of a good defence.
IN A NUTSHELL: There
is an implied term in employment contracts that "the employer
shall render reasonable support to an employee to ensure that the
employee can carry out the duties of his job without harassment
and disruption by fellow workers" Arnold J. in Wigan
Borough Council v Davies 1979 ICR 411, quoted with approval
by the House of Lords in Waters v Commissioner of Metropolitan
Police 2000 ICR 1064, HL
In the Waters case the House of
Lords also quoted Spring v Guardian Assurance plc 1994 ICR
596 and Wetherall (Bond Street W1) Ltd v. Lynn
 1 WLR 200 as authority for the proposition that
the Courts recognise a common law duty on an employer to take care
of his employees, including a duty to prevent ill treatment or bullying,
quite apart from statutory requirements.
As always, the position in any particular
case will depend on the facts and the House of Lords was careful
to point out that "it is not every course of victimisation
or bullying by fellow employees which would give rise to a cause
of action against the employer, and an employee may have to accept
some degree of unpleasantness from fellow workers. Moreover the
employer will not be liable unless he knows or ought to know that
the harassment is taking place and fails to take reasonable steps
to prevent it".
What is Cyber-bullying? "Cyber-bullying
is any form of bullying behaviour that occurs through technology".
Bullying does not discriminate,
we are all potential targets. No one person is immune to Cyber-bullying
either. Both individuals and organisations may be susceptible to
Cyber-bullying Anonymous blogs which target an individual or an
organisation is Cyber-bullying In most cases the perpetrator works
alone, struggles to fit in with society and they have an axe to
grind. They are bullies in the truest sense.
We hear more and more tales about
this unacceptable and inexcusable behaviour. If an individual writes
a blog about your organisation, or harasses someone under the guise
of a blog in an attempt to try to convince others that they are
a victim of circumstance, they are probably delusional.
For example, we recently heard of
a case where an individual (an ex-NHS employee) wrote a blog about
her former employer because she was found to be a bully through
a formal 'internal' investigation process. She was subsequently
disciplined and later dismissed. In an act of retaliatory treatment
and revenge she wrote a blog that was totally misleading and inaccurate.
We know of a second, complex, case
where an employee was released under a Compromise Agreement following
an investigation. The investigator raised concerns about the employee's
conduct, stress and mental health at that time and recommended that
the employer consider the C.A. route (as just one of many options
to address matters). A third party subsequently wrote a blog about
that case unaware of the full facts. In both cases cited here, some
of the facts are similar, and both cases resulted in an inappropriate
blog being drawn up. These are just two examples.
A third case reported to our helpline
involves a teenager who had her website highjacked by a blogger
- and inappropriate images were placed on her site without her consent.
Any form of Cyber-bullying is unacceptable
conduct and should be reported to the Police immediately.
Bloggers will, typically, convince
themselves that they are a victim and that their blog is permissible
under 'freedom of speech' and/or that they are some sort of champion
of justice. These individuals, often, have no qualifications, a
limited understanding of HR or employment law and they very quickly
'jump to conclusions' or make assumptions. They lack the knowledge
and ability to deal with concerns in a professional manner and/or
very often they have failed at seeking a remedy through legal channels.
These individuals are, in no way, professional businessmen or women.
A common occurrence with blogging
is that authors of blogs will refuse to reveal their name and identity
and/or write their blog under a pseudonym. They will also, typically,
block the target of their blog from responding. Bloggers often portray
only half a story or very distorted facts. In fact perpetrators
of Cyber-bullying bring shame to no one but themselves.
Bullies are often frustrated, sad,
lonely, mentally unstable individuals and often lone-workers - incapable
of separating fact from fiction. They are bullies in the truest
sense and, we all know, bullies are cowards.
If you or your company is targeted
by a cyber-bully, do not reproach yourself. Ask yourself wither
the perpetrator has an axe to grind. The answer is invariably yes.
Cyber-bullying, if believed by a
reasonable person to be an act of victimisation or harassment, may
be regarded as a criminal offense under The Harassment Act.
In a case involving
Rolls-Royce v Unite (2008 EWHC 2420 QB), the
High Court ruled that Lifo (last in first out) used as the sole
criterion for redundancy selection was unlawful age discrimination.
This was because it favoured older workers as they were more likely
to have longer service. LIFO on its own is not a proportionate means
Have objectively measurable
redundancy selection criteria
Cost cutting may be legitimate
as one of several selection criteria for redundancy
Enhanced redundancy pay must
mirror the statutory scheme