What did we get up to last month?
We have been busy this month reading up on and preparing for the significant changes which came into force on 29 July 2013 (more about this below). The changes to the Tribunal process in particular are striking and we think that there is going to be a major change in the way litigation is conducted in future, both practically and tactically, and we have spent a fair bit of time discussing the implications and impact that these changes will have on the advice that we give to our clients. There’s certainly never a dull moment with employment law!
Katharine’s knowledge of naff 90s pop music came into its own at the Cambridgeshire Chambers of Commerce “Through the Decades” quiz at the start of July and helped lead the Buckles team to victory. She, along with colleagues Nigel Moore (corporate), Michael Blank (property) and Julie Isaac (family), pitted their general knowledge against 12 local business teams and are proud holders of the shield once more.
We were also delighted to attend the grand opening of the Buckles on-site gym! It’s a great facility for staff and has been very well used so far.
Any plans for August?
We will be putting together a number of “Employment Law Essentials” workshops that we hope to run from September. These are designed to be informal discussion sessions allowing participants to share HR experiences and ideas, as well as getting an update on the legal issues from the Buckles team. Topics that we have been asked to cover include: performance management, running a disciplinary, TUPE, redundancy, the Tribunal Process and auto-enrolment pensions. If there are any particular topics which you think would be helpful for us to cover, please email Giles Betts before we finalise our timetable. Places will be limited.
Any new legal changes in July?
Where do we start? Here is a brief summary of the legislative changes which came into effect on 29 July 2013:
- Compromise agreements are now called “settlement agreements”. Peculiary though, not all employment legislation has been updated to use the words “settlement agreements” rather than “compromise agreements” so your settlement agreements should ideally still refer to regulations relating to compromise agreements to be completely sure that they have the desired effect. Confused? We’re not surprised – let us know if you want some further guidance on this.
- Changes have been made to the way in which Tribunal proceedings will be conducted. In particular, there will be revised powers for Judges to strike out weak claims, a greater emphasis on the use of alternative dispute resolution to resolve complaints, and case management discussions and pre-hearing reviews will be amalgamated into what are known as “preliminary hearings”.
- Discussions that an employer has with an employee about the termination of the latter’s employment on agreed settlement terms (known as “pre-termination negotiations”) will not be admissible in evidence at any subsequent unfair dismissal claim, even if the “without prejudice” privilege does not apply (i.e. where the is no pre-existing dispute). Our view is that this “tool” really ought to be used with caution given that at the outset of any discussions an employer will not know what claims an employee may believe that he or she has (for example, the employee may believe that the employer wants their employment to end on discriminatory grounds). If the employee does bring a discrimination claim then all pre-termination negotiations will be fully admissible as evidence – something which the employer clearly wanted to avoid.
- The compensation that an employee can be awarded in a successful unfair dismissal claim is now capped at 12 months’ net pay or the statutory cap (currently £74,000) whichever is the lowest amount. This gives clarity to an employer as to what its maximum exposure will be in an unfair dismissal claim, but it is important to note that there remains no cap on compensation awarded in successful for discrimination claims or certain strands of unfair dismissal (such as dismissal resulting from making a whistle-blowing complaint).
- Tribunal fees are now in place for all claimants who want to issue a Tribunal claim and see it through to a full hearing and for all respondents who want to make certain applications during the Tribunal process. Claimants of limited financial means who satisfy set criteria will not be obliged to pay the fees or will receive a refund if they have already paid them. An official Tribunal fees fact sheet has been produced by the Ministry of Justice, which you can find here.
Any new cases to be aware of?
In Sood Enterprises Ltd v Healy the EAT has confirmed that when an employee is on long-term sick leave and is unable to take holiday, only the 4 weeks’ minimum holiday required by the Working Time Directive must be carried over to the subsequent holiday year to enable the employee to take it at a later date. Whilst the statutory minimum holiday under UK legislation is 5.6 weeks, it was held that the additional 1.6 weeks over and above the 4 week minimum required by the European Directive was not subject to the same rules as that 4 week period and therefore did not need to be carried over.
In this case Mr Healy’s claim that on termination of his employment he should have received payment for 5.6 weeks’ leave carried over from the previous year when he was on sick leave, failed. It should be noted that the outcome of this claim would have been different if Mr Healy and his employer had agreed that the full 5.6 weeks could be carried over, for example by way of a clause in his contract of employment. In light of this case it would be sensible for employers to review the carry-over provisions that are contained in their contracts or handbooks.
The EAT has confirmed that a worker’s request to be accompanied to a disciplinary is subject to a “reasonableness” test only in respect if the request itself, and not the identity of the companion. It is therefore not open to en employer to refuse to allow a particular companion to attend a formal hearing and if it does it will be in breach of its statutory obligation. Furthermore, that breach cannot be cured by allowing another companion to attend instead.
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