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6 April Employment Law Changes Good News for Tribunals, say Hogan Lovells

04 April 2014

4 April 2014 - Sunday 6 April 2014 will see a raft of employment regulations take effect, all with the aim of reducing red tape and the number of Employment Tribunal claims.

As of 6 April:

  • Early Conciliation becomes available - from 6 May 2014, claimants will only be able to lodge a claim with the Employment Tribunal if they have first referred a complaint to ACAS for early conciliation.
  • Tribunals will have the power to impose a financial penalty on an employer found to have breached a claimant's employment rights for claims started on or after 6 April. The new power applies widely, to any claim involving an employer and a worker.
  • Statutory discrimination questionnaires – which enable an individual to obtain information from an employer about discrimination, and provide for the information to be used as evidence in Tribunal proceedings – will be abolished, meaning no formal process exists for requesting specific information prior to initiating a discrimination claim.

Commenting on the changes Vanessa Hogan, Of Counsel in Hogan Lovells employment team, said:

"There is a common theme throughout these changes – the Government's aim to reduce the number of Employment Tribunal claims is evident.

"Both employers and employees will feel the impact of these changes – employers with the introduction of the fines for breaching an employee's rights; employees with the removal of the statutory discrimination questionnaire.

"ACAS's early involvement in claims should reduce the number of claims that reach the Employment Tribunal process. This can only be a good thing for all parties.

"While the abolition of statutory discrimination questionnaires will be welcomed by employers, they should not get complacent. A failure to respond to questions from employees in any format can still be taken into account by an Employment Tribunal".

Further information on the penalty charge

The Enterprise and Regulatory Reform Act's official Explanatory Notes make it clear that:

  • The Tribunal should only take into account information of which it has become aware during its consideration of the claim.
  • Factors which may be taken into account include the size of the employer, the duration of the breach, and the behaviour of employer and employee.
  • There is no definition of "aggravating features"; this is left to the Tribunal's discretion. A Tribunal may be more likely to find aggravating features where the action was deliberate or committed with malice, the employer was an organisation with a dedicated human resources team, or where the employer had repeatedly breached the particular employment right.
  • By contrast, a fine may be less likely where the breach was a genuine mistake or where the employer is a micro business (fewer than ten staff); has been in operation for only a short time; or has a limited HR function.
  • The Tribunal can make an award of an amount between £100 and £5,000.  However, where a financial award is made against the employer to the claimant, the fine must be half that amount, subject to the minimum and maximum levels.  In most cases the tribunal will make an award to the claimant, so in effect the fine will usually be a fixed one.  There are special rules for multiple claims.

Further information on early conciliation

Key points of the rules that govern the early conciliation scheme include:

  • Complaints to ACAS can be presented online, by post or over the telephone.
  • The prospective claimant simply has to tell ACAS their name and address and that of the prospective respondent. They do not have to provide any details of the nature of the complaint being made when presenting the complaint.
  • ACAS will make "reasonable attempts" to contact the prospective claimant and, if the prospective claimant consents, the prospective respondent. If ACAS cannot make contact with one of the parties it must conclude that settlement is not possible.
  • If both parties agree to participate, there is a period of up to one month from the date the claimant first contacted ACAS for early conciliation to take place. The period can be extended by 14 days, with the agreement of both parties, if there is a reasonable prospect of achieving a settlement.
  • If the conciliation officer concludes at any point during the early conciliation period that it is not possible to achieve a settlement, ACAS must issue a conciliation certificate to the prospective claimant and to the prospective respondent if ACAS has had contact with the prospective respondent during the early conciliation period.
  • Once the early conciliation certificate has been issued, the claimant will be able to lodge a claim with the Employment Tribunal. The conciliation period "stops the clock" on the limitation period for bringing a claim.

 
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