Employment Law

As a reader of our newsletter you may be aware, that prior to the general election earlier this year, that there was an attempt by the Labour Government to fast track amendments to the Equality Bill so that the default retirement age of 65 was abolished.  That bid failed, but now the Coalition Government has stated that it intends to phase out the default retirement age of 65.

Currently the law states, in round terms, that an employer can retire an employee at 65 upon the giving of at least 6 months’ notice.  Although the employee has the right to request to work beyond the age of 65, the employer can refuse and does not have to give reasons for the refusal.

If the default retirement age is abolished, the retirement of employees will no longer be a risk free route to dismissing an employee from a business.  The business will face a potential age discrimination case, unless the business can ‘objectively justify’ the dismissal.

Daven Naghen commented that “It is still a little uncertain as to when the changes will happen and how they will happen.  For the moment the default retirement age of 65 remains, so if a business gives an employee 6 months’ notice there is still a good chance that the employee can be successfully and safely retired upon the basis of the current law.  However as and when the changes come, a business should seek legal advice before retiring any of its staff because the risks of a discrimination case will be high.  Performance management procedures will probably be required, to show that the relevant employee’s performance is beginning to drop off.”

If you need advice on retiring a member of your staff then please ring Daven on 01775 722261 or email daven.naghen@maplessolicitors.com

The government has announced that it will launch consultation on allowing new mothers to transfer some of their maternity leave entitlement to the father.  Consultation on implementing regulations will begin shortly.  The government intends that the law will be in force by April 2010 and will be effective for the parents of children due on or after the 3rd April 2011 (to allow employers to adjust to the measures).

As regards to administering the new system, parents will be required to “self certify” by providing details of their eligibility to their employer.  However, employers and HMRC will be able to carry out further checks on entitlement if necessary.

Daven Naghen, Employment Law Partner, commented as follows:-

“This will enable families to have flexibility in that mothers with maternity leave outstanding in the second six months of a child’s life will be able to transfer up to six months of maternity leave to the father.  Up to three months of that leave will be paid at the same rate as statutory maternity pay if the leave is taken during the mother’s 39 week maternity pay period.  Employers will have to make adjustments to their staff organisation, to allow for the fact that male employees may take up to six months of “maternity leave” in certain circumstances.

In McFadyen and others v P B Recovery Limited and others, the Employment Appeals Tribunal (EAT) held that presenting a claim online is effective for the Tribunal to which the claim is directed and does not amount to effective presentation to all UK Tribunals generally.  It further held that the host server receiving online claims acts as an agent for the Tribunal nearest to the address of the Respondent provided on the form, and it is this Tribunal to which the form is submitted.  Thus when a Solicitor in error had a claim form directed to Bristol, rather than Glasgow, it was correct to the use the date the form was resubmitted to Glasgow when considering if the claims were in time.  Unfortunately in this case, when the form was resubmitted to Glasgow, it was out of time.

In this case the Solicitor for the Claimants presented the ET1 claim form online, and filled in the address of the Respondent by using the Respondent’s registered office in Bristol.  He did not provide the address that the Claimant’s had actually worked at in Scotland, since it was not a required field and in any event he did not know the address at that time.

The online claim form was received on the 13th June 2008, and the Claimants’ Solicitor was sent an e-mail indicating that it had been sent to the Bristol Tribunal.  This was on or around the 16th June.  The time limit expired on the 17th June, on which date the Solicitor e-mailed the Bristol Tribunal asking it to transfer the claims to Glasgow.

By way of a letter received on the 20th June 2008, the Solicitor was told that the claim should be resubmitted to Glasgow.  The Solicitor contacted the Tribunal at Glasgow at that point but unfortunately the claims were out of time.

Daven Naghen, Employment Partner with Maples, commented on the decision as follows:-

“The Solicitor was obviously very unfortunate in this case.  He should have confirmed with the Claimants their actual place of work and completed the form upon this basis.  Had he done so, then the forms would have gone to Glasgow when first submitted and the claims would have been in time.  Instead, the Solicitor acted without this important information, and used the registered address of the Respondent company.

Obviously Solicitors are now going to be extremely careful in submitting online claim forms, to avoid this situation happening to them.  When Claimants are issuing their own claims online, they should be careful to ensure that they include within the form the actual address at which they usually work.  The server will then direct the form to the Tribunal that is nearest to the post code of the actual place of work.  This will be the correct Tribunal, and then no difficulties will arise.”

