Employment Advice (ACAS, Unfair Dismissal and Discrimination)
In what is virtually a world’s first for a Law Firm, we have just conducted our very first LIVE video streaming with Periscope.
By nature we have an inquisitive market that doesn’t always easily understand the law and some of the technical jargon that is used, which is why our very own Head of Employment (Ian Abel) took to Periscope after asking our social media audience what they wanted us to talk about and clarify.
Andrew Scaife, our Marketing Manager commented “It’s clear that engaging with our market and explaining complex legal concepts is a challenge that all law firms face, video in its many forms will form part of our strategy going forward.”
Out of this first session a couple of similar questions were raised, so we answered questions on the role of ACAS, Unfair Dismissal and an overview of the law on Discrimination.
Our broadcast can be found below as can a transcript of it.
Good afternoon everyone and welcome to the first Michael Lewin Solicitors Periscope podcast, I’m Ian Abel, head of employment here at Michael Lewin Solicitors, I head up the Employment team, acting for both employees and employers in defending employment rights.
We decided that we would try the new medium of Periscope and through social media we collected some standard queries from clients and people who have questions about employment law and we collated the three most popular topics just for a few minutes for me to talk about – and we’ll look to do this weekly/bi-weekly depending on how popular it becomes, so the first of the three topics was ACAS early conciliation.
This is a relatively new process which only started voluntarily in April 2014, mandatory in May 2014. What you must do is register with ACAS within three months of the date of your dismissal, if you fail to do that, you will not be able to pursue an Employment Tribunal claim against them, once you have completed the form and registered with ACAS, an ACAS conciliator will be in touch to take details of the case and they will then have 28 days to see if a conclusion can be reached between yourself and your former employer.
If a settlement, financial or perhaps even getting your job back is agreed ACAS will then facilitate that. If the 28 days is close to expiry and it does look like a deal can be sorted between the parties – as long as both parties agree – ACAS do have the power to further extend that period by up to 14 days.
If conciliation can’t be reached ACAS will then distribute a certificate and it is that certificate that is required in order to submit a Tribunal claim, there is a reference number that goes on the ET1 claim form from the ET certificate.
The whole principle behind the ACAS early conciliation is that it stops the clock, so if you register a claim that 28 or indeed 14 day extended period stops the limitation period for you submitting a claim. There are incredibly complicated ways to work out when your limitation date is; I as well as many other employment lawyers will tell you that they are very complicated to do so I shall explain the easiest way to describe it. Once you have received the certificate, you will always have at least one month from the date of the certificate in order to submit your claim – that’s the easiest way that I can put that.
One other point that to be aware of which can be a sneaky tactic used by employers is that if the employer starts the early negotiation process then the 28 day period that stops the clock doesn’t apply, so unscrupulous employers can be a bit clever there and if you receive a request as an employee from ACAS please bear that in mind.
The second topic we are going to discuss briefly is a very major one in employment law – and is Unfair Dismissal – probably the most brought claim in employment law. The law changed again as it does frequently in employment law in April 2012 when the length of service required to have protection from unfair dismissal increased from one year to two years, so that effectively means that you are on probation for the first two years of your employment and your employer can dismiss you for any of the five fair reasons whilst you have under two years’ service, and you have no claim whatsoever.
There are as always with law certain exceptions to this rule, I can talk for hours on the exceptions alone so I don’t plan to do that but the major exceptions are as follows: if you make a whistleblowing disclosure, so if you explain to your company that you believe that they are breaking the law in some way, they are in breach of Health and Safety and as a result of those reports you’re dismissed you can potentially have an unfair dismissal claim with less than two years’ service, if you are dismissed for any discriminatory reason (we will come onto discrimination as our third topic shortly) that also would be a reason and the third other major reason you do not need two years’ service for is if you are dismissed for any involvement in certain trade union activities.
Moving onto the third and final element of the podcast which is Discrimination. Now this is an incredibly large topic and any employment lawyer will tell you, you even get some lawyers that will specialise in this topic alone so I’m going to give you a very brief rundown, so please don’t expect this to be overly detailed.
There are huge misconceptions in the difference between “discrimination” in real-life and Discrimination, the legal definition. Under the legal definition, Discrimination requires the person to have one of nine protected characteristics, those characteristics are Age, Disability, Gender Reassignment, Marriage and Civil Partnership, Pregnancy and Maternity, Race, Religion or Belief, Sex or Sexual Orientation.
There are different types of discrimination that then flow as a result of these protected characteristics, and again I’m going to give you a very brief overview of the major ones.
The first and most common type is called Direct Discrimination – this is where someone is treated differently as a direct result of a protected characteristic. An example where would be that you were treated totally differently by your boss because of any particular reason because of your race.
The second and less common type of discrimination is called Indirect Discrimination, this is where the person is treated differently dependant on a provision criterion or practice. Now this is very fancy legal jargon and in reality means a policy or way that you’ve been treated. The easiest way to perhaps describe this was the very famous case against British Airways where a lady claimed Indirect Discrimination because she was not allowed to wear a cross on a piece of jewellery she was wearing, BA has a policy that said ‘no jewellery could be worn’, she was able to claim that it was Indirectly Discriminatory to her Christian beliefs and was successful as was very well publicised.
Another type of discrimination that is a fairly new type – only coming in since the Equality Act is Associative Discrimination, now this is where discrimination is happening to somebody who is associated with a person with a protected characteristic. The easiest example to perhaps illustrate this would be if a parent had a disabled son, and was then treated differently in work because of the needs of the disabled son, that could potentially be Associated Discrimination.
The final type of discrimination I’m going to talk about falls under the heading of discrimination, is not strictly discrimination in itself is Harassment. And again it’s another word that’s used a lot and we get many phone calls from people saying “I’ve been harassed”, when perhaps they haven’t been under the legal definition. The legal definition again requires the protected characteristic (back to one of those previous nine), and the legal definition says that Harassment is where a person engages in unwanted conduct related to a protected characteristic which violates the persons dignity or creates an intimidating, hostile, degrading or offensive environment. So again, when someone says “I am being Harassed”, unless they can bring that back to their Age, their Race, their Religion etc., they are not going to have an Harassment claim under the Equality Act; however it should just be mentioned for completeness they may have a claim under the Protection from Harassment Act which is an entirely different topic which I’m not going to touch on.
That is the end of all of our comments now hopefully that will finish the podcast, we hope that you’ve enjoyed this, and we look forward to doing another one in the future.