Acas early conciliation

The Advisory Conciliation and Arbitration Service (Acas) is an independent organisation set up to impartially act as a liaison between employers and employees (whether current or former) in the event of some form of employment dispute. The aim is to achieve settlement of any such disputes.

Previously Acas became involved in employment disputes automatically after a claim had been issued in the Employment Tribunal. Parties could (and still can) contact an assigned Acas representative if they wished to discuss settlement.

However since 6 April 2014 there is a mandatory Acas early conciliation process which must be followed by most Claimants who wish to present a Tribunal claim. This means before a claim is issued in the Tribunal the Claimant must contact Acas first.

The aim of the government is to reduce the number of claims that proceed to Tribunal by imposing an obligation on parties to attempt early settlement.

There is a fairly specific procedure to be followed by a Claimant in contacting Acas by using the Early Conciliation form or telephoning them. There are also various rules relating to time limits as usually a Claimant will only have 3 months from the date of dismissal in which to bring a claim.  A Claimant will always have one month in which to present their claim after the early conciliation period has ended.

Once the Claimant has contacted Acas then the conciliation officer will try to promote settlement for a period of one calendar month (this may be extended by up to 14 days).

There are benefits to having Acas involved. They are of course a neutral third party and there is no charge made for their conciliation services. However employers are not obliged to engage in the early conciliation process and can refuse to participate.

If you require more information on early conciliation please contact Marsha Robinson here for further information.

Financial Penalties in the Employment Tribunals

On 6th April 2014 Section 16 of the Enterprise and Regulatory Reform Act 2013 (“the Act”) was brought into force. This amends the Employment Rights Act 1996 and gives Employment Tribunals the power to order employers to pay a penalty if the employer has breached any of the worker’s rights to which the claim relates and has one or more aggravating features.

The amount of the penalty is 50% of the amount awarded to the employee subject to a minimum of £100 and a maximum of £5,000.

The Tribunal must have regard to an employer’s ability to pay in deciding whether to order the employer to pay a penalty.

There is nothing in the Act which says what would amount to an aggravating feature, but the guidance notes published by the government suggest that relevant factors might include:

• the size of the employer;
• the duration of the breach of the employment right and the  behaviour of the employer and of the employee;
• whether the action was deliberate or committed with malice rather than a genuine mistake; whether the employer had a dedicated human resources team; or
• where the employer had repeatedly breached the employment right concerned.

In the situation where a Tribunal finds against the employer, but makes no award (e.g. where they allow the parties to agree compensation between themselves following a judgment that the Employer is liable) the Tribunal can still use its discretion to set the amount of the penalty (subject to the £100 minimum and £5,000 maximum).

This represents just the latest in a series of changes which mean an employer who loses at an Employment Tribunal hearing could end up paying out far more than an employee who loses.  For example, it was already the case that if an employer has not complied with section 1 of the Employment Rights Act (provision of written particulars of employment), the Tribunal can award up to 4 weeks gross pay to the employee.  In addition if the employee was dismissed in breach of the Acas Code of Practice, the Tribunal can order a 25% uplift on any award made.  Finally the Tribunal can also order the employer to pay the fee incurred by the employee in bringing the claim, which could be as much as £1,200.

So employers do need to be aware that there are additional amounts that they could have to pay out over and above the award for loss of earnings and the basic award.  For that reason it is important to make sure any dismissal is done properly and fairly in accordance with the law and the Acas Code of Practice. This means that even if a claim is brought the employer can defend it confidently.

Please contact Marsha Robinson here for further information.

Essex Young Farmers' Country Show 2014

Last weekend Tolhurst Fisher moved out from behind our desks and in to a field, at the annual Essex Young Farmers' Country Show.

Based at Boyton Hall, Roxwell the event attracts an average of 13,000 visitors each year. With a range of attractions and events the day is popular with families.

Our stand this year was near the Game Fair ring where we had the pleasure of watching the Dog and Duck Show and the Super Young Farmer Competition - which involved members spinning, jumping and ending with their face covered in flour!

We felt the event went really well and it was great to see some familiar faces stop by our stand. We are already looking forward to next year.