Cutting a long story short

What is Early Conciliation?

What is early conciliation?

Issue

In a further attempt to encourage parties to an employment tribunal claim to consider settlement and to try and make the tribunal system more efficient, any Claimant who issues a tribunal claim will now have to enter into a period of conciliation with ACAS before they are able to proceed with their claim.

Background

This new system of negotiation came into force on a voluntary basis on 4 April 2014 and there were initially 4000 applications to use this service which is run through ACAS. It is now mandatory (as of 6 May 2014) and may well result in a further drop in the number of claims being heard by employment tribunals.

What does it involve?

Any claimant who wants to bring a claim will now have to provide certain information to ACAS. This is called ‘prescribed information’ and is relatively straightforwards. This information will be given to an early conciliation support officer who will then make contact with a prospective claimant and check that they wish to proceed. If they do, the information will be sent to a conciliation officer.

Once the conciliation officer contacts the Claimant, they will need to get confirmation that the Claimant is happy for the respondent to be contacted. If both parties are happy to participate in early conciliation, the conciliation officer must try to promote a settlement within one month from when the Claimant first made contact with ACAS. This period can be extended.

If the parties cannot be contacted or if they do not wish to participate in early conciliation, then an Early Conciliation (“EC”) certificate must be issued. The same applies if no settlement is reached. The EC certificate will have a unique reference number which the Claimant will need if they wish to go on to present a claim.

Does this help employers?

Whilst there is no obligation on an employer to engage in early conciliation, it will probably be helpful to do so. Firstly, it means that it will enable employers to work out what the extended time limit will be for a Claimant to bring a claim. Secondly, it will help employers find out more about a prospective claim. Employers could usefully take advantage of this process to find out useful information. It may also be possible to resolve a potential case on lower terms than if the claim goes through to a hearing as it would avoid the Claimant having to pay the applicable fees.

What we can do for you?

Tribunal claims can be difficult and costly. We can support you through the whole process, identifying opportunities for possible settlement where they arise, defending them robustly where necessary and carrying out the advocacy if required.
Please contact Karin Henson at [email protected] for further information.

Secret Recordings

Secret recordings – are they admissible in tribunal?

If an employee secretly records private discussions, will the tribunal allow this evidence to be heard?

Issue 

In this age of social media and smart phones, many employers are concerned about employees making secret recordings of meetings – indeed it is not uncommon for disciplinary policies to make it clear that secret recordings are not allowed.  What will happen though if in a subsequent tribunal claim an employee seeks to introduce into evidence recordings that were made without the employer knowing.

Background

In the case of Punjab National Bank v Gosain, the EAT had to consider whether to uphold a tribunal decision that covert recordings made by an employee of both the public and private discussions of her employer during grievance and disciplinary hearings were admissible.

Facts

The employee in this case was employed by the Punjab National Bank for just under two years.  She resigned some 18 months after starting her employment and brought a number of claims against her employer – constructive unfair dismissal, sexual harassment and sex discrimination.

Prior to her resignation, the employee had attended a grievance hearing in November 2012 and a disciplinary hearing in January 2013.  In both instances and without her employer’s knowledge, she recorded both the public and private conversations of her employer.  This only amounted to about 15 minutes at the grievance stage and 20 seconds at the disciplinary stage.  When the employee admitted these recordings into the tribunal hearing, the employer objected to the private contents of these recordings.  The private comments that were allegedly recorded included the managing director giving an instruction during the grievance process to dismiss the employee and also the grievance hearing manager saying that he was deliberately skipping the key issues raised in the employee’s grievance letter.

EAT decision

Tribunals generally have a wide discretion to determine whether evidence is admissible and if relevant, evidence will usually be admitted.  There had been a previous decision where the EAT held that private deliberations of a disciplinary panel were not admissible.  However in this case, the EAT upheld the tribunal decision which had distinguished the earlier case by saying that the comments that were made in this situation fell beyond the usual deliberations of a decision panel.

Does this help employers?

This decision is a useful warning to employers to be careful about what is said during a disciplinary or grievance process.  If discussions stray beyond the matters in hand and are recorded, this evidence may be admissible, regardless of what any policy may say.  In this day and age of social media and smart phones, employers need to be mindful that employees may be able to record decisions.  If private discussions need to be held, employers may wish to move to a separate room for these discussions to take place without the fear of anything being recorded.

