Tribunals and Tribulations. 17 September 2013

Transcription

1 Tribunals and Tribulations 17 September 2013

2 Today s session Termination strategy Protected conversations Without prejudice conversations Changes to unfair dismissal compensation Changes to collective consultation Dismissal strategy Commencement of proceedings Early conciliation Tribunal fees Changes to Tribunal Rules COFFEE BREAK Litigation strategy Key considerations Tactical approaches Settlement strategy 1

3 TERMINATION OF EMPLOYMENT KATHRYN DOOKS 2

4 Protected Conversations (1) 3

5 Protected Conversations (2) Confidential discussions to agree exit terms Can t put evidence before the ET in ordinary unfair dismissal claims Can in any other type of claim No need for genuine pre-existing dispute Requirements Pre-termination 10 calendar days to consider offer (not absolute) 4

6 Protected Conversations - exceptions Protection lifted if improper behaviour (in ET s opinion) Undue pressure But can: Refuse to pay for legal advice Refuse to provide a reference 5

7 Without Prejudice Conversations Need genuine pre-existing dispute Cannot put statements before the court as evidence in any claim Protection removed if: Fraud Undue influence Unambiguous impropriety (e.g., discrimination) 6

8 Changes to Unfair Dismissal Compensation For dismissals from 29 July 2013 onwards Capped at lower of: 74,200; OR 52 weeks gross pay Pay means a week s pay under s ERA 96 pay for normal working hours 7

9 Changes to Redundancy Consultation Collective Consultation 100+ employees = 45 days (down from 90) Penalty for failure to consult still up to 90 days pay Don t count fixed term contracts which are expiring Redundancies in a TUPE scenario Transferee will be able to consult prior to transfer Provided transferor and transferee agree Coming into force in January 8

10 Implications for Dismissal Strategy Don t rely on protected conversations?? assess when appropriate ensure clear basis for making approach Try to gain veil of without prejudice protection When to do a deal? NB: Compromise agreements agreements settlement 9

11 NEW TRIBUNAL RULES AND EARLY ACAS CONCILIATION ELIZABETH KIRK 10

12 Early ACAS Conciliation What is it? Comes into force in April 2014 Prospective claimants will have to contact ACAS to discuss settlement before they can issue a claim in the Tribunal Exceptions? A rare few: Applications for interim relief Multiple claims, where the lead claimant has been through the process What is the process? 11

13 Early ACAS Conciliation 12

14 If Conciliation fails? Certificate sent to the prospective claimant Time limit for lodging a claim form starts to run again New rule 1 January 2015 Erin Smith is dismissed for poor performance on 1 January Last date for her to submit a tribunal claim is 31 March 2015 (limitation date) 19 February 2015 Erin submits an early conciliation form by (deemed to be received on 20 February 2015) 20 February Three month period for bringing a claim is paused March 2015 Erin s employer doesn t want to settle at this stage, so ACAS s a certificate to Erin confirm this 20 March 2015 Three month period starts up again from this point BUT - because less than one month is left until the limitation date, the date is extended until19th April 2013 (one month from the date Erin received the ACAS certificate). 13

15 If conciliation fails? Other problems? Prospective respondents do not receive the certificate Only room for one respondent in each form could lead to duplicate claims and responses 14

16 TRIBUNAL FEES ANNA BYFORD 15

17 Tribunal fees (1) Tribunal fees for Claimants: 29 July 2013 Two fees payable: an issue fee (in order to submit the claim) and a hearing fee (c.3-4 weeks before the hearing) Two tiers of fees, depending on type of claim (see next slide) Civil courts remissions scheme will apply so that claimants on low incomes will not have to pay all / any of the fees 16

18 Tribunal fees (2) Fee type Type A claims Type B claims Appeals Issue fee Hearing fee ,200 Type A = unpaid wages, notice payments, redundancy payments Type B= everything else, e.g. unfair dismissal, discrimination, whistleblowing Implications? May impact settlement negotiations 17

19 New tribunal rules Came into force on 29 July 2013 Government has reduced the current rules by 50% Estimated cost saving of 5.23 million by: Improving speed and efficiency Promoting consistency in case handling Simplifying the rules So what are the main changes? 18

20 Responding to claims Under the old rules A respondent had 28-days to either present a response or apply for an extension of time to do so Otherwise - Tribunal would issue a default judgment Under the new rules Vs. Time limits are relaxed. A respondent can apply for an extension of time to present a response after the 28-day deadline has expired Employment Judge has discretion as to whether to allow the response BUT always best to submit a response in time - avoids risk 19

21 Initial paper sift Brand new rule New initial consideration stage to deal with weak cases As soon as possible after an ET3 is submitted, an Employment Judge will consider whether there is an arguable claim and defence Judge decides whether claim or response should be struck out because: claim is outside of the jurisdiction it has no reasonable prospects of success Claim or response will stand dismissed, unless the claimant can present written representations. What does this mean for us? Carefully drafted pleadings will be even more important More consideration as to the merits of case 20

