What lies ahead for employers in 2013?

7 March 2013

Speaker

Paul BallHead of Employment

Tel: 0113 246 2312Mob: 07753 323772

Email: paulball@3volutionllp.com

Programme

• Settlement discussions and agreements• Early conciliation • Employment Tribunal fees and limit on compensation

in unfair dismissal cases• Reform of ET rules• TUPE reform• Collective consultation changes • Management of long-term sickness• Questions

Context

• Enterprise and Regulatory Reform Bill currently going through Parliament

• Government desire to cut red tape on businesses and aim to increase efficiency and competitiveness

• Aim to reduce burden on ETs• Various recent consultation papers/responses to

consultations issued

Settlement Agreements

• BIS Consultation: “Ending the employment relationship” (September 2012)– “Protected discussions”– Limit on unfair dismissal awards

• Government response published January 2013• Likely implementation date, Summer 2013

Settlement Agreements (continued) Currently:• Risks associated with

having “off the record” chats with employees

• If the discussion is unsuccessful, will be admissible in subsequent ET claims

• Any deal reached needs to be confirmed in a “compromise agreement”

Proposal:• Some protection given to

parties who instigate settlement discussions.

• Won’t be admissible in unfair dismissal claims

• NB: “Improper behaviour” caveat

• “Compromise agreements” to become “Settlement agreements”

Settlement Agreements (continued)

• Draft ACAS Code of Practice and Guidance issued• Template letter to instigate settlement discussions• Can be instigated by an employer or employee• Not compulsory, i.e. a party can decline to enter

settlement discussions • Model settlement agreement

Settlement Agreements (continued)

• Risks– “Improper behaviour” caveat– Conduct during settlement discussions and

possible breach of trust and confidence– If discussions fail, employer must then follow a fair

process in taking action– Will only be ‘protected’ in relation to future unfair

dismissal claims– Effect on other ET claims, e.g. discrimination or

whistleblowing?

Early conciliation

• BIS consultation, January 2013• Consultation closed 15 February 2013• New role for ACAS• Aim is to try and reduce number of disputes going to

ET claims

Early conciliation - how will it work?

• All prospective claimants must submit an “EC form” to ACAS before can issue the ET claim

• Limited exceptions, e.g. multiple claimants, claims with a short time limit, claims where prospective respondent has already asked ACAS to conciliate

• Limited information to be supplied to ACAS on the EC form

• ET time limits will stop for 4 – 6 weeks

Early conciliation (continued)

• Two stage ACAS contact with claimant:– First stage – telephone contact by an ECSO by close of

business day after receipt of EC form– Second stage – contact by ACAS conciliator within 2

working days of receipt of the EC form• ACAS contact with the respondent • No obligation to conciliate• Where parties agree to conciliation, ACAS has one

calendar month to try and reach settlement• Possible extension of up to 2 weeks, where is a

reasonable prospect of settlement being achieved

Early conciliation (continued)

• At end of conciliation period, ACAS will issue an “EC Certificate”

• ET time limit will recommence from this point• An EC Certificate number will be required before the

ET will accept any subsequent claim• Possible time limit issues if EC Certificate issued

early?

Cap on Unfair Dismissal Compensation Currently:• Maximum compensation

award £74,200• Median award significantly

less than this*• Most awards/settlements

are lower than claimant’s initial expectations *

Proposal:• Subject to the maximum

limit, a cap of 12 months’ pay on compensatory award on unfair dismissal cases

* The SETA 2008 Survey

Cap on Unfair Dismissal Compensation (continued)

• Government believes this will lead to:– earlier resolution of disputes – more certainty about likely costs of unfair

dismissal claims • But:– risk of greater number of uncapped claims, e.g.

discrimination?– risks of possible injunction action to prevent

dismissal where a claim is likely to be worth more than/close to the maximum award?

Fees in Employment Tribunal Claims

• Summer 2013• Aim is to encourage settlement, mediation and

arbitration• Two stage fee charging structure

Level 1 Claims Level 2 ClaimsIssue Fee £160 £250Hearing Fee £230 £950

Fees in Employment Tribunal Claims (continued)

• Remissions available for those unable to pay• Refunds available in limited circumstances only

Level 1 Claims

Straightforward and low value claims for fixed amounts due on termination of employment

E.g. holiday pay, notice pay, redundancy pay

Level 2 Claims

All other claims E.g. unfair dismissal, discrimination, whistleblowing

Fees in Employment Tribunal Claims (continued)

• Multiple claims – the highest level fee is to be paid, once only

• Multiple claimants – Depending on the number of claimants a multiplier of 2, 4 or 6 will apply to all fees

Various application specific fees

Application FeeSet aside default judgement £100Dismissal of claim after settlement/withdrawal

£60

Judicial mediation £600*Contract counterclaim £160Review of ET judgement £100 (Level 1)

£250 (Level 2)

Fees in Employment Tribunal Claims (continued)

* Payable by the employer

Fees in Employment Tribunal Claims (continued)

Employment Appeal Tribunal fees

Application FeeIssue/Appeal fee £400Hearing fee £1200

New Employment Tribunal Rules of Procedure

• Government intention to bring new ET rules in force, April 2013

• Objective is to simplify the existing ET rules

New Employment Tribunal Rules of Procedure Proportionality ET judges to have power to make case

management decisions on a case-by-case basis

Speed and Efficiency

More robust case managementNew sift stage where claim/response could be dismissed in full or in part

Simplicity Rules written in plain languageHalf of the length of the existing ET rules

Certainty and Consistency

Presidential Guidance on matters of practice and exercise by ET judges of their powers under the new rules

