Modern Slavery – your employer obligations

WynLewis

 

Slavery exists…

… despite its abolition by the Slavery Abolition Act 1833 and other legislation in the 19th century (most of which has since been repealed and replaced with its modern equivalent in the form of the Human Rights Act 1998, which prohibits slavery).

Of course modern slavery is different from the type of slavery that was abolished more than 180 years ago: ownership of people as chattels is hardly a live issue in modern Britain, although detecting and preventing the exploitation of people as workplace commodities remains an issue that exercises many people in an increasingly connected world.

So why is this post relevant now?  It’s because, in March 2017, we’re approaching the first full year (ending on 31 March 2017) in respect of which the requirements of the Modern Slavery Act 2015 (the “MSA”) have to be met by large commercial organisations.

Is your organisation successful enough to have to care?  The MSA applies to organisations that carry on business in the UK and have a global turnover of more than £36m per annum.  It requires you to prepare, sign and publish prominently an annual slavery and human trafficking statement for each financial year ending on or after 31st March 2016, stating what you have done (or not) to ensure that human trafficking isn’t happening in your supply chains or business.

But (in the same way as with the Gender Gap Reporting Regulations – see my blog here) there’s no formal sanction for not making a statement.  That said, drivers such as CSR, reputation, brand and employer-of-choice are bound to result in organisations doing what is required by the MSA.  Also the Government can get an injunction requiring compliance and if this is ignored it can give rise to an unlimited fine for contempt of court, for which individual directors may be liable.

The statements that are published will make for interesting reading.

I’ve prepared a more detailed analysis of the MSA on the Cube at Cubism Law, of which Golden Leaver is now a part.

BREXIT = Bregulatory Meltdown?

WynLewis

 

We’re in a post-BREXIT employment law New World Order…

For some time now, the Government has been operating what’s known as the “one in, two out” regime when introducing new regulations.  People often think this means that for every new regulation to become law, two regulations must be abolished.

It’s not as simple as that.

In practice it means that, where there’s a need for a new regulation, and where there’s a cost to business of complying with that new regulation, the Government has to remove or modify existing regulation(s) to the value of £2 of savings for every £1 of cost imposed.

The regime came about as a result of businesses complaining about the time and cost of complying with the complexity and number of new regulations.  But, whilst the regime could mean the introduction of more (less costly) regulations, it’s resulted in fewer regulations overall.

So imagine the joy that businesses and Government might experience when EU-derived legislation and associated regulations melt away post-BREXIT!

Or not.

This is the thing:  much of the UK’s legislation, though deriving from EU directives, works well and matches current social trends and is likely to remain in place and/or influence our home-grown laws for some time to come.  So getting rid of this “good stuff” would be a retrograde step from the perspective of having a better society.  There’s also a certain amount of EU legislation that was already law in the UK before it became subsumed into EU law at a later date.  So we would probably want to retain that anyway.

In reality the range of EU-derived employment legislation is broad and includes agency regulations, collective consultation, discrimination, diversity and equality rights, family leave, TUPE and working time (including minimum holiday entitlements – the UK’s entitlement is actually more generous than required by EU law).  And although many aspects of these laws are unpopular, some of them have brought certainty (the service provision changes under TUPE) and a better deal socially (note that shared parental leave is a local, not an EU provision).

But what if, post-BREXIT, the Government imposed (even more of) a shock on business of having to deal with a sudden, fundamental change in the law by repealing everything EU-related…?  It would be too much.  Also we all (probably) recognise that, in order to access a free(ish) market, there will be a need to preserve certain minimum employment protection regimes.

So instead, the Government will take a drip-feed approach.  For that reason, the quantity of employment law likely to vanish is small; but our labour laws may approach Canada, Australia and New Zealand – independent trading nations we will now have to model ourselves on.

What are the candidates for being kicked out or changed?  Here are some that might be considered:

–       the right to accrue holiday when off sick?  Kick out entirely.

