Breaking up is never easy, you know, but there comes a time when, with the best will in the world, an employee has to go for one reason or another, writes Caroline Mitchell a specialist in employment law at Beers LLP.
Whichever way you do it, you will need to read The ACAS code, call a lawyer, go through a complex procedure and even then you will still be at risk of being taken to an employment tribunal if you get it wrong at any stage. Vince Cable’s proposed reforms may appear on the surface to help you, but beware, there are catches all along the way.
The Enterprise and Regulatory Reform Bill was expected to deliver reform of our old friend the Compromise Agreement. Now there’s a short cut if ever I saw one…but not necessarily. Getting to a compromise agreement is not straight forward. If you approach an employee suggesting that they should leave under terms to be agreed, the employee may allege that this is effectively a dismissal in itself without having engaged in any process of selection (if it is a redundancy) or disciplinary (if it is for capability or performance). Before you know it, there will be an Employment Tribunal claim on your desk for constructive dismissal and the whole expensive process will begin.
The Governments bill has now been amended to provide that an employment tribunal may not take account of any offer made or discussions held before the termination of employment. This is called the “protected conversation”. However, this only applies to claims for unfair dismissal. Discrimination claims and breach of contract claims are excluded from these provisions. If both discrimination and unfair dismissal are claimed, then the protection is lost in respect of both.
There is another provision which is mystifying. The protection does not apply where the behaviour of the employer has been “improper”. How on earth the Employment Tribunals and eventually the appeal Courts define “improper” remains to be seen and the interpretation will change with the fashion.
Finally, included in the bill is a further move towards allowing costs to be paid by the losing party in the Employment Tribunals. Provision for this exists already but it is rarely used. under the bill, it may be that where an offer is made “without prejudice save as to costs” and is rejected, the employee may be ordered to pay costs if he or she is unsuccessful in the tribunal.
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