part TWO: Employers in the firing line

Adam Bernstein examines how to protect your business from employment tribunal claims being made against it

By Adam Bernstein | Published:  09 April, 2018

Following a recent Supreme Court case employees wanting to bring claims against their employers can do so without having to pay any fees. So what steps do firms need to take to protect themselves?

The first thing to note is that there are no hard and fast rules as to how to protect a business against employees making tribunal claims. Chloe Themistocleous, an associate at Eversheds Sutherland (International) LLP, knows from experience that unfortunately, tribunal claims are always a risk even for the best and most responsible employers. However, she advises there are some simple steps that can be taken to avoid claims being made and to minimise the risks if claims are made.

“In essence,” says Chloe, “it’s important to ensure that all employees have up to date contracts. Not only is it important to issue a contract of employment when an employee first starts work as failure to do so can result in a claim being made for compensation of two to four weeks wages, it is equally as important to check that the contracts are up to date.” Regular reviews should be undertaken to ensure the contracts the company has in place are accurate and give the protection the company needs.

Next, she says to have clear and accessible policies dealing with discipline, absence and grievances that managers must follow – “a company that fails to follow its own policy may find their defence to a claim in the tribunal fatally wounded.” She adds that it is advisable for policies not to be contractual, so that they can be changed without needing employee agreement first.

Employees, especially managers, need to be trained on recognising discrimination in the work place. This is because, as Chloe notes, damages for discrimination claims are uncapped and can be the costliest claims for employers – “it’s worth noting that discrimination claims can be made against not only the business but individual employees
as well.”

Also, Chloe advises that accurate records of all meetings and telephone calls with employees be kept. “In a large number of tribunal claims there are arguments about what was said and done and by whom. A case can be lost or won on documents and judges are swayed by documents especially if there is proof they were made at the time.”

If a claim arrives
Chloe says it is vital to act quickly on notification of a claim as employers only have 28 days to submit a response. “Missing this deadline can lead to judgment being entered against the employer automatically in favour of the claimant. Unless
there is a very good reason, it is very difficult for those judgments to be overturned.”

She adds that in many cases,the claim form will be accompanied by a list of cases management orders and a hearing date. Her advice is to diarise the key dates, as missing one could lead to the response being struck
out or the business being fined up to £1,000.

It is worthwhile considering who will attend the tribunal as a witness on behalf of the company as soon as possible. Chloe says to make sure they are free to attend the hearing and do not have any pre-booked holidays or medical appointments. It is also important to check the claim form was submitted in time – that it’s within three months from the date of dismissal or discriminatory act – taking into considering any additional time permitted due to the claimant participating in ACAS Early Conciliation. If the claim is out of time it may be possible to get the claim thrown out by the tribunal.

Lastly, Chloe says that “where consideration is being given to instructing solicitors to represent the employer in tribunal proceedings it is best to do so at the outset. Once a response is lodged it can be difficult to depart from points made.”

To conclude
It is usually a lot easier to address any issues at the time they occur rather than at a later stage. However, if in doubt, take advice at the time before committing to a course of action. Claims are expensive in both cost and management time to defend and employers need to be extra vigilant in their compliance with the law and in following any procedures should a claim be made.


 

Related Articles

  • Part ONE: Employers in the firing line  

    Before July 2013 individuals were free to bring Employment Tribunal claims. However, in July 2013 the government introduced Employment Tribunal fees for anyone wanting to make a claim or appeal a judgment.

    The fee to lodge a claim was £160 or £250 (dependent upon the nature of the claim) and the fee to pursue the matter to a final hearing was a further £230 or £950 (again dependent upon the nature of the claim). If employees won their claim, the tribunal judge could order the employer to pay any fees incurred.

    According to Chloe Themistocleous, an associate at Eversheds Sutherland (International) LLP, after the introduction of tribunal fees the number of claims being brought fell by 80%, but the ratio of claims being successful did not change and so the introduction of fees did little to deter spurious claims. “Clearly,” says Chloe, “some individuals were deterred from making claims due to the cost. Whilst a remission system was in place to help the poorest people, by reducing or waiving the fees, those who missed out on a remission had no choice but to pay the fees or not make a claim; many simply did not want to take the risk.”