–       the whole of the agency worker regulations?  Kick out entirely.

–       the ban on capping bonuses in the financial sector?  Kick out or modify.

–       no cap on discrimination compensation?  Kick out and mirror the unfair dismissal cap.

–       no cap on whistle blowing compensation?  Kick out and mirror the unfair dismissal cap.

–       the right to carry over unused holiday entitlement for 18 months?  Kick out or modify.

–       ban harmonising terms and conditions after a TUPE transfer?  Modify to allow this.

Whatever happens, it won’t be immediate.  The two-year post-Article 50 negotiation period is probably only the beginning of the period before laws and regulations start to be changed – and even then the new BREXIT regime is likely to look pretty similar to the current regime.

So keep calm and carry on…

…but remember as well the effect on employment rights of not having free movement of people to do your work – have a look at my earlier BREXIT blog on this here.

 

Bothered by BREXIT

WynLewis

BREXIT – more about the labourers than the law?

Like it or not, we have to think about what employment law changes might occur over the next 2 years if UK voters decide, on 23 June 2016,  to “leave” rather than “remain”, when answering the question:  “Should the UK remain a member of the European Union or leave the European Union?”.

However just saying:  “The following laws don’t apply any more” isn’t a practical option.

The reasons are that unpicking 40+ years of jointly developed EU and UK legislation would be much more difficult than the development of UK legislation since joining the EU in 1973.

Why would it be difficult?

–  the 100s of EU-influenced primary UK legislation (e.g. the Equality Act 2010) could remain in place and could just be interpreted differently;

–  but  the 1000s of EU-required secondary regulations (e.g. the Transfer of Undertakings (Protection of Employment) Regulations 2006) were created by the European Communities Act 1972 to apply EU law locally – so repealing that Act would result in a vacuum with no UK legislation at all – the hook on which the regulations hang wouldn’t exist any more.

Preserving the existing legislation (but just interpreting it differently so as to sit more comfortably within a UK domestic business environment) seems the likely option.

However the fact that the Supreme Court:

–  would have to get out of the habit of referring things to the European Court of Justice if a decision were on the “difficult” side; and

–  would no longer have to make UK legislation conform with the spirit and intention of EU legislation or EU cases (but would still have to conform to international business partner requirements – see the recent data protection Safe Harbour problems for how even the employment-law “lite” US has to do that),

there would still be a recipe for chaos.

In that context, any changes might be minimal in practice, given that:

–  most of the EU laws we engage with have become workplace norms that seem to work in practice (possibly excluding shared parental leave and the question of agency workers…);

–  many UK entitlements already exceed EU minima, and

–  social conventions and expectations have changed immeasurably since EU employment law began its influence.

There are also two other factors:

–  first, from the moment a decision is taken to leave the EU, the answer “EU law requires it” will cease to be an acceptable response to queries about why something is or isn’t being done – so there will be a need for government to develop more cogent policy positions;

–  secondly, because the UK will still want to be a competitive and desirable place to live and work and will not want to be left behind by EU developments, there will still need to be a UK-specific (but EU sympathetic) approach to employment law and HR issues.  Otherwise (despite the UK potentially developing a less restrictive employment regime) EU multinationals might choose to headquarter or develop their businesses elsewhere; and UK multinationals might not be welcome in other host countries.

So – back to the original question – what (if anything) might change in employment law?

My prediction is:  initially, not much at all; later on, perhaps a gradual re-evaluation.  Even then, it’s sensible not to expect much change, because the UK’s habit of gold plating EU regulations was driven by the UK’s innate appetite for over-regulation, and if we look further afield to Australia (which is not beholden to Brussels, but is dependant on business standards), we find that much of its legislation is aligned with European concepts anyway.

But forget about the laws:  what about the labourers?   It’s possible that the much more relevant problem would be the effect of a BREXIT on the free movement of workers within the EU:  if the UK imposes barriers to this, many UK employers will find themselves having no, or a much reduced staff and will have to move into the sponsored work-permit regime (with the complexities that involves).

