Employment Law Update 2013 Ken Gill Memorial Fund

Wednesday 06 November 2013

A one-day conference
The Adelphi Hotel, LIverpool
9.30am – 3.30pm

Organised by The Institute of Employment Rights in association with the North-West TUC and Old Square Chambers.

About the Conference

07 November 2013

By Janet Newsham

Janet Newsham, a delegate at the IER’s Employment Law Update conference in Liverpool yesterday (06 November 2013), reports on the experts’ advice on the road ahead for employment rights.

Welcoming delegates to the sixth annual North-West Employment Law Update conference, IER Director Carolyn Jones reminded us that employment law is going to be at the heart of the next general election. The day’s presentations from legal and trade union experts filled attendees in on the current state of workers’ rights and what can be done to improve them.

Bernie Wentworth of Thompsons Solicitors kicked off the event

The first speaker of the day was Bernie Wentworth from Thompsons Solicitors. Bernie provided a comprehensive and accessible presentation on the issue of ‘establishments’ in redundancies. He reported on the USDAW vs. Woolworths and Ethel Austin case that has brought the UK legislation on consultation into question. Previous to this case, unions had to show that there were at least 20 people at risk in a single establishment and UK statute had given this a narrow definition. As a consequence, employers have exploited this to the full. This has meant that even where there are chains of shops in a particular organisation, they have defined the ‘establishment’ as a single shop, leaving thousands of workers unable to be covered by collective consultation. Failure to consult collectively can mean that employers are faced with the payment of a protective award, which is worth 90 days’ gross pay for each individual.

As the Judge in the recent case sided with USDAW, the words ‘one establishment’ have been removed from statute. This means unions will now have more opportunity to pursue protective awards from employers who do not comply with collective redundancy consultations for each and every one of their branches. It also means that if the employer goes into liquidation this money is paid out of the national insurance fund.

However, the Government has been given leave to appeal!

Bernie added there is now an opportunity to establish trade union recognition where none exists, because the procedure for collective consultation where there is no trade union is costly to the employer in terms of complying with the election procedure and in terms of ensuring that there is time for meaningful consultation to take place.

Damian Warburton from Acas was the next speaker to address the packed room. He spoke in particular on the new role for ACAS in early consultation. From April 2014, all potential employment tribunal (ET) claims will have to be lodged with ACAS first. This will be conducted via a one-page online form giving contact details only. ACAS will then quickly contact the individual to get the story and then liaise with the employer to try and resolve the issue before it ever reaches an ET. They have one month to do this and during this time the ET time limit clock stops. After this process has ended, individuals will be issued with a certificate of no resolution and able to continue to ET. At this point, the new fee for bringing a claim becomes due.

Damian said that where there is a trade union organisation involved, members need to be involving their trade union reps and informing ACAS that they are being represented by a trade union rep.

Damian also spoke about the controversial ‘Settlement Agreements’, which include discussions without prejudice that are therefore inadmissible to ET proceedings as evidence, unless they are covered by one of the following exceptions:

1. Automatically unfair issue
2. Discrimination
3. Breach of contract
4. Improper behaviour

Although there is no statutory right to have a trade union rep in these discussions, ACAS recognise that it is good practice and have included it in their guidance notes to sit alongside their code of practice, it was confirmed.

Any Settlement Agreement must be put in writing, individuals given reasonable (at least ten calendar days’) notice, and workers must have received ‘advice’ before reaching any settlement.

There were a number of questions and concerns about these changes, although it was suggested that all grievances could potentially be directed to ACAS to put pressure on the employer over particular issues.

David Renton, Garden Court Chambers

The Human Rights Convention and the Tribunal was the title of the next presentation by David Renton. David presented the case for using the Human Rights Convention more often, and for at least familiarising ourselves with the articles better. He explained that the articles have to be viewed in the widest context (must be read sympathetically to convention rights – so far as is possible). Article 8, for example, addresses respect for private and family life and is interpreted to include private life in the workplace. A ‘public authority’ can include ‘courts and tribunals’ so any decision made by them are subject to challenge through the convention.

Damian Brown also spoke about collective consultation. He said that whilst there was no new case law, statute was being changed and threatened. Some of the examples he gave included that the government has now changed the law so that the ending of fixed-term contracts does not trigger collective consultation.

If there is a complete closure of a business then the employer has to consult on the business reasons, although we are still limited in our response.

Damian Brown QC, Littleton Chambers

Employers also have to give reasons for proposed redundancies, and they must provide an indication of the numbers and a description (but not a list of names). Although they can still provide this information in dribs and drabs, there has to be sufficient information for us to be able to respond. The employer also has to declare the method of selection.