22 Preliminary hearings Under the old rules Case management was dealt with via CMDs or PHRs Each hearing had different notice periods Certain orders couldn t be made at CMDs Under the new rules Vs. CMDs and PHRs have now been combined to create Preliminary Hearings (PH) Any issues can be dealt with at a PH: Time saving Cost saving Tribunal will give reasonable notice of PH If preliminary issues to be decided = at least 14 days' notice PHs can be converted into full hearings PHs are private could be useful if claim involves reputational issues 21

23 Deposit orders Under the old rules Tribunal could order a party to pay deposit of up to 1,000 Would consider whether claim/response had little reasonable prospect of success Under the new rules Vs. Tribunal now has the power to order a deposit in relation to any specific argument If several arguments have little reasonable prospect of success, can order a deposit of up to 1,000 for each of them! Parties more likely to get costs if deposit ordered and they continue with their claim/response but lose at full hearing 22

24 Privacy and RROs Under the old rules Tribunal had very limited powers to impose restricted reporting orders (RROs) or to make hearings private. Only if case involved: Sexual misconduct Disability National security Under the new rules Vs. Tribunals can now order RROs in a wider range of circumstances PHs private unless: Preliminary issue to be determined Strike out application Tribunal can now impose reporting restrictions to to protect the Convention rights of any person 23

25 Costs Under the old rules Costs are the exception, not the rule. Costs could be awarded if: the bringing or conducting of proceedings was misconceived claim / response had no reasonable prospects of success Tribunals only had the power to assess a costs application of 20,000 and under Under the new rules Vs. The rule under which costs can be awarded if: the bringing or conducting of proceedings has been misconceived has been removed Have to rely on no reasonable prospects of success argument If a party has paid a tribunal fee - Tribunal can order the unsuccessful party to repay it All costs applications can be assessed in the Tribunal (even if over 20k) An allowance in respect of a lay representative s fees can now be recovered 24

26 Automatic dismissal of claims Under the old rules When a claimant withdrew their claim, the respondent had to apply for the claim to be dismissed Under the new rules Vs. This process has been largely removed Tribunal will automatically issue a judgment formally dismissing claim BUT two exceptions: On withdrawal, the claimant expressly reserves the right to bring another claim The Tribunal believes that a dismissal would not be in the interests of justice Be careful - no time limit for dismissal by Tribunal 60 fee for Respondent to apply 25

27 Anything else? Number of other changes Mostly minor effect New ET1 and ET3 forms Claim forms can no longer be submitted by (ET3s can) Witness statements taken as read Judges can sit on cases alone, without any wing members Judges can impose time limits on witness evidence 26

28 LITIGATION STRATEGY DAVID WILLIAMS 27

29 Litigation Strategy Overview of litigation process Key considerations merits money miscellaneous factors The chess moves Tactical approaches Settlement strategy 28

30 The Litigation process an overview Pre-action stages Pre-action conciliation Claim and defence Preliminary hearing/directions Disclosure Post claim ACAS conciliation Judicial mediation Informal/semi informal mediation Witness statements Hearing preparation The hearing Remedies hearing 29

31 Litigation strategy key considerations Merits Money Miscellaneous factors 30

32 Merits Strength of claim Litigation risk Strength of defence Evidence: - written - witnesses 31

33 Money Potential value of claim Maximum value Realistic outcome Potential fees Legal expenses for each stage/escalation points Court fees counterclaim / judicial mediation Internal management costs Impact of fees on the Claimant Legal fees potential funding Claim/hearing fees Ability to survive without income Potential for costs to be awarded Litigation risk v costs analysis Compensation relevant considerations Loss of earnings Polkey deductions Contributory fault Mitigation Statutory cap Injury to feelings etc Devise Strategy 32

34 Cost/time implications for settlement process Costs/ management time Claimant fee Claimant fee Pre-action Conciliation (April 2014) to settle to clarify issues to deal with opportunities claim defence complexity detail Preliminary hearing directions application for: strike out deposit order disclosure volume/ complexity client assistance potential time bombs further and better particulars witness evidence number complexity clarity/focus consistency training? need for witness order NB no property in a witness hearing length complexity representation unexpected considerations

35 Apology / statement of regret Reputational damage/ confidentiality Personal animosity/claimant s character or motivation References/potential to provide other benefits Miscellaneous factors Potential for floodgates to open/ setting a precedent Managing expectations Management time Potential to undermine confidence in representatives

36 The chess moves Lack of merit Strike out no reasonable prospects of success Deposit order little prospect of success Lack of clarity / highlighting weaknesses Further and better particulars Cost implications Delaying tactics Postponements, adjournments or staying proceedings Appeals Reconsideration/appeals Costs/preparation time orders Lack of disclosure Relevant Privilege Non-compliance with ET orders Unless order Strike out 35

37 Common tactical approaches wrap it up and move on beat em up and resolve down the line strong defence preliminary hearing generally aggressive tactics drag it out and bleed em dry fight to the bitter end accept technically fight quantum aggressive management of schedule of loss 36

38 Settlement strategy When - timing is everything Forum Presentation Stress merits/potential cost implications How much initial offer subsequent offer final offer Strategies for unrealistic expectations steps in case claim proceeds 37

39 Our team David Williams Head of Employment Kathryn Dooks Employment Partner ddi +44 (0) ddi +44 (0) Elizabeth Kirk Employment Associate Anna Byford Employment Associate ddi +44 (0) ddi +44 (0)