 

Holiday pay has got more expensive but not ruinous!

CarolineLeaver

As you may have heard, the much anticipated day has arrived. The Employment Appeal Tribunal has given its ruling on whether non-guaranteed overtime must be taken into account for the purposes of calculating holiday pay. Please see our earlier blog – Sun, sea, sand and the ECJ

The EAT has decided that overtime which an employer is not contractually obliged to offer but a worker is contractually obliged to perform if requested, must be taken into account when calculating an employee’s holiday pay.

A transcript of the full judgment has not yet been published and it is anticipated later today but we understand that the EAT has reached 3 key conclusions:

  1. Non-guaranteed overtime should have been taken into account when calculating holiday pay for the purposes of the four weeks’ holiday entitlement that derives from the Working Time Directive. Note: the UK holiday entitlement is 5.6 weeks rather than 4 weeks and this ruling does not appear to apply to those additional 1.6 weeks.
  2. The UK legislation (the Working Time Regulations 1998) must be interpreted so as to give effect to the requirement of the Working Time Directive (EU legislation).
  3. However, the scope for workers to recover retrospectively any underpayment of holiday pay by an unlawful deduction from wages claim is very limited. There has been an expectation that back-payments might be covered from 1998 onwards. But in practice, if there is a gap of more than 3 months between deductions (i.e. the deduction being non-payment of overtime as part of holiday pay) then the Employment Tribunal has no jurisdiction to hear claims relating to an earlier period.

What does this mean? It looks as though a prudent employer should start taking overtime payments into consideration when calculating future holiday pay. However, what was advertised as one of the greatest concerns to employers (backdated holiday claims amounting to significant sums of money) may have been averted since a break of three months between holiday dates puts a stop to claims accruing. Some employers may feel justified (in order to crystallise any potential liabilities) in imposing a holiday ban for a set period of time but this may well play badly in terms of industrial relations.

However, this is the first appeal and there are three more possible appeal stages (Court of Appeal, Supreme Court and ECJ). It is quite possible that the employees and employers involved in these cases may look to appeal this judgment.

Expect more blogging on this soon.

Increases to the National Minimum Wage

Anna Moyle

There is growing pressure from many quarters to introduce a living wage. All of the main parties at their recent conferences made promises aimed at improving the financial position of those on the national minimum wage (“NMW”).

In line with Vince Cable’s speech to the Liberal Democrats, BIS has already announced that the government is to propose to the Low Pay Commission that there should be a single NMW rate for apprentices and 16-17 year olds, with the apprenticeship rate rising as a result by just over £1 to match the rate for 16-17 year olds.

Ed Milliband said that the Labour Party will increase the NMW to £8.00 an hour, which is just under the amount calculated as being the London Living Wage of £8.80. However, the introduction of a living wage is clearly not going to happen soon and in the meantime the NMW has increased from 1 October 2014 as follows:-

  • Adult rate – increased 19p from £6.31 to £6.50 per hour

  • Rate for 18-20 year olds increased 10p from £5.03 to £5.13 per hour

  • Rate for 16-17 year olds increased 7p from £3.72 to £3.79 per hour

  • Rate for apprentices increased 5p from £2.68 to £2.73 per hour

Flexibility at breaking point, a ban on exclusive zero hours contracts.

Anna Moyle

The government is set to ban the use of exclusivity clauses in zero hours contracts.

Do you have strong views about zero hours contracts?  A lot of people do. The government launched a consultation on their use (or misuse) in December 2013. By the time that consultation closed in March 2014, it had received over a record breaking 36,000 responses.

Zero hours contracts are contracts under which an employer does not guarantee to provide any work and only pays the worker for work carried out. Research conducted by CIPD found that 16% of zero hours workers felt that their employer frequently did not provide them with enough work.

