ABG Employment Newsletter – May 2014

Mandatory early conciliation through ACAS before issuing an employment tribunal claim

Legislation that came into force on 6th April 2014 has introduced an early conciliation scheme in relation to prospective employment tribunal claims.  This scheme became available to prospective claimants on 6th April 2014 but will be mandatory for any claim presented on or after the 6th May 2014.

The early conciliation scheme imposes a duty on all claimants to attempt conciliation through ACAS prior to submitting an employment tribunal claim.  This is referred to as early conciliation (‘EC’).

The EC procedure is as follows:-

  1. Before a prospective claimant can issue a claim he must provide certain information to ACAS either by completing an EC form or by telephoning ACAS who will complete the EC form on the prospective claimant’s behalf.
  2. Once the information has been received by ACAS, a support officer will contact the prospective claimant to explain the process and check that they wish to proceed.  The information will then be passed to a conciliation officer.
  3. A conciliation officer will then make contact with the prospective claimant and check that they are happy for ACAS to contact the prospective respondent.  The conciliation officer will then contact the prospective respondent and try to promote a settlement.  Settlement must be reached within 1 calendar month of the date on which the prospective claimant first contacted ACAS.  However, this time period can be extended by up to 14 days.
  4. If a settlement is not reached within 1 month (or longer if the period has been extended), if ACAS is unable to contact the parties or if the parties do not wish to participate in EC the conciliation officer will issue an EC certificate.  The EC certificate will have a unique reference number which will be required if the prospective claimant wishes to submit a claim in the Employment Tribunal.

The time limits for submitting employment tribunal claims will be extended by the length of the EC period.  The EC period is the period between the date on which the prospective claimant first contacts ACAS, or the EC form is received by them, and the date on which the EC certificate is issued.

From a respondent’s point of view, this new procedure will mean that the respondent will be made aware of a prospective claim earlier and can consider whether it would like to enter into EC in order to attempt to settle before an ET claim is submitted.

If you become aware of a prospective claim and would like advice on the best way to proceed, please contact one of the Employment Group.

During April ACAS report that around 1,020 prospective claimants contacted them each week.


Flexible Working Requests

The law in relation to flexible working requests is changing.  From 30th June 2014, all employees who have at least 26 weeks’ continuous service will be entitled to request flexible working.  Currently, only parents and carers are entitled to make a flexible working request.

Employers will have a duty to deal with requests in a reasonable manner, and notify employees of their decision within 3 months, unless an extension is agreed.

As we highlighted in our March Employment Newsletter (https://abg-law.com/abg-employment-newsletter-march-2014/), it is important to ensure that the reasons for refusing a flexible working request are clearly documented and are based on the needs of the business.  This will be all the more important as the number of requests increase.


Court enforces restrictive covenant despite error in drafting

A restrictive covenant in a contract of employment will be void unless the employer can show that it has a specific proprietary interest that it is appropriate to protect and that the protection sought is reasonable having regard to the interests of the parties and the public interest.

In a recent case, the High Court held that a restrictive covenant was enforceable despite the fact that an error in the drafting meant that, read literally, it did not actually afford the employer any protection at all.

In this case, the employment contract contained a clause which restricted, for 12 months post termination, the employee from carrying on or engaged in any business which was similar to that of the employer, or that was in competition with the employer.  However, the clause stated that the restriction only applied in cases where the employee would be dealing with the same products that he dealt under the employment contract.

The court found that must have been a drafting error; the restriction as drafted offered no protection to the employer as no competitor would ever be selling the same products.  The court was therefore prepared to read words into the covenant, so that it applied to products that were similar to that of the employer’s, in order to achieve a commercially sensible result.

The court then looked at the reworded restrictive covenant do decide whether a specific proprietary interest was being protected and whether the protection sought was reasonable.

The court enforced the reworded covenant and granted an injunction.

This is an interesting case as it demonstrates the courts ability to interpret a clause so that it produces a commercially sensible result rather than taking the strict or literal meaning.


Auto-Enrolment Staging Dates

The new laws in relation to auto-enrolment of eligible employees into a workplace pension scheme came into effect in October 2012.  However, the dates on which these laws become applicable to employers depended on their size.

For employers with 160 or more members in their PAYE scheme the laws are now applicable (subject to certain exceptions) and the staging date for employers with between 90 and 159 people in their PAYE scheme is 1st May 2014 with further staging dates for small companies due before the end of the year.  The staging date is the date from which employers are required to enrol eligible jobholders into a workplace pension scheme.

For general information on auto-enrolment pensions you can refer to our guidance note (https://abg-law.com/wp-content/uploads/2013/10/AUTO-ENROLMENT-PENSIONS-MAR-12.pdf) or if your staging date is coming up and you would like some specific advice in relation to your company and which of your employees fall within the ‘eligible jobholder’ definition or to update your employment contract wording, please contact one of our Employment Group.

The comments in this note are of a general nature only. Full advice should be sought on any specific problems.

Christopher Gigg  [email protected]  +44 (0)115 934 3310

Kathryn Meir [email protected]law.com +44 (0)115 934 3308