ACAS settlement discussions – the true story

You will recall that we flagged up the introduction of laws permitting settlement discussions in the workplace in our August edition of Employ. We have now had the opportunity to consider the terms of the regulations in full as well as the detailed ACAS Code of Practice.

To recap, the purpose of the new protected settlement discussions scheme is to enable employers to have frank discussions with their employees with a view to ending employment on a Settlement Agreement (formerly known as a Compromise Agreement) for reasons relating to the employee’s conduct or performance; the idea being to allow those discussions to occur even if the employee is not aware of a prior problem with their conduct or performance.

The benefit is this: A “valid” settlement discussion can not be referred to in evidence against either party during an Employment Tribunal hearing if the discussions do not lead to a Settlement Agreement. It is a bit like the “without prejudice” rule but without the need to show that the discussion was a genuine attempt to resolve an existing dispute of which both parties were aware.

Whilst on the face of it, the ACAS scheme seems like a good idea and a constructive way of allowing employers and employees to agree terms for exit without a long and drawn out disciplinary or performance management process, the scheme has many holes and pitfalls and we would always recommend that careful legal advice is taken before pressing ahead. For example:

• If the employee simply alleges as part of their claim to the ET that they were the subject of unlawful discrimination, the protected status of the settlement discussion will be lost;

• If the employer is seen to put unreasonable pressure on the employee or otherwise act improperly in the discussions, the protection will also be lost;

• If the employee’s case is about automatically unfair dismissal, there is no protection either.

What do you need to know?
Basically, the scheme is far from perfect and conversations can still be used in evidence against employers in many situations. If a deal is achieved through a protected conversation then it proves its value. Pick your situations carefully and take legal advice.

TUPE Consultation – the Government publishes its response

The Government took everyone by surprise at the beginning of September when it published the response to the National Consultation on TUPE Reform, demonstrating that it had taken on board the many objections received in respect of some of the more substantial proposals.

You will recall that the Government proposed removing the concept of “Service Provision Change” from the TUPE regulations. More controversial still, the Government proposed removing the obligation on outgoing employers to provide employment liability information not later than 14 days prior to the transfer date.

Importantly, the Government will not now be removing service provision change from the statute books and, instead of extinguishing the outgoing obligation to provide employment liability information, the Government has increased the minimum time that the outgoing employer has to do so from 14 days prior to transfer to 28 days prior to transfer, In addition, the Government announces it will be proceeding with the following changes:

• To allow the re-negotiation of terms set out in Collective Agreements one year after a transfer, provided those changes are no less favourable to employees;
• To confirm that the location of a workforce can be within the scope of an economic, technical or organisational reason entailing changes in the workplace, thus preventing a genuine place of work redundancy from being classed as an automatically unfair dismissal following a transfer;
• To enshrine into the regulations a principle that has arisen in a number of recent cases involving service provision changes that for there to be a relevant service provision change transfer, these must be activities intended to be carried on after the transfer which are “fundamentally or essentially the same” as those prior to the transfer.
• Micro-businesses will be permitted to inform and consult directly with employees as opposed to having to deal with appointed representatives and hold elections where there are no representatives.

For a link to the Government’s published response to its consultation on TUPE, click here.

No more liability for third party harassment

Our readers in the retail, leisure or hospitality sectors will be especially relieved by the repeal of the third party liability for harassment laws which will take effect from 1 October 2013.

The Equality Act 2010 made employers vicariously liable for any unlawful harassment by a third party - for example a customer, contractor or visitor – if (a) the person harassed the employee on at least two previous occasions and (b) the employer had failed to take reasonably practicable steps to stop that harassment.

What do you need to know?
Don’t construe this change as meaning that employers can now risk leaving employees unprotected against any unlawful harassment by third parties who they encounter in the course of their employment. However, the legal liability returns to how it was prior to the Equality Act and will now be limited to those situations where the employer fails to take such steps to protect the employee because of the employee’s protected characteristic (e.g their sex/race/religion/disability) for which they were being unlawfully harassed by the third party.

This therefore makes it much more difficult for a claim based on third party harassment to succeed.

Update to National Minimum Wage

If you employ staff on the National Minimum Wage, you will need to ensure that you adapt to the changes to the NMW which will take effect from 1 October 2013.

For employees aged under 18, the rate increases from £3.68 an hour to £3.72; for 18-20 year olds, the rate increases from £4.98 to £5.03 per hour; and for employees aged 21 and over, the rate increases from £6.19 to £6.38.

If you engage any staff on a National Apprenticeship Scheme, you should note that their minimum wage rate increases to £2.65 to £2.68 per hour for apprentices under the age of 19.

Your Questions Answered

Here’s a question raised with us recently by a reader of Employ!

“I have been asked to chair an appeal against dismissal by an employee who has not alleged that they were innocent of the charges that led to a finding of gross misconduct, but simply that the punishment of instant dismissal was too harsh. Does that mean I can avoid having to reinvestigate the basis on which the manager dealing with the disciplinary found the employee to be “guilty”?

This is not an uncommon situation. Whilst every case must be looked at on its own facts, if the grounds of appeal are as limited as you say they are, it would not be outside the range of reasonable responses for you to proceed to deal with the appeal as described, i.e. to focus solely on whether the punishment was too harsh.

However, a few words of warning:

• If there were any material procedural defects in the disciplinary process which the employer later attempts to rely on to claim that they were unfairly dismissed, they can only be cured at appeal if the appeal takes the shape of full re investigation / hearing to determine guilt, without a repeat of the same errors;
• Make sure you are satisfied that the offence was serious enough to merit instant dismissal. Were your written rules clear enough about that? Were they properly implemented and communicated to the employee before they committed the misconduct?

If not, you may have a problem.

If you have any queries in relation to this problem or a question that you would like to ask the team and share with our other readers, please send it to us and we would be delighted to use it in a future edition of Employ!