Whilst zero hours contracts have been the subject of negative comments, the government made it clear from the outset that they were not looking to ban their use entirely. Vince Cable has said “Zero hours contracts have a place in today’s labour market, they offer valuable flexible working opportunities for students, older people and other people looking to top up their income and find work that suits their personal circumstances“.

However, the government has now announced that it will use the Small Business, Enterprise and Employment Bill to crack down on those “unscrupulous employers [who] abuse the flexibility that these contracts offer to the detriment of their workers“.

The Bill will ban the use of exclusivity clauses in zero hours contracts. This should please the 83% of respondents to the consultation who recommended the government do just that.

The Government’s aim is to make it impossible for employers to say: “Although we may not give you work, you still can’t work for anyone else without our permission” and stop workers on zero hours contracts from working for other employers, or from doing so only with their employer’s consent. This will apply to all existing and new zero hours contracts.

In addition, the government will work with business representatives and unions to develop a code of practice by the end of 2014 on the fair use of zero hours contracts. A further consultation will focus on how to best prevent rogue employers evade the exclusivity ban by, for example, offering one-hour fixed-term contracts, and the issue of redress should this law be broken.

The Bill was presented to parliament on 25 June 2014. It is now being scrutinised by the Public Bill Committee, who are expected to report back by 6 November 2014. If you would like to read the bill, which contains the first legislative attempt to define a zero hours contract, click here:-

http://www.publications.parliament.uk/pa/bills/cbill/2014-2015/0011/15011.pdf

If you are one of the 83% who pushed for the proposed change or simply an “unscrupulous employer” who wants full rein to take advantage of a flexible labour market, then you can submit your views to the Commons Public Bill Committee.

It’s TUPE Time – and Size Matters…

WynLewis

Can you hear fanfares of trumpets?

You should. Because starting today, 31 July 2014, employers with fewer than 10 employees (i.e. employers with 1 to 9 employees, but not employers who have 10 or more employees) no longer have to invite those employees who are affected by a TUPE transfer to elect representatives with whom to inform and consult about that transfer. Instead, you can inform, consult and deal directly with those employees, without the risk of paying up to 13 weeks’ pay as compensation.

Perhaps there are no fanfares because this change is of little practical significance.

The reasons are that many small employers (still) don’t have TUPE on their radar and don’t inform and consult with employee representatives anyway and their employees don’t know they should. Or, even if they do know about their TUPE obligations, they don’t go through with the hugely artificial process of electing and speaking with representatives (which duplicates talking to everyone anyway) because employees don’t understand the point of (or want) representative TUPE consultation.

What the Government should have done when updating TUPE, was to remove the obligation to inform and consult by reference to the number of affected employees (not the number of actual employees). This would have meant that a TUPE transfer – even from a larger employer – could have been simplified if fewer than 10 employees were affected, regardless of the size of the overall workforce. Either the Government missed a trick, or it didn’t trust employers to do the right thing.

So we are where we are.

Consequently, small employers are now off the hook and need only deal with employees individually. Whereas larger (but still small) employers still have to go through the process of electing representatives. It’s all a bit tedious.

Is there a solution?

Possibly: even if there are 10 or more employees, ask the affected employees to elect the same number of representatives as there are affected employees. That may then satisfy the collective and individual requirements by creating a group of representatives that is the same as the group of affected employees.

Simples…

 

Yeah, but No, but Yeah, but No, but…

WynLewis

This is an important update to a warning we gave on restrictive covenants in our blog of 22 April 2014 Can a court rewrite a non-compete restriction in favour of an employer?“, when my colleague Jonathan Golden wrote about the unusual case of Prophet v. Huggett, in which the High Court re-wrote a badly written restrictive covenant, in order to make it “work” in a business context.

The case was surprising, because the High Court didn’t follow the usual principles that (1) a court can’t rewrite a covenant to make it enforceable because it’s too broad, and (2) if there are alternative readings of a clause, the court should use the reading of the clause that would be more enforceable.

