Changes in UK Employment Law

29th July 2013 saw the introduction of some significant changes in UK employment law. The headlines are as follows:

New tribunal rules of procedure and fees to be introduced

New Employment Tribunals Rules of Procedure come into force today. The most significant issue is the introduction of fees payable in connection with Tribunal proceedings. The fee structure involves payment of an issue fee both at the time the claim is lodged at the tribunal, and when it is brought to an actual hearing. The proposed fees for a single claim are as follows:

• Level 1 claims. These are for more straightforward matters such as unpaid wages, payment in lieu of notice and redundancy payments. The issue fee for such claims will be £160 and the hearing fee £230.
• Level 2 claims. These include all other claims, such as unfair dismissal, discrimination, equal pay and whistleblowing. The issue fee for such claims will be £250 and the hearing fee £950.

There will be higher fees for those cases where there are multiple claimants, and a scheme for those on lower incomes where they can apply to have the fees waived (subject to an income and capital test). The Ministry of Justice has published a leaflet for individuals explaining the fees in more detail.

Please contact Goldstein Legal if you would like a copy of this. Fees are also payable for other Tribunal proceedings, such as applying for a default judgment, reconsideration of a judgment or applying for a dismissal on withdrawal. Note also that there are new forms ET1 and ET3 which apply from 29th July.

New unfair dismissal compensatory limit

The unfair dismissal compensatory award limit will become the lower of the statutory cap (currently £74,200) or one year’s gross pay.

Pre-termination negotiations

As we reported last year, the Government has been looking at facilitating “protected conversations” between employers and employees. Up to now, it has not possible for an employer to have a truly “off the record” conversation with an employee. Even merely suggesting the possibility of a compromise agreement to an employee could leave the employer with a claim for constructive
dismissal. This was a cause of much frustration for employers, particularly where they suspected that the employee would be willing to accept the terms on offer.

From 29 July 2013 an employer will now be able to have a ‘protected conversation” which will be inadmissible in any subsequent unfair dismissal proceedings unless there has been improper behaviour. But note, this only applies to unfair dismissal claims, and not to discrimination. This limits the practical benefits of the new procedure for employers. UPDATE – definition of “one establishment” in collective redundancies We recently reported on a decision of the EAT involving Woolworths, and the requirement for collective consultation where 20 or more people are affected “at one establishment” within a 90 day period. The EAT in the Woolworths case held that, to be compliant with EU legislation, the words “at one establishment” must be deleted, so that the requirement for collective consultation would apply whenever the employer intends to make 20 or more employees redundant in a 90 day period, no matter where.

This appears to have come as something of a surprise to the Government, which has now announced that it will be appealing the decision. Meanwhile, the Northern Ireland Industrial Tribunal, in another case, has referred the same point to the European Courts of Justice.

Looking beyond 29 July: what else to expect

• September 2013 – New TUPE regulations are expected to be announced, as the Government attempts to simplify current legislation.
• April 2014 – discrimination questionnaires to be abolished.
• April 2014 – Mandatory pre-claim Acas conciliation will be introduced, meaning that claims cannot proceed until ACAS has attempted to conciliate and issued a certificate to that effect.
• Also expected in 2014 – Regulations giving tribunals the power to order an employer to carry out an equal pay audit
• Expected in 2015 – Introduction of a new system of shared parental leave.