Employment Bulletin - April 201423rd Apr 2014

by on 23rd Apr 2014



There's a big change this month.  Employees must now notify Acas (by telephone, or by filling in a form which can be posted or submitted online) before they are allowed to bring an employment tribunal claim.  This is optional from 6th April, and becomes compulsory on 6th May.

If the employee doesn't tell Acas before lodging a tribunal claim, the claim will automatically be rejected by the employment tribunal.  If the employee does tell Acas that they intend to bring a claim, Acas will try to help both sides settle.  Either side can refuse to negotiate, in which case the employee can go to the tribunal.  Conciliation can last for up to six weeks, if everyone agrees a settlement is feasible, and the employee then gets at least a month from conciliation failing to bring a tribunal claim (the time limit rules are complex, but it's always at least a month after the Acas conciliation ends).
Is this a good idea?  We think it's a really good idea in principle; it means employers won't find a tribunal claim form landing on their doorstep unexpectedly.  However, we're not sure it will work with anything but the simplest, lowest-value cases ­ mainly because most employers will want to wait and see whether the employee will pay the £250 fee to start their tribunal claim.  According to statistics last month, two-thirds of employees don't.

Neil Andrews
Partner, Coles Miller Solicitors LLP

April Showers us with (Even More) Changes

From 6th April there are some new processes, penalties and pay to get to grips with. Here's a summary:

Tribunal fines
Employers who breach workers' rights face a fine of between £100 and £5,000 where the case involves 'aggravating features' (eg a flagrant unfair dismissal). The penalty will be calculated as 50% of any financial award made to the Claimant by the tribunal, subject to the £5,000 maximum. The silver lining? The fine will be reduced by 50% if it's paid within 21 days.

Increase in compensation limits
New compensation limits apply to dismissals that take effect on or after 6th April. The maximum for a week's pay (for calculating redundancy payments and the unfair dismissal basic award) rises to £464. The compensatory award cap for unfair dismissal increases to £76,574.

No more discrimination questionnaires
Statutory discrimination questionnaires are being abolished as part of the government's cutback on employment law red tape. These were a way of aggrieved employees who alleged discrimination gleaning information from their employers in support of a claim. Employers who didn't comply faced the possibility of an adverse inference being drawn at a subsequent hearing.

So, employees who allege that discrimination took place on or after 6th April will not have this questionnaire procedure in their armoury. But that doesn't stop them asking questions of their employer in the normal course of their claim, and employers should in most cases comply. Acas has issued some useful guidance on this.

New rates of pay From 6th April some important statutory pay increases take effect: -

  • Maternity, paternity (ordinary and additional) and adoption pay increases to £138.18.
  • Statutory sick pay is £87.55.

New Law on Spent Convictions

Employers who require employees to disclose 'spent' convictions could be committing a criminal offence.

New rules on the rehabilitation of ex-offenders have come into force. They reduce the period of time after which an offence becomes 'spent' (no longer counts) and doesn't need to be disclosed. There are some exceptions ­ mainly jobs involving contact with vulnerable adults and children ­ but on the whole people will be able to put their past behind them far more quickly and be treated as though their convictions never happened.

Employers should tread carefully here. It's wrong to refuse to employ someone, or dismiss someone, based on a spent conviction. And in most cases, it's now wrong to ask job applicants about spent convictions or cautions. Remember, too, that criminal convictions are 'sensitive personal data' under the Data Protection Act. 

The Woolies Sweater

The 'Woolworths case' is keeping us all waiting (some on the end of our seats) as it trickles through the court process. It's made its way to Luxembourg; the Court of Appeal has referred to the European Court of Justice the question of whether the words "in one establishment" should be disregarded from collective redundancy legislation.

What does that mean? It's significant because removing these three words leads to more employers needing to collectively consult before making 20 or more people redundant. The size of the shop, office, factory etc in which these employees work becomes irrelevant.

The case is about workers in Woolworths and Ethel Austin stores which, individually, had fewer than 20 employees working there. Under existing legislation the employer would not be obliged to consult with a recognised union or specially elected employee representatives because there were not 20 people "in one establishment". But before the case reached the Court of Appeal, the Employment Appeal Tribunal decided that these employees were entitled to be included in collective consultation. To retain a provision requiring there to be at least 20 employees at one establishment was not compatible with the EU Directive on Collective Redundancies.

