- Abolition of discrimination questionnaires
Employers and HR professionals will probably cheer the news that discrimination questionnaires are being abolished. But don't celebrate too soon: employees will still be able to ask questions about possible discrimination, just by sending an ordinary letter rather than using the questionnaire format. ACAS have published guidance about what to include in an information request letter, and it looks very similar to the old questionnaire form.
Employers were never legally obliged to respond to discrimination questionnaires, but faced the possibility in any subsequent claim that the Tribunal would draw "adverse inferences" if they failed to do so. With the new format, there will be no adverse inferences, but the ACAS guidance states that the Tribunal "may look at whether a responder has answered questions and how they have answered them, as a contributory factor in making their overall decision on the questioner's discrimination claim". It's not clear whether there will be any practical difference to the old regime of adverse inference.
Employers will therefore still need to be seen to co-operate and answer questions as far as is reasonable. But, just as with the formal questionnaires, it may be legitimate to refuse to answer some of the employee's questions; for example on the basis that they involve information that is commercially sensitive or confidential to a third party, or that they are simply irrelevant to the issue at hand.
- Mandatory ACAS conciliation
ACAS already offer a conciliation service whereby parties to an employment dispute can contact them for help in trying to reach a negotiated settlement rather than resorting to litigation. Soon it will be mandatory for all employees to approach ACAS before they issue their employment claim. This Early Conciliation process is going to be an option for clients from 6 April, and will be compulsory from 5 May 2014.
Employees thinking about bringing a Tribunal claim must contact ACAS first. They have to provide certain basic information about the claim, most importantly the contact details of the intended respondent. An ACAS conciliation officer will then contact both parties to see if they are interested in reaching a settlement before a Tribunal claim is made.
There is a period of one month when the ACAS officer will try to explore settlement, and if it looks as if good progress is being made then this can be extended for a further two weeks. However, the officer does not have to wait for the full month if it is clear that settlement is not possible. If they are unable to contact the parties, if the parties say they are not willing to participate in settlement discussions, or if negotiations break down, then the ACAS officer can call a halt to the process earlier.
After the month is up, or earlier if the officer thinks that conciliation is going nowhere, they will issue an "EC certificate" to the employee. This confirms that the employee has complied with their obligation to contact ACAS about the claim, and they are now entitled to issue their claim at the Tribunal. Without this certificate, the employee's claim will not be accepted.
The 3 month deadline from the termination date for the employee to bring their Tribunal claim is effectively put on hold from the time they contact ACAS, until the EC certificate is issued. If the employee contacts ACAS with less than a month remaining before expiry of the Tribunal deadline, then the deadline is pushed back as they will have a month from the date of the EC certificate to submit their claim. There is likely to be more confusion about whether or not a claim is in time, and we can expect this to be an issue in more claims going forward.
The purpose of this change is to encourage more claims to settle at an early stage. We may well see more claims settling earlier in future, not necessarily because of the Early Conciliation process itself, but the introduction of Employment Tribunal fees means that this is the last opportunity for settlement before the employee has to pay that fee, and this might well focus potential Claimants' minds on the possibility of settlement. On the other hand, employers might be less willing to settle before issue of the claim, and prefer to wait and see if the employee is prepared to put their money where their mouth is by issuing a Tribunal claim.
Even if Early Conciliation is not successful, there's no reason why the parties cannot pursue settlement negotiations after the claim has been issued. These negotiations can take place directly between the parties, or via ACAS. In the Tribunal claims in which we are involved, it is common for a settlement to be reached somewhere between the issue of the claim and the final hearing. This new Early Conciliation scheme simply offers the parties an opportunity to resolve matters sooner rather than later.
- Financial Penalties of up to £5,000 for Employers who lose Tribunal Claims
Employment Tribunals are being given the power to impose financial penalties on employers who lose claims. There is no equivalent option to impose a penalty on an unsuccessful employee, although since last year Claimants have had to pay issue and hearing fees, so arguably this is perhaps not as unfair as it might initially appear. This new penalty is in addition to any damages awarded to the employee; it is payable to the Exchequer, not to the employee. The Tribunal may impose the penalty even where there is no award of damages to the employee. In fact, this might become a common scenario; that the penalty is imposed as a slap on the wrist to an employer who has behaved badly, but for technical reasons little or no damages are payable.
The relevant provisions state that an award "may" be made (leaving it to the Tribunal's discretion), where there is an "aggravating factor" in the employer's behaviour. There is no definition of "aggravating factor", but the commentary suggests examples of malice or serious negligence on the part of the employer. The consultation documents on this point mentioned that the Tribunal could consider factors like the size and resources of the employer, the duration of the breach that led to the claim and the respective behaviour of the employer and the employee.
The Tribunal can award a penalty between £100 to £5,000, but the employer can get a 50% discount if they pay promptly within 21 days. In practice, we will just have to wait and see whether Tribunals start imposing these penalties as a matter of course.