Employment Law e-alert Winter 2019

18 February 2019

When the Supreme Court ruled in favour of UNISON and declared the implementation of Employment Tribunal fees unlawful and contrary to justice in July 2017, a lot of focus was on the refund of 4 years' worth of fees paid by claimants. At the time, many underestimated the impact this would have on the number of new claims being brought, the timescale of claims progressing through the system and the Tribunals' ability to cope. We take a look at where the Tribunals are now and what this means for your business, along with a roundup of important employment law developments in 2019.

Employment Tribunals post-fees: where are we now?

Previously, employers could benchmark the critical '3 month date' from an employee's departure (or other significant event with that employee) in their diaries and breathe a sigh of relief if they heard nothing from Acas or the Employment Tribunal by (or very close to) that date. Unfortunately, this is no longer a steadfast rule or sensible way of looking at things.

In the period 1 April – 30 June 2018 the number of single Employment Tribunal ("ET") claims had risen by 167% from the same period in 2017. Since the abolition of fees, the already understaffed ETs have been inundated with claims, resulting in a substantial backlog in processing. Claims lodged in November 2018 are in some circumstances being listed for a final hearing in 2020.

There are different ways in which the '3 month deadline' can be pushed back:

  1. The Acas early conciliation process ("EC") "pauses the clock" that begins to run upon the qualifying event (e.g. dismissal or an act of discrimination/victimisation) and ends after 3 months.

The period between Day A – the day that the employee contacts Acas, or that Acas receives their claim – and Day B – the day the employee receives their EC certificate – is added to the existing limitation period, thereby extending it.

Example: an employee is dismissed on 1 Feb, meaning that their clock will run from 1 Feb to 30 April (3 months). The employee contacts Acas on 15 February (Day A), and receives their EC certificate on 2 March (Day B) (no settlement having been reached). This 15 day period is added to the original deadline of 30 April to create a new time limit for submitting the claim of 15 May.

  1. Additionally, the registration/acceptance/listing process by the Tribunal means it could still be over 2 months before the employer is notified of a claim. Due to the increase in claims, it can take weeks and in worst cases, months, for claims to be recorded on the tribunal system and served on the respondent employer.  

    The employee submits their claim on the new deadline of 15 May in person. It takes 6 weeks to be processed – 26 June – and then a month to be served on his employer, finally arriving on 25 July. This is now 3 months later than the original "safe date" of 30 April.

What does this mean for your business?

By the time employers are notified of a claim, a lot may have changed within the business.  Key individuals that were involved in the claim (such as HR or the claimant's line manager) may have left the business. Would they help prepare your defence and/or provide evidence at the hearing?

Even if the individuals involved are still employed by the business, is their recollection of events still as sharp now as it was 6 months ago? Have you thrown documents or notes relating to the employee away, as three months have been and gone?

D was a marketing assistant at the time that the employee (E) was employed as the marketing manager by the respondent (R). E left in acrimonious circumstances in February. D decided to leave R's firm in April. E's new limitation deadline is 15 May and R is not notified of E's claim until 25 July. D has since found a new job and has 'moved on', wishing to forget his difficult few months working for R. R contacts D and asks him to give a statement of events, but D has put all of that behind him and declines. What do you do now?

The following steps will put you in a better position should you be notified of a claim:

  1. Keep detailed, contemporaneous notes of informal discussions, events or when issues arise with your employees, even if they seem insignificant. These records should be clearly dated.  These notes can be made digitally, for example by email to the employee to ensure the event is documented.

Having this information will assist in assessing the merits of any subsequent employment claim and will be of more importance than relying on witness evidence.

  1. If you have a disgruntled employee who leaves in acrimonious circumstances, like E above, who you believe might try to bring a claim, keep records of job adverts equivalent to their role and that they could apply for. If the ex-employee brings a claim for unfair dismissal, you will have evidence of what jobs were available to them at the time and how they might have mitigated their loss.

It is a lot easier to collate job adverts at the time, than to try and put together a picture of the then-job market several months later. Keep an eye on job vacancy sites and keep a record of the details of any suitable roles.

  1. If the employee wishes to engage in early conciliation, take advantage! This is a chance to review the individual's claim (and merits), and consider whether settlement is a more realistic option.

This could save significant sums of money, management time and adverse PR risks.

Round up

Equal pay

In January, the Court of Appeal ruled that supermarket employees could compare themselves to distribution depot employees for the purposes of bringing equal pay claims. The judgement came in Asda Stores Ltd v Brierley and ors, originally from the Employment Tribunal. 7,000 (largely female) Asda supermarket employees argued that they were being paid less than the distribution depot staff (who were largely male), and brought a claim requesting equal pay for work of equal value under the Equality Act 2010 (the “EqA”).

The Court of Appeal was in agreement with the Tribunal’s original decision that the supermarket employees could use the distribution depot staff as the comparator for their claims because there was a “significant correlation” between the “broadly common” terms governing the work of the supermarket and depot staff - meeting the ‘same employment’ requirement under the EqA.

Itemised pay statements

Following the Taylor Review on modern working practices last year, the government is introducing certain changes to payslips to improve clarity about pay. Under the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018, from 6 April 2019, if an individual works different hours for different rates of pay, these must all be set out on the payslip showing the hours paid for.

In addition, under the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No. 2) Order 2018, from 6 April 2019 all 'workers' will have a statutory right to receive an itemised payslip for pay periods beginning on or after 6 April, setting out the number of hours the worker is being paid for.  Currently this right only applies to 'employees'. 

National minimum wage increase

Chancellor Philip Hammond announced in the 2018 Budget that the new National Minimum/Living Wage from 1 April 2019 would be increased to the following levels:

  • Workers aged 25 and over - £8.21 an hour (National Living Wage)
  • Workers aged 21-24 - £7.70 an hour
  • Workers aged 18-20 - £6.15 an hour (‘Development Rate’)
  • Workers aged 16-17 - £4.35 an hour (‘Young Workers’ Rate’)
  • Workers under 19 or in first year of apprenticeship - £3.90 an hour (‘Apprentice Rate’).

Employment particulars and paid annual leave

Taking effect from 6 April 2020, the Employment Rights (Employment Particulars and Paid Annual Leave) Regulations create the right for all workers to receive a written statement of employment particulars on their first day of employment. The particulars can be sent in instalments, so long as the majority are sent at the start, and all have been sent within 2 months of employment commencing.

These regulations also change the holiday pay reference period for workers without regular fixed working hours from 12 weeks (currently) to 52 weeks.

For any queries regarding these topics and any other employment matters, please contact our Employment team.

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