Unfair dismissal and employment tribunals


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Unfair dismissal and employment tribunals

  1. 1. Unfair dismissal and Employment Tribunals Hazel Oliver & Sean Dempsey
  2. 2. Our topics for todayHazel: Sean:• Unfair dismissal procedure Qualifying period • Pre-termination negotiations Judges sitting alone in unfair dismissal claims• ET procedure • Cap on unfair dismissal Statements as read compensation New rules of procedure • Costs and deposit orders• Fees for tribunal claims • Calderbank offers• ACAS conciliation
  3. 3. 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?
  4. 4. Political dismissals Redfearn v UK – the ECHR says we give insufficient protection to political opinion and affiliation
  5. 5. 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?
  6. 6. Unfair dismissal - Judges sitting alone No more industrial jury – does it make a difference?
  7. 7. Unfair dismissal - Judges sitting alone No more industrial jury – does it make a difference?
  8. 8. Taking witness statements as read• Now standard practice• Pros – quicker and less boring• Cons – nervous witnesses and unclear drafters• Practical points Draft statements concisely, clearly and logically Refer to key documents throughout, with page numbers Don’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
  9. 9. 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 points Sift of claims at ET3 stage – point out problems clearly Simpler treatment of default judgments One type of “preliminary hearing” – with no fee payable, so claimants may want to use these more? Judges mandated to encourage settlement
  10. 10. 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 force Claimants wanting to settle early Some deterrence to vexatious claimants “No win no fee” representatives Confusion, missing of time limits, administrative chaos...?
  11. 11. 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 ACAS ACAS sends copy to a conciliation officer Conciliation officer promotes settlement for 1 calendar month If no settlement, conciliation officer issues certificate
  12. 12. It’s good to talk...or is it?• Positive effects? Facilitates early settlement and costs savings ACAS may help deter vexatious/confused claimants • But... Claimant not required to give details of claim Neither party required to cooperate ACAS resources insufficient? Employers may feel blackmailed? Confusion, missing of time limits, administrative chaos...?
  13. 13. Pre-termination negotiations An easier and safer way to achieve this....?
  14. 14. 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” behaviour All other claims
  15. 15. 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 points Do you want to use this method at all? Have an internal line on when and how this is to be used Training for managers who may implement it Are you comfortable there aren’t other claims?
  16. 16. 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 loss Most awards are far less than this May assist in managing employee expectation?
  17. 17. 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 £1,000 New rules will allow for part of a claim• Practical points Consider using where claim (or part) is weak Can apply at the new single preliminary hearing
  18. 18. Costs in the tribunal • More worth applying for than they used to be? Tribunals can now award up to £20,000 Tribunals more receptive in the current climate • Practical points Consider making more costs applications Ensure the claimant is warned first Be very clear which costs, why, and how calculated Avoid language that could appear to be victimisation or lead to aggravated damages Don’t forget preparation time orders (where no legal costs)
  19. 19. “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?
  20. 20. Thank you