Yesterday’s dramatic news from the Supreme Court regarding Employment Tribunal Fees is significant and businesses should take note of this recent announcement.

The successful appeal was brought by Unison claiming that the Employment Tribunals and the Employment Appeals Tribunals Fees Order 2013 (which led to a 70% reduction in claims) is unlawful.

“The Government is not above the law, but when ministers introduced fees they were disregarding laws many centuries old, and showing little concern for employees seeking justice following illegal treatment at work,” Unison general secretary Dave Prentis said.

Lord Reed noted that employment tribunals “are intended to provide a forum for the enforcement of employment rights by employees and workers, including the low paid, those who have recently lost their jobs and those who are vulnerable to long-term unemployment”.

The government introduced the fees in 2013 to deter those who wish to bring malicious and weak cases. Over the past four years, anyone in England, Scotland and Wales wanting to pursue a case against an employer has had to pay up to £1,200. However, due to the decision yesterday, the government are required to reimburse in excess of £27 million in fees paid to date.

What happens now?
• The judgment will have major implications for the legal system as well as businesses and Acas. It is likely that there will be an increase in tribunal claims.
• Refunds for those who have brought a case since July 2013. This is going to be a logistical headache for the government.
• New fees regime- it is unlikely that the fees will be abolished entirely. Fees at a lower level and/or a fee payable by the employer when they lodge their defence are likely to come in.
• What will happen to those people who chose not to bring a claim due to the fees? Will time be extended for them to lodge?

What should employers do?
• Consider and think about your approach to risk when dealing with employee disputes.
• Managing your staff will become more important to minimise tribunal claims and ensuring that you have the necessary policies and procedures in place.

If you are concerned about the impact it may have on your business and looking for support or interested in further information please get in touch. Our Employment Law team would be happy to discuss this issue with amongst other employment concerns. You can contact us on 0161 478 3800 or on hello@peachlaw.co.uk

Disclaimer
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

What is a ‘Protected Conversation’? since July 2013, employers have been able to have “off the record” conversations with their employees regarding the termination of their employees’ employment in the knowledge that such conversations are in certain circumstances “protected”.

What is the purpose?
Protected conversations are a possible way to negotiate an exit strategy for the agreed termination of an employee’s employment. If agreement is reached the terms of the agreement will generally be recorded in a settlement agreement, and the conversations that were had as part of the negotiations leading up to the termination and settlement are protected, and cannot be used in any subsequent Employment Tribunal claim, should one be pursued for a claim of unfair dismissal.

The relevant legislation surrounding this is section 111A of the Employment Rights Act 1996.

What situations does a protected conversation cover?
In a situation where an employer seeks to terminate an employee’s employment, where, there has been no previous dispute or issue with that employee’s conduct, capability or the viability of their role a protected conversation could be the solution.

For conversations to be protected and in order to be confidential and inadmissible as evidence before an Employment Tribunal, there must not be any “improper behaviour” during the negotiating process.

Each case will vary in terms of its facts and ultimately it would be for a Tribunal to consider this further. Improper behaviour does not have a clear definition, however the Acas Code of Practice – Settlement Agreements (Code) provides a non-exhaustive list of improper conduct, which includes:
• all forms of harassment, bullying and intimidation, including through the use of offensive words or aggressive behaviour;
• physical assault or the threat of physical assault and other criminal behaviour;
• all forms of victimisation;
• discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership; and
• putting undue pressure on a party (eg an employer saying before any form of disciplinary process has begun that if a settlement proposal is rejected then the employee will be dismissed).

If it is found that there has been improper behaviour by an employer, it is likely that anything that is said in pre-termination negotiations will normally be admissible as evidence.

Exceptions to a Protected Conversation?
Certain Protected Conversations are not covered by section 111A of the Employment Rights Act, these can include complaints relating to;
• automatically unfair dismissal, such as, whistleblowing, union membership or a health and safety issue,
• discrimination,
• harassment or victimisation, and
• breach of contract or wrongful dismissal.

In such situations, the without prejudice rule may still apply if there was a live dispute between employer and employee.

What is a ‘without prejudice’ conversation?
Where a genuine dispute has arisen, the “without prejudice” principle is often used and means statements made in a document marked “without prejudice” or made verbally on a “without prejudice” basis, in an attempt to settle the dispute will generally not be admissible in court as evidence against the person making the statement.

Before the introduction of Protected Conversations legislation in July 2013, employers who had maybe engaged in a ‘without prejudice’ conversation with an employee, with a view to terminating employment, but where no prior dispute had arisen, were at risk, if the employee did not agree to the termination of their employment and then chose to pursue a claim for constructive dismissal, as the conversation arguably amounted to a breach of the implied term of trust and confidence.

Alternatively, if the employer was to dismiss an employee after a “without prejudice” conversation and after the employer subsequently followed a dismissal process, the employee could bring a claim for unfair dismissal on the basis that the dismissal was predetermined, with the employee being likely to rely upon the ‘without prejudice’ pre-termination conversation which took place as there was not a dispute between the parties at that point.

Overall position
Protected Conversations are theoretically a useful tool for businesses, however, there are also possible pitfalls for businesses who are considering entering in to such discussions and expert legal advice should always be sought before commencing such conversations. Our Employment Law team is experienced with advising in respect of protected conversations and would be happy to discuss this with you. Please do not hesitate to contact us on 0161 478 3800 or on hello@peachlaw.co.uk

Disclaimer
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

The Government’s Taylor Review into gig economy work is out tomorrow. However, leaked details have emerged from the BBC suggesting that gig workers will receive more employment rights.

Amongst others, key details are calls for guaranteed minimum wage for gig economy workers and the review recommends ‘dependent contractor’ status for gig economy workers.

We look forward to the full report and will keep you updated with the never ending complex area of the gig economy!