    Supreme Court decision
    It appears that while claim numbers were dropping, unrest in trade unions was growing and so Unison decided to challenge the government’s implementation of the fee regime, claiming not only that it was unlawful but that it indirectly discriminated against women.

    Chloe says this was not by any means an easy task as both the High Court and Court of Appeal rejected the claim. “However, at the end of July 2017, the Supreme Court quashed the tribunal fee regime giving judgment that it was both unlawful and indirectly discriminatory.” Effectively the Supreme Court decided that the government acted outside its powers when it introduced fees at current levels, because the fees effectively prevent access to justice.

    What does this mean?
    The ruling means a number of things. Chloe explains: “As a result of the judgment no further fees can be charged by the Employment Tribunal until a replacement scheme is introduced.” This means new claims can now be brought for free again and no hearing fees will be charged claims already lodged.

    She adds that as for those who have already paid tribunal fees, the Ministry of Justice has undertaken to reimburse fees already paid.

    Of course, without the deterrent effect of fees, employers now face an increased risk of employment-related claims from current and former staff. Worryingly, Chloe says it is also possible that some individuals might now try to claim they should be permitted to bring out-of-time claims in respect of past alleged breaches of their rights, “arguing that the now found to be high and unlawful
    fees prevented them from bringing a claim.”

    When a replacement system will be debated and passed by parliament is unknown - it could be months or even longer. The Supreme Court ruling gives parliament a lot of ‘food for thought’, but so far, it is unclear
    what shape a replacement scheme would take.

    As Chloe sees it, while there is a window of opportunity to submit a claim without paying a fee, it is likely that employees will take it. “Claim numbers are expected to rise, but whether they will rise to the levels they were at prior to the introduction of tribunal fees is unknown. If they do, it is unlikely that the current tribunal system, with a reduced number of hearing centres, judges and clerks, could cope.”

    With time, if a new fees regime is introduced and once the media attention has died down, the number of claims will level, but, in the meantime, employers must watch and wait.



     

  • Part two: Powering down 

    With rising energy bills comes the need to invest time in seeking out the best deal. While finding a new energy provider isn’t a money-making exercise, it is something that will lower costs. It is something that can be done alone, but sometimes two heads are better than one.

    This is because unlike the domestic market, the business energy supply works in a way that makes a quick online comparison not so simple. While the domestic market is largely based on location, Chris Caffery, an advisor at Utility Options Ltd, an independent energy consultancy, says the commercial market uses a number of elements that determine the tariff cost: “There is a varied mix of wholesale rates, transportation costs, government taxes and levies and, of course, profit for the suppliers. Generators still rely heavily on coal, oil and gas, so actual or anticipated costs of these fuels can create large differences in retail prices.”

    Go compare?
    Going online to make a comparison isn’t easy. There are a great many more online comparison websites for domestic energy than there are for commercial suppliers. “One of the main reasons for this,” says Chris, “is that domestic tariffs set by suppliers have a longer ‘shelf life’ usually due to a slightly higher margin placed on domestic for this very reason.”

    Other factors are considered such as credit rating (because firms are effectively borrowing from the supplier), and the length of contract (a deal may be poorer at first but over time this improves as market prices rise). Using a broker or consultant doesn’t always guarantee price transparency though; it’s not easy to compare the price that’s being offered unless there’s a change in broker, particularly if the negotiations are happening a day or two before renewal. The advice? Don’t leave negotiations until just before the renewal is due as it doesn’t give an opportunity to shop around.

    As to what could be saved, Chris offers two examples: “We’ve been helping a large motor vehicle repair specialist in Kent that employs 25 staff. Last year alone we saved 21% for that customer which equated to around £2,800 in monetary terms.”

    The second example involves another Kentish firm, a medium sized garage in Ashford. “We consistently save them around 11% over and above their supplier’s renewal prices. This saving works out at around £600 per annum.”

