From 6 April 2014, Employment Tribunals have a discretionary power to impose financial penalties on employers who lose claims. If the tribunal concludes that the employer has breached any of the worker’s rights to which the claim relates and the breach has one or more aggravating features, a penalty may be ordered.
The penalty is payable to the Secretary of State (not to the claimant) and the amount of the penalty shall be at least £100 and no more than £5,000. The Employment Tribunal may order the employer to pay a penalty irrespective of the nature of the remedy awarded to the claimant. Although, where a financial award is made to the claimant, the penalty must be 50% of that award (subject to the overall cap of £5,000).
Aside from the various remedies that can be awarded to claimants, the Employment Tribunal did not have the power to penalise employers for breaches of employment law prior to 6 April 2014. The Government has introduced this new discretionary power to encourage employers to take appropriate steps to ensure that they meet their obligations to their employees and to reduce deliberate and repeated breaches of employment laws.
It remains to be seen how the Employment Tribunal will determine what amounts to “aggravating features” given that this is not defined in the legislation. The explanatory notes of the Enterprise and Regulatory Reform Act 2013 suggest that Tribunals are more likely to impose financial penalties where “the action was deliberate or committed with malice, the employer was an organisation with a dedicated human resources team, or where the employer had repeatedly breached the employment right concerned.” It has also suggested that a Tribunal will be able to take account of any factor it considers relevant, including the circumstances of the case and the employer’s circumstances, which could include “the size of the employer; the duration of the breach of the employment right; or the behaviour of the employer and of the employee”.
This new power only applies to cases lodged on, or after, 6 April 2014.
Tryvana Ekladious, Employment Solicitor
It has recently been decided by the European Court of Justice (in the case of C-D v S-T C-167/12) that mothers who become a parent through a surrogacy arrangement (even if the mother is the child’s biological mother), are not entitled to paid maternity leave.
In this case, the mother was the legal and biological parent of a child born to a surrogate mother and even breast fed the child from day one. Despite these factors however, she was denied the right to paid maternity leave by her employer.
The European Court of Justice held that maternity leave is intended to protect a woman’s biological condition during and after pregnancy and also to protect the ‘special relationship’ between a woman and her child over the period which follows pregnancy and childbirth. The European Court of Justice, therefore, held that a worker must have actually been pregnant and given birth to a child in order to be entitled to paid leave.
The Court rejected the argument that the refusal of paid leave amounted to sex discrimination on the basis that a father who had become a parent through a surrogate would be treated in the same way as the mother.
The Children and Families Act, which gained royal assent by the UK Government on 13 March 2014, will enable parents in a surrogacy arrangement to utilise adoption leave and pay. Given the trend of parents having children later in life (which has resulted in an increase in surrogacy arrangements) and given the fact that many same-sex couples wish to have children via surrogacy arrangements, this change in the law is vitally important. Disappointingly however, this change is not expected to take effect until April 2015, which will come too late for many surrogate families.
Joanne Cameron, Employment Solicitor
The mandatory ACAS early conciliation procedure became available from 6 April 2014 and must be followed by all claimants who issue a claim (unless one of the very limited exceptions apply) from 6 May 2014.
Early conciliation imposes a duty on the parties to engage in settlement discussions before a claim is issued. ACAS will however continue to promote settlement at every stage of the claim and it will continue to offer the same assistance to parties as it previously has done.
Early conciliation, in summary, requires the claimant to contact ACAS before issuing a claim and a claim can only be presented at the tribunal if the claimant has received a certificate from ACAS confirming that early conciliation attempts were unsuccessful. The obligation on the claimant is simply to contact ACAS and that is all. The claimant therefore can choose not to engage in early conciliation and that will be enough to gain a certificate.
ACAS has produced guidance for claimants on the process .This guidance sets out the procedure and also some of the advantages of early conciliation, such as avoiding the time, expense, risk and stress of taking a case to the tribunal.
There are 4 main steps involved in the early conciliation procedure:
1. A prospective claimant must submit an early conciliation form to ACAS (which can be found on the ACAS website) or contact ACAS by telephone. In relation to cases where there is more than one potential respondent, a prospective claimant must submit a separate form for each respondent (or, if notifying ACAS by telephone, identify each potential respondent).
