Employment Law never stands still for long. The Government has published a Green Paper on reforming access to the Employment Tribunal system. ‘Resolving Workplace Disputes’ was published on the 27th January 2011. The consultation paper has been published as a response by the Government to criticism that is has become too easy for employees to make claims against employers and that the cost of fighting such claims has meant that employers, particularly small ones, are inhibited from taking on new staff.
The changes that are proposed are:-
1.The period for qualifying for the right not to be unfairly dismissed is to be increased from 1 to 2 years. This is simply reverting to the position prior to 1999 when the qualifying period was brought down to 12 months by the last Government. Historically this has been a see-saw ever since unfair dismissal was introduced by the Labour administration in the late 1960s. Every time a Conservative Government comes in they put the qualifying period up and every time a Labour Government comes to power they put it down again.
2.The Government proposes that there will be a fee for making an application. It is likely to be £500. This is designed both to inhibit frivolous claims and to help pay for the cost of the Tribunal service.
3.It is proposed that all claims will have to be submitted to ACAS prior to the Tribunal dealing with them. This is supposed to promote conciliation between the parties.
4.If employers lose a case, it is proposed that there will be automatic financial penalties if employers are found to have breached employment rights on top of the ordinary compensation already payable.
5.There are going to be increased powers for Employment Judges to make Costs Orders.
6.Witnesses will not be able to claim expenses when they attend Tribunals.
The last government introduced measures in 2003 to promote internal resolution of employment disputes by way of statutory procedures which encouraged the use of internal procedures prior to going to the Tribunal. All that succeeded in doing was to cause chaos in terms of procedure and for large numbers of claims before the Tribunals and Employment Appeal Tribunal. The whole mechanism was scrapped after only 3 years.
It is unfortunately the case that historically every attempt to simplify the Tribunal process tends to backfire and consequently one cannot avoid being sceptical of the proposed changes.
Even on the face of the Government’s own Consultation Paper it is clear that some of the changes are going to mean that claims are going to be more expensive both for employers and employees.
The recent headlines surrounding Sky Sports’ Andy Gray and Richard Keys have drawn attention to the issue of sex discrimination. Although theirs was not strictly an employment case (although both men lost their jobs) it highlights the fact that the kind of language and attitude that was relatively commonplace a few years ago is no longer acceptable and that society’s attitude to such boorish comments has now changed. Employers will need to be very careful indeed if they have employees who are likely to indulge in such sexist behaviour as an employer is often held liable for discriminatory behaviour by their employees.