It's a trap!

Employment Law Newsletter - April 2014

 
 

In this issue ...

  For the record   Whoops! – but they're only words  
  Early starters?   And being careful with your words again  
  An unreliable indicator   Who coughs up?  
  Too tight a link   E-cigarettes: smoke and mirrors?  
  Surrogacy and maternity leave   HR departments will shrink, warns professor  
  Don't miss out on our Employment Law Updates  
 

For the record

There are now new, shorter periods after which most criminal convictions become 'spent' and so need not be disclosed to potential employers. However, the abbreviation is somewhat diluted because, except for a conviction attracting only a fine, these shorter 'rehabilitation periods' now run from the completion of the sentence rather than the date of conviction itself.

Full details are at:
www.gov.uk/government/publications/new-guidance-on-the-rehabilitation-of-offenders-act-1974

 

Early starters?

From 6th May 2014 (before our next issue is published), attempted conciliation by Acas will be mandatory before an employment dispute can be presented by an (ex-)employee to an employment tribunal.

The basic stages are:

(1) The prospective claimant ('PC') must notify Acas, by phone or on the prescribed form, of the intention to bring a claim.
(2) Acas must make reasonable attempts to contact the PC and, if the PC then agrees to early conciliation, pass the details to a conciliator.
(3) If, following contact from the conciliator, the prospective respondent employer also agrees to early conciliation, there is a period of one month to resolve the dispute (this can be extended once by up to two weeks if there is a reasonable prospect of settlement and if the parties consent).
(4) Settlement within the set period will be dealt with in the normal way. Where early conciliation never starts because of lack of consent or is ultimately unsuccessful, Acas will issue the PC with a certificate to confirm to the tribunal that the PC did comply with the condition at stage (1).

So, once things move beyond that first stage, little about the process is obligatory. However, there is a small incentive for a PC to engage properly. The normal time limits for presenting a claim to the tribunal are extended by the period between the notification under stage (1) and when the Acas certificate under stage (4) is received by the PC. And if a time limit would otherwise expire in the period between that stage (1) notification and a date falling one month after receipt of the Acas certificate, the PC will have until that date to submit the tribunal claim. Despite the logic and sometimes generosity of these extensions, they might confuse some PCs and lead them to submit claims late.

What's in it for an (ex-)employer? Beyond the opportunity to settle a bad case quickly, not much. Even with those bad cases, it might be prudent to wait and see if a PC will stump up the fee required to present a claim (if so, there can still be conciliation later).

 

An unreliable indicator

There was much recent coverage of the tribunal statistics for the last quarter of 2013. Claims were 79% down on the equivalent period in 2012. If multiple claims were stripped out, the drop was still about 63%. So, does this mean that, thanks to the fees system put in place last July, employers across the country can celebrate wildly and advisers/representatives must find other sources of work?

Well, sort of. There is little doubt that the requirement to pay fees on presenting a claim has had a significant effect – particularly on the number of spurious cases, but also probably on good ones of low value. And, despite the increased willingness of representatives to pay the initial fee for a worthy claimant, the need subsequently to pay an even larger 'hearing fee' could well act as a later disincentive.

But some perspective is necessary. The period covered by the statistics was when a 'perfect storm' broke over the new system. Some claimants were still ploughing ahead with claims, unaware of the need to pay and using old forms. It was 'back to go' for them. And the related system for remission of (exemption from) fees took time to bed in.

Having experienced a downturn in late 2013 similar to the one reported nationally, our clients have received more claims in the first quarter of 2014. So, we would be surprised if the next set of official statistics showed a fall any higher than 35% or 40% on the prior year – which would still be pretty good news for most of you.

 

Too tight a link

In Onu v Akwiwu, the Court of Appeal was asked to consider whether the mistreatment of two Nigerian women because of their vulnerable immigration status (not protected as such) amounted to direct discrimination on the ground of the protected characteristic of 'nationality'. It decided not. For a successful claim, the ground of mistreatment had to correspond exactly with a protected characteristic under the Equality Act. Here, that was not the case.

 

Surrogacy and maternity leave

In a UK referral, CD v ST, the European Court of Justice has ruled that a 'receiving' or commissioning surrogate mother, even one that started breastfeeding within an hour of the birth, does not have a right to paid maternity leave from her employer. The reason is the obvious, biological one that the European directive underlying the UK's own legislation assumes that an employee is pregnant and gives birth. Although the purpose of maternity leave is to protect and strengthen the bond between a woman and her child, no amount of purposive construction of the rules could extend the right beyond the biology.

 

Whoops! – but they're only words

If employer X drafted and imposed a restrictive covenant on an employee that prohibited competition with X and defined that competition as 'systems produced by X', you would think a court would refuse to enforce it. Any other business the employee tried to join would be producing its systems, not X's, so the covenant would be meaningless and worthless.

