29 July 2013 proved to be something of a ‘red letter’ day for employment lawyers.
The reasoning behind these changes is to encourage early settlements and to weed out the weaker claims.
On 23 July 2013 we wrote briefly about the new term Settlement Agreements to be used in place of compromise settlements (see our news post) and the new ACAS Code of Practice which governs such agreements.
Tribunal Fees
One of the most controversial aspects of these new developments concerns the imposition of initial fees, which are to be paid by claimants when issuing proceedings in either the Employment or the Employment Appeal Tribunals.
The fee levels are based upon the average cost of a claim and are to be paid in advance.
Type A fee levels relate to the more straightforward claims: a £160 issue fee and a £230 hearing fee.
Type B fee levels concern more complicated issues e.g. discrimination, detriment, and unfair dismissal: a £250 issue fee and a £950 hearing fee.
On 29 July 2013 the Times reported that the issue of fees is to be reviewed by the Justice Minister, Helen Grant, in the face of discrimination claims. This follows administrative law challenges both in Scotland and in England and Wales by UNISON. It is stated that most claimants are women with dependants, who will be unable to pay such fees. Apart from the fact that the Justice Ministry wants the Tribunal Service to pay for itself, the purpose of the fees is also to filter out the weaker employment claims that cost SMEs, in particular, a considerable amount of time and money each year.
New Claim Forms
There will be new, comprehensive online forms and regulations concerning the submission of claims.
Claimants, when completing form ET1, will be asked about the amount of compensation claimed and the basis of those calculations.
It will also now be possible for respondents to apply to extend the 28 day deadline after the expiry of that deadline, subject to conditions.
Pre-Termination Confidential Discussions
Any evidence of confidential negotiations will not be admissible in straightforward unfair dismissal proceedings (but will be in other types of proceedings e.g. discrimination) except where those negotiations are improper. See the new ACAS Code of Practice.
New Rigorous Sift of Claims
This sift will be undertaken by employment judges, and every claim will be assessed by the Judge. Again, this is in order to weed out the weak and frivolous claims. Those claims without reasonable prospect of success will be struck out, and those will which will go forward will be subject to even more rigorous, proactive ‘hands on’ case management. For example there will be time limits on the presentation of evidence, (cross) examination of witnesses, submissions, etc.
Again there will be more emphasis upon early settlement, and from April 2014 a mandatory pre-claim ACAS conciliation period will be introduced. ET1 claims will not be processed until an ACAS certificate of compliance has been obtained.
New Limits on Unfair Dismissal Compensation Levels
Awards will be the lower of either:
a) 52 weeks gross payment for the claimant
or
b) The current £74,200 limit
THIS LIMIT WILL NOT APPLY TO THOSE CLAIMS WHICH ARE AUTOMATICALLY UNFAIR DISMISSAL SITUATIONS.
This new approach to employment law stresses the importance of pre-termination negotiations, clear Settlement Agreements and, if those fail, a willingness to settle throughout the tribunal proceedings.
If negotiations fail, it is important for both claimants and respondents to ensure that both the initial claim forms and the response forms are as detailed and comprehensive as possible with all supporting documentation attached.
This ensures that the claim and response will proceed, but also keeps open the door to negotiations throughout the process.
Preparation is key!
If we can assist you with any of these issues, please complete our online enquiry form or call us on 020 7387 2032.
