Employment Matters
CONTENTS 1-2 Feeling conciliatory? It’s time to talk to Acas 2-3 The future looks flexible with shared parental leave 3-4 Whistleblowing – is it in the public interest?
HR and Employment News Spring 2013
Feeling conciliatory? It’s time to talk to Acas The Government has recently published a consultation on the detail
The prospective claimant must submit a form to Acas giving their
of its proposals to introduce early Acas conciliation as a prerequisite
own and their employer’s details. The ECSO will make “reasonable
to a prospective claimant issuing proceedings in an employment
efforts” to contact them, although there is no penalty for the
tribunal. It is expected to be introduced in Summer 2013. Early Acas
employee if they simply ignore the ECSO’s calls. The requirement
conciliation will apply to almost all tribunal proceedings.
is to submit the form to Acas, not to genuinely engage in the
Where an employee wishes to issue a claim against their
conciliation process.
employer, they will have to follow a four-step procedure before
The usual “prescribed period” for conciliation is one month
the tribunal will accept their claim. This is:
starting with the date on which Acas receives the prospective
u The prospective claimant must send certain information about
themselves and their employer to Acas. u Acas will forward the information to an early conciliation
support officer (‘ECSO’).
claimant’s completed form. Once this period elapses, or if at any time the ECSO believes, for whatever reason, that settlement is not possible, the ECSO must issue an EC certificate. The Employment Tribunal will not be able to accept a claim for hearing unless the Claimant has an EC certificate. If either party does not
u The ECSO will then try to promote a settlement.
want to engage in the conciliation process they may simply wait
u If a settlement is not reached, either because the “prescribed
out the one-month period until an EC certificate must be issued.
period” elapses or because the ECSO believes that settlement is not possible, then they must issue an early conciliation (“EC”) certificate. The prospective claimant may then apply to the employment tribunal if they wish.
Assuming the ECSO does get in touch with the prospective claimant, they will explain the conciliation process and correct any misunderstandings an employee may have about their potential claim. This could include checking that the employee has the qualifying period of service, or explaining in general terms the requirements for a successful claim of, for example, ordinary unfair dismissal. A key aspect of employment tribunal claims is that they must be submitted to the tribunal within three months of the claim arising. So as not to discourage or disadvantage a prospective
s
claimant receipt of an application for conciliation by Acas will
Feeling conciliatory? It’s time to talk to Acas (continued)
s
“stop the clock” on this time limit. The clock will restart on the
A key criticism of the proposals is that although a large number
date the ECSO issues an EC certificate, unless the claim is settled.
of employment claims settle, this will usually occur after the
This is likely to lead to increased litigation over time limits.
defence and the Claimant’s estimate of their loss are exchanged.
The Government has said that it is committed to the “earlier resolution of workplace disputes” and in view of the 180,000 claims issued in employment tribunals over the past year it is easy to see why. Acas conciliation should help to settle more claims, but its effect is likely to be limited. The ECSO has no “teeth” with which to force parties to genuinely consider a settlement. An ECSO cannot advise either party, only facilitate the settlement, so they cannot warn
At that stage, the parties know each other’s case in outline and have a starting point for settlement negotiations. Pouring Acas resources into facilitating settlements before this stage may produce limited results because the parties will not yet be ready to consider settlement. While it is difficult to criticise the Government’s aim of early settlement of potential claims, it remains to be seen whether early Acas conciliation will be the right tool to achieve this.
a party that their case is not strong, or that they should accept a
For further information please contact Nick Watson, Partner
particular offer to settle. In addition, Acas already contacts both
and Head of Employment at Stone King LLP, on 01225 337599 or
parties to assist with mediation when a claim is issued with the
at nw@stoneking.co.uk
Tribunal, and so the only real change is that conciliation will commence before the claim is issued rather than after.
The future looks flexible with shared parental leave The Government has announced that from 2015 parents will
At present, a mother must take two weeks’ compulsory maternity
have far more freedom to divide between them the right to
leave on the birth of a child, while the father has the right to take
parental leave on the birth or adoption of a child. While affording
two weeks’ paternity leave. After that, a mother may take up to
employees much greater freedom, it could pose a significant
a further 24 weeks of ordinary maternity leave (“OML”) and up
headache for organisations to cater for more flexible, rather than
to a further 26 weeks of additional maternity leave (“AML”). As
block-booked, maternity and paternity cover.
most mothers start their maternity leave before the expected due date, they will usually return to work less than a year after the birth of the baby. Since April 2011, the father or spouse of the mother has had the right to take any unused portion of the AML as paternity leave, but only if the baby is at least 20 weeks old and the mother has returned to work. Insofar as the mother has not used her entitlement to statutory maternity pay (“SMP”), the father may take the unused portion of this too. In future, OML and AML will be replaced by a 50-week period of parental leave and parents will have significant freedom as to which of them takes the leave and when it is taken. This could mean that parents take leave at the same time, or that they work flexibly, with each parent working alternate weeks or months.
“Many are relieved that the Government has not simply extended the period of paternity leave available, thereby increasing overall the amount of time employees will be able to take off work.”
