Matthew Pinto-Chilcott, Owner of Consensus HR comments: – PM working on ‘tough’ new anti-strike laws “I do not know what your views are in relation to the current state of the economy and many public sector provisions taking strike action but this latest news that has been broadcasted and written in a number of papers explains what action the Government is aiming to take in the future. The current economy with high inflation and the war in Ukraine and high gas / electricity prices is something very unusual to me, having not experienced it in the past but it highlights the importance of employee relationships and the need for all parties to be reasonable and to take reasonable action. Running a business / service is never easy and having employees / team has complications as well. In these instances, it is easy for us to have our say / point of view but as with all HR and business in general, unless you know the facts and have all the information in front of you, you are not able to claim that your view is correct and reasonable! Also, depending on who’s view you listen to, whether this be the Government or the Unions, you will have your stance but we need to remember negotiation and best practice HR within your company can help to ensure that issues such as these are kept to a minimum and members of the team made to feel part of the business and the decisions that are made and fully understand why they are being made and that their views matter”
Rishi Sunak said on Wednesday that he would bring in “new tough laws” to protect people from strike disruption. He told MPs that if “union leaders continue to be unreasonable, then it is my duty to take action to protect the lives and livelihoods of the British public.” The Prime Minister’s pledge came as the PCS union said Border Force staff would join a wave of strikes this Christmas. A bill has been introduced to Parliament which would ensure minimum service levels on transport networks during strikes, but it is yet to be debated by MPs and peers. Downing Street said the legislation would be extended to other services but would not specify what these would be, and no timescale was given. Meanwhile, the Labour Party has said it will repeal the 2016 Trade Union Act if it comes to power, making it easier for unions to take industrial action. Elsewhere, senior military figures have told the government that Armed Forces personnel should not have to sacrifice their Christmas to cover for striking public sector workers who earn more than them. Bringing in soldiers also risks weakening the “operational capability” of the military to respond to threats, ministers were told.
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.
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:
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.
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.
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.”
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.