This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 2nd edition of The Voluntary Sector Legal Handbook by Sandy Adirondack and James Sinclair Taylor (Directory of Social Change, 2001). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £50 for voluntary organisations or £80 for others, plus 10% p&p. We expect the third edition to be published in 2007.

The information here covers the law applicable to England and Wales. It may not apply in Northern Ireland and/or Scotland. These news items are not a full or definitive statement of the law and are not intended as a substitute for professional legal advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be taken by the author.

Chapter 33
EMPLOYMENT CLAIMS AND SETTLEMENT

ACAS MEDIATION SCHEME

Updated 22/12/05. This information updates s.33.1.2 in The Voluntary Sector Legal Handbook 2nd edition.
ACAS's mediation scheme provides confidential advice to employers and employees to resolve employment law related problems.

The help available from ACAS advisors includes visiting an employer to advise on the range of actions available to deal with a particular problem and the possible legal consequences; mediating between employees with a dispute by getting them to talk to each other on ways they can work together; investigating a problem and, with the agreement of the employer and employees, making recommendations on how to deal with the problem; or providing an independent person to hear an employee's appeal against dismissal or disciplinary action where there is no other suitable person in the organisation to do so. Where the employee has already made an employment tribunal claim or could do so, ACAS mediation is free; in other cases a charge is made.

Further information is available at www.acas.org.uk/index.aspx?articleid=1011.

"WITHOUT PREJUDICE" PRIVILEGE

Added 21/7/07. This information adds to s.33.2 and updates s.61.4.1.4 in The Voluntary Sector Legal Handbook 2nd edition. It is reprinted from the Russell-Cooke Solicitors employment update 27/6/07. To sign up for Russell-Cooke updates go to www.russell-cooke.co.uk/serv_c&o_charities.htm.

Communications between parties that are made in a genuine attempt to settle a dispute will generally be "without prejudice". This means that the communications will not be admissible as evidence in litigation between the parties. The policy behind this is to encourage parties to settle disputes. However, this has to be balanced against a party's right to put its case as best it can if litigation commences.

In a recent Court of Appeal case, the court considered when communications attract the "without prejudice" cloak and how close these communications have to be to the commencement of any such litigation.

In this case, the parties had a dispute over the terms of employment and discussions took place regarding the terms and what they understood to be the terms between March and October 2005. In October, the employer informed the employee that it intended to dismiss him at the end of the year but the parties continued with discussions with the intention of seeking to resolve the matter. The discussions broke down, and on 13 December the employee threatened legal proceedings if matters were not resolved swiftly. On 20 December the employee was given notice that his employment would terminate on 31 December 2005.

The Court of Appeal held that the critical factor was whether, in the course of negotiations, the parties contemplated or might reasonably have contemplated litigation if they could not achieve a settlement. Therefore, it was the subject matter of the dispute, rather than how long before the commencement of litigation, that was the important factor, and whether the discussions were a genuine attempt to settle a dispute. In this case the discussions that took place between October [when the employer had made clear it intended to dismiss] and December 2005 had been "without prejudice" and where therefore privileged, and could not be used as evidence.

Framlington Group Ltd & Axa Framlington Group Ltd v Barnetson is at www.bailii.org/ew/cases/EWCA/Civ/2007/502.html.

COMPROMISE AGREEMENTS MUST BE SPECIFIC

Added 13/8/05. This information updates s.33.2.2 in The Voluntary Sector Legal Handbook 2nd edition.
Under a compromise agreement, an employee agrees not to pursue a claim arising from the employer's breach of anti-discrimination or employment legislation, including dismissal. Very strict rules apply to such agreements, including that they must refer to the particular claim or claims, and cannot simply apply to all possible complaints.

In Hinton v University of East London, Hinton entered into a compromise agreement covering "all claims", with a list of various types of claim. This list did not include s.47B of the Employment Relations Act 1996 (the whistleblowing provisions). He subsequently brought a claim against UEL for breach of s.47B. An employment tribunal in May 2004 said that Hinton could bring his claim, because s.47B was not mentioned in the list in the compromise agreement and such claims were therefore not covered by the agreement. UEL appealed, and the employment appeal tribunal in October 2004 agreed with UEL's view that Hinton could not bring this claim, because the compromise agreement stated that it covered all claims, and the list was illustrative rather than exhaustive.

Hinton then appealed and the Court of Appeal overturned the EAT decision on 6 May 2005. It ruled that a compromise agreement must specify the particular statutory claim being compromised, and should include a brief factual and legal description of the matters being compromised. A general catch-all wording does not create a valid compromise agreement.

For the Court of Appeal decision see www.bailii.org/ew/cases/EWCA/Civ/2005/532.html.

Note that different rules apply to COT3 compromise agreements reached through ACAS. Provided these are worded correctly, all claims can be compromised.

CHANGES IN EMPLOYMENT TRIBUNAL PROCEDURES

Updated 24/10/05. This information updates s.33.3 in The Voluntary Sector Legal Handbook 2nd edition.
From 1 October 2005 new online and hard copy versions of employment tribunal ET1 claim forms and ET3 response forms are mandatory. The new forms are part of significant procedural changes for employment tribunals and the employment appeal tribunal. Details and the forms are on the websites at www.employmenttribunals.gov.uk and www.employmentappeals.gov.uk, or by ringing 08457 959775.

ACAS, legal firm Capital Law and Channel Television have produced a DVD to guide employers and individuals through the new process. It includes advice on whether they should be going to tribunal, and if they do decide to go ahead, comprehensive guidance on how to prepare and what to expect when they get there. The DVD costs £44.22 including p&p from www.acas.org.uk or 08702 429090.

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