Whilst 6 April 2014 might not mark any national event of particular historic note, it will be a busy day in respect of employment law developments.
Of the legislative changes/developments coming into effect from 6 April 2014, the key ones to note are:
The Advisory, Conciliation and Arbitration Service (‘Acas’), has always had the power to help parties conciliate in respect of certain employment tribunal claims. This power is now becoming a ‘duty’ to attempt early conciliation between disputing parties to avoid employment tribunal claims being presented in the first place.
Registering for early conciliation will be a prerequisite for all those seeking to present an employment tribunal claim on or after 6 May 2014. However, there is no ‘compulsion’ on either party to then participate in the process.
The provisions governing early conciliation are contained in the Employment Tribunals (Early Conciliation Exemptions and Rules of Procedure) Regulations 2014 and will apply to all claims of unfair dismissal, workplace discrimination, redundancy, deductions from wages or unpaid notice/holiday pay. Early conciliation will not be required in matters where a very limited time-frame exists for bringing a claim, such as an interim relief application in cases of dismissal for trade union membership or whistleblowing.
In summary, under the early conciliation process:
- Prospective claimants submit an Early Conciliation Request From (an‘EC1”) to Acas (via the Acas website). The EC1 requires limited information, essentially the parties’ contact details.
- Submitting an EC1 has the effect of “stopping the clock” for the purpose of the time limit for any subsequent employment tribunal claim.
- An Acas Early Conciliator Support Officer (an ‘ECSO’) will contact the prospective claimant, obtain basic information about their complaint, explain the conciliation process and discuss the general legal framework of any potential claim. If at this point the individual elects not to continue with the conciliation process, Acas will issue them with an Early Conciliation Certificate (an ‘ECC’) which will bear a unique early conciliation reference number. The ECC will be required if the individual subsequently seeks to present an employment tribunal claim.
- If the individual decides to pursue conciliation, the ECSO will pass the matter over to an Acas conciliator who will confirm with the prospective claimant that they are willing to discuss settlement. If so, ACAS will contact the potential respondent to see if they are also willing to discuss a settlement. Sometimes, this might be the first time the employer becomes aware of the ‘dispute’.
- If both parties are willing to discuss settlement, the conciliator has one month from receipt of the original request to mediate a settlement. The conciliation period can be extended by a further two weeks if the parties agree and there is a prospect of achieving settlement. If early conciliation is successful, a legally binding settlement agreement can be entered into.
- The conciliator is not permitted to provide advice to the parties on the merits of their claim(s)/defence.
- Discussions between the parties during the process will be on a ‘without prejudice’ basis and cannot be put before any subsequent employment tribunal.
- If conciliation fails, whether because the ECSO was unable to contact either of the parties, one of the parties opted out of conciliation, or the parties did not reach an agreement before the expiry of the conciliation (or extended conciliation) period, Acas will issue an ECC.
- Once an ECC is issued, a claim can be lodged with the employment tribunal. The employment tribunal claim form (‘ET1’) will include a section requiring a claimant to enter their unique early conciliation reference number
Along with the introduction of fees in the employment tribunal, mandatory early conciliation represents a seismic shift in the way employment disputes are handled outside the workplace. Arguably access to the employment tribunal is becoming more and more restrictive. Although this might be a welcomed development for many employers, human nature dictates that employment disputes themselves are unlikely to disappear. To maximize on the opportunities available in the new world of mandatory conciliation and increased mediation, employers will need to adjust their strategic thinking around dispute management, particularly when seeking to exit an employee from their business.
EEF can assist you in fine tuning your skills in this area, including using the new early conciliation obligation/process to best advantage. Book a place on one of our ever popular, ‘Ending the Employment Relationship: Off the Record or by the Book’ seminars. For further details and to book a place click here.
Financial Penalties for Employers
Tribunals are given the power to order employers who lose an employment tribunal claim and are found to have breached workers’ rights, to pay a financial penalty of between £100 and £5,000 where the employer’s breach is found to have one or more aggravating features. Any such penalty awarded will be 50 per cent of the amount of the award the tribunal has made against the employer (subject to the above maximum and minimum).
For more information on the operation of employer financial penalties, see our previous HR Briefing 2014 - What’s on the employment law horizon.
Abolition of statutory discrimination questionnaires
With effect from 6 April 2014, s138 of the Equality Act 2010 is being repealed. This has the effect of removing the specific statutory provisions which have historically been used by individuals to obtain information from their employer about potentially discriminatory practices and actions in order to use in evidence at subsequent tribunal proceedings.
The statutory framework will be replaced by non-legislative best-practice Acas guidance setting out how job applicants and employees can ask questions about discrimination and equal pay under the Equality Act 2010 and how employers should respond to such questions. Click here.
Rise in Statutory Rates and Compensatory Limits
The 6 April marks a rise in statutory rates all round. For full details of the new rates click here.
Increase in Immigration Fines
The maximum civil penalty for an employer employing an ‘illegal worker’, i.e. one who lacks the right to work in the UK is increasing on 6 April 2014 from £10,000 to £20,000 per employee. These civil penalties are additional to any potential criminal liability.
Still on the horizon for 2014
Notwithstanding that the 6 April delivery might take a while to unpack, there are a number of other developments on the legislative horizon. These include the extension of the right make a statutory request for flexible working to all employees with 26 weeks continuous employment, coming into effect on 30 June 2014. 2014 is also expected to see employment tribunals given the power to order equal pay audits of employers found to be in breach of the equal pay provisions of the Equality Act 2010.
As always, we will keep you updated of developments, and, if you require information about any of the above, contact your EEF adviser