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Blacks Solicitors LLP on employment law changes

Published 10 August 2012

1) The increase in the ‘qualifying period’ for unfair dismissal

As of April 2012 employees now need to have two years’ continuous employment in order to sue a company for unfair dismissal if their employment is terminated. This is a substantial change as the previous qualifying period was only a year; the change has been brought in to lessen the amount of employment tribunal claims and, of course, to ease congestion within the tribunal system.

What may well happen however, is that many employees will seek to get around the new qualifying period by including claims of discrimination, whistleblowing or a host of others which do not require a qualifying period. So it’s not all good news for businesses!

My advice for companies which are planning to dismiss somebody who was employed on or after 6thApril 2012 and who does not yet have the requisite two years’ service, is to carefully assess your reasoning behind the dismissal and ideally to seek professional guidance. In particular, look at whether the dismissal could be argued to fall within one of the ‘exceptional’ situations where an employee does not need to have a year’s service to lodge claims relating to their dismissal.

2) The introduction of Employment Tribunal fees

Employment tribunal fees are being brought in as of 2013 in an effort to discourage unwarranted or unjustified claims. However, it is entirely possible that this will also have the effect of dissuading a lot of genuine claims where employees are simply not willing to pay the fees. Additionally, there will be a means-testing arrangement put in place so that some individuals, those on jobseekers allowance for example, may not have to pay the fees.

So the change might not actually serve its purpose of preventing these types of claims from being brought. I do think, however, that some businesses could be able to use the introduction of employment tribunal fees to leverage settlement negotiations with employees or ex-employees threatening to sue them.

3) The increased focus on mediation and ACAS conciliation

In future, all claims will have to be sent to the Advisory, Conciliation and Arbitration Service (ACAS) before being sent to the employment tribunal. Parties are also encouraged (although not forced) to try to resolve their dispute through mediation first, before continuing proceedings in the tribunal.

Whilst this seems a good idea in principle, it will not be mandatory to mediate; so many parties may pay lip service to this. What’s more, ACAS is extremely under resourced already – it will simply not be able to cope with the additional workload unless the government substantially increases its funding, which has been mooted, but nothing concrete is in place.

Despite this and to save considerable time, I would always advise businesses to explore mediation at an early stage to avoid having to litigate disputes.

4) Protected conversations

The government has, through the Enterprise and Regulatory Reform Bill, proposed bringing into effect the concept of ‘protected conversations’. In essence the idea is to allow employers to be able to have frank discussions with their staff about agreeing an amicable ‘parting of the ways’ without this being used against them in any subsequent employment tribunal proceedings.

To an extent, employers are already able to have ‘without prejudice’ discussions with employees about such matters and the common law stipulates that these cannot be later used in evidence if they represent a genuine attempt to settle an existing dispute. The problem at the moment is that there has to already be a dispute before the employer can take advantage of the without prejudice rule, which will often not be the case.

Therefore the idea of protected conversations is a good one. However, as always, the devil is in the detail and few people will be surprised that some lawyers are already pointing out problems with how this will work in practice.

The key point to note is that protected conversations will only work in the context of ‘ordinary’ unfair dismissal claims. For example, if an employer has what he believes to be a protected conversation with an employee but the employee subsequently alleges that he or she has been discriminated against, then the employee will not be prevented from disclosing the conversation as evidence in their discrimination case. Alternatively, in the case of ‘automatic’ unfair dismissal, for things such as whistleblowing, protected conversations will not also be protected from disclosure.

Additionally, ‘protected conversations’ will not serve as a cover for ‘improper conduct’ on the part of the employer. What constitutes ‘improper conduct’ is without a doubt something that will be the source of considerable debate and considerable litigation as well.

All told, businesses should be very, very careful about employing ‘protected conversations’ for the foreseeable future until sufficient case law has been created to clarify how the rules will actually work in practice.

Euan Lawrence
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Blacks Solicitors
0113 207 0000

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