Employment Law Bulletin May 2014

Thursday 22 May 2014

Welcome

The big news that everyone is surely talking about this month is that ACAS early conciliation is now compulsory.

Anyone who wants to bring a claim in an employment tribunal must now first submit an early conciliation form alerting ACAS to the case. What follows will be a period of talking through the issues and trying to avoid getting the tribunal involved in the dispute.

There is one proviso – and it is a big one – in that both parties must agree to conciliate. Students of language might wonder how, given that the parties cannot be forced into conciliation, it can really be described as “compulsory”. Let’s hope that claimants play ball anyway. However, the compulsory aspect is really little more than the employee having to tell ACAS that he or she is planning to bring a claim and getting a certificate to this effect.

It is, of course, easy (and very tempting) to be cynical, but there is rarely anything to lose in attempting conciliation and it does give employers a chance to avoid litigation by settling cases before positions become (too) entrenched. The scheme’s success, though, will depend on everyone seeing it that way.

 

When whistleblowing is not the reason

Panayiotou v Kernaghan

The so-called “whistleblowing” laws protect people who make “protected disclosures” from being treated badly by their employer as a consequence. Where an employee is dismissed for having “blown the whistle”, that dismissal will be automatically unfair and there is no cap on the amount of compensation that can be awarded by a tribunal.

The issue in this case was whether the employee was dismissed because he had made protected disclosures, or because he had refused to let issues relating to those disclosures lie.