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ACAS Early Conciliation period to be increased from six weeks to 12 weeks

Why has the EC period been extended?

According to the Explanatory Memorandum to the Regulations that implement the increase in the period for EC, the change has been made to: (a) enable the parties to resolve disputes without the cost and time of going to the Employment Tribunal; and (b) ease pressure on ACAS.

Will it make a difference?

While the longer EC period appears positive, it is unclear whether it will result in a higher rate of disputes being resolved before Employment Tribunal proceedings are commenced and/or if it will ease the pressure on ACAS. ACAS already has a significant backlog of cases, which is only likely to increase with the upcoming changes under the Employment Rights Bill. 

How will it impact employers?

As outlined, there may be increased potential to settle disputes and avoid going to the Employment Tribunal. However, the extension to the EC period means that employers may have a longer wait before it is confirmed if a claim has been issued against them. With the Employment Rights Bill proposing to extend the limitation period for bringing claims from three to six months, combined with an EC period of 12 weeks, there may be a nine-month period before claims reach the Employment Tribunal. Lengthening the process means that employers are likely to face a prolonged period of uncertainty and it increases the risk of issues with witnesses and evidence.

If you have any questions about this change or the Employment Tribunal process, please contact Hannah Meehan or your usual contact in our Employment team.

Employment Appeal Tribunal Limits Personal Liability for Decision-Makers in Whistleblowing Detriment Claims

The Employment Appeal Tribunal (EAT) recently handed down judgement in Henderson v GCRM Ltd, clarifying the extent of personal liability for decision-makers in whistleblowing detriment claims.  

Background

Under whistleblowing legislation, workers have the right not to be subjected to a detriment for making a protected disclosure (including the detriment of dismissal). Where a detriment is imposed on a worker by a colleague, the colleague can be held personally liable and the employer held vicariously liable for the detrimental treatment.

Additionally, under a separate provision, employees have the right not to be unfairly dismissed. An employee's dismissal will be considered automatically unfair if the 'sole or principal' reason for the dismissal is the employee's protected disclosure. Unlike detriment claims, only an employer can be held liable for an automatically unfair dismissal.

In Royal Mail Group Ltd v Jhuti, the Supreme Court held that an employer could be liable for the automatic unfair dismissal of a whistleblower where the decision-maker was unaware of the employee's protected disclosures, but, as in this case, the decision-maker was manipulated to dismiss by a more senior manager whose intention was to remove the employee as a result of their disclosures. In those circumstances, the tribunal should look behind the 'stated reason' for dismissal to identify the 'real reason' for the dismissal.

The central question in Henderson concerned whether the Jhuti principle should be extended to whistleblowing detriment claims so as to impose personal liability on innocent decision-makers.

Facts

Ms Henderson (the Claimant) was employed by GCRM Limited as an embryologist. Over a two-year period, the Claimant made several protected disclosures relating to staffing levels and procedural shortcomings within her department.

The Claimant's line manager (Line Manager) became increasingly frustrated by the Claimant's continued complaints and attempted to remove her from her position through a negotiated settlement. When the Claimant declined the settlement offer, the Line Manager initiated a disciplinary process based on alleged misconduct.

A HR manager conducted an investigation at the Line Manager's instruction, culminating in a disciplinary hearing chaired by a recently appointed manager (Dismissing Manager) who had no prior knowledge of the protected disclosures. Relying on the documentation prepared by the Line Manager and HR, the Dismissing Manager held that the Claimant had committed misconduct and dismissed her.

The Claimant brought a claim in the Employment Tribunal alleging that she had been subjected to detriment through her dismissal, by the Dismissing Manager. The Claimant also alleged that her employer was vicariously liable for the actions of the Dismissing Manager, under the relevant legislation.

First Instance

At first instance, the Tribunal held that the Jhuti principle should be extended to whistleblowing detriment claims. The Tribunal held that the Line Manager's improper motivations could be imputed to the innocent Dismissing Manager, making the Dismissing Manager personally liable (and the employer vicariously liable).

Appeal

On appeal, the EAT overturned the first instance decision. The EAT held that it could not have been the intention of Parliament to impose unlimited liability upon innocent individuals who have not personally been motivated by a proscribed reason. By extension, in the circumstances, the employer could also not be held vicariously liable.

Key Takeaways

This case provides reassurance for disciplinary decision-makers, confirming that they will not be held personally liable for whistleblowing detriment provided that they act in good faith. However, employers should be aware that they can still be held liable for unfair dismissal arising from a poor decision.

In order to limit whistleblowing claims, decision makers should be encouraged to question and scrutinise the evidence provided to them, and the process by which such evidence has been collated and by whom. Employers should also provide training to all staff to reinforce that any form of retaliation against an employee who raises concerns is prohibited.

For guidance on how to create an effective whistleblowing policy for your organisation, see our previous article here.

Should you wish to discuss any of the issues raised in this article, please do not hesitate to contact a member of the Employment team.

Q: We've just started a disciplinary investigation, and the employee accused of gross misconduct has admitted it. Do we need to continue with the investigation, or can we move straight to a hearing?

A: You should finish the investigation. Although it’s likely the investigation won’t take as long, it could unearth mitigating circumstances or simply cast doubt over the truthfulness of a confession (which whilst rare, does sometimes occur when pressure is being applied by a line manager, or sometimes to preserve the employment of a friend or family member).

Join us at the Michelmores Employment Law Conference on Tuesday 25 November. The Conference will provide an opportunity to keep on top of the latest employment law developments and explore some of the most complex issues affecting the workplace today.

We will focus on a wide range of issues:

Employment Rights Bill

A deep dive into the latest reforms, practical implications, and what they mean for your organisation.

An interactive Session & Case Studies

Focused on managing grievances in the workplace, with practical insights and real-world scenarios.

Employment Law Update – delivered by James Baker

James' annual foray into those developments that you may have missed over the past 12 months to include key case-law developments, and what lies ahead (other than the Employment Rights Bill!).

We do hope that you are able to join us.