But, when this very situation arose in Prophet v Huggett, the High Court had a different answer. To reflect what it considered to be the original intention of the parties, it read the words 'or similar thereto' into the covenant and, with sense restored, went on to consider whether an injunction should be granted to Prophet plc on the facts.

This is a pretty rare example of a court adding words to a contractual provision. However, there will be limits to this flexibility and Prophet's carelessness is not a blueprint for employers. Care and precision are the watchwords when drafting such restraints.

 

And being careful with your words again

In our April 2013 issue, we covered the Employment Appeal Tribunal's (EAT's) limited, almost grudging, sanctioning of covert recordings of internal hearings as evidence in the employment tribunal.

Its more recent ruling in Punjab National Bank v Gosain has added to the jurisprudence on this subject. Even G's recordings of the private/closed sections of her grievance and disciplinary hearings (she left a recorder running in her absence) could be used as evidence. Given that her claims included sexual harassment and sex discrimination and because these recordings were said to feature evidence of impropriety (rather than proper deliberations of the grievance and disciplinary panels), the public interest was in favour of allowing the tribunal to consider their content.

It's simple. Whether acting in a quasi-judicial or an everyday managerial capacity, you should take care what you say. These days, you just don't know who or what could be listening.

 

Who coughs up?

In City Facilities v Ling, the EAT decided that the 'overriding objective' (disposing of claims justly, putting parties on an equal footing) was not well-served by an employment tribunal's requiring an employer to fund the full cost of a specialist's report into a claimant's alleged disability.

This is a useful one to know about, but be careful. There were circumstances here that might not prevail in other disputed disability cases. First, there was the tribunal's failure at pre-hearing review to hear from the claimant or to get evidence supplementing her GP's report. Then, there was the employer's stance in the face of limited evidence of disability that the claim had no prospect of success (for the confirmation of which it was now being told to pay). In any event, to expedite things and avoid a protracted, time-consuming and more costly process, footing the bill might be a good investment.

 

E-cigarettes: smoke and mirrors?

The increasing popularity of e-cigarettes, which are not covered by the smoking ban, has inevitably raised the question of whether or not employees can use them. The simple answer is that employers are quite entitled to ban their use in the workplace.

E-cigarettes may well muddy the waters about what is and is not allowed, but treating e-cigarette smokers differently from regular smokers is likely to sow the seeds of discord. It is worth noting that there is no legal requirement to provide smoking areas or to allow smoking breaks. If possible, it is best to have a written policy which bans smoking of all kinds and lays down that employees should only smoke outside the premises during their breaks or outside working hours.

 

HR departments will shrink, warns professor

Paul Sparrow, Professor of International HR Management at Lancaster University, is predicting that HR departments will get smaller because some of their work will be taken over by line managers and other business functions. Chief Executives of companies are becoming less concerned about which functions people report to and more about influence over projects, he added.

This is a trend we have noticed when talking to clients about HR Outsourcing. Senior managers want their investment in HR, internal or external, to produce tangible and measurable benefits for the business.

Our service covers all aspects of HR. You can select which tasks you want to outsource fully and those you wish to retain in-house. Typically, we reduce the costs of running an HR function by 20%. Outsourcing also puts a wider range of specialist resources at your disposal.

Our clients include some of the UK's largest care home operators, the UK's largest provider of off-street parking, and a distribution business with a turnover of more than £1.4bn. We also work for owner-managed businesses and charities with fewer than 100 employees.

If this approach to managing HR sounds interesting, please contact David Mosscrop on +44 161 703 5600 or e-mail dmosscrop@collinsongrant.com.

 

Don't miss out on our Employment Law Updates

A limited number of places are available at our Employment Law Updates in London and Manchester, where Collinson Grant's experienced employment law team will guide you through current and forthcoming changes and suggest how you should be responding.

Topics we shall cover this year include: detailed amendments to TUPE and to related aspects of the redundancy consultation laws; new provisions on shared parental leave that take effect in 2015; other changes on 'family friendly' rights, and the future of 'zero-hours' contracts. Also on the agenda are many recent and forthcoming rulings by the tribunals and courts that could catch out the unwary.

The events are free of charge and will follow the same format as last year, starting at 9.45am and finishing at 4.30pm. Refreshments will be provided at registration (from 9.15am), at morning and afternoon breaks and, in the form of a buffet, at lunchtime.

Please e-mail pcollinson@collinsongrant.com and tell us which event you would like to attend:
Tuesday 17th June: Manchester - The Place Aparthotel, Ducie Street, Manchester M1 2TP
Thursday 19th June: London - The Novotel London City South, Southwark Bridge Road, London SE1 9HH

 
 
 

If you would like to discuss this or any other issue facing your organisation please speak to your usual contact at Collinson Grant or Jo Hale on 0161 703 5600

www.collinsongranthr.com

Although care has been taken in the preparation of this Newsletter, Collinson Grant cannot accept responsibility for errors, omissions or advice given. Readers should note that only Acts of Parliament and Statutory Instruments have the force of law and only the courts can authoritatively interpret the law.