The facts: were that Prophet was a software company; a restrictive covenant prevented Mr Huggett from selling Prophet’s software after he left; he joined a competitor that sold competing software, but which wasn’t actually Prophet software (only Prophet sold Prophet software); as a result of which the restrictive covenant provided no protection to Prophet.  However the High Court took it upon itself to extend the restriction to “similar” software and, as a result, gave Prophet the protection it wanted.

That judgment has proved to be less than prophetic.  It seems that the Court of Appeal has now agreed with the rest of us that the High Court was wrong and has confirmed that if a covenant is badly drafted, then the parties are stuck with it (and with its consequences). The Judge couldn’t have been clearer when he said about the previous decision: “It was not for the judge nor is it for this court to re-make the parties’ … bargain”.

The lesson:  make sure your covenants are up to date, accurate and fit for purpose, because you’re going to have to rely on what they say, rather than on what you would have liked them to say.

Early conciliation of Employment Tribunal claims: an Employer’s winning streak?

WynLewis

The Government appears to be succeeding in its aim of unclogging the Employment Tribunal system and converting its activities from sclerotic to superfast.  Many people think that it is doing so by promoting targets at the expense of justice (an old fashioned, but still important concept).  Whether this will actually be so will take a while to come out in the wash.  In the meantime, the hurdles for Claimants have become higher and the consequences for Respondent employers easier to avoid.

Take one example:  from 29 July 2013 the Government has required a party (usually the Claimant, rather than the Respondent) to pay a fee of between £160 and £250 before starting an Employment Tribunal claim, plus a further fee of between £230 and £950 before certain types of hearing can go ahead.  These fees are greater when there is more than one Claimant.  This has had the effect, possibly singlehandedly, of reducing by 79% the number of new claims presented to the Employment Tribunals during the last 3 months of 2013.  Unless that reduction in the number of claims goes hand in hand with a comparable reduction in the public funding of Employment Tribunals, everyone should look forward to a better and quicker service from the Tribunal clerks and judges.

Take another example:  from April 2014, Employment Tribunals can impose costs sanctions against an employer Respondent who has acted unreasonably.  But the maximum award is £5,000 and that penalty goes into the Government’s coffers, not the Claimant’s pocket, so doesn’t encourage genuine claims to be brought and continued unless there is an insurer backing them in the  first place; and it isn’t a big disincentive for employers who want to see a Claimant put their money on the table.

And now:  from 6 May 2014 the Government will require Claimants to notify ACAS before even starting an Employment Tribunal claim.  The process is known as Early Conciliation (or “EC”).  As this comes hot on the heels of the introduction of fees, many employers are thinking:  “it gets better and better”.  The objective is to use the services of ACAS to try to resolve a potential claim without converting it into an actual Employment Tribunal claim; and to settle it more quickly with an ACAS COT3 form (which is binding and does not require independent legal advice to be given to the employee, so does not involve an employer paying for that advice).  And unless ACAS issues an EC Certificate (which will be along the lines of “we tried, but failed” and states why, with details of the participants and relevant dates for limitation period calculation purposes), a claim can’t go ahead.

At one level, it’s correct for employers to feel relieved that steps have been taken to minimise the considerable number of “mischief” claims that had little merit, but which clogged up the Employment Tribunal system.  But there are several stings in the tail.

One sting is that, whereas employers were able to be sanguine about assuming that nothing would come of any dismissal that had taken place more than 3 months ago (because that was – and is – the normal time limit period for bringing claims) they cannot do so any longer.  In fact the time for breathing a sigh of relief (and transferring a potentially large sum of money back from a contingency budget to general budget) is potentially much longer; and also means that some operational decisions – such as recruiting a replacement member of staff, or reorganising a department – must be postponed.  Why?  The reason is that EC stops the clock for time limit purposes.  In other words, the normal 3 month time limit gets frozen while conciliation is considered.  But for how long?