So we're waiting for Europe to have its say. In the meantime, the safest course of action to take if you're looking to make 20 or more employees redundant within 90 days is to collectively consult, even with those based in your smaller operations.

Secret Recordings Admissable

Punjab National Bank v Gosain

You may think there's something underhand about an employee covertly recording their disciplinary or grievance hearing. But don't bank on an employment tribunal sharing your outrage and excluding the evidence.

If it's relevant to the employee's case, then the tribunal is probably going to want to hear it.

Ms Gosain worked for Punjab National Bank. Immediately after her grievance and disciplinary hearing, she secretly recorded her employer's private deliberations. She alleged that wholly inappropriate comments were made while she was out of the room. These included an instruction to dismiss her, and discussions about the deliberate skipping of issues in Ms Gosain's grievance letter.

The Employment Appeal Tribunal (EAT) said that there is a balance to be struck between allowing relevant evidence to be heard and public policy interest in preserving the confidentiality of private conversations. Normally the evidence should be admissible, the EAT held, especially if the detail is outside the scope of the employer's proper deliberations on the relevant matters. In this case the comments fell outside the area of legitimate consideration (as it was improper for the chair to be given instructions, and for a conscious decision to be taken to ignore aspects of the grievance) and so the recordings could be used in evidence.

Will this decision change the way you conduct yourself and your internal hearings? For some employers it will come as a stern reminder of the danger of careless conversations. So the biggest message to take from this case is: say only what you would be happy for a tribunal to hear you say (or perhaps go to a different room for your discussions!).

Agency Worker Protection Limited

Moran v Ideal Cleaning Services 

Agency workers are not employees. But over the years the distinction between the two has blurred. Agency workers with at least 12 weeks' service are now entitled to the same basic employment rights and working conditions as if they had been recruited directly. It's valuable protection that goes some way towards levelling the playing field between these temporary workers and the employees they work alongside.

But the Employment Appeal Tribunal (EAT) has decided that workers on "indefinite" or "permanent" assignments are not covered by the Agency Workers Regulations and so don't get employee-equivalent rights. It's a pretty significant shift in the general understanding of the law.

The case involved ten workers who were employed by Ideal. From the very beginning they were put on assignment at a company called Celanese. These assignments were long-term (the Claimants had worked there for between six and 25 years). Contracts were open-ended, they specified Celanese's premises as the place of work and employment was terminable on notice.

When the Claimants were made redundant they argued that they were entitled to better conditions, including higher rates of pay. They didn't succeed. The EAT held that as the Claimants were working for Celanese on a permanent basis there was nothing temporary about the arrangement and so they were not covered by the Agency Worker Regulations. These Claimants' contracts could not be terminated by some condition expiring (for example, the end of a fixed-term or completion of a task) and so the legislation didn't apply.

This might not be the final word on the subject. There's a chance that the Claimants could be knocking on the door of the Court of Appeal.

Surrogacy and Maternity Rights

Case C 167/12 CD v ST

It's usually obvious who is entitled to maternity rights. But not so where surrogacy is concerned. Who has the right to maternity pay, maternity leave etc ­ the surrogate mother who gave birth, or the commissioning mother?

The Court of Justice of the European Union (CJEU) has looked at the case of Ms D, who commissioned a surrogate. Ms D breastfed the baby as soon as it was born, and she and her partner were granted a parental order. But after her employer denied her maternity and adoption leave (because she hadn't given birth to or adopted the child) she brought a claim.

The CJEU held that maternity leave rights hinge on pregnancy and giving birth. That's despite maternity leave being intended to protect the special relationship between a woman and her child.

So Ms D's employers were not bound to grant her leave. But this is set to change next year when the Children and Families Act will give commissioning mothers like Ms D the right to paid leave.


The information and any commentary contained in these bulletins is for general information purposes only and does not constitute legal or any other type of professional advice. Coles Miller Solicitors LLP do not accept and, to the extent permitted by law, exclude liability to any person for any loss which may arise from relying upon or otherwise using the information contained in these bulletins.

If you have a particular query or issue you are strongly advised to obtain specific, personal advice about your case or matter and not to rely on the information or comments in this bulletin.


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