What we can do for you 

Disciplinary and grievance issues can become complex and very personal.  We can help guide you through the process and point out the traps that may catch out the unwary.

Cutting a long story short

Restrictive Covenants and Social Media

Can restrictive covenants still work in the digital age

Issue

Businesses often seek to protect their customer connections when an employee leaves.  During the course of employment, an employee is likely to build up important information and knowledge about an employer’s business.  When they move on, the former employer will usually seek to enforce any restrictive covenants to prevent the employee from using the knowledge or information that they have gained with them to profit a new employer.

Is this now more difficult when the relevant information/knowledge relating to the employer’s business which the employer is looking to protect is widely available on the internet and via social media?

Background

In a recent case, the High Court had to consider whether non-solicitation and non-dealing restrictions for an individual who was employed by an educational recruitment consultancy as a recruitment consultant were valid.

Facts

Ms Palmer was employed by a company called 4myschools as a recruitment consultant who matched teachers with schools in a particular area. Her contract contained restrictive covenants that applied for six months after her contract ended. The aim of these covenants was to prevent her from soliciting or dealing with teachers or schools with whom she had had contact in the 12 months prior to her departure.

After two years with 4myschools, she was offered a job as a senior consultant on a higher salary for a company called Sugarman Education which covered the same area as her previous role.  A short time later, it came to the attention of 4myschools that Ms Palmer was acting in breach of her restrictive covenants and they brought proceedings in the High Court seeking damages for breach of the restrictive covenants. They argued that they had business interests (referred to in the case as “proprietary interests”) to protect which were their trade connections with their clients and candidates. As Ms Palmer had built up close relationships with them, their concern was that she could take advantage of this at her new employer.

Ms Palmer and her new employer argued that

  • schools and teachers had no particular loyalty to any particular agency;
  • with the increasing use of the Internet and social media, all the relevant information was in the public domain and therefore could not be stated to be confidential to any particular agency;
  •  all schools in any event dealt with a number of employment agencies
  • nearly all teachers were registered with a number of different agencies at any one time in order to increase their employment prospects.
  • if any loyalty did exist, it was to a particular agency rather than a particular employee of an agency.

Court’s decision

The court upheld the claim for breach of contract and awarded damages of £7,040 to Ms Palmer’s previous employer.   Essentially, the court felt that 4myschoools did have a sufficient interest with regard to their trade connections and therefore it was entitled to enforce these restrictions to protect its interests.  The court recognised that whilst much of the information about teachers and schools was publicly available and that schools would generally use whichever agency could get them the best candidate, it accepted that clients do have a choice about which agency to contact and the relationship between a consultant and the client might sometimes be the deciding factor.

Does this help employers?

This decision will be welcomed by employers and of particular interest to employment agencies. Essentially, just because information may be widely available on social media does not mean that an employer cannot seek to protect its interests.   An additional comment was also made by the courts that they accepted that customer loyalty could indeed be fragile and with this in mind, it was therefore even more important for employers to try to protect their interests.

What we can do for you?

Whilst this is a helpful decision for employers, caution still needs to be exercised when considering what restrictive covenants to include in employment contracts. Simply putting in a blanket restriction without any thought as to what you are looking to protect runs the risk of making any restrictions invalid.

We can work with employers to establish exactly what you need to protect and how far to extend this protection.  We also support individuals in clarifying what actions may or may not be restricted.

Please contact Karin Henson at [email protected] for further information.

 

Employers Liability for their Staff

How far does an employer’s liability for their staff go?

How liable can an employee be for an employee’s actions?

Issue

Employers will generally be responsible for the actions of their employees while they are at work.  This is generally known as vicarious liability and it acts to apply strict no fault liability which in an employment context, can make an employer liable for wrongs committed by their employees. It does not however cover every action committed by an employee as there has to be some link between their actions and their employment.

Background

In the case of Mohamed v WM Morrison Supermarket, the tribunal had to consider whether Morrisons could be liable for a vicious attack carried out by one of their employees against Mr Mohamed.

Facts

The employee worked in the petrol station.  Mr Mohamed arrived at the filling station, checked his tyre pressure and then asked the employee if he could print up some documents form a USB stick.  The employee responded with abusive and racist language.

Mr Mohamed walked back to his vehicle but was followed by the employee who proceeded to punch and kick him.  The judge found that Mr Mohamed was not at fault and that the attack on him was “brutal and unprovoked”.

