08 August, 2013
Section 111A of the Employment Rights Act was implemented on 29th July 2013 and aims to introduce a greater flexibility in the use of confidential discussions as a means of ending the employment relationship.
In brief, section 111A provides that offers to end the employment relationship on agreed terms i.e. under a Settlement Agreement (formerly known as a Compromise Agreement) can be made on a confidential basis, the terms of which the Employee would not be able to rely upon as evidence in an Unfair Dismissal Claim.
Employers beware however - there are a number of exceptions this. In particular, discussions will not be protected from disclosure in claims relating to automatically unfair reasons for dismissal, such as whistleblowing; Union membership and asserting a Statutory Right.
The confidentiality provisions do not apply in claims of Unfair Dismissal which are based on discrimination, harassment, victimistion or other behaviour prohibited by the Equalities Act 2010. This poses a particular problem for Employers who may find that a conversation that they thought would be protected, turns out not to be when the ensuing claim includes allegations of discrimination. Employers should also be wary of falling foul of 'improper conduct' such as putting undue pressure on a party, for example, not allowing 10 days consideration of an offer or telling an Employee that they will be dismissed if they do not accept an offer.
Employers should exercise caution in engaging in 'protected conversations' and should consider taking legal advice before entering into any such negotiations.
Claims made to the Employment Tribunals and appeals to the Employment Appeal Tribunal on or after 29th July 2013 will attract fees. Claims filed before that date will not attract a hearing fee, even if their first listing is after to the 29th July 2013.
Claimants are able to submit claims by hand (to a select number of tribunal offices), post or, by the preferred method, online. A new online submission service, together with the new claim form (ET1) is now available. The benefit of the online service is that the appropriate fee is automatically calculated, therefore avoiding the risk of rejection for underpayment.
It remains to be seen if the promise of remission fees will cancel out the intended benefit of reducing the number of unmeritorious claims currently clogging the Tribunal Service.
The Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2013 has now been published, restricting the compensatory award in most types of unfair dismissal to 52 weeks' pay or £74,200, whichever is the lower. The new limit applies to dismissals where the effective date of termination falls after Monday 29th July 2013.