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Legal Network Television Interview Fiona Martin On Employment Law Changes

Fiona Martin

Fiona Martin

As regular readers of my blog posts will know, this month has seen a raft of new and proposed changes to the world of employment law. My stance on these changes is straightforward; for the most part they will limit an employee’s access to fair treatment and justice and some of the proposals will cause unnecessary confusion for employers.

In light of these controversial changes to employment law I was asked by Legal Network Television, the media department of the College of Law, to take part in a training video for employment lawyers to help explain these new developments and the implications for both businesses and their employees. As I am always keen to get back on my “soapbox”, I was delighted to accept.

The personal views of myself, and other solicitors, are being filmed to assist practising solicitors, generally between four and 11 years qualified, on the impact of the changes to employment law across a number of areas. The presenter, Kirsty Wilkins, asked me what I thought about the implications on a number of recent and proposed changes such as:

  • The charging of fees for claimants (employees) using Tribunal services
  • The opposition to the reforms from unions and advice providers
  • The proposals to introduce financial penalties for employers who breach an individuals rights
  • The decision to allow judges to sit alone in unfair dismissal cases, rather than benefiting from the advice of wing members
  • The proposals to increase the maximum levels of deposit orders and costs awards
  • And, most significantly, the doubling of the unfair dismissal qualifying period to two years

I am totally opposed to this change which was introduced on 6 April 2012. This only applies to those employees who commenced employment on or after 6 April 2012, so we will have employees in the same workforce with different rights because there will be a period when people reach one year and get protection working with people who thereafter reach one year and won’t. The coalition government’s reasoning for this change is “to give greater confidence to employers in recruiting new employees, without undermining workers’ sense of job security”.

However, I consider one year, the previous qualifying period, to be more than enough time for an employer to judge an employee’s competence. The repercussion for employers is that aggrieved employees who have been unfairly dismissed are likely to look at bringing claims for alternative causes of actions such as whistleblowing or discrimination, which do not require a qualifying period. Also, employees are likely to feel aggrieved at being able to be dismissed unfairly for the first two years of employment, leading to less incentive for employees to move employer in such difficult economic times and an undermining of good employment relations between employer and employee. The only benefit that I have encountered so far is where an employer client wanted to offer temporary contracts and was able to offer an initial temporary contract every year, with the knowledge that this could be extended to up to two years, minus the notice pay, without having concerns about justifying a dismissal other than it being due to the end of the fixed contract term.

The charging of fees for bringing a claim and for the Tribunal Hearing, due to be introduced from 2013, also concerns many employment lawyers. This change will inevitably lead to a situation where people with genuine claims may not be able to afford to continue with their claim, simply because they lack the means to pay the new Tribunal fees. No fee is payable by the employer.

As we already have a costs regime which deals with the vexatious and unreasonable claimant, it is clear that the introduction of Tribunal fees is just the latest proposal in a long line of cost-cutting measures put forward by the coalition government. This goes against the aim of the tribunal service which is to provide “an easily accessible, speedy, informal and inexpensive procedure for the settlement of… disputes…” (Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004). They are also meant to ensure that the parties are on an equal footing.

In my opinion, the government’s aims to reduce regulatory burden on business, and at the same time cut the cost of running tribunals, is going to have an adverse effect on both employers and employees for some of the reasons above. In my previous post I explained I am taking part in a consultation working party for the Employment Lawyers Association where we will examine the government proposals to introduce compensated no-fault dismissals for micro-employers.

I greatly appreciated the opportunity to have my say in the College of Law’s training film. Everyone on the production team was extremely supportive in helping me find my best angle!

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