Here, we address various aspects of Employment Legislation to help ensure you are managing your staff in accordance with UK minimum standards and to ensure you are kept up with employment law changes.
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HR & Diversity Management conducts confidential, independent investigations where employees lodge formal grievances and has written a series of `Step By Step Guides’ for Employers and line managers. The introduction of the Dispute Resolution regulations meant that every Employer needed to respond in accordance with the guidelines laid down whenever an employee complains formally. Training is aimed at; HR professionals, senior managers and line managers – in fact anyone who is responsible for managing people! These seminars and training sessions are customised, developed and delivered in accordance with the client’s needs.
IMPORTANT EMPLOYMENT LAW CHANGES
SETTLEMENT AGREEMENTS (formerly known as Compromise Agreements).
“From Monday 29 July 2013 entering into a Settlement Agreement enables employers and employees to explore a mutual and amicable parting – even where there is no conflict between the two. Where risk is perceived by either of the parties, this is a common sense approach”. Christine Pratt. HR & Diversity Management Ltd. Founder of The National Bullying Helpline.
Section 111A of the Employment Rights Act 1996 introduces the concept of confidential pre-termination negotiations – previously referred to as Compromise Agreements or gagging clauses! Simply put, these negotiations will not be admissible in tribunal proceedings – the intention being to make it easier for employers to have an off the record discussion with an aggrieved employee with a view to reaching an amicable resolution regarding the termination of that employee’s contract of employment.
So what’s new about that then? Well, under the Settlement Agreement approach (in contrast to the existing “without prejudice” rules), section 111A will not require there to be a pre-existing dispute in order to have a confidential, off the record conversation. This is, potentially, quite exciting for employers – and very helpful too – especially for employers who want to ‘test the water’ with an employee before deciding on what formal steps to take.
The Code is not legally binding on employers or tribunals but it will be taken into account by tribunals when deciding whether a party is protected by section 111A. The new ACAS Code on Settlement Agreements goes so far as to make recommendations as to guidance on the meaning of improper behaviour in this context. Ultimately, a Tribunal will decide what amounts to improper behaviour in specific cases but examples given under the Code includes; physical assault, harassment, victimisation and discrimination, bullying and intimidation. The concept of ‘undue pressure’ is described as including:
(i) failing to allow a reasonable time for consideration of a settlement agreement (the Code suggests 10 calendar days will normally be required);
(ii) saying before any process has begun that if a settlement is not reached then the employee will be dismissed (however, the Code says it will not be improper to set out in neutral terms the “likely alternatives” to settlement);
(iii) an employee threatening to damage an employer’s public reputation if a settlement is not reached.
Disputes over whether an employer’s frankness amounted to undue pressure or even intimidation are likely. Would a statement that the employee will get a less favourable reference unless terms are agreed amount to “improper behaviour”? It shouldn’t, but context, careful phrasing of any settlement proposal and taking an accurate note of what is said will be important. Ten calendar days is a long time to consider a settlement proposal and employers may want to agree shorter periods with employees. This should not fall foul of the Code, so long as there is no suggestion of undue pressure in obtaining the employee’s agreement.
Settlement Agreements will be useful in the most straightforward of cases. Employers will want the wider security of falling within the “without prejudice” principle before starting negotiations.
We see this new approach to be entirely professional and in the very best interests of conflict resolution. The myth that you need to be a CEO or a senior director to agree a ‘golden handshake’ no longer prevails. If the parties are receptive to an amicable parting under a Settlement Agreement, so be it.
With effect from 29 July 2013 Employment Tribunal fees are being introduced. It will now cost up to £1,200 for an employee to take their employer to an Employment Tribunal.
Two important points;
1. The fee will be waived in hardship cases.
2. The employee will be refunded if s/he goes on and wins their case. Simply, ‘the other side’ will be ordered to pay the tribunal fee and the employee will be reimbursed.
Nevertheless, the Unions are ‘up in arms’ and say this is “a great day for Britain’s worst bosses”. Employment Law Solicitors predict widespread chaos for those wishing to seek a fair outcome in discrimination cases (Race, Sex or Disability cases). Whilst the intention is to save money for businesses and taxpayers – these changes are to impact significantly on an employees’ fundamental rights in the workplace.
Presently, the taxpayer is footing the entire £74m tribunal dispute bill. You can almost understand why our Government wishes to address the problem – but is this the way to do it? “Seeking redress for unfair dismissal and discrimination and other injustices in the workplace is a fundamental human right – but now ministers are putting up insurmountable financial hurdles for working people in pursuit of justice. We estimate that this will affect 150,000 workers every year” say the Unions.
We are extremely concerned that these fees will disproportionately hit those suffering discrimination because of their age, race, disability and/or gender. Women returning from maternity leave, for example, will be hit hard as they will be assessed on their final salary rather than their statutory maternity pay.
“Some people will simply feel unable to challenge an unfair dismissal case, regardless of how badly they were treated. We tend to forget that the fear and uncertainty associated with legally challenging an employer in an open court is an already extremely daunting and stressful prospect for the average person, without the added worry of funding the initial tribunal application (ET1). In a high percentage of cases the employee is already suffering with work related stress – a serious and often underestimated mental health condition.
We also question what is meant by ‘hardship cases’ and how these will be assessed by the Tribunal system. Surely, everyone who has lost their job unlawfully is automatically a hardship case – by simple virtue of the fact that they are no longer receiving a monthly salary”. Christine Pratt. HR & Diversity Management Ltd. Founder of The National Bullying Helpline.