The court had to consider if there was a sufficiently close connection between what had happened in this case, namely the assault, and the employee’s employment by Morrisons.

The court held that just because the employee was required to interact with customers and the assault took place on Morrison’s premises was not enough to establish a close connection to his employment.  It found that the employee’s actions were motivated by his own personal reasons and not as a result of his employment.  The employee in his job was not required to try and keep order or exert authority over customers.

Does this help employers?

This decision will be welcomed by employers.  Whilst it may appear to have been fair and just for Mr Mohamed to have been compensated for the injuries he suffered from an unprovoked attack, that is not what the courts look at.

There has to be a close connection between the individual’s employment and what happened – just because the assault took place on the employer’s premises at a time when the employee was on duty, whilst relevant, will not necessarily mean that an employer will be vicariously liable for the actions of its employees.  Mere contact between a sales assistant and an employee will not of itself make the employer vicariously liable.  Each case will however turn on its facts.

What we can do for you

Vicarious liability can be a cause of worry to employers.  If an employee acts beyond the scope of their duties, we can help advise whether you are likely to be held vicariously liable  by carefully examining all the facts involved.

Please contact Karin Henson at [email protected] for further information.

Cutting a long story short

Employment Law Changes – April 2014

Key changes to employment Law – April 2014

This note sets out the key changes to employment law coming into force on 6 April:

1. Mandatory pre claim ACAS conciliation

A new process called Early Conciliation will be introduced.  For the first month until 5 May 2014, the process will be voluntary but from 6 May 2014 it will be mandatory for all claimants to contact ACAS who will attempt to promote a settlement.

There will be four steps to this new conciliation procedure: –

  • Before launching a claim, a prospective claimant must send to ACAS certain information
  • ACAS will send this information to a conciliation officer
  • The officer must try to promote a settlement within a one month perio
  • If no settlement is reached, the conciliation officer must issue a certificate to that effect. The claimant cannot issue a claim without the certificate.

Please be aware that the time limits for bringing claims will be extended so employers should be aware of this in order to be able to calculate when the tribunal time limits will expire.

2.  Abolition of discrimination questionnaires

Statutory discrimination questionnaires will be abolished. This does not mean however that individuals cannot submit questions and employers will still have to consider whether any questions submitted should be answered.  If any such questions are ignored or answers given are evasive, the tribunal can still take account of this.

Arguably, the repeal of this process may expose employers to a risk of overlooking valid questions – this may come out at Tribunal and possibly affect the eventual outcome of the claim. ACAS has issued guidance and encourages employees to deal with any potential discrimination at work “seriously and promptly”.

3.  New tribunal penalties for employers

Tribunals will have the power to order a losing employer to pay a financial penalty. This will apply where an employer has acted in a malicious or reckless way. The tribunal can award a penalty of 50% of the net award subject to a minimum limit of £100 and a maximum limit of £5000. There will be a 50% reduction if the employer pays the penalty within 21 days.

4. Maximum compensatory award increase

The maximum compensatory award where employment has ended on or after 6 April 2014 will be increased to £76,574 (or 52 weeks gross pay if lower).

5.  Increase in statutory rates

Statutory maternity pay will increase to £138.18, statutory sick pay will increase to £87.55 and a week’s pay for calculating statutory redundancy pay/basic award will increase to £464.

6. Abolition of Percentage Threshold scheme

Under this scheme, employers whose total SSP paid in a month exceeds 13% of the class one national insurance contributions can reclaim the SSP from HMRC. This scheme will be ending.  The government however will be establishing a new health and work assessment/advisory service which will provide state funded health assessments for employees off sick for four weeks or more and case management support for employees with complex needs. This should help support small employers deal with what can often be difficult sickness situations.

How we can help

Employment law is always changing.   Aeris Employment Law can help keep you up-to-date with the various changes and advise you on what steps you may need to make to your own procedures to take account of the changes.

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Welcome to our Website

Welcome to the Aeris Employment Law website.

Here you will find out how we can support both businesses and individuals through the employment lifecycle, whether it is through pragmatic and effective advice, HR support where we will become part of your team or bespoke training.

There are some legal updates on the news page and some useful links to ACAS, the tribunal website and an on line redundancy calculator.

If you have any queries, please do not hesitate to contact us.