In a recent case the ECJ (European Court of Justice) has clarified a number of a points relating to the duty to inform and consult employees about collective redundancies under the Collective Redundancies Directive (number 98/59).  The ECJ held that an employer triggers the duty to consult when there is a decision or change of activity which compels the employer to plan for redundancies.  In a group of companies the obligation to consult falls on the subsidiary within which redundancies may be made, even if the decision is made by the parent company.  Furthermore the obligation to consult is not dependant upon the employer being able to supply all necessary information to employee representative.

If you have any queries about any of these legal points then please do not hesitate to contact Daven Naghen – Head of Employment Team.

The Conservatives stated before the recent General Election that the pension age should rise to 66 by 2016. New Conservative Work and Pensions Secretary Iain Duncan Smith and Liberal Democrat’s Pension Credit Minister Steve Webb have announced that workers should be prepared for the retirement age to rise to 68, eight years earlier than previously scheduled.

Previously the former Labour Government had planned to increase the retirement age to 66 by 2024, and to 68 by 2046 to reflect growing life expectancy. Now the New Coalition Government has suggested that by 2038 that the retirement age could be raised to 68.

Currently the default retirement age is 65, being the age at which workers can currently be retired by employers. The government has also suggested that this will be phased out and eventually axed.

Daven Naghen, Head of the Employment Team at Maples Solicitors LLP commented as follows:-

“These proposals will not be well received by manual workers, who will perceive that they will have to work until they drop especially as their life expectancy is often much less than say professionals or other classes of employees.

As for the default retirement age, the precise details of the phasing out and eventual axing of the default retirement age are still to be confirmed.”

If you require any advice in respect to the contents of this article then please either ring Daven on 01775 722 261 or email daven.naghen@maplessolicitors.com

Introduction

With effect from 6^th April 2014 new rules come into force regarding employees bringing a claim before an Employment Tribunal.  In essence before an employee can bring a claim, the employee must refer the matter to ACAS for “early conciliation”.

Process

Early conciliation will be available from 6^th April 2014 and will be compulsory for the majority of Tribunal claims on or after 6^th April 2014.  If an employee tries to start an Employment Tribunal claim without first referring the matter to ACAS, then the Employment Tribunal will reject the claim.

1. Stage One

The Employee needs to provide the “prescribed information” to ACAS, which basically is the name and address of the employee and the details of the employer. At this stage there is no requirement to provide information about the matter of the dispute.

2. Stage Two

ACAS will make initial contact with the employee.  If after reasonable attempts ACAS cannot contact the employee, or the employee does not wish to proceed with conciliation, then a conciliation certificate will be issued so that the employee is free to bring the claim before an Employment Tribunal.

3. Stage Three

If the employee has been contacted and wishes to proceed with conciliation, then with the employee’s consent ACAS will contact the employer.  If the employer does not want to participate, then the employee will be informed and a conciliation certificate will be issued so that the employee is free to bring an Employment Tribunal claim.  If both parties do want to try conciliation then ACAS has one calendar month within which to try and attempt settlement.  With the agreement of both parties this period can be extended by a further two weeks if ACAS believes that there is a reasonable prospect still of settlement.

4. Stage Four

If a settlement is not reached within the conciliation period stated in Stage Three above, then ACAS must issue a conciliation certificate so that the employee can bring his claim before an Employment Tribunal.  If at any time during the conciliation period ACAS believes that it is not going to be possible to achieve a settlement then ACAS can issue a conciliation certificate.  Obviously when settlement is reached then ACAS will draw up an agreement.

5. Limitation Periods

The conciliation period “stops the clock” for lodging Employment Tribunal claims, so that the time limit for bringing the claim will not expire whilst ACAS is attempting to conciliate.

Once a conciliation certificate is issued then the employee has at least four weeks from the date of the conciliation certificate to lodge a claim before an Employment Tribunal even if the limitation period would normally have expired before this.

Pros and Cons of Early Conciliation

Early conciliation allows potential claims to be resolved at an early stage, before parties have incurred costs and fees and before they become too embroiled and entrenched in the dispute.  Once Tribunal proceedings start it can be harder to achieve a settlement.  The early conciliation service is free of charge.

On the downside is 4 – 6 weeks going to be sufficient to resolve most disputes?  May be this will be sufficient for straight forward disputes but maybe it will not be sufficient for more complex/involved disputes especially involving allegations of discrimination/harassment.  This is because each side may need to investigate the allegations and also take legal advice as to the merits.

It is suspected that many employers may not be willing to settle a claim early, in order to “test the waters” in order to see if an employee will be prepared to pay a Tribunal fee to take the case further.

The rules on “stopping the clock” for limitation are only likely to create complications and disputes about whether a claim has been brought within time.

If you need any advice on early conciliation or any employment matter then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or write to Dav at 23 New Road, Spalding, Lincolnshire PE11 1DH.