Early conciliation for employment claims: a simple, quick and low cost process?

Monday 6 April saw the introduction of a new system of early conciliation in employment disputes. The new system becomes compulsory on 6 May. Most claimants making an employment tribunal claim on or after 6 May will have an obligation to participate in early conciliation with ACAS before they start a claim.

Early conciliation is a relatively straightforward process. The employee who wants to make a claim fills in a form either online or on the hard copy form which is posted to ACAS. An early conciliation officer contacts them to explain the process and ask if they want to proceed with conciliation. If they do the form is sent to an ACAS Conciliation Officer. The Conciliation Officer then contacts the employer to ask if they will take part in the process. If they agree the Conciliation officer will make efforts to promote a settlement to resolve the issue. The parties have a month to try to reach a resolution. If no solution is found a certificate is issued and the employee may, if they wish, go on to pursue the claim.

The procedure has a number of advantages for both parties most notably it’s simple, quick and low cost. Negotiated settlements also have the advantage of being able to provide solutions that tribunals cannot order.

There are also some features that may create issues. Employees looking at a simple, low cost option may be encouraged to ‘have a go’ which may discredit the system in an employers’ eyes. Similarly an entrenched employer with emotions still high following the incident that led to the dispute may be reluctant to properly engage in the process.

ACAS have a good record in achieving settlements so despite the reservations the prospects look good. No doubt the proof will be in the developments in the coming months…

Redundancy pools

I often get enquiries about redundancy pools and who should be included. The answer is there are no rules that specify who should be included or who should not. These are business decisions and employment law generally leaves business free to make those decisions.

The key is to make a reasoned decision about the pool for redundancy that you an demonstrate you applied your mind to. That usually means that when you make the decision you make a note of the factors you considered and the decision you came to. As long as that decision satisfies the range of reasonable responses test, i.e. was your decision one of a range a reasonable employer might come to, that will be enough. Quite a low threshold really.

Appealing dismissal

I always feel pleased with a result that shows the system works whether for employer or employee.  After a long lunchtime meeting I got back to my desk to an e-mail from a client I saw a couple of weeks ago.  I’d advised him on his appeal against dismissal.  He’d been dismissed for negligence following a robbery – it was said he could have prevented it.  At first sight the evidence did look quite damning but when we went through it it was quite clear that none of the things he could have done would have made any difference.  The thieves would still have got away with it.  We prepared a letter of appeal going through the detail and explaining why he could not have prevented the theft.

In the e-mail this afternoon he tells me that he has been given his job back with back pay.  All’s well that ends well.

My experience of employers is that most treat appeals very seriously but sometimes employees believe that their case may not be properly reviewed or reconsidered.  This just shows how wrong that assumption can be!

Improving the benefits you offer your staff – Jordans Breakfast Seminar 5 July

79% of employers who provide a range of benefits believe that it helps them to recruit the right staff and 80% believe it helps them to keep them.

SMEs generally believe that the cost of providing the range of employee benefits available in larger firms would be prohibitive for them but that may not be true.  There may even be savings in tax and national insurance if you provide a range of benefits.

On Thursday 5 July at 8.00am Jordans are hosting a breakfast seminar where Paul Davidson of Eaves and Co, tax advisers and Nigel Sycamore of Clear Wealth Management will be speaking about the options available and the savings to be made.  The seminar will also cover the preparing for the new pension legislation which comes into force in October this year and will ultimately require all employers in the United Kingdom to automatically enrol eligible “jobholders” in a pension scheme.

We still have some places available.  If you would like to attend please contact me.

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Sacking at will (2) – the reality of current unfair dismissal law

I was watching ‘This Week’ late night on TV last night and a section on employment law caught my attention, the issue again was the Beecroft Report and sacking at will proposals.  Michael Portillo commented, ‘An employee who has been dismissed can tie up the employer in years of litigation with immense legal costs’ and ‘unbelievably disproportionate settlements at the end of it’.

This is just not my experience.  The most recent statistics show that the average tribunal award for an unfair dismissal case is £8,924, most cases (the median award) result in an award of less than £5,000.  Legal costs for an unfair dismissal cases for the employer in my experience are usually in the range of £5,000- £6,000 and the claim lasts for months not years.  Most cases settle in a much shorter period,  for much less and with much lower legal costs.   It doesn’t seem to me that these figures show disproportionate awards or immense legal costs.

 There is an issue that employers often feel forced into a settlement at a level that is less than the potential cost but none of the proposals currently being discussed will deal with that.  Indeed it seems likely that cost will increase as employees who feel aggrieved will endeavour to establish a discrimination case or other fall within some other category within the remaining law.

It is also true that many employers fear an employment tribunal claim.  Often though this fear comes from the perception that there will be a disproportionate award, immense legal cost or that it will go on for years which as I have said is not the reality.

Sacking at will!

I had an enquiry for some advice last week where the client, a small employer employing less than 10 staff was asking for advice on dismissal of a sick employee.  I asked the usual questions, how long has he been off, what’s wrong with him, when does he think he’ll be back.  He’d been off about a month and they were unclear about what was wrong.  ‘What does he say?’ I asked, ‘oh we haven’t spoken to him’, they answered.  I suggested they did and went through the questions they might want to ask.  ‘Can’t we just sack him?’ they said, ‘How long has he been with you?’ I asked, ‘Oh, about 30 years’.

Obviously for a small business absence even for a relatively short period can be a major problem but surely when you have had an employment relationship with someone for 30 years they deserve at least a conversation before their employment is ended.  This situation illustrated some of the concerns I have about the proposals to ‘deregulate’ the labour market.

When I suggested to the client that surely an employee with that much service deserved a conversation the response was that he’d never been that much good anyway!  The problem was a management failure.  Will the ability to  fire at will resolve that, I remain to be convinced.

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Wakefield Artwalk 30 May 5-9pm

Jordans solicitors are proud to be part of the Wakefield Artwalk.  The next artwalk is next Wednesday 30 May and we are exhibiting Sarah Rogers work.  Looking at the weather it should be a great evening, fingers crossed.  The artwalk is a pleasant way to spend a warm summer evening.  Please call into our offices and enjoy a glass or wine or orange juice whilst you view Sarah’s work.

If you’ve not come across the Artwalk before have a look here to see what it’s all about http://bit.ly/7mYw0q.

Look forward to seeing you next Wednesday antime between 5pm and 8pm

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Great day at the Wakefield Business Conference yesterday

What a great event!  Plenty of food for thought from all the conversations with local busineses and loads tofollow up.

Thanks to all involved

Just set up our stand for the Wakefield Business Conference at the Cedar Court Hotel tomorrow

The venue is looking great, all those local businesses.  I’m really looking forward to tomorrow.

Please visit our stand (Stand 34) and tell us what you want from your lawyers!


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