2. An ACAS early conciliation support officer will make contact with the prospective claimant and, if the prospective claimant agrees, pass the information on to a Conciliation Officer (“CO”). The prospective claimant is not obliged to proceed with conciliation.
3. The CO will contact the prospective claimant and, subject to the prospective claimant agreeing, try to promote a settlement between the prospective claimant and the respondent(s) within one calendar month from the date on which the prospective claimant made initial contact with ACAS.
4. If a settlement is not reached, either because it is not possible to contact the parties, the parties do not wish to participate, the CO considers that settlement is not possible, or because one calendar month has expired, an early conciliation certificate must be issued to the claimant.
The certificate will contain a unique reference number which a claimant will need to quote in order to be able to submit a claim form.
The time limits for issuing claims in the tribunal are very short. Early conciliation however “stops the clock” on the time limit from the day after the claimant made contact to ACAS to the day the certificate was deemed received by the claimant. Additionally, a claimant can be afforded extra time since, if the time limit would have expired before one month after the claimant received the certificate, the claimant will then get one month from the date of receipt of the certificate to issue a claim. Therefore, a claimant will always have at least one month to issue a claim after receipt of a certificate.
The claimant should be careful when identifying the respondent(s) in the early conciliation process since the certificate will only be valid if the claimant has identified the correct name and address of the respondent(s).
The opportunity to resolve matters at an early stage should not be ignored by claimants. If the matter settles by way of early conciliation, the claimant will not be required to incur the tribunal issue fee (which is £250 for the majority of cases) and the further fee that is required when a hearing is listed. There are also several other advantages to early conciliation, as listed above.
Joanne Cameron, Employment Solicitor.
I’m sending out another plea, to anyone who will listen, for greater knowledge and management of the asbestos threat within our schools.
Our children are more at risk and more vulnerable to asbestos and, whilst we cannot do anything about past exposure, we can and must see action to prevent anymore being exposed. The outcomes of the latest Government review is critical. It must be impartial and bring us a future Asbestos in Schools policy which really works to prevent future deaths from mesothelioma.
Thanks to Lisa Carnwell, Editor of the publication Adjacent Planning & Building Control today for the opportunity to write again about an issue so close to my heart. Full article
Are the UK’s strike laws so stringent that they inhibit the right of freedom of association under Article 11 of the European Convention on Human Rights (ECHR)?
The National Union of Rail, Maritime and Transport Workers (RMT) sought to challenge the domestic provisions by claiming such an infringement. UK law bans secondary industrial action, where such a strike does not involve a trade dispute between the union and the employer. The RMT also argued that the balloting and notification requirements pursuant to the Trade Union and Labour Relations (Consolidation) Act 1992 are so prescriptive that they act as an unwarranted restriction on the right of association. The European Court of Human Rights has handed down its judgment.
Secondary Action
The Court rejected a complaint that the prohibition on secondary or sympathy industrial action in the United Kingdom breached the freedom of association under Article 11 of the ECHR. Although the ban on secondary action interfered with Article 11 rights, it had a legitimate aim and was a proportionate measure, which fell within the bounds of the Government’s discretion.
The issue in question arose after a lawful strike took place with H Ltd. The RMT wanted to put additional pressure on H Ltd by calling on its members at Jarvis to take secondary action in support of the strike. S.224 of the Trade Union and Labour Relations (Consolidation) Act 1992 prohibits secondary action. The RMT argued that this situation denied its members their rights under Article 11 ECHR, which guarantees the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions.
The Court unanimously held that there was no violation of Article 11 on the facts of the case. The majority view acknowledged that secondary action is recognised and protected as part of trade union freedom under ILO Convention No. 87 and the European Social Charter, and accepted that the statutory ban on secondary action constituted an interference with the RMT’s rights under Article 11. However, it went on to hold that this interference was justified. States enjoy a wide margin of appreciation as to how trade union freedom may be secured, and this was wide enough to encompass the existing statutory ban on secondary action.
