Welcome to our Employment Law Newsletter – July 2022. This newsletter covers:
Early Conciliation: How to Avoid the Employment Tribunal
Part-Time Workers Rights
“Wellness” in the Workplace
Was Dismissal of Employee Fearful of Covid-19 Fair?
1. Early Conciliation: How to Avoid the Employment Tribunal
The obvious route to avoid the employment tribunal is for employees and employers to discuss workplace issues as they arise and to resolve them before they become disputes. However if informal workplace conversations or more formal approaches such as a grievance procedure don’t work, employers can find themselves facing a claim in the employment tribunal. The question is, how to avoid the claim being heard, in public, in the employment tribunal.
Before commencing a claim in the employment tribunal the employee must inform Acas – please note strict time limits apply at every stage so don’t delay. Acas will offer the employee what is known as “early conciliation” (to distinguish it from “conciliation”, also offered by Acas but available once the employment tribunal claim is underway). If the employee wants to pursue early conciliation, Acas will contact the employer and see if employer is prepared to take part too.
And an employer can contact Acas for early conciliation if they thinks a dispute with an employee could lead to employment tribunal
If either party doesn’t want to go ahead with early conciliation, or if it’s not possible to reach an agreement, Acas will issue a certificate which the employee will need to lodge with their employment tribunal claim if they decide this is the course they want to take – again please note strict time limits apply.
So what is early conciliation? Early conciliation is a free and swift method of settling a workplace dispute, thereby preventing a costly and time consuming claim in the employment tribunal.
How does early conciliation work? The employee will provide the Acas conciliator with a full account of the issues as the employee sees it, for example the amount of wages they claim are owed to them and the employer’s response so far. The Acas conciliator is impartial and does not give advice but helps both parties to identify the issues and to reach an agreement. If either participant requires advice they will need to contact for example the CAB or a solicitor who specialises in employment law.
Acas has recently highlighted the emotional toll workplace disputes can have on employees. Visit the Acas website for a list of the sources of support, from Mind to the NHS. See the Getting emotional support section of the webpage, What you need to do: Getting an agreement by early conciliation.
Agreement reached in early conciliation is recorded in Acas document COT3 and is legally binding. COT3 can contain agreements the employment tribunal cannot order such as to provide a reference.
However if no agreement is reached it is up to the employee to make their claim to the employment tribunal within the strict time limits.
As is the case with employment tribunal settlements, if an employer fails to make a payment to an employee under a COT3 the government can help. See the gov.uk webpage, Employment tribunal: penalty enforcement and naming scheme. Under this scheme the employer is fined and named publicly. Another option is an enforcement scheme, the Acas and Employment Tribunal Fast Track Scheme. Alternatively there’s a Court procedure using form N322B.
2. Part-Time Workers Rights
Part-time workers and employees have rights under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. When compared to a full-time worker they must receive comparable – and where relevant – pro rata:
- Career, training, promotion, career breaks and job transfer opportunities
- Holiday, sickness, maternity, paternity, adoption and shared parental leave
- Pension and benefits
- Redundancy selection and pay
If a part-time worker or employee considers they are treated unfavourably in comparison to a comparable worker or employee who is full-time, they can ask the employer for a written statement of reasons for less favourable treatment. The employer must provide the statement within 21 days. If they fail to provide the statement, this could count against them in the employment tribunal.
The worker or employee can make a claim to the employment tribunal if they can find no objective justification within the employer’s reasons for their less favourable treatment.
Part-time workers and employees can make a claim to the employment tribunal if they consider they are treated less favourably or are victimised or dismissed for pursuing rights under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
In the case of workers, they can make a claim to the employment tribunal for part-time worker detriment. Whilst employees can make a claim to the employment tribunal even if they have not been employed for a full two years.
3. “Wellness” in the Workplace
Mental health apps, menopause support, mindfulness sessions, gym subsidies, counselling helplines … workplaces are increasingly focussed on the welfare of their employees.
The celebration of dog ownership in the workplace is having a moment. ‘Bring Your Dog to Work’ Day falls in June (this year on 24 June) and has been going for over 20 years.
Employers are giving dog owners adoption and bereavement leave, paying for pet insurance and encouraging employees to bring dogs into work. Research shows that dogs reduce stress and promote sociability and exercise. But is an office full of dogs everyone’s cup of tea?
Why are employers so focussed on the wellness of their employees? Employer awareness of the mental health challenges and the wellbeing of employees has undergone a revolution since the onset of the pandemic, whilst multiple lockdowns and the advent of working from home and hybrid working has changed employee attitudes to work forever. Many employees now want the option to work at home, and many have ditched one career for another or retired early. Meanwhile, employers face difficulties in retention and recruitment. It’s clear something needs to change.
Last month a trial started of the 4-day working week in 70 companies involving more than 3000 employees. This is led by two 4-day week campaigns together with researchers at Cambridge and Oxford universities. A whole spectrum of businesses are involved, from banks to fish and chip shops. The aim is to study the 100:80:100 paradigm, in other words is it possible to earn 100 percent of your salary for a four day week on the basis your productivity is not reduced.
Researchers will consider the effect on employees’ health, happiness, productivity, and use of fossil fuels, the latter because researchers will also look at the effect on the environment of a reduced working week.
The study will continue for 6 months. Similar studies are proceeding across the globe.
4. Was Dismissal of Employee Fearful of Covid-19 Fair
Mr Rodgers was employed by Leeds Laser Cutting Ltd when the pandemic struck and lockdown imposed. Although the employer implemented safeguards as recommended by the government, Mr Rodgers informed his workplace he would be isolating to protect the health of his sick child and young baby.
The employer dismissed Mr Rodgers. Although Mr Rodgers did not have two years continuous service, under section 100 of the Employment Act he made a claim to the employment tribunal based on automatically unfair dismissal. Section 100 sets out an employee is automatically unfairly dismissed if he left the workplace:
“in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert … or .. refused to return to his place of work”.
Or if he took steps to protect himself:
“in circumstances of danger which the employee reasonably believed to be serious and imminent”.
However Mr Rodgers failed to convince the employment tribunal his workplace contained risks of Covid-19 infection. Furthermore the employment tribunal found he had driven a friend to hospital, and had worked in a pub during lockdown. The employment tribunal held he had not been automatically unfairly dismissed.
Mr Rodgers appealed this decision. The employment appeal tribunal upheld the decision of the employment tribunal. However it acknowledged that Covid-19 could potentially amount to relevant circumstances under section 100 of the Employment Act. “In my judgment, whilst conditions pertaining to Covid-19 could potentially amount to circumstances of serious and imminent danger in principle, I do not consider that they did so in this case.”
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The topics covered in this Newsletter are complex and are provided for general guidance only. Therefore, if any of the circumstances mentioned in this Newsletter have application to you, seek expert legal advice.