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Government Reform

Pre-Termination Negotiations: Implementation Date

It was announced this week that confidential pre-termination negotiations as contained in Section 14 of Vince’s Cables Enterprise and Regulatory Reform Act 2013 will be implemented on the 29th July 2013. Follow the link to the commencement order. The new concept of “Confidential pre-termination negotiation” means that employers will now be able to have a “protected conversation” with an employee about terminating their employment under agreed terms within a “Settlement Agreement” (the new name for Compromise agreements as of 29th July) without a prior dispute being necessary.

Such conversations will be “protected conversations” and will not be able to be used by the employee in any potential tribunal proceedings. This is clearly a significant change from the previous rule of “without prejudice” which required a previous dispute to be apparent for the conversation to be protected. It is however worth noting that these new “protected conversations” will be limited to unfair dismissal claims. Automatic unfair and discrimination cases will not be covered under this sanction. A structured format will also need to be followed by the employer if they wish for their conversation to be “protected” and Acas have recently published their Code of Practice on Using Settlement Agreements to encompass the new legislation for pre-termination Negotiations. Should you require further information on the new legislation or if you intend to offer a Settlement Agreement to an employee in the future please do contact Astons for further legal advice and support.

Written Edward Aston
15th July 2013

Employment Tribunal Rules

Mr Justice Underhill, who was asked by the Government last November to carry out a fundamental review of the Employment Tribunal rules, has recently announced his findings and recommendations.

The purpose of the review was to look at streamlining the Tribunal process, increase understanding for all parties and reduce costs.

The key points recommended in the review are highlighted below:-

  • An early paper sift where an Employment Judge will review initial papers and consider directions and strike outs where a claim does not have reasonable prospects of success.
  • Combining Case Management Discussions (CMDs) and Pre-Hearing Reviews (PHRs) and renaming them “Preliminary Hearings”. This will enable certain applications such as striking out all or part of a claim to be heard earlier on in the process.
  • Employment Judges to have an express power to limit oral evidence and submissions in Hearings.
  • Removing the £20,000 cap on the Tribunals’ power to assess costs. This will remove the need to refer higher cost claims to the County Court.

Employment Relations Minister, Norman Lamb, thanked Mr Justice Underhill for his “sensible” and “well thought of” recommendations, which he would be considering. Mr Norman Lamb said that his department would announce their intentions in this regard, “in due course”.

To view the full report please follow this link

Written by Edward Aston

15th July 2012