Alastair Currie looks at the latest developments that will be keeping HR practitioners and in-house Counsel busy over the Summer: the first tranche of this year’s law reform programme takes effect this month; UNISON has challenged the fee regime due to come into effect next month; the new Employment Tribunal rules have been published; Acas has published its guidance on pre-termination discussions and, finally, the new DBS online checking scheme is in place; and we provide an update on TUPE and how it applies to 'client team' transfers.
June 2013 and UNISON challenge
The first raft of employment law changes under the Employment and Regulatory Reform Act came into effect on 25 June 2013, and the new employment tribunal fees regime is scheduled to commence next month. Please click here to see our summary of the key changes published in last month’s Employment Eye, and please also see this month's whistleblowing article.
Please note, however, that UNISON has launched a legal challenge to the introduction of fees in the employment tribunal. From their press release it appears that the basis of their application for judicial review is, in brief, that the fees are prohibitively expensive and may indirectly discriminate against women. If UNISON is successful, it may be that the fees regime does not go ahead in its current form, or may be significantly amended. Either way, it is possible that the introduction of employment tribunal fees may be delayed until the outcome of the judicial review, which may take some time.
New Employment Tribunal Rules
New rules governing Employment Tribunal practice and procedure across England, Wales and Scotland have been published this month. The rules are in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.
The rules will apply to all new and ongoing claims in the employment tribunal system from 29 July 2013 onwards - i.e. the new rules will apply from that date, regardless of when a claim commenced.
In summary, the new rules cover the following.
- Sanctions for non-payment of fees.
- A new power for Employment Judges to reject claims that cannot sensibly be responded to or are otherwise an abuse of the process.
- A new ‘sift’ stage, after the employer’s Response has been submitted, where a case will be reviewed, and may be rejected or subject to case management orders.
- Allowing employment tribunals to undertake assessment of costs over the current limit of £20,000.
- A rule expressly permitting Tribunals to limit the time taken to give oral evidence and present submissions at hearings.
- Greater flexibility to allow Respondents extra time to respond to a claim.
- A mandate to encourage mediation and settlement.
In general, the new rules do not introduce any fundamental changes to the way in which employment tribunals will operate; rather they aim to increase simplicity (they are much shorter than the current rules), improve consistency and encourage a more proactive management of cases. In particular, the explicit purpose of the new rules is to reduce the number of claims that are handled by employment tribunals.
Pre-termination discussions – Acas guidance published
From this Summer (the exact date is still to be confirmed) certain pre-termination settlement discussions will be automatically shielded from examination by an employment tribunal, without having to comply with the current rather complex rules around admissibility of ‘without prejudice’ discussions.
Acas has now published guidance which is intended to complement the new legislation on these pre-termination discussions. The text is still awaiting Government approval but is unlikely to change in substance. The guidance is in Annexe A to this document. Non-statutory guidance and template letters are also expected, but have not yet been published.
A note of extreme caution should be sounded in relation to the new legislation regarding pre-termination discussions. These discussions will only be automatically inadmissible in ordinary unfair dismissal proceedings; the new rules will not apply to any other type of proceedings brought by the claimant - for example, an ‘ordinary’ unfair dismissal claim lodged with an allegation of discrimination would not be covered. Neither would claims for automatically unfair dismissal or whistleblowing. We may, therefore, see increased attempts by claimant lawyers to introduce these types of claims in an effort to circumvent the new protection for pre-termination discussions.
Furthermore, any pre-termination discussions can still be submitted in evidence to a tribunal if there is ‘improper behaviour’. The legislation does not define ‘improper behaviour’ – this has been left to the Acas guidance, which suggests several examples of such behaviour, such as harassment, threats of violence and allowing insufficient time for an employee to consider proposals (10 days is suggested as a reasonable period of time). Ultimately, it will be for a tribunal to decide whether an employer has acted ‘improperly’.
Please note also that the current rules relating to the inadmissibility of ‘without prejudice’ negotiations will still apply. So the new right to undertake pre-dismissal negotiations is additional to the existing ‘without prejudice’ regime (whereby attempts to resolve a genuine dispute cannot be used in evidence at an employment tribunal unless there has been ‘unambiguous impropriety’).
New DBS online update service
With effect from 17 June 2013, a new online Disclosure and Barring Service (DBS) scheme is in place, under which an employee may register with the DBS for an annual subscription of £13 per year. An advantage for the employee is that the check is now ‘portable’, so that it can be used for several employers and can be taken with an employee when they change jobs. An advantage for employers is that, with the employees consent, they can check the status of an employee’s DBS registration at any time, and can instantly see if any convictions have been added. The scheme also shifts the administrative and cost burden onto employees and job applicants. The new scheme will run in parallel with the existing criminal checks scheme, but employers may wish to ensure that employees, and prospective employees, sign up to the online scheme. Obtaining explicit ongoing consent, preferably in writing, for the employer to check the employee’s DBS registration will also be important. Employers’ guidance on the scheme has been produced and is available here.
TUPE – 'client team' transfers
The Court of Session has, this month, upheld a decision of the
Employment Appeal Tribunal (EAT) regarding the question of whether
a single employee who undertakes work for a single client can be an
'organised grouping' for the purposes of a transfer under the
Transfer of Undertakings (Protection of Employment) Regulations
(TUPE). We reported on the EAT decision in our May 2012 news
round-up - please click here and scroll down to the second
item to read a summary. This month, the Court of Session
agreed with the EAT's analysis: the concept of an 'organised
grouping' means that there must be an element of "conscious
organisation" by the employer of its employees into a grouping,
which has as its principal purpose the carrying out of the
activities in question; an employee who coincidentally carries all
of their work for a particular client is unlikely to fall within
the scope of TUPE. Please click here for a copy of the Court of Session