In place of SMP, statutory flexible parental pay will be introduced.
In addition to the introduction of flexible parental leave, fathers
The rate and maximum entitlement of 39 weeks’ will be the same
will have the right to take unpaid leave to attend up to two
as for SMP, but as with parental leave the parents will have the
antenatal appointments.
flexibility to designate which of them receives it and when.
The response from business leaders to the proposals has been
It is not clear how far businesses will be able to reject requests
cautiously optimistic. Many are relieved that the Government
for leave to be taken in a particular manner, for example, if they
has not simply extended the period of paternity leave available,
are too complicated or expensive to accommodate. However,
thereby increasing overall the amount of time employees will
it seems likely that larger organisations would be expected
be able to take off work. However they warned that if the red
to accommodate more disruptive leave patterns than small
tape is not kept to a minimum then the changes could strain the
employers with more limited resources. This in turn is likely to
resources of small organisations.
lead to situations where one parent’s employer agrees to the request while the other refuses. The result could be tripartite negotiations between parents and their respective employers to agree how parental leave may be taken.
For further information please contact Nick Watson, Partner and Head of Employment at Stone King LLP, on 01225 337599 or at nw@stoneking.co.uk
Whistleblowing – is it in the public interest? The legal protection available to whistleblowers is considered by some to be too wide-reaching and often open to abuse by disaffected employees seeking to strengthen their own claims against their employers. The Government has decided to tackle the issue by introducing a requirement that any information disclosed by an employee must be “in the public interest” to come within the ambit of whistleblowing legislation. An employee is protected from being dismissed or subjected to a detriment at work if the principal reason for this treatment was that they have made a “qualifying disclosure” of information. A disclosure will qualify if the complaint is that one of the following has or is likely to happen: u A criminal offence; u Breach of any legal obligation; u Miscarriage of justice; u Danger to the health and safety of any individual;
The employee must also reasonably believe that that information tends to show malpractice. In April 2013 new legislation will amend the definition of a qualifying disclosure so that, in addition to the information falling within one of the categories above, the disclosure of the
u Damage to the environment; or
information must be “in the public interest”.
u The deliberate concealing of information about any of the
As will be appreciated, it is very easy for a complaint by an
above.
employee to an employer to meet one of those categories. Unlike
other legal protection from unfair dismissal, there is no period
The change is likely to prompt litigation to determine the
of qualifying service before a claim can be made and no upper
meaning of “in the public interest”, and consequently a period
limit on the potential compensation that may be awarded by a
of uncertainty until the courts issue guidance through case law.
Tribunal. This has led to accusations that some employees have made tactical whistleblowing claims, for example where they are seeking to force an employer to settle a claim through the threat of uncapped compensation.
Until guidance is available, both employers and employees should be cautious in deciding whether a particular disclosure is or is not in the public interest. The safest way to ensure that an employee who blows the whistle is dealt with properly is to have a clear
The requirement that a disclosure will only qualify for protection
Whistleblowing Policy that is followed in all instances, rather
if it is made “in the public interest” is likely to limit the scope
than trying to second-guess whether the employee is a protected
for successful claims, particularly where the employer’s alleged
whistleblower.
misconduct is a breach of a legal obligation to the employee who is making the claim. In other words, an alleged breach of the employee’s own contract of employment may no longer be protected by whistleblowing. A typical example is where the employee is claiming bullying or harassment.
On the other hand, employees should not necessarily expect protection for making disclosures that allege that an employer has breached a legal obligation, if that obligation is the employee’s own contract of employment. It seems likely that if the breach of the legal obligation does not affect more than one person, it is
However, the issue will not be clear cut. For example, there
unlikely to be in the public interest. That said, disclosures of most
may still be scope for an employee to whistleblow in relation
criminal offences and breaches of health and safety legislation
to a breach of their own contract where the breach relates to
should continue to be protected whistleblowing.
discriminatory treatment by the employer which forms part of a culture or practice affecting others in the workplace. In these circumstances, raising the issue may be considered to be “in the public interest”.
For further information please contact Nick Watson, Partner and Head of Employment at Stone King LLP, on 01225 337599 or at nw@stoneking.co.uk
Your Contacts Nick Watson Partner
email: nw@stoneking.co.uk
Peter Woodhouse Partner email: pmw@stoneking.co.uk
Stone King LLP 13 Queen Square Bath BA1 2HJ Tel. 01225 337599 Fax. 01225 335437 16 St John’s Lane London EC1M 4BS Tel. 020 7796 1007 Fax. 020 7796 1017 Wellington House East Road Cambridge CB1 1BH Tel. 01223 451070 Fax. 01223 451100 New Hall Market Place Melksham Wiltshire SN12 6EX Tel. 01225 337599 Fax. 01225 335437
www.stoneking.co.uk email: employment@stoneking.co.uk
© Stone King LLP 2013
02/2013
Employment Matters deals with some current legal topics. It should not be used as an alternative to specific legal advice on the individual circumstances of a particular problem. Stone King LLP – registered limited liability partnership no OC315280, registered office 13 Queen Square, Bath BA1 2HJ