employment%20matters%20news%20spring%202013
Post on 14-Mar-2016
212 Views
Preview:
DESCRIPTION
TRANSCRIPT
Employment Matters
HR and Employment News Spring 2013
CONTENTS
1-2 Feeling conciliatory? It’s time to talk to Acas
2-3 The future looks flexible with shared parental leave
3-4 Whistleblowing – is it in the public interest?
s
Feeling conciliatory? It’s time to talk to AcasThe Government has recently published a consultation on the detail
of its proposals to introduce early Acas conciliation as a prerequisite
to a prospective claimant issuing proceedings in an employment
tribunal. It is expected to be introduced in Summer 2013. Early Acas
conciliation will apply to almost all tribunal proceedings.
Where an employee wishes to issue a claim against their
employer, they will have to follow a four-step procedure before
the tribunal will accept their claim. This is:
u The prospective claimant must send certain information about
themselves and their employer to Acas.
u Acas will forward the information to an early conciliation
support officer (‘ECSO’).
u The ECSO will then try to promote a settlement.
u If a settlement is not reached, either because the “prescribed
period” elapses or because the ECSO believes that settlement
is not possible, then they must issue an early conciliation (“EC”)
certificate. The prospective claimant may then apply to the
employment tribunal if they wish.
The prospective claimant must submit a form to Acas giving their
own and their employer’s details. The ECSO will make “reasonable
efforts” to contact them, although there is no penalty for the
employee if they simply ignore the ECSO’s calls. The requirement
is to submit the form to Acas, not to genuinely engage in the
conciliation process.
The usual “prescribed period” for conciliation is one month
starting with the date on which Acas receives the prospective
claimant’s completed form. Once this period elapses, or if at any
time the ECSO believes, for whatever reason, that settlement
is not possible, the ECSO must issue an EC certificate. The
Employment Tribunal will not be able to accept a claim for hearing
unless the Claimant has an EC certificate. If either party does not
want to engage in the conciliation process they may simply wait
out the one-month period until an EC certificate must be issued.
Assuming the ECSO does get in touch with the prospective
claimant, they will explain the conciliation process and correct any
misunderstandings an employee may have about their potential
claim. This could include checking that the employee has the
qualifying period of service, or explaining in general terms the
requirements for a successful claim of, for example, ordinary
unfair dismissal.
A key aspect of employment tribunal claims is that they must
be submitted to the tribunal within three months of the claim
arising. So as not to discourage or disadvantage a prospective
claimant receipt of an application for conciliation by Acas will
“stop the clock” on this time limit. The clock will restart on the
date the ECSO issues an EC certificate, unless the claim is settled.
This is likely to lead to increased litigation over time limits.
The Government has said that it is committed to the “earlier
resolution of workplace disputes” and in view of the 180,000
claims issued in employment tribunals over the past year it is
easy to see why.
Acas conciliation should help to settle more claims, but its effect
is likely to be limited. The ECSO has no “teeth” with which to force
parties to genuinely consider a settlement. An ECSO cannot advise
either party, only facilitate the settlement, so they cannot warn
a party that their case is not strong, or that they should accept a
particular offer to settle. In addition, Acas already contacts both
parties to assist with mediation when a claim is issued with the
Tribunal, and so the only real change is that conciliation will
commence before the claim is issued rather than after.
A key criticism of the proposals is that although a large number
of employment claims settle, this will usually occur after the
defence and the Claimant’s estimate of their loss are exchanged.
At that stage, the parties know each other’s case in outline and
have a starting point for settlement negotiations. Pouring Acas
resources into facilitating settlements before this stage may
produce limited results because the parties will not yet be ready
to consider settlement.
While it is difficult to criticise the Government’s aim of early
settlement of potential claims, it remains to be seen whether
early Acas conciliation will be the right tool to achieve this.
For further information please contact Nick Watson, Partner
and Head of Employment at Stone King LLP, on 01225 337599 or
at nw@stoneking.co.uk
s
The Government has announced that from 2015 parents will
have far more freedom to divide between them the right to
parental leave on the birth or adoption of a child. While affording
employees much greater freedom, it could pose a significant
headache for organisations to cater for more flexible, rather than
block-booked, maternity and paternity cover.
At present, a mother must take two weeks’ compulsory maternity
leave on the birth of a child, while the father has the right to take
two weeks’ paternity leave. After that, a mother may take up to
a further 24 weeks of ordinary maternity leave (“OML”) and up
to a further 26 weeks of additional maternity leave (“AML”). As
most mothers start their maternity leave before the expected
due date, they will usually return to work less than a year after
the birth of the baby.
Since April 2011, the father or spouse of the mother has had the
right to take any unused portion of the AML as paternity leave,
but only if the baby is at least 20 weeks old and the mother
has returned to work. Insofar as the mother has not used her
entitlement to statutory maternity pay (“SMP”), the father may
take the unused portion of this too.
In future, OML and AML will be replaced by a 50-week period of
parental leave and parents will have significant freedom as to
which of them takes the leave and when it is taken. This could
mean that parents take leave at the same time, or that they work
flexibly, with each parent working alternate weeks or months.
The future looks flexible with shared parental leave
Feeling conciliatory? It’s time to talk to Acas (continued)
In place of SMP, statutory flexible parental pay will be introduced.
