The Enterprise and Regulatory Reform Act 2013

The Enterprise and Regulatory Reform Act 2013 introduced a new power for tribunals to order a losing employer to pay a financial penalty of up to £5,000 where the case has "aggravating features".

Against a background of a government doing its best to undermine employment rights across the board, there was much trumpeting from Westminster about how “rogue employers” would get some harsh treatment too.

We were always suspicious that this was too little, too late.  Was it really going to deter employers?  Why was the money going to the state, not the injured party?  Would Tribunals want to take on the role of “fine imposition”?

It turns out our suspicions were not without merit.

On 8 June 2015, Caroline Lucas MP asked how many financial penalties have been imposed.

The Government’s reply: three fines have been imposed to date.

Three.

Thousands of ET cases, and the new power has been used three times.

It gets better.

Only one of the three has been paid.

Paul Scholey - Senior Partner

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

ACAS Early Conciliation – Another hurdle for Employees?

I’m not altogether against the Early Conciliation (“EC”) regime introduced in employment cases last year.

It gives the parties a chance to sort things out without recourse to litigation – I’m all for industrial resolution of disputes.

It can give an employee a “last crack of the whip” with a view to negotiating a settlement when the farcical Employment Tribunal Fees regime means that he or she can’t afford to lodge a real claim in the ETs.

Employers can benefit too, from early, economic settlement.

So I get it.  But it ought not to make rights impossible to pursue.  And in two recent cases that’s exactly how the EC scheme has operated.

In Cranwell the Claimant alleged appalling treatment: sexual harassment, demeaning, discriminatory conduct and even a physical assault.  The court was unsurprised that she was reluctant to enter into conciliation with the employer who had treated her so awfully.

But the case was kicked out nonetheless – the obligation to conciliate was absolute; even justifiable oversight was impermissible.  The claim failed.

And in Sterling the Claimant’s claim form was rejected because a typographical error meant that the EC reference number was incorrectly transposed onto the ET1 form.  The Claimant had done the necessary – ACAS had been involved – but the failure accurately to copy a reference number killed the claim.

It will be said that a case can, of course, also be made for certainty – that a rule is a rule, and exceptions make for endless arguments.

I don’t buy it.  We have some really draconian rules in the ETs about time limits – but there are exceptions.  Mistakes are not always punished with lethality.

If we are going to require an employee to jump through another hoop before starting an ET claim, let’s at least be fair about the consequences of non-compliance.  Did anyone ever intend that a typo might put paid to a perfectly valid claim?  Who benefits from that (save the windfall-happy employer)?

It brings the system into disrepute; a little discretion would go a long way.

Paul Scholey - Senior Partner

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.