Unfair dismissal and Employment Tribunals

Hazel Oliver & Sean Dempsey

Our topics for today

Hazel:

• Unfair dismissal procedureQualifying periodJudges sitting alone

• ET procedureStatements as readNew rules of procedure

• Fees for tribunal claims

• ACAS conciliation

Sean:

• Pre-termination negotiations in unfair dismissal claims

• Cap on unfair dismissal compensation

• Costs and deposit orders

• Calderbank offers

Unfair dismissal qualifying period

• 2 years’ continuous service

• For all employees whose employment commenced on or after 6 April 2012

• Don’t forget employees hired before that date, who have a 1 year qualifying period – mistakes can still be made until April 2014!

• Practical point - do all your managers know about this?

Political dismissals

Redfearn v UK – the ECHR says we give insufficient protection to political opinion and affiliation

New exception to qualifying period

• No qualifying service required if the reason for dismissal “is, or relates to, the employee’s political opinions or affiliation”

• Dismissals can still be for a fair reason – conduct or SOSR?

• What about action short of dismissal? E.g. Recruitment or harassment?

• Alternative claim based on religion/belief discrimination?

• Practical point – do all of your managers know about this?

Unfair dismissal - Judges sitting alone

No more industrial jury – does it make a difference?

Unfair dismissal - Judges sitting alone

No more industrial jury – does it make a difference?

X X

Taking witness statements as read

• Now standard practice

• Pros – quicker and less boring

• Cons – nervous witnesses and unclear drafters

• Practical pointsDraft statements concisely, clearly and logicallyRefer to key documents throughout, with page numbersDon’t refer to entire policies or other lengthy documents –

which bits do you actually want the tribunal to read?Apply in advance if you want statements read out

New rules of tribunal procedure

• Supposed to be in place in April – now delayed until “summer 2013”.

• Not a radical overhaul

• Clearer and more accessible rules

• Practical pointsSift of claims at ET3 stage – point out problems clearlySimpler treatment of default judgmentsOne type of “preliminary hearing” – with no fee payable, so

claimants may want to use these more?Judges mandated to encourage settlement

Fees for tribunal claims

• Due to be in place from “summer 2013”

• Issue fee £160 or £250, hearing fee £230 or £950

• Claims not accepted without fee or valid remission, and initially electronic payment only?

• What to expect...A surge of claims shortly before in forceClaimants wanting to settle earlySome deterrence to vexatious claimants“No win no fee” representativesConfusion, missing of time limits, administrative chaos...?

ACAS conciliation

• Mandatory ACAS conciliation to be in place by April 2014

• Claim cannot be issued without a conciliation certificate, obtained after following a 4 step procedure:

Claimant sends information to ACASACAS sends copy to a conciliation officerConciliation officer promotes settlement for 1 calendar monthIf no settlement, conciliation officer issues certificate

It’s good to talk...or is it?

• Positive effects?Facilitates early settlement and costs savingsACAS may help deter vexatious/confused claimants

• But...Claimant not required to give details of claimNeither party required to cooperateACAS resources insufficient?Employers may feel blackmailed?Confusion, missing of time limits,

administrative chaos...?

Pre-termination negotiations

An easier and safer way to achieve this....?

Pre-termination negotiations

• Due in force “summer 2013”

• Evidence of “pre-termination negotiations” not admissible in unfair dismissal claims

• Any offer or discussion with a view to termination on agreed terms

• Does not cover:“Improper” behaviourAll other claims

Pre-termination negotiations

• ACAS draft statutory code of practice – including template letters.

• Will it really change what already happens in practice?

• Is it formalising what should be an informal process?

• Practical pointsDo you want to use this method at all?Have an internal line on when and how this is to be usedTraining for managers who may implement itAre you comfortable there aren’t other claims?

Cap on unfair dismissal compensation

• In force from “summer 2013”

• Maximum compensatory award = the lower of:12 months’ gross pay; or£74,200 (the current cap)

• Practical effect?Still a high cap – tribunals award net lossMost awards are far less than thisMay assist in managing employee

expectation?X

Deposit orders

• Tribunal can order claimant to pay a deposit as a condition of continuing with a weak claim

• More worth pursuing than it used to be?Increased to £1,000New rules will allow for part of a claim

• Practical pointsConsider using where claim (or part) is weakCan apply at the new single preliminary hearing

Costs in the tribunal

• More worth applying for than they used to be?Tribunals can now award up to £20,000Tribunals more receptive in the current climate

• Practical pointsConsider making more costs applicationsEnsure the claimant is warned firstBe very clear which costs, why, and how calculatedAvoid language that could appear to be victimisation

or lead to aggravated damagesDon’t forget preparation time orders (where no legal

costs)

“Calderbank” offers

• Making an offer to settle, with a costs warning if the claimant fails to obtain more from the tribunal

• Not binding in tribunals, but...refusal can be taken into account in awarding costs for unreasonable behaviour (Kopel v Safeway Stores)

• Power v Panasonic (UK) Ltd – costs awarded for “unrealistically optimistic” approach to compensation, and being intransigent during negotiations

• Practical point - more worth a try in the current climate?

Thank you