Ninety-six. That is how many possible different claims an employee could have against his employer according to the recently-issued Department for Business Innovation & Skills Consultation document on Ending the Employment Relationship. Mind you, that includes such belters as the Fishing Vessels (Working Time: Sea Fishermen) Regulations 2004 and the ever popular European Public Limited Liability Company (Employee Involvement) (Great Britain) Regulations 2009.
The consultation document is designed to test reaction to two particular proposals, being the conversion of what are currently called compromise agreements into new settlement agreements, and (more usefully) the first sight of what is left of the protected conversations concept.
The list of 96 possible claims appears in the template settlement agreement. It is accompanied by draft guidance which recommends the deletion in use of claims which the employee could never bring. In case this is not clear enough to the reader, it suggests helpfully that for the former employee of a pet shop, the employer could probably safely dispense with any reference to the Merchant Shipping (Working Time: Inland Waterways) Regulations 2003. What’s that Sherlock? The consultation document also explains the change in name – the view is that parties were put off using compromise agreements because they did not want to be seen (by whom is unclear) to be compromising. How depressing is it as a prospect that such things could be thought relevant when trying to resolve a dispute?
The most interesting part of the consultation document is however the set of templates for starting without prejudice conversations without risk of their being used against the employer later if no agreement is reached. A similar form of letter (even down to the cut-and-pasted spelling errors) is proposed for such conversations triggered by poor performance or attendance, or by misconduct. The original proposal for something similar in relation to retirement has been abandoned as too hard to square with the age discrimination laws.
Each template indicates the problem in brief terms, suggests that the employer is thinking of dismissing subject to any representations the employee might make, and then contrasts the minimum payments which would be made in that event with a separate without prejudice offer subject to a settlement agreement. Easy! And also totally ineffective to achieve what the Government says employers want, i.e. a means to get shot of people without all the prior disciplinary process and confrontation.
After all, by the time the employer has got itself to the position of credibly being able to propose dismissal on any of those grounds, it must have gone through that process already. If it goes straight from a cold start to one of those letters then the offer will not be genuinely without prejudice since there is no existing dispute between the parties. As a result, it could be referred to by the employee in the Employment Tribunal. In addition, if the offer is refused then the dismissal will be unfair anyway since it will not have been preceded by any of the necessary counselling, warnings etc. So in fact you can only safely use those letters when you have already done all the leg-work necessary to get yourself into a position to dismiss. Call me ungrateful if you will, but I do not think that is what employers had in mind as a time-saving boon to regenerate British industry.