Damian said that the worrying trend of making everyone redundant and then allowing them to reapply for their jobs is continuing and this is difficult to challenge through the courts. He explained the difference between contemplating (just an idea) and proposing (concrete decision) redundancy is important in terms of when the employer must start to consult. He suggested that it is the latter of these that applies.

Stuart Brittenden provided an Equal Opportunities Update. He began by saying that equality is being undermined by the government’s ‘red tape challenge’ and that even though there was no real evidence of support for change to the legislation on equality, the government has proceeded to abolish Third Party Harassment protection and the statutory question procedure – although this still applies to fixed-term, agency and part-time statute, and the ET recommendations are being considered for repeal.

Stuart Brittenden, Old Square Chambers

On a positive note, ‘caste discrimination’ will be introduced after consultation in 2015, equal pay audits are being consulted on with penalties for employers, and measures to break the glass ceiling are being introduced through European changes to financial reporting. Companies will have to include specific information about the gender breakdown of directors, senior managers and employees. Details of the remuneration of directors will have to be reported under specific headings to include all remunerations and target objectives set on the number of female non-executive directors, including how they will be achieved.

Paul Statham gave a presentation on ET fees. He explained that the remission of fees has still not been dealt with, although ticking the remission box can buy time.
He explained that fees have to be paid in all cases, there is no refund if a case settles, ETs can use their discretion to make the losing party pay fees, and that there continues to be a high number of successful ET claimants still not receiving the full money owed. However, some unions are providing a loan system for fees.

Paul emphasised the need for any settlement to include the issue of fees, and warned that claimants should be ready for everything at the new preliminary hearings, which replace directions hearings and preliminary reviews. Claimants’ preparations should include considering costs, fees and witness expenses in their schedule of loss.

Paul Statham, OH Parsons

He also reminded the conference that there is now a new cap on compensation awards of 12 months, or the statutory cap, whichever is the lowest. The only exception to this is in discrimination cases and whistleblowing cases. He advised that if settlement agreements are to be entered into, they should be recorded in case there is evidence of ‘exceptions’, which would mean the discussion could be used at an ET. Finally, Paul advised the use of Rule 31 of the Tribunal rules to seek disclosure of documents on the basis of saving time and costs of ETs, in order to gain information that would have been available on equality impact assessments.

The final speaker of the day was Sarah Veale from the TUC, who gave an enthusiastic and impassioned plea for challenging the government’s attacks on working people. She spoke about the continuing greed of financial institutions that had effectively and irresponsibly gambled with our money and created the crisis. She said that the ideology of the present government has roots in the Margaret Thatcher era and its aims are to smash organised labour, creating low paid, casual workers and mass unemployment. They are holding a ‘fire sale’ of our public assets and we are facing a long list of erosions to our employment rights and our ability to enforce them. Sarah said that we need to stand up and defend our rights and our society. We need to challenge the disgraceful attacks on vulnerable people and we need to push for an increase in wages to stop the exploitation of working people who are forced to claim benefits to survive. Sarah spoke about the massive increase in wealth of the rich, which has increased over the last year by a total nearly double the NHS budget. The TUC are putting the case to the Labour Party for a return to trade unions having a key role in setting minimum standards and wages in industrial sectors. She said that most employers do not want a race to the bottom. She also mentioned the Lobbying Bill, which proposes not only the gagging of organisations from criticising government policies, but also further delays Trade Union industrial action. Next year there is to be a massive event organised by the TUC to show opposition to this government.

Sarah Veale, TUC

Finally she made an impassioned call – ‘Don’t Mourn, Organise!’

The Conference provided useful, practical and interesting information, by knowledgeable and respected professionals and leaders from the trade union, legal and academic movement.

100% of delegates said they would recommend it to others.

Free Downloads of Conference Papers and Resources

Chaired by Carolyn Jones, Director of the Institute of Employment Rights

Bernie Wentworth, Thompsons Solicitors
Challenging employers: a collective response to the question of ‘establishments’
Presentation
Paper

Damian Warburton, ACAS
Employment law changes: a view from ACAS
Presentation

David Renton, Garden Court Chambers
The Human Rights Convention and the Tribunal
Presentation

Damian Brown QC, Littleton Chambers
Collective consultation: past, present and future
Presentation
Paper
Handouts

Stuart Brittenden, Old Square Chambers
Update on discrimination
Presentation
Paper

Paul Statham, Pattinson and Brewer
Fees, fines and fighting back: using Con-Dem employment law changes to your advantage
Presentation

Sarah Veale, TUC
Reclaiming our employment rights

Further resources

ACAS Code of Practice on Settlement Agreements
Settlement Agreement, the ACAS Guide, July 2013

Click here to download the full programme