The rate and maximum entitlement of 39 weeks’ will be the same
as for SMP, but as with parental leave the parents will have the
flexibility to designate which of them receives it and when.
It is not clear how far businesses will be able to reject requests
for leave to be taken in a particular manner, for example, if they
are too complicated or expensive to accommodate. However,
it seems likely that larger organisations would be expected
to accommodate more disruptive leave patterns than small
employers with more limited resources. This in turn is likely to
lead to situations where one parent’s employer agrees to the
request while the other refuses. The result could be tripartite
negotiations between parents and their respective employers to
agree how parental leave may be taken.
In addition to the introduction of flexible parental leave, fathers
will have the right to take unpaid leave to attend up to two
antenatal appointments.
The response from business leaders to the proposals has been
cautiously optimistic. Many are relieved that the Government
has not simply extended the period of paternity leave available,
thereby increasing overall the amount of time employees will
be able to take off work. However they warned that if the red
tape is not kept to a minimum then the changes could strain the
resources of small organisations.
For further information please contact Nick Watson, Partner
and Head of Employment at Stone King LLP, on 01225 337599 or
at nw@stoneking.co.uk
Whistleblowing – is it in the public interest?The legal protection available to whistleblowers is considered
by some to be too wide-reaching and often open to abuse by
disaffected employees seeking to strengthen their own claims
against their employers. The Government has decided to tackle
the issue by introducing a requirement that any information
disclosed by an employee must be “in the public interest” to come
within the ambit of whistleblowing legislation.
An employee is protected from being dismissed or subjected to a
detriment at work if the principal reason for this treatment was
that they have made a “qualifying disclosure” of information. A
disclosure will qualify if the complaint is that one of the following
has or is likely to happen:
u A criminal offence;
u Breach of any legal obligation;
u Miscarriage of justice;
u Danger to the health and safety of any individual;
u Damage to the environment; or
u The deliberate concealing of information about any of the
above.
The employee must also reasonably believe that that information
tends to show malpractice.
In April 2013 new legislation will amend the definition of a
qualifying disclosure so that, in addition to the information
falling within one of the categories above, the disclosure of the
information must be “in the public interest”.
As will be appreciated, it is very easy for a complaint by an
employee to an employer to meet one of those categories. Unlike
“Many are relieved that the Government has not simply extended the period of paternity leave available, thereby increasing overall the amount of time employees will be able to take off work.”
Stone King LLP 13 Queen Square Bath BA1 2HJ Tel. 01225 337599 Fax. 01225 335437
16 St John’s Lane London EC1M 4BS Tel. 020 7796 1007 Fax. 020 7796 1017
Wellington House East Road Cambridge CB1 1BH Tel. 01223 451070 Fax. 01223 451100
New Hall Market Place Melksham Wiltshire SN12 6EX Tel. 01225 337599 Fax. 01225 335437
www.stoneking.co.uk email: employment@stoneking.co.uk © Stone King LLP 2013 02/2013
Employment Matters deals with some current legal topics. It should not be used as an alternative to specific legal advice on the individual circumstances of a particular problem.
Stone King LLP – registered limited liability partnership no OC315280, registered office 13 Queen Square, Bath BA1 2HJ
Your Contacts
Nick Watson Partner email: nw@stoneking.co.uk Peter Woodhouse Partner email: pmw@stoneking.co.uk
other legal protection from unfair dismissal, there is no period
of qualifying service before a claim can be made and no upper
limit on the potential compensation that may be awarded by a
Tribunal. This has led to accusations that some employees have
made tactical whistleblowing claims, for example where they are
seeking to force an employer to settle a claim through the threat
of uncapped compensation.
The requirement that a disclosure will only qualify for protection
if it is made “in the public interest” is likely to limit the scope
for successful claims, particularly where the employer’s alleged
misconduct is a breach of a legal obligation to the employee
who is making the claim. In other words, an alleged breach of
the employee’s own contract of employment may no longer be
protected by whistleblowing. A typical example is where the
employee is claiming bullying or harassment.
However, the issue will not be clear cut. For example, there
may still be scope for an employee to whistleblow in relation
to a breach of their own contract where the breach relates to
discriminatory treatment by the employer which forms part of
a culture or practice affecting others in the workplace. In these
circumstances, raising the issue may be considered to be “in the
public interest”.
The change is likely to prompt litigation to determine the
meaning of “in the public interest”, and consequently a period
of uncertainty until the courts issue guidance through case law.
Until guidance is available, both employers and employees should
be cautious in deciding whether a particular disclosure is or is not
in the public interest. The safest way to ensure that an employee
who blows the whistle is dealt with properly is to have a clear
Whistleblowing Policy that is followed in all instances, rather
than trying to second-guess whether the employee is a protected
whistleblower.
On the other hand, employees should not necessarily expect
protection for making disclosures that allege that an employer has
breached a legal obligation, if that obligation is the employee’s
own contract of employment. It seems likely that if the breach
of the legal obligation does not affect more than one person, it is
unlikely to be in the public interest. That said, disclosures of most
criminal offences and breaches of health and safety legislation
should continue to be protected whistleblowing.
For further information please contact Nick Watson, Partner and
Head of Employment at Stone King LLP, on 01225 337599 or at
nw@stoneking.co.uk
top related