Be aware of changes to employment law

Employers should be aware of changes to legislation on flexible working, employee disputes and discrimination, says Emilie Bennetts

The problem Key changes in employment legislation came into effect this year. So how will the changes to flexible working and employment disputes affect employers, and what practical steps should employers take to make sure they deal with these changes adequately?

The law
Flexible working
On 30 June the right to request flexible working was extended to all employees with 26 weeks' service. Previously, applications had to be made in order to care for a child or a dependent adult. The statutory procedure for dealing with such requests has been abolished, and employers now have a three month window from receipt of the written request to consider it.

Employers must now consider and deal with applications in a "reasonable manner". As previously, an employer can still refuse a request for one or more of the eight prescribed grounds set out in the legislation, or if the employee has already made a request in the previous 12 months.

Employment disputes
ACAS early conciliation (EC) is mandatory for all employment tribunal claims presented on or after 6 May 2014.

This means that for most types of employment dispute, a prospective claimant must first notify ACAS of their intention to bring a claim (by completing an EC form) to see whether it can be conciliated. Although there is no obligation for either party to conciliate, the claimant must contact ACAS and obtain an EC certificate before they can proceed to the tribunal. As previously, claims can still be conciliated after they have been lodged with the tribunal.

When a prospective claimant contacts ACAS, this stops the clock running for the purposes of time limits for bringing claims.

ACAS has one calendar month from the date of receipt of the claimant's completed EC form to promote a settlement between the parties. This can be extended by two weeks if the conciliation officer considers there is a reasonable prospect of settlement, provided the parties agree.

If settlement is not reached, the claimant has one month from when the EC certificate is issued by ACAS in which to submit their claim. This effectively gives claimants who submit their EC form towards the end of the three-month limitation period up to almost an extra three months in which to file their claim.

Discrimination questionnaires
The statutory discrimination questionnaire procedure has been abolished. While this may be a relief to employers, they can still be asked questions about discrimination in a more informal way.

While there is no longer a statutory obligation to answer these questions, a tribunal will look at whether (and how) an employer has answered questions about discrimination as a contributory factor in making its overall decision on a discrimination claim; ie it can draw an adverse inference from a refusal to respond
or an inadequate response. In addition, tribunals may also order an employer to provide such information, and individuals are free to ask for the same kind of information through the subject access request procedure under the data protection legislation.

ACAS has published good practice guidance on asking and responding to questions of discrimination and equal pay in the workplace.

Expert advice

• Consider any request to work flexibly carefully and in good time. If you are not able to agree to the request, tell the employee which of the eight prescribed grounds apply to the decision. Consider a trial period if you are not sure whether or not the request is sustainable.

• If you receive an EC enquiry from ACAS, consider what effect this will have on the time limits for the potential claimant to bring a claim.

• Do not ignore any questions about discrimination, in whatever format they are sent, such as in an email.

• On receipt of questions about discrimination, make sure that care is taken to provide as full answers as possible and that responses are sent promptly.

Beware Tribunals now have the power to order a losing employer to pay a financial penalty to the government in respect of claims presented on or after 6 April 2014 where it decides the employer's breach has one or more "aggravating features".

The "aggravating features" are not defined, although the government consultation referred to the employer's breach involving unreasonable behaviour (such as negligence or malice). The minimum penalty will be £100 and the maximum will be 50% of any financial award up to £5,000 per claimant.

However, if the employer pays 50% of the penalty within 21 days, it will not have to pay any further penalty.

Contact Emilie Bennetts is an associate with Charles Russell LLP (Emilie.Bennetts@charlesrussell.co.uk)