New Employment Tribunal Rules of Procedure (continued)• New ET1 and ET3 forms – NB. Minor changes only• Prescribed information must be supplied on the ET1

otherwise claim will be rejected• ET3 must be filed by 5pm on the relevant deadline• New procedure for seeking extension of time to file

ET3• Sift stage to identify weak claims/responses:– Reasonable prospects of success– Any jurisdictional issues to be determined– Case management directions– Could lead to automatic strike-out of a claim/response

New Employment Tribunal Rules of Procedure (continued)

• CMDs and PHRs to be replaced with “preliminary hearings”

• Wide ranging issues can be determined at a preliminary hearing

New Employment Tribunal Rules of Procedure (continued)

• Full hearings – ET judges to have wider discretion on conduct of these, e.g.:– Limiting duration of witness evidence or making

submissions– May exclude witnesses from the hearing until they

give evidence• Costs awards - £20,000 limit removed• Written reasons for decisions on any disputed issue

to be given as standard (can be brief)

TUPE Reform

• TUPE 2006 introduced “service provision changes” as a relevant transfer

• First generation outsourcing, re-tendering or outsourced services reverting in-house

TUPE Reform

• Organised grouping of employees/resources carrying out an activity for a client

• Whose principal purpose is the carrying out of that activity

• Who are assigned to the grouping of resources or employees that is to transfer

• Other than one-off/short-term duration or provision of goods only

TUPE Reform (continued)

• BIS consultation, January 2013. Closes 11 April 2013• Government proposes to repeal service provision

changes as a relevant transfer• Repeal of “Employee Liability Information” provisions

– to be replaced with guidelines and model terms for contracts

• Proposed change to existing provision which restricts changes to terms and conditions of employment by a transferee (NB. Won’t extend to harmonisation of terms and conditions)

TUPE Reform (continued)

• Proposal to limit duration of transferred collectively-agreed terms to 12 months post-transfer

• Limitation on an employee’s ability to resign because of changes to working conditions – must be in breach of contract

• Post-transfer change of workplace redundancy will be an ETO reason

• Transferor to be able to rely on transferee’s reasons for dismissal

TUPE Reform (continued)

• Transferee to be able to consult with representatives of employees pre-transfer about post-transfer measures

• Micro-businesses will be able to consult directly with employees rather than representatives

Collective Redundancy Consultation

• BIS Consultation, June 2012 • Government response, December 2012• Currently:

20+ Redundancies at one establishment

30 day minimum consultation period

100+ redundancies at one establishment

90 day minimum consultation period

Collective Redundancy Consultation (continued)• From 6 April 2013

20+ Redundancies at one establishment

Unchanged

100+ redundancies at one establishment

45 day minimum consultation period

• Non-statutory guidance on definition of “establishment” • Employees on fixed-term contracts close to expiry date to be

excluded from the numbers• Protected award will remain up to 90 days pay per employee

Management of long-term sick employees

• 300,000 people fall out of employment into the welfare system because of health issues each year

• £13 billion State costs on health related benefits• £9 billion employer costs on sick pay and associated

costs• 2011 review led by Dame Carol Black “Health at

Work – Independent Review of Sickness Absence”• January 2013 – Government response

Review of long-term sickness absence

• Government accepts most recommendations made in the Health at Work report

• Health and work assessment and advisory service to be set up

• Revised fit note guidance for GPs• Reforms to the benefit system (not covered today)

Review of long-term sickness absence (continued)

Health & Work Assessment and Advisory Service (HWAAS)

• State-funded• GP referral to HWAAS after 4 weeks’ sickness

absence unless clear reasons for not doing so (e.g. employee is about to return to work)

• Employer can refer employee to HWAAS directly• Information and advice from HWAAS to be shared

with employers

Review of long-term sickness absence (continued)HWAAS• Initial telephone assessment by OH professional • Face-to-face assessment if needed• Report prepared and shared with the employee,

employer and GP, outlining how best to secure a return to work

• Continuing support where needed• Further action/remedial steps to be arranged where

relevant

Review of long-term sickness absence (continued)

• Joint responsibility of employer, employee and GP to take forward recommendations

• On-going provision of telephone and on-line advice for employees and employers at any time

• Will link in with “Universal Jobmatch” service (hosted by Monster Worldwide) where employee would benefit from finding alternative employment

• Employers will be encouraged to implement HWAAS recommendations via Access to Work scheme

Review of long-term sickness absence (continued)

• Government will review whether to provide tax relief on cost to employers of treatment/rehabilitation in due course

• Existing tax relief on Employee Assistance Programmes retained (for now at least)

• SSP record-keeping requirements to be relaxed• GPs and health care professionals to be supported to

develop knowledge to help them provide useful advice for employers and employees

• Revised fit note guidance to be issued

Closing comments

• Only a proportion of the employment law changes we are likely to have to deal with in the coming months

• What do you think the likely impact these will have on how you manage people/people issues?

Any Questions?

Useful links• www.gov.uk/government/consultations/ending-the-employment-relationship

• www.acas.org.uk/media/pdf/2/r/Consultation_draft_COP_FW.pdf

• www.gov.uk/government/consultations/early-conciliation-consultation-on-proposals-for-implementation

• www.gov.uk/government/consultations/transfer-of-undertakings-protection-of-employment-regulations-tupe-2006-consultation-on-proposed-changes

• www.gov.uk/government/consultations/collective-redundancies-consultation-on-changes-to-the-rules

• www.dwp.gov.uk/policy/welfare-reform/sickness-absence-review/