Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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Lara Feghali takes a look at the latest employment law news, including an update on early conciliation, the latest news on employment tribunal fees and the judicial review of the new maximum cap on unfair dismissal compensation.
It's been in existence as a compulsory process for less than a month, but Early Conciliation (EC) is already causing headaches. The rules around extension of time for claimants bringing their claims are complex, using a 'stop the clock' mechanism which can allow claimants an extra month in which to bring their claim.
However, we understand that guidance from HM Courts and Tribunals Service (HMCTS) and Acas, in respect of how time limits under EC are calculated, are at odds with BIS: HMCTS states that if the EC certificate is sent by email on 5 June (and presumably received the same day), the last day for bringing a claim would be 4 July – i.e. one day before a whole month has passed. However, we understand that BIS take the view that the 'corresponding date' rule applies – i.e. if the EC certificate is received on 5 June, the last day for presenting a claim would be 5 July.
Furthermore, where a month's extension comes into play because of the use of EC and the claimant's claim is lodged late at the employment tribunal, it is unclear whether a tribunal includes the month's 'stopped clock' period when considering whether to grant an extension of time – e.g. if a claimant would be 2 days out of time, apart from the month's EC period, does a tribunal consider the claim to be 2 days late or 2 days and one month late? We think tribunals are likely to take the latter approach, but it is not clear.
The good news is that the two issues outlined above are only likely to be relevant if you think that a claimant has lodged their claim out of time. The bad news is that you will not automatically receive notice from Acas about the dates on which they were contacted by the claimant or the date the claimant received the EC certificate.
Following on from the introduction of employment tribunal fees in July 2013, the Civil Court 'remission scheme' was expanded to include employment tribunals. The scheme provides either a full or partial waiver of fees for claimants who meet a stringent means test. In the House of Commons, Shailesh Vara MP provided details of the number of employment tribunal fee remission applications that have been granted or refused. He stated that, according to provisional data (rounded up to the nearest hundred), during the period 29 July 2013 to 31 December 2013, 2,500 employment tribunal fee remission applications were received; of these, 600 were granted and 1,800 were rejected – so, approximately 72% of remission applications have been rejected.
The public services union Unison has reported that it has been granted permission to appeal the decision to reject its application for Judicial Review of employment tribunal fees (please see our February Alert for details of the original decision). The original application was rejected largely because the High Court felt that, at the time, there was insufficient evidence of impact of the introduction of employment tribunal fees. Since then, employment tribunal statistics have shown a dramatic drop in the number of claims being issued, so it will be interesting to see if the Court of Appeal comes to a different conclusion.
The High Court has dismissed an application for judicial review, lodged by a company called Compromise Agreements Ltd, which sought to quash the introduction of the statutory cap on unfair dismissal compensation of one year's salary that has been in place since 29 July 2013. The company had argued that older people are more likely to be out of work for more than a year and, but for the new cap, would be entitled to recover more than a year's salary. In its view, this renders the cap indirectly age discriminatory. It is considering whether to appeal.
Our next Workforce Forum is taking place at our London office on 10 June 2014, on the topic of 'protecting patients and staff' in the light of changes following on from the Francis report. This event is an interactive employment discussion forum for Directors of Human Resources and Organisational Development focusing on strategic workforce issues. Our Workforce Forums are by invitation only, but if you would like more information please contact Jodie Sinclair.