partner feature
A watering down of rights? A
s many businesses will already be aware, in recent times the government has announced a series of measures following the review of employment
legislation with a general aim of ensuring a fair, effective and flexible labour market. The government argues that employment
legislation may be precluding employers from engaging new recruits and, therefore, hindering the recovery and growth of the UK’s economy. While it is not the position of lawyers to
comment on the evidence put forward to support these contentions, we are in no doubt that our employer clients will welcome any changes that make it more difficult for employees to present claims to the Employment Tribunal. From April 6, 2012, employees will now need
to have two years’ continuous service (‘qualifying period’) to bring claims of unfair dismissal. This reverses the changes implemented in 1999 when the two-year qualifying period was reduced from two years to one year by the government. Employers should note that employees may
still bring claims for unlawful dismissal on the grounds of pregnancy, asserting a statutory right and/or raising health and safety concerns, regardless of their length of service. The Ministry of Justice will consult on the
introduction of a fee for lodging a tribunal claim, and a further fee for taking the claim to a hearing. It will be compulsory for all claims to be
lodged through ACAS for an attempt at pre-claim conciliation before a claim can be lodged with the Employment Tribunal. Obviously, the full details of how this might work, and whether there are penalties for refusing to enter into mediation, still needs to be announced. A call for a possible consultation on reducing
the minimum period for collective redundancy consultation (when 20 or more employees are to be made redundant within a period of 90 days or less) to 60, 45 or even 30 days. If an employer proposes to make more than 100 employees redundant, there must be a minimum consultation period of 90 days. We think it unlikely that this will result in any short term changes to the legislation, reflecting that the UK legislation in this respect reflects mandatory EU legislation. The category of cases in which an
employment judge can sit alone without lay members will be increased to include unfair dismissal. Currently the judge can sit alone in, for example, unauthorised deductions, holiday pay and redundancy pay cases. A welcome change for employers in the care
sector, whereby CRB checks will be transferable from job to job, removing the need for a fresh application with each job. Changes to the “whistleblowing” aspects
of the Employment Rights Act 1996, to limit scope for employees to assert claims that their employers are treating them badly and yet still being able to present a claim under the whistleblowing protection legislation. Clearly, in light of the above it is going to
be more difficult for claims to progress to an Employment Tribunal and this may mean an overall reduction of claims. However, the flip side of the Government proposals is that the Government is announcing that the Employment Tribunals may have the power to fine employers for bad employment practices. These fines will be a payment to the Exchequer and will be in addition to any compensation awarded to Employment Tribunals. As a result, employers will need to be more alive to compliance with employment legislation than ever before. Dan Wilde is a Partner and the Head of
Employment Department at HardingEvans Solicitors. If you have any questions about this article or Employment Law enquiries in general please contact Dan on 01633 760662 or email
wilded@hevans.com.
10 THEbusiness QUARTER
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