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New Year – New Employment Laws (Part 2)

Fiona Martin

Fiona Martin

(Read the first part of New Year – New Employment Laws here.)

We have now heard that the coalition government’s plans to increase the service requirement for bringing an unfair dismissal case will only apply to employees who start a new job on or after 6 April 2012. We will have to see if this has an impact on employees staying in their old job rather then taking a risk and moving on as they have to work two years before they have the right to not be unfairly dismissed!

In addition, the government’s long-awaited consultation on tribunal fees, Charging Fees in Employment Tribunals and the Employment Appeal Tribunal was finally published on 14 December 2011.

The consultation sought views on two very different fee charging structures which might be adopted for charging fees in the employment tribunal:

  • Option 1 proposed a lodging fee and a hearing fee, the amount of which would depend on two factors. Firstly the nature of the claim, and secondly, whether it was an individual claim or a multiple claim. For example, in an individual unfair dismissal claim, the claimant would have to pay a lodging fee of £200 and a hearing fee of £1,000.
  • Option 2 proposed a lodging fee alone, the amount of which will depend on what the employee or worker states their claim to be worth: an individual unfair dismissal worth less than £30,000 would cost £500 to lodge, whilst one worth more than £30,000 would cost £1,750.

Both options propose a range of lodging fees dependent on the type of case with a fee waiver scheme for those who cannot afford the fees.

I believe this is an unfair way of trying to keep down the number of new claims lodged in the Tribunal each year whilst also ensuring that the Tribunal system pays for itself. It is unfair because fees will act as a barrier to employees obtaining justice at a time when they may have lost their job and main source of income.

This goes against the overriding objective of the tribunal system which is to put the parties on an equal footing. There is no suggestion that respondents will have to pay a fee to defend a claim. This will add to the current inequality of representation as employees often cannot afford representation.

We also oppose fees for claims worth more than £30,000. Most claims are based on loss of earnings and the value will only be apparent when the claimant finds another job or shortly before their case is due to be heard. The reason given for introducing fees was to stop the vexatious litigant. We believe this can be dealt with by way of the existing regime whereby vexatious litigants are ordered to pay costs. Introducing fees will discourage all claimants, not just the vexatious ones.

But that isn’t the only change on the cards with regards to employees’ rights in the workplace. The Government is also planning a consultation on the introduction of ‘protected conversation’ for employers with more than 10 employees.

Under the proposals, employers will be able to hold conversations with under-performing colleagues, but those conversations will be inadmissible in Employment Tribunal proceedings.

The purpose of the proposals is that employers can tackle issues directly with employees in the knowledge that the content of these discussions cannot be used by the employee to form the basis for an Employment Tribunal claim.

However, lawyers regularly spend days in Tribunal arguing about who is or is not an employee. The magic number of 10 employees is likely to lead to an increase in arguments about who is or is not an employee to ensure the employee can bring a claim based on the contents of a ‘protected conversation’.

Surely all employees should have the right to bring an unfair dismissal claim, not just those who do not work in micro businesses.

Of all the forthcoming and proposed changes in employment law, for me the most surprising development has been the Government’s review of the Acas disciplinary and grievance procedures with a view to simplifying them. For many of us who saw out the previous statutory regime, the consensus has been that the Acas code is a lot more practical and seems to be working well. Indeed, the lack of case law would seem to indicate both employers and employees are negotiating their way around these procedures very nicely, thank you, without the need for the Government to intervene.

So, if the Government really wants to help employers to thrive and boost the floundering economy it should provide greater financial support, not tinker with employment law which may have far reaching unintended consequences, particularly for SMEs. Tinkering with what is already a complex and ever changing area of the law is not the answer to the economic woes of this country. Maintaining fair standards which promote strong employment relations will be much more helpful in a growing and stronger economy.

About the author

Fiona Martin

fiona-martin

I lead the employment teams in our solicitors’ offices in Brighton, Eastbourne, Shoreham, Gatwick & Crawley and Croydon. As founding Director, I am also responsible for the firm’s marketing. I provide expert opinion for the press, disseminate employment law round-ups through my employment law blog and campaign on important issues such as maternity and disability discrimination. I train employers and HR professionals to be best practice managers and I am also a CEDR accredited mediator.

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