Employment law in the UK has undergone several changes recently that affect both employers and employees. Key changes include the introduction of fees for employment tribunals of up to £1,200, a new lower cap of £74,200 on compensation for unfair dismissal claims, and a requirement for prospective claimants to take part in early conciliation with Acas before filing a claim. Evidence from pre-termination negotiations is now inadmissible in unfair dismissal cases. The notice period for collective redundancy consultations of over 100 employees was reduced from 90 to 45 days. These changes are aimed at incentivizing early settlement of disputes and reducing costs for employers and the tribunal system. Food and drink employers in particular need to be aware of

1. Food and Drink Seminar
Employment Law Update
Wie-Men Ho
Partner
Eversheds LLP
3rd October2013
#thinkfoodlaw

2. Agenda
• Will cover some key changes in employment law,
including:
– Introduction of Employment Tribunal Fees
– New cap on unfair dismissal compensation
– “Protected Conversations”
– Early conciliation
– Changes to the rules around collective consultation

3. Food and Drink Seminar
Employment Tribunal Fees

4. Question 1
• Someone pursuing a discrimination claim to full hearing
will now have to pay tribunal fees of:
a. £390
b. Varies depending on the likely value of their claim
c. £750
d. £1200

5. Answer: D - £1,200
• Employment tribunal fees
– Two-stage fee structure
– Fee remission system will operate
– Power to order losing party to reimburse winner
• In practice: some fees will be payable by the Respondent
e.g. £100 to set aside default judgment; £600 for judicial
mediation
Type of fee Type A
e.g. unpaid wages
Type B
e.g. UD, discrim.
Issue £160 £250
Hearing £230 £950

6. Food and Drink Seminar
Unfair Dismissal Compensation Cap

7. Question 2
• The compensation cap for unfair dismissal claims has
been changed to:
a. £72,300
b. lower of 12 months’ pay and £72,300
c. lower of 12 months’ pay and £74,200
d. 12 months’ pay

8. Answer: C - lower of 12 months’ pay and
£74,200
• Unfair dismissal compensation:
– will apply to “ordinary” UD claims only
– Govt’s view is that salary-based cap will help:
• manage compensation expectations;
• encourage early resolution of disputes; and
• create greater certainty for employers
– standard “pay” as defined in ERA, so excludes pension,
benefits in kind and discretionary bonuses
– based on gross, rather than net, pay
• In practice: despite the controversy this has attracted,
few individuals will be disadvantaged given that current
median unfair dismissal award (basic and compensatory) is
less than £5,000

9. Food and Drink Seminar
Early Conciliation

10. Question 3
• From 1 April 2014, anyone thinking about making an
employment tribunal claim will need to contact Acas first,
which will offer Early Conciliation (“EC”)
• The prospective claimant is required to participate in EC
before they are permitted to present an ET1 form
–True or false?

11. Answer: False
• Prospective claimant must send EC form to Acas before
making claim, BUT either party free to decline EC
• 2 stage process once EC form received:
1. EC support officer will make “reasonable attempts” to
contact claimant to outline process
2. If claimant wishes to attempt EC, conciliation officer
will contact respondent
• EC duration = 1 month (extendable by 2 weeks)
• Limitation periods suspended to allow for EC
• Acas then issue EC certificate – needed if claim does
proceed to ET
• In practice: appears relatively easy for claimants to avoid
EC; will Acas be properly resourced?

12. Food and Drink Seminar
“Protected Conversations”

13. Question 4
• Evidence of “pre-termination negotiations” or
“protected conversations” are inadmissible as evidence
in support of which of the following types of employment
claim?
a. discrimination
b. unfair dismissal
c. automatically unfair dismissal
d. wrongful dismissal

14. Answer: B - unfair dismissal
• With effect from 29 July 2013, evidence of “pre-termination
negotiations” are inadmissible as evidence in support of unfair
dismissal claims
• Pre-termination negotiations (s111A ERA):
– what is stated in a settlement offer, or during discussions
about it, cannot be referred to in the course of “ordinary”
unfair dismissal cases, unless there has been “improper
behaviour”
– unlike “without prejudice” rule, no pre-existing dispute
between parties required
– a new Acas Code on settlement agreements, including
examples of improper behaviour has been published (but
courts will have final say)
• In practice: Code suggests “process” to be followed when
making offers, to reduce risk of misunderstandings; non-
statutory Acas guidance will also be available

15. Food and Drink Seminar
Changes to Collective Consultation

16. Question
• An employer commencing a collective consultation where it
is proposing to dismiss 100 or more employees “at one
establishment” must give how many days notice before the
first redundancy can take effect?
a. 70 days
b. 90 days
c. 30 days
d. 45 days

17. Answer: D – 45 days
• Redundancies of 100 or more employees - timing reduced
from 90 to 45 days.
• Redundancies of between 20 and 99 employees, period
remains unchanged at 30 days.
• In June 2013, the EAT held that the term “at one
establishment” must be disregarded:
– Previously only applied to redundancies of 20 or more
employees “at one establishment” - meant that if the 20 or
more employees were spread around different
“establishments” within the business then the collective
consultation obligation did not arise.
– Now, collective consultation obligations are triggered for
redundancies of 20 or more people across the business,
regardless of where they are based.
• In practice: Employers need to carefully monitor multi site
redundancies to avoid missing collective consultation trigger.

18. Food and Drink Seminar
How these changes affect your business

19. How these changes affect your business
Collective Consultations
• As many food & drink employers have multiple sites –
need to closely manage the numbers of potential
redundancies across all sites so as to ensure the collective
consultation trigger is not missed.
• For regular, small redundancies at different sites, it may
be sensible to have a standing body of elected
representatives for the affected employees to avoid
repeated elections.
• The content of consultations may reflect different, more
local issues and care is needed to ensure the information
and consultation duties are met in each circumstance.

20. How these changes affect your business
Fees, Early Conciliation, Protected Conversations,
Compensation Cap
• Fees – “pay for what you use” principle, promotes early
settlement.
• The recent and proposed changes highlighted indicate a
broad effort to incentivise early settlement and reduce
costs for both employers and the Tribunal system.
• F&D industry employs 15% of UK manufacturing
workforce, so should benefit from these reduced costs,
provided that employers effectively take advantage of the
opportunities for early settlement.

21. Keep up to date
• Twitter: @EvershedsFAD
• Hub: foodanddrinkhub.eversheds.com