The Courier & Advertiser (Fife Edition)

New employer-friendly measures need ironed out

-

TAYSIDE EMPLOYERS have been told that new legislatio­n to protect businesses when making settlement agreements should change the way that companies conduct difficult discussion­s with employees – but may also have some negative side effects. From the end of this month an employer will be able to ask an employee to leave under a settlement agreement without the employee being able to use anything said in the conversati­on to support a claim for unfair dismissal.

Leading employment lawyer Ben Doherty, of Lindsays (incorporat­ing Shield & Kyd), welcomes the changes, which come into effect on Monday, but added they “may have unwelcome side effects”.

In future, employers can have pretermina­tion discussion­s which will not be admissible in evidence before an Employment Tribunal unless there is improper behaviour or undue pressure involved. The statutory maximum that a tribunal can award in compensati­on for an unfair dismissal will reduce from the current cap of £74,200 to the lesser of £74,200 or the claimant’s annual salary, and unless they are exempt, claimants will have to start paying fees to lodge a claim in the tribunal and again before a hearing.

The measures are some of the employer-friendly changes being introduced by the coalition government. Doherty commented that: “In most situations they should enable employers who want to avoid tribunal claims to reach an acceptable mutual agreement for less than has previously been the case.”

The changes have been described as a bullies charter by their opponents and whilst they will be welcomed by most employers there may be more litigation rather than less as employment lawyers, the unions and the tribunal iron out some uncertaint­ies contained in the drafting.

Doherty said employers should continue to be cautious when discussing terminatio­n of employment as Protected Conversati­ons only apply in ordinary unfair dismissal claims, and do not apply to automatic unfair dismissals, discrimina­tion or other employment law claims.

Employers will be required to give the employee 10 working days to consider any offers made for the terminatio­n of their employment, failure to do so would be regarded as undue pressure when the discussion would lose its protection and become admissible in evidence in any employment tribunal claim. In addition, for any agreement to be binding it will still need to be recorded in writing and meet certain statutory requiremen­ts.

As the new law does not apply to automatica­lly unfair dismissals or discrimina­tion claims Doherty commented that we may see an increase in those types of claims. “The new legislatio­n does not apply to cases were the claimant brings such a complaint. Therefore claimants may allege they have been automatica­lly unfairly dismissed to enable them to rely on what would have been a protected conversati­on.”

In addition the tribunal also frequently deals with unfair dismissal claims which also allege a breach of contract. Doherty commented: “Se may have an absurd situation where a tribunal is allowed to hear evidence in respect of a breach of contract claim whilst having to ignore it when considerin­g the unfair dismissal claim. How the Government can expect the tribunal to forget evidence they have heard is beyond me.”

 ??  ?? Employment lawyer Ben Doherty of Lindsays (incorporat­ing Shield & Kyd).
Employment lawyer Ben Doherty of Lindsays (incorporat­ing Shield & Kyd).

Newspapers in English

Newspapers from United Kingdom