  • initially for 1 month (to let conciliation happen); then
  • by up to a further 14 days (if both sides consent and ACAS thinks there is a reasonable prospect of doing a deal); and
  • (if conciliation fails) by the actual number of days take up by conciliation (if the 3 month time limit hasn’t yet been reached when this happens); or
  • (if conciliation fails) by up to a further 1 month from the date of the EC Certificate (if the 3 month time limit would have expired during the conciliation period).

From this it’s clear that there is no advantage to a Claimant in starting EC early.  And from an employer’s perspective, this has the potential to (almost) double the time when employers have to remain engaged in trying to settle a dispute.  This is likely to be niggling, even though it may cost less than having to respond to an Employment Tribunal claim which, these days, is often “front-loaded” (and causes more up-front time and expenses to be incurred) by making parties prepare their positions in a way that a judge regards as appropriate for the Employment Tribunals Service (but which isn’t necessarily the same as what is strategic and convenient for Respondents).

The second sting is that employers will have to develop their conciliation skills or engage third parties to do so on their behalf.  It’s a myth that conciliations are easy and that Employment Tribunals claims are relatively straightforward.  The reason is that Employment Tribunals have rules that are known to lawyers and many HR professionals; whereas conciliations are less prescribed and involve a change of mind-set:  instead of fighting their respective corners, the parties have to concede that there is, perhaps, a way of looking at things other than than their own.  It will be interesting to see how this develops – while official data are not yet available, several enquiries about voluntary EC notifications have been made since it went live on 6 April 2014 (it doesn’t become compulsory until 7 May 2014).

As to the mechanics of EC, they’re by no means straightforward, but will operate broadly like this:

  1. Claimant phones ACAS, who complete a prescribed Form; or Claimant emails or posts the Form to ACAS, who check it contains the relevant information and may then either reject it for not being properly completed, or contact the Claimant in order to complete it properly.  The Form requires contact details and dates of employment and is at https://ec.acas.org.uk/Submission/Create
  2. Completed Form is passed to the EC Support Officer (the “ECSO” – a new acronym for those who like such things), who makes reasonable attempts to contact the Claimant.
  3. If the ECSO fails to contact the Claimant, the ECSO must conclude that settlement isn’t possible and issue an EC Certificate.  This will be sent to the Claimant, who may then bring a formal claim in the Employment Tribunals.
  4. If the ECSO does contact the Claimant and the Claimant does not wish to conciliate, the ECSO must conclude that settlement isn’t possible and issue an EC Certificate (see item 3).  But if the Claimant does wish to conciliate, the ECSO passes the file to a Conciliation Officer, who checks that the Claimant does wish to conciliate and is happy that ACAS contacts the Respondent.
  5. If the Conciliator fails to contact the Respondent, the Conciliator must conclude that settlement isn’t possible and issue an EC Certificate.  Not being able to contact the appropriate person is a risk, but ACAS now has a National Contacts List of nominated persons and employers can volunteer to be included on this by emailing ACAS at ECcontactslist@acas.org.uk.
  6. If the Conciliator does contact the Respondent and the Respondent does not wish to conciliate, the Conciliator must conclude that settlement isn’t possible and issue an EC Certificate.  But if the Respondent does wish to conciliate, there will be a period of conciliation for settlement purposes.
  7. If EC succeeds, there will be a COT3 agreement and no Employment Tribunal claim is necessary.
  8. If EC fails, ACAS will issue an EC Certificate and the Claimant can then bring a claim in the Employment Tribunals (stating the Certificate number on the Claim Form).

You will see that this process will involve at least 3 ACAS personnel, which is a nice job creation scheme and has the potential for a request to fall between several stools.  There’s also some doubt (given our experience of the lack of speed with which some ACAS officers have handled matters in the past) about how long will it take for an ECSO or a Conciliation Officer to contact a party, because although this is expected to be within 2 working days, nobody knows how this will work in practice.

