Aside from the protected conversation concept (see 25 November post below), what other nuggets lurk within the review of UK Employment Law announced by the Government last week?
This has been billed as “the most radical reform to the Employment Law system for decades”, but that is a patent overstatement when the details are examined. It is true that the proposals include some suggestions to make life easier for employers (but primarily cheaper for the Government), but they do not contain anything remotely comparable to the upheaval caused by the introduction of age discrimination in 2006 or the abolition of the default retirement age earlier this year.
The principal points are these:-
1 An increase in the unfair dismissal qualifying period from one year to two in April 2012. The transitional provisions are not yet known and it is also unclear whether the Government has done enough to prevent this two year requirement being challenged as constituting indirect sex discrimination (see post on 4 October).
2 The possible introduction of fees for Tribunal claimants, refundable if the claim succeeds and forfeited if it does not.
3 A fine of up to £5,000 for employers found to have breached employment rights. This is a tax pure and simple, with the money going to the Treasury and no pretence that the individual is compensated better as a result.
4 A number of purely administrative matters of little actual relevance to day-to-day HR practice. These include (i) a removal of the need to identify individually each possible claim being waived in a Compromise Agreement. This is what leads those Agreements at present to contain separate references to dozens of bits of legislation, the vast majority of no possible relevance to the situation at hand. (ii) The costs which may be awarded against a party behaving unreasonably are likely to be increased from £10,000 to £20,000. This is unlikely to make much difference to Tribunal claim numbers or the conduct of them, since surely any party mad, bad or unthinking enough to put £10,000 at risk by its conduct is not going to baulk at double that. (iii) In similar vein, the proposals allow for the possibility that Employment Judges could hear unfair dismissal cases by themselves, i.e. without the “lay jury” of the workers’ and bosses’ wing members. Obviously this would not affect the number of Claimants, but it might reduce both the cost to the Government of the Tribunal system and also some of the current Tribunal waiting lists.
Compulsory pre-claim mediation, meaning that claimants would be required to submit their complaints to ACAS Help Resolving Disputes – Acas first and be offered early conciliation. There is no detail as yet on whether a failure by either party to engage in that conciliation or its unreasonable refusal of an offer made in the course of that process could be held against that party in costs terms at a later point.