    Chris says that using a consultant isn’t just about the rates that are negotiated. It’s about saving time and not to having to deal with suppliers – “sometimes the extra added services can far outweigh the visual savings on the utility bills.”

    Clearly, there are a number of lessons that can be drawn. Plan well in advance for benchmarking and renewing (switching) contracts. The energy companies would much prefer customers on standard tariffs, but with some planning and effort, decent savings can be made.

    Getting redress
    In the majority of instances the energy supply relationship works out well, but where there’s a suspicion of unfair treatment, and the relationship breaks down, there is a natural inclination ask about rights of redress.

    There are two avenues of complaint open to firms who think they have been unfairly treated. All suppliers have an in-house complaints process. But having exhausted that route, the next step is to try the Energy Ombudsman to have a complaint taken further. The ombudsman can only help microbusinesses (defined as having an annual consumption of electricity of not more than 100,000 kWh, or gas consumption of not more than 293,000 kWh; or fewer than 10 employees (or their full-time equivalent), and an annual turnover or annual balance sheet total not exceeding €2 million. Ofgem doesn’t get involved with individual complaints but it does have plenty of information on its website that may prove useful.

    It is worth noting that help with seeking redress is a service that most consultants and brokers provide to customers. They take up queries with suppliers and use their contacts and knowledge to obtain a swift solution.

  • Automechanika Birmingham 2018: 10,000 and counting 

    More than 10,000 people visited Automechanika Birmingham 2018, as the event looks forward to 2019 and beyond.

  • Tools to survive and thrive 

    My life as a business owner, trainer and technician is an interesting one. I was recently spending some time with a client after a course just shooting the breeze. You know the kind of thing, a cuppa, a cake and an hour just putting the world
    to rights.
        
    Part way through our conversation Matt proclaimed that I must be “living the dream!” This made me stop and think (something I’ve been told not to do by my wife) about how I am indeed very fortunate to have a career doing something I truly love.

    Wading through treacle
    Spending my days with like-minded business owners and technicians, helping them drive their careers and businesses forward. What’s not to like about that? Not much, but has my work life always been like skipping through meadow on a sunny day?
        
    Quite frankly… No! Don’t get me wrong –  I’m a glass half full sort of chap and regardless of the task ahead I’ll give it my best and persevere until success emerges. However, on many occasions in my diagnostic career it was just like wading through treacle, and therein lies my point. To get to a place where you’re ‘living the dream’ you need wellies! Show me a successful technician and I’ll show you someone who’s great at wading. They’ve just waded long enough to build a versatile skill set along
    the way.

    The recipe for success
    As with most things in life there are essential ingredients. With the right ingredients you’ll successfully avoid the diagnostic treacle swamp and swap this for a faster and more enjoyable repair experience.
        
    “What’s this recipe?” I hear you cry. It has six elements that when bought together produce truly remarkable results. They are;

  • THIS TIME NEXT YEAR? 

    The start and the end of a year enable us to ask where we have been, and where we are going. It’s an arbitrary cut-off, but it does provide some punctuation to the stream-of-consciousness that life in the sector can seem like.  

    2017 saw wave after wave of big issues battering the aftermarket, from ongoing concerns over diesel emissions, to the challenges represented by the connected car. All these issues were with us a year ago, and they are still with us now. Where should we be in 2019 though, and can we expect any progress on these topics?

    Clarity
    Commenting on the prospects for the year, Independent Automotive Aftermarket Federation (IAAF) chief executive Wendy Williamson saw cause for optimism: “After the seismic changes that were proposed for the industry in 2017, the IAAF remains cautiously optimistic for 2018. I for one would like to see us build on the progress we’ve started to make, in order to secure a brighter future for the aftermarket. The general consensus is, while there’s still a long way to go in many aspects, by the end of the year we shall see more clarity. Speaking of optimism, Wendy observed that some cold hard reality could be handy for those looking to see some technologies hit maturity far earlier than is likely: “I still believe that, whilst autonomous cars have received a huge amount of press coverage in 2017, they are still a long way off mass market appeal and I can’t see that changing dramatically in 2018. Whilst the vehicle technology has developed at a rapid rate over the last couple of years, the infrastructure required to support a network of autonomous vehicles is still some distance away.”