On the other hand, there is a potential silver lining, given that Respondents can also use this system to their own advantage, because a Respondent can apply for EC as well, which will not extend the 3 month time limit during which a Claimant must bring a claim.  This may wrong-foot a Claimant who fails to notice this, who (if the normal 3 month time limit has passed without a deal having struck) will then have to fall back on old case law that determines whether they can still go ahead by reference to whether it was reasonably practicable to have done so during the 3 month time limit and/or whether it would be just and equitable to extend that limit anyway.

By the way:  the voluntary Pre-Claim Conciliation that had been available from 2009 ceased to be available as at 6 April 2014.

Welcome to the new world of conciliating, facilitating, mediating and other dialogue-focused employee relations.  Of course we’re here already, so can help you.  Happy conciliating!

Changes to watch out for in April

CarolineLeaver

Below is a round up of the changes in employment law we can expect in the next few weeks:

Employment tribunals and compensatory awards – The maximum compensatory award will increase from £74,200 to £76,574 (subject to the limit of one year’s pay which has existed since July 2013) in respect of dismissals that take place on or after 6th April 2014.

Employment tribunals and a week’s pay – The maximum of a week’s pay increases from £450 to £464 in respect of dismissals and other entitlements on and from 6th April 2014. A week’s pay is used to calculate, amongst other things, the basic award for an unfair dismissal and the statutory redundancy payment.

It is worth bearing in mind that if an employer is about to commence a redundancy process, there will be a saving to the business if the redundancies are completed before 6th April 2014.

Employment tribunals and discrimination questionnaires – Discrimination questionnaires will be abolished from 6th April 2014. Although some employers found questionnaires cumbersome as collating the information could be onerous and they saw little value in them, others found them useful to prompt a quick resolution, either through early settlement or showing that no discrimination took place, and so preventing unnecessary proceedings.

Instead of questionnaires, there will now be a new ‘informal’ approach. The government considers that this non-legislative approach, which is set out in Acas guidance, will be “fairer for all” and that this will enable businesses to better challenge any unreasonable requests for information. The guidance has now been issued by Acas and includes advice on how individuals can ask questions and why employers and service providers should respond. http://www.acas.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf

Therefore, repealing the statutory questionnaire procedure does not prevent individuals who believe that they have been discriminated against from using other means of obtaining information. It will simply remove the statutory mechanism, not the scope for establishing facts about whether discrimination has occurred. There is no legal obligation to answer any questions. However, a Tribunal may look at whether a business has responded and, if so, how they have responded as a factor when considering their decision on a discrimination claim. Also the Tribunal can actually order a business to provide answers as part of the process in any event. These are issues a business would need to weigh up when considering whether to reply and what to say.

Employment tribunals and Acas conciliation – the early conciliation scheme will start on 6th April 2014 and there will be a transitional period between 6th April and 5th May 2014 during which time prospective claimants can participate in early conciliation which will become mandatory in respect of claims presented on or after 6th May 2014. The intention behind the introduction of conciliation periods is to give the parties an opportunity to settle any claims before a claim is submitted, thereby reducing claims and making the tribunal system more effective.

Before lodging a claim, a prospective claimant must send Acas information of the claim in the prescribed manner and then Acas will forward this information to a conciliation officer. The officer must try to promote settlement within one month and if settlement is not reached, either because settlement is not possible in the conciliation officer’s view or the period expires, the officer must issue a certificate to that effect. A claimant may not submit a claim in tribunal without this certificate.

The introduction of fees in the employment tribunal on 29th July 2013 and the effect they have had on the number of employment tribunal claims (please see our earlier blog on this topic) may have a significant effect on the parties’ willingness to settle.

Individuals may be more willing to settle (and may therefore settle for a lower amount) in order to save the issue fee. Employers, on the other hand, may show an increased tendency to “wait and see” whether the claimant is serious, and may therefore be less likely to settle (or less likely to offer anything other than a derisory sum in settlement) until after the fee has been paid.

Only time will tell.