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?

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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

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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.”

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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