    That isn’t to say the future has been forever delayed: “However, all areas of the aftermarket do need to continue to invest for the future. Whilst this is currently evident in traditional vehicles, newer technologies such as hybrids and EVs still tend to be very much in the domain of the franchised network. With last year’s announcement by the government, that ‘pure’ diesel and petrol engine cars will be banned by 2040, the sector needs to keep pushing to ensure that the relevant parts and technical information are available, so that new vehicle technologies can be repaired by the independent aftermarket.

    “FIGIEFA’s call on the European Commission to swiftly implement the ‘interoperable in-vehicle telematics platform,’ following the conclusions of the TRL Report on ‘Access to in-vehicle data and resources’ were fervently applauded by the IAAF. We are hopeful now for swift progress to be made and that 2018 will move us closer to giving the independent aftermarket direct access to in-vehicle data.”

    “I’d also like to see more support for new technology and development, so it can reach the aftermarket more quickly,” said Wendy. “The introduction of hybrids and electric vehicles also presents opportunities as well as challenges for independent workshops to invest in the changing vehicle parc. The technology is already there for them to take advantage, but the progression and success of this shift depends heavily on the infrastructure in place. So while we’re on the subject of clarity, in 2018 I’d like to see a clearer strategy on who would pay for this.”

    Then there’s Brexit: “We need to establish a bit of sense in the UK/Europe relationship going forward, as we continue to fight the aftermarket’s corner on a number of post-Brexit threats affecting the trade.

    “One thing that won’t change, however, and will remain a constant, is IAAF’s continuation of playing a major role in championing the UK automotive aftermarket interests both in Europe and in the UK.”

    Top priority
    Common sense is clearly shared across the sector, as for Garage Equipment Association (GEA) chief executive, Dave Garratt the MOT is top priority: “I would also like to see the UK MOT brought up-to-date over the next year especially when it comes to headlamp beam testing. Today we are testing using old visual/manual headlamp beam setters in the MOT, which are great on halogen headlamps, but suffer when testing HID and LED systems. Vehicle manufacturers have been insisting that their main dealers use video camera based beam setters for many years and these lighting systems are very difficult if not impossible to
    set-up using an aiming screen.”

    On the subject of technology, Dave also said he hoped to see some progress on how we deal with connectivity: “It would be great to get some clarity on exactly how the independent aftermarket is going to remain competitive when dealing with the connected car. During 2017 the Automotive Aftermarket Liaison Group (AALG) lobbied the DfT and asked for their support in keeping an open platform on vehicles so independents can have the same access as a main dealer. With Brexit going-on, it’s difficult to focus the attention of the UK government to our concerns. However, the European Commission seems to be sympathetic in maintaining an open and fair aftermarket and our associations in Europe have gained ground when convincing them of this.

    Dave added: “Let’s hope that 2018 sees clear regulation on the connected car and that the UK adopts the same as Brexit moves closer.”

    Challenging
    “As we look ahead into 2018,” observed Institute of the Motor Industry (IMI) chief executive Steve  Nash, “It looks like it’ll be another fairly challenging year for the automotive industry from a sales perspective, although the sales successes of recent years should continue to carry through strongly into the aftersales area of the business.

    Emissions concerns loom large in Steve’s mind: “Despite the well-presented case from the SMMT on behalf of the industry, the government have so far done little to address the ambiguity in their policies surrounding Euro 6 diesel vehicles, including those that will have been subjected to the new and more stringent ‘real world’ emissions tests. Therefore the decline in diesel sales we have witnessed in 2017 is likely to continue unchecked in 2018. To compensate manufacturers will put all their efforts behind their petrol, EV and hybrid offers, with plenty of new EV and hybrid models due to hit the market next year.”

