Kate Boguslawska, a Solicitor at Saunders Law, explains the summer changes to employment law and tribunal rules and the expected changes in 2014.
2013 has been an important year for business owners, HR specialists and employment law practitioners. This is because we all have witnessed staged implementation of various changes to employment law and tribunal rules. The changes were introduced by the Enterprise and Regulatory Reform Act 2013 and the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 which have come into force this year.
The changes are partly in response to mounting costs of the Employment Tribunal system. In the financial year 2011-12, Employment Tribunals have accepted a total of 186,300 claims. The annual cost of running employment claims is said to be approximately £74 million. The changes also aim at reforming the old Tribunal Rules of Procedure and making the system more efficient.
The main changes that have already taken place this summer
• Removal of qualifying period for political belief dismissals
If an employee is dismissed because of their political beliefs or affiliations, they do not need to demonstrate that they were employed for a qualifying period (two years, or a year if they were employed before April 2012) in order to bring an unfair dismissal claim.
• Changes to whistle blowers’ protection
Workers making a protected disclosure are now only protected if the disclosure is ‘in the public interest’. Consequently, if they blow the whistle about breaches of their own contract of employment, they will not be entitled to protection from detriment or dismissal. However, they do not have to make the disclosure in good faith any more, although, if they do not, a tribunal may reduce their compensation by up to 25%.
• Introduction of the tribunal fee paying system
On 29th July 2013 we observed the introduction of a two-tier fee paying structure, payable by claimants. It divides claims into ‘minor claims’ (Type A claims) such as unlawful deduction from wages or statutory redundancy payment and ‘complex claims’ (Type B) including unfair dismissal, discrimination and whistle blowing. Type A claims now require a lodging fee of £160 and a hearing fee of £230; Type B claims require a lodging fee of £250 and a hearing fee of £950.
The introduction of a unified fee remission system across all courts and tribunals for claimants in receipt of certain state benefits or on low gross income is expected in October 2013.
However, employers are not immune. The new system requires a fee for a counter claim of £160, and £400 to lodge an appeal with the EAT (plus a further EAT hearing fee of £1,200).
• New employment tribunal rules
In order to make the tribunal system more time and cost efficient, Pre-hearing Reviews and Case Management Discussions have been combined together into a single hearing, now referred to as a Preliminary Hearing. The new rules have given the judges powers to strike out weak cases and, in certain circumstances, to order that a deposit be paid by the claimant in respect of individual allegations within claim particulars. Also the judges will now, more actively, encourage parties to use alternative dispute resolution.
• New Cap on the unfair dismissal award
The Compensatory Award for unfair dismissal is now subject to a cap of £74,200 or 12 months’ salary, whichever is the lower.
• Settlement Agreements
This is a new name for good old Compromise Agreements. The change is not only in the name. Before, employers were wary of offering Compromise Agreement to their employees, in case they complained that their dismissal was predetermined and therefore unfair. Now, in the spirit of pre-termination negotiations, employers are able to offer a settlement agreement at any time, regardless whether there is an existing dispute. Because these negotiations are on a without prejudice basis, if no agreement is reached neither party can refer to it in any ensuing proceedings. The move is a result of a drive towards encouraging parties to reach settlement without recourse to the tribunal. It is also in line with the spirit of reconciliation and extended role of ACAS. Worth noting though is that this rule only applies to unfair dismissal situations and not where a claim for automatic unfair dismissal or discrimination may arise; furthermore employers must comply with the new ACAS Statutory Code of Practice.
• Employee shareholder contracts introduced
1st September 2013 introduced Employee shareholder contracts – a scheme which allows employees to give up their employment rights such us a right to claim unfair dismissal or a redundancy payment in return for at least £2,000-worth of shares in the employer’s company. In order to take advantage of the scheme and understand it, an employee must obtain independent legal advice before signing up. This is to give protection from undue influence on the part of the employer.
What the future holds?
Removal of Third Party Harassment provisions
1st October 2013 is marked as the day on which the Third Party Harassment provisions of the Equality Act 2010 will be repealed and the employer will no longer be vicariously liable for harassment of employees by a third party (such as a customer or contractor).
Next year we will, no doubt, continue to be busy as more changes are announced such as the Transfer of Undertaking Protection of Employment (TUPE) Regulations marked for January 2014. In April 2014, ACAS Conciliation will become compulsory before lodging a claim with the tribunal. Also, in 2014 an extension to the right to request flexible working for all employees is planned.
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