Important Changes to Employment Law

April sees a number of changes to Employment Law.

Mandatory pre-claim Acas conciliation

From 6 May 2014 all claimants must submit a notice to Acas regarding their intention to submit a claim to the Employment Tribunal and Acas must issue a certificate to the claimant confirming Early Conciliation has been attempted/completed. Without the certificate from Acas, a Claimant cannot submit a claim to the Employment Tribunal. Early conciliation is available now on a voluntary basis but is mandatory for claims presented on or after 6 May 2014.

Early conciliation aims to encourage dispute to be resolved at an early stage to avoid claims progressing to the Employment Tribunal but as employers are not obliged take part, it remains to be seen how useful it will be.

Increase to employment tribunal fees

To remedy what the government has identified as a mistake in the original legislation, the following "Type B" claims have been re-classified as "Type A", which attract the higher fees (£250 issue fee and £950 hearing fee for a single claimant):

• Equal pay.
• Sex equality in pension schemes.
• Failure to inform or consult under TUPE.
• Failure to allow compensatory rest under the Working Time Regulations
• Breach of the right to request time off for training.

Financial penalties for losing employers

Tribunals now have the power to order that a losing employer pay a financial penalty in specified circumstances in cases presented on or after 6 April 2014. The penalty is payable to the Secretary of State, not to the Claimant.

When a financial penalty can be ordered

• Even if a financial award has not been made to the claimant.
• Where the employer's breach has "one or more aggravating features".

It will be for the employment tribunal to decide what amounts to aggravating features, taking into account any factors it considers relevant, including:

• The size of the employer.
• The duration of the breach of the employment right.
• The behaviour of the employer and of the employee.

The explanatory notes to the Employment Tribunals Act 1996 provide some guidance and state that an employment tribunal may be:

More likely to find that the employer's behaviour in breaching the law had aggravating features where:

• the action was deliberate or committed with malice;
• the employer was an organisation with a dedicated human resources team; and/or
• the employer had repeatedly breached the employment right concerned.

Less likely to find that the employer's behaviour in breaching the law had aggravating features where the employer:

• has only been in operation for a short period of time;
• is a micro business;
• has only a limited human resources function; and/or
• made a genuine mistake in committing the breach.

The amount of a financial penalty

• A minimum of £100 to a maximum of £5,000.
• The financial penalty must be 50% of the amount of the award.
• An employer does not have to pay the full penalty if it pays 50% of the penalty within 21 days.
• Tribunals must take account of the employer's ability to pay.

Increases to rates and limits

Increased penalty for employing illegal workers

The maximum civil penalty which may be payable where an employer is found to have employed adults who are subject to immigration control but do not have the right to work in the UK will increase from £10,000 to £20,000.

Amy Jones is a specialist Employment Solicitor. If you need Employment advice please contact Amy on 01382 229111 or email ajones@thorntons-law.co.uk or alternatively contact a member of the Employment Law team.