    Europe is less of a concern than ongoing investment in the sector: “Though Brexit’s deal-or-no-deal will continue to dominate the headlines as we move towards the EU deadline, I doubt the motoring sector will see any drastic changes to the way it currently operates as a consequence; certainly not in 2018. With the developments of new technology advancing at record pace, independent businesses across the sector will need to be considering how they can adapt, by investing in new technology and the necessary training that will allow them to safely service vehicles that have automated, electric and hybrid tech.”

    EVs and hybrids
    The real-world practicalities of working on EVs and hybrids is something that everyone needs to think about: “Following a busy period in 2017, the IMI has been campaigning for a Licence to Practise for technicians working on the high-voltage systems of electric and hybrid vehicles, as well as potentially on autonomous systems going forward. This campaign made great progress this year by gaining support from cross-party MPs, as well as government ministers. The IMI will be working alongside government to help shape the possible licencing scheme with the support of the sector. Without regulation and a minimum training standard, there are clear and significant safety risks for technicians who don’t have any form of training or aren’t properly equipped if they are coming into contact with the high voltage systems of electric and hybrid vehicles.”

    The skills shortage is likely to still be with us at the end of 2018. Considering the alternatives out there for young people, you have to wonder why sometimes: “Recruitment has been a well-documented struggle for many employers throughout 2017,” observed Steve. “The IMI published research that showed many young people wanted to avoid university debt, however they felt it was their only option after leaving school since they’d never received any form of effective careers advice to tell them otherwise. It’s essential that 2018 sees employers become proactive in raising the awareness of the excellent career opportunities available to young people. The advances in technology mean the industry has a real and genuine chance to sell itself as a high-tech sector, attracting talented young people that can bring new ideas and skills but who might not previously have considered automotive as a career choice.”

    Ending on a positive note, Terry Gibson, head of member services at the Independent Garage Association (IGA) said: “Despite the doom mongers out there, the IGA is certain that there has never been a better time to own an independent garage. The opportunities for the future are open to those who continue to invest in training, tools and technology. That’s not to say that 2018 won’t be hard. An increasingly complex technical and regulatory landscape means that the new opportunities will be matched by new and evolving challenges.“

    Not all changes to the MOT are bad, as Terry commented: “Changes to the MOT as a result of the EU Roadworthiness Directive 2014/45 which come into force on 20 May next year will bring lower emissions standards which will require an update to the Diesel Smoke Meter (DSM), as well as introducing the ‘categorisation of defects’. These changes are likely to feature in the DVSA’s syllabus for the 2018/19 Annual Training year starting on 1 April providing a very small window for testers to get to grips with new concepts.” Some challenges may seem daunting, but are not insurmountable: “Closely following the MOT changes, the General Data Protection Regulations (GDPR) come into full force on 25 May 2018 and all businesses will need to ensure that they are compliant. Whilst the new regulations do not fundamentally change the core principles of data protection and privacy, they do add some significant new responsibilities and requirements for anyone that collects, stores and uses customer data as well as new rights for individuals. This is a subject that garages cannot afford to ignore or treat lightly.”

    Then there’s technology: “The increasing proliferation of ‘demand aggregation’ websites – online booking platforms, garage comparison sites and all the other apparently tempting marketing propositions that simply serve to place a third party between a garage and its customers continue to confuse consumers and cost garages money. We must stand behind proper Chartered Trading Standards Institute (CTSI) approved consumer codes such as Trust My Garage which allows garage businesses demonstrate their quality and value directly to customers without the need for middle-men. As well as the issues created by the subjects above, the direct relationship between the vehicle manufacturer and the driver of the car created by the connected and extended vehicle is a game changer for the entire motor industry. The IGA will continue to fight for access to the vehicle and its data to ensure that independent garages can continues to provide the quality and service for which they are renowned.”

    Summing  up
    These are all vital topics that have the potential to change the landscape of the industry. Will we still be discussing some or all of these issues in early 2019? Only time will tell, but Aftermarket expects to keep the files on a few of these subjects open for some time to come…


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