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Jean Sapeta, a partner in the Employment Team for specialist health and social care law firm, Hempsons, explains the latest changes to employment law, and how this affects clinics up across the UK.
A series of revolutionary changes in employment law have handed employers the confidence to tackle performance or conduct issues among their staff with a reduced fear of employment tribunal claims. Whether you are a clinic owner or a practice manager who line manages staff, it is important you are aware of these changes.
Qualifying period for employment rights
Anyone employed after 6 April 2012 will not be able to bring an unfair dismissal claim until they have been employed for two years continuously. The previous qualifying period was one year’s continuous employment.
A note of caution, however – discrimination claims require no qualifying period of employment, and whistleblowing claims similarly do not require that the individual has been employed for a minimum period.
It used to be free to bring a claim in the employment tribunal. Since July 2013 all claimants have been required to pay a fee or make an application for fees to be remitted or waived on financial grounds. The Initial fee to issue an unfair dismissal claim is £250 and to take the case to a hearing involves payment of further fee of £950. Since fees have been introduced there has been a fall-off of 79 per cent in the number of claims lodged.
Since 6 April 2014 anyone thinking of bringing an employment claim must contact ACAS (Advisory Conciliation and Arbitration Service) first. ACAS will then offer an early conciliation service without the need for a tribunal hearing. The aim is to allow an extra month to attempt to resolve disputes between employer and employee before a claim is lodged. Only when it is clear conciliation will not be successful can the claim proceed.
Statutory cap on the compensatory award
The maximum compensatory award in unfair dismissal has been reduced for most employees. For dismissals after 29 July 2013, the maximum compensatory award the tribunal can now award is either the lower of a year’s gross pay or £76,574, The UK average salary is currently £26,350.
From July 2013, employers have been able to enter into discussion with employees on a confidential basis, without fear of discussion being referred to in an unfair dismissal claim. Issues such as performance, poor relationships and potentially conduct can be addressed.
These discussions cannot be used as a cloak for bullying or putting pressure on an employee. ACAS has issued a code of practice on this issue, and on settlement agreements, and recommend that an employee is to be allowed ten calendar days to consider any written settlement proposal.
“Protected conversations” cannot be used as a way of hiding discrimination, e.g. of perhaps getting rid of a member of staff who has announced that she is pregnant, or of replacing a person on maternity leave by the person who covered the role while she was absent.
There has undoubtedly been a significant shift in the balance of power. It is still a wise precaution to take legal advice before proceeding with a “protected conversation” or prior to making a decision to dismiss before a two- year period of continuous employment has been accrued, to avoid exposure to the more expensive discrimination or whistleblower claims.