The Court also acknowledged that this ban had not been repealed despite changes of Government and that this denoted a democratic consensus behind it. The RMT had been able to exercise the essential elements of its rights under Article 11: in representing its members, in negotiating with the employer on behalf of its members who were in dispute with the employer and in organising a strike of those members at their place of work.
Notice Requirements
The RMT also argued that the statutory requirements for strike-ballot notices breached its Article 11 rights. The RMT had relied on EDF Energy Ltd v National Union of Rail, Maritime and Transport Workers, where the High Court granted an injunction to prevent a strike because the ballot notice given by the RMT categorised some members as ‘engineers/technicians’ and this did not correspond with EDF’s job description. An injunction was granted, but the RMT re-balloted its members and succeeded in leading a strike two months later which induced EDF to improve its offer to union members resulting in a collective agreement. The Court considered it would be artificial to consider the injunction in isolation from subsequent events. What the EDF situation disclosed in reality was an ultimately successful collective action by the RMT.
This is a disappointing result. It should be borne in mind that the judgment should not be read as suggesting the workers in the UK enjoy the same degree of industrial rights as their European colleagues. The decision also underplays the significant practical hurdles that are placed in a union’s way to call for industrial action: the same degree of hurdles is not found in other jurisdictions.
Binder Bansel, Head of Employment
Changes to employment tribunal procedure and the usual statutory rate changes came into effect on or after 6 April 2014.
Employment tribunals
Individuals who wish to bring a claim at an employment tribunal from 6 May will have to inform Acas (Advisory, Conciliation and Arbitration Service). Instead of filling in an ET1 form and sending it to the tribunal service. This procedural change requires Acas to attempt to offer conciliation, which will involve active assistance to bring the parties to an agreement. Early conciliation is not mandatory and once Acas has been informed of an intention to claim, the claimant is not required to enter into a conciliation process. The employer is also not obliged to enter into the process.
If conciliation isn’t viable or, is attempted but, is unsuccessful the individual can continue with his or her tribunal claim.
Employment tribunals will also be given the power to order employers who lose a claim against them to pay a fine to the exchequer. The penalty will be 50% of the award made to the claimant, with a minimum of £100 and a maximum of £5,000. This applies to any claims made on or after 6th April.
Statutory discrimination questions
Another change is the abolition of the statutory discrimination questionnaire that allows individuals to ask their employer for a response to questions on potential discriminatory behaviour.
This questionnaire posed a series of questions which employers could choose to answer or not. Any failure, unreasonable delay or evasive answers could be relied on as evidence in the claim. Acas has now issued guidance explaining how instead ‘informal’ questions may be asked of employers once the statutory questionnaires have been abolished. This guidance notes that employers will continue to be under no legal obligation to answer questions. However, a tribunal or court will still be able to look at whether and how questions have been answered
Statutory rate changes
Statutory sick pay rises to £87.55 from 6th April and statutory maternity/paternity/adoption pay also increase to £138.18 per week.
The maximum tribunal award in unfair dismissal cases is the lesser of 52 weeks’ pay, or an overall cap that has risen from £74,200 to £76,754.
Binder Bansel, Head of Employment
In July 14 we will see the implementation of the long-overdue Diffuse Mesothelioma Payment Scheme (‘Scheme’) for mesothelioma victims and their families. This has been a long fight for justice by victims, campaigners and politicians. The fight began back in February 2010 when Labour launched the originating consultation. The scheme however excludes all other asbestos related diseases and limits compensation to only 80% of average compensation payments; failing many who have suffered and will continue to suffer because of past negligent exposure to deadly asbestos.
The new regulations make no mention of the levy on the insurance industry. The lack of any regulatory control makes it unlikely that the industry will volunteer a maximum affordable contribution. The industry must make a genuine commitment to the Scheme to ensure that in the future victims receive 100% of compensation, that all asbestos victims receive compensation and to provide for proper investment in medical research.
A further injustice for victims and their families comes with the Government’s decision to apply Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) to mesothelioma cases. This will be implemented in July 2014 to coincide with the new Scheme and will result in putting more money back into the pockets of the insurance industry. The fight for justice is not over and we offer our support to the Asbestos Victims Support Groups Forum UK and